OBSERVATIONS, CIVIL AND CANONICAL, &c.

ACcording to the preſent practice of our eccleſiaſtical courts, in caſes of matrimo⯑nial infidelity, if the party accuſed prove that the accuſer hath alſo committed adul⯑tery,^* ſuch proof is held a compenſation for the crime of the accuſed, and the accu⯑ſer fails of courſe in the ſuit. But, this is contrary to the practice of the civil and canon law in other proteſtant countries, and as it ſtood immediately after the Reformation in England. A divorce for adultery was [2] then granted a vinculo matrimonii, from the bonds of matrimony; and it was the opi⯑nion of the church of England, at the commencement of the reign of Queen Eli⯑zabeth, that, after a divorce for adultery, the parties might marry again. It is true that the deſpotic tribunal, the ſtar-chamber, whoſe very name is odious to the ears of a free-born Engliſhman, did reverſe this opinion. That arbitrary and high-flown prelate, arch-biſhop Bancroft, with the con⯑ſent of the clergy, got it there determined that adultery was only a cauſe of divorce, a menſa et thoro, from bed and board.

But, what was this leſs than acting againſt the ſpirit, reverſing the very principles, of the Reformation; and recurring back again to the uſages and practices of popery? It is indeed remarkable that Engliſhmen talk ſome⯑times as ignorantly of their religious as of their civil liberty, in extravagantly boaſting the effects of the Reformation.

[3]Had indeed the reformatio legum, projected in the reign of Henry the Eighth, been car⯑ried into execution, by any of his ſucceſſors, a more compleat reform would have taken place in England; as it did in Holland, and other proteſtant countries. But as it is, the Reformation hath but imperfectly en⯑tered into the conſtitution of the church of England, and the inſtitutes of our eccleſi⯑aſtical law: there having been few, if any, ſtatutes ſince made reſpecting popery, in which the ſaving of the eccleſiaſtical juriſdiction is not eſpecially provided for. It is indeed ex⯑preſſly mentioned, in moſt of them, that no⯑thing therein ſhall take away, or abridge, the authority or juriſdiction of eccleſiaſtical cenſures; but that the archbiſhops, biſhops, and other eccleſiaſtical judges, may proceed as before ſuch laws were enacted. What is this but carefully raking up the embers, and moſt ſuperſtitiouſly preſerving the idolatrous relicts, of popery?

The above practice is plainly the effect of the advantage, which the prelate and prieſts [4] above-mentioned took, of the failure of the intended reformation of the church-laws, to eſtabliſh in the ſtar-chamber a doctrine diame⯑trically oppoſite to the opinion of the learned and pious fathers of the Reformation. Mar⯑tin Bucer, in the tract he addreſſed to Edward the Sixth on this ſubject, employs a whole chapter ^* to prove from the beſt authorities as well of the primitive fathers, as of the doctrines of the Chriſtian church, that a ma⯑nifeſt adultreſs ought to be divorced, and cannot lawfully be retained in marriage by a chriſtian.

If law, ſays that celebrated caſuiſt, Milton, ‘aim at the firm eſtabliſh⯑ment and preſervation of matrimonal faith, we know that cannot thrive under violent means, but is the more violated. It is not when two, unfortunately met, are by the canon forced to draw in that yoke, an unmerciful day's work of ſorrow, till death unharneſs 'em, that then the law keeps [5] marriage moſt unviolated and unbroken: but when the law takes order that marriage be accountant and reſponſible to perform that ſociety, whether it be religious, civil, or corporal, which may be conſcionably re⯑quired and claimed therein, or elſe to be diſſolved, if it cannot be undergone; this is to make marriage moſt indiſſoluble, by ma⯑king it a juſt and equal dealer, a performer of thoſe due helps which inſtituted the co⯑venant; it being otherwiſe a moſt unjuſt con⯑tract, and no more to be maintained under tuition of the law, than the vileſt fraud, or cheat, or theft that may be committed. The law can to no rational purpoſe for⯑bid divorce; it can only take care that the conditions of divorce be not injurious.’

For this, as a real ſtate of the caſe, he ap⯑peals to the learned Selden's tract on the law of nature and nations; a work, ſays he, ‘more uſeful and more worthy to be peruſed by whoſoever ſtudies to be a great man in wiſdom, equity, and juſtice, than all thoſe decretals and ſumleſs ſums, which the [6] pontifical clerks have doted on, ever ſince that unfortunate mother famouſly ſinned thrice, and died impenitent of her bringing into the world thoſe two miſbegotten in⯑fants, and forever infants, Lombard and Gra⯑tian; him the compiler of canon iniquity, t'other the Tubal Cain of ſcholaſtick ſophiſ⯑try, whoſe over-ſpreading barbariſm hath not only infuſed their own baſtardy upon the fruitfulleſt part of humane learning, but ob⯑ſcured the clear light of nature and of na⯑tions, by their calumnious dunceries!’

Now, if theſe authorities, ſtrengthened by thoſe of the moſt rigid divines and moraliſts among the firſt reformers, ſuch as Wickliff, Luther, Melancton, Eraſmus, and a long train of divines, civilians and canoniſts, down to Grotius himſelf; I ſay, if theſe autho⯑rities will juſtify the ſetting aſide that of Juſtinian and the popiſh decretals, in favour of Valentinian and Theodoſius, ſupported by almoſt all the primitive fathers; the mo⯑dern practice, of refuſing a divorce in caſes of adultery, muſt be allowed to be a bar⯑barous [7] and oppreſſive inſtance of the remains of prieſtcraft and popery; the conſequence of an imperfect reformation.^*

This argument may be carried ſtill far⯑ther, and the practice of admitting the plea of recrimination and of refuſing a complete divorce a vinculo, even in caſes of adul⯑tery, be proved totally inconſiſtent with the ſpirit and practice of the common and ſtatute law; by which the canon law ſhould be con⯑trouled.^†

[8]The ſtar-chamber whoſe deciſions, as I have obſerved, our eccleſiaſtical courts now follow in this particular, determined indeed that a man, divorced from his wife for in⯑continency on her part, ſhould not marry again; ſetting aſide, in the famous caſe of Foliambe, the ſecond marriage of a man ſo circumſtanced; which it declared void. But how does this practice agree with the com⯑mon and ſtatute law? By the ſtatute 1 J. c. 11. Any perſon guilty of polygamy, or marrying a ſecond wife while the firſt be living, is deemed guilty of felony. In the ſame act, however, it is provided, among other proviſos, that it ſhall not extend to any perſon, [9] who ſhall be at the time of ſuch marriage divorced by any ſentence in the eccleſiaſtical court. Now the commentators, on this pro⯑viſo, all agree that the divorce therein inti⯑mated, cannot mean the divorce a vinculo ma⯑trimonii; for then, without the aid of any proviſo, either party may freely marry; but it muſt be intended of divorces merely a men⯑ſa et thoro.

It is hence plain that the ſtatute law, by excepting perſons marrying under ſuch a pre⯑dicament from the penalty inflicted on po⯑lygamy, tacitly admits of ſuch marriages; which is plainly incompatible with the ſtar⯑chamber deciſion above mentioned. To this may be added, that in moſt caſes the com⯑mon and ſtatute laws of England conſider marriage, as Blackſtone has it, only as a civil contract or union.

Indeed the facility, with which acts of parli⯑ament are obtained for divorces on the cen⯑ſures of the eccleſiaſtical court, is a plain [10] proof of the ſenſe of the legiſlature reſpecting their propriety; although it muſt be owned that the formality of obtaining ſuch acts of parliament on theſe occaſions. is a reſtraint upon the ſubject; which gives countenance to the difficulties, the canoniſts throw in the way of perſons ſuing out a divorce in the ſpiritual court. Theſe acts of parlia⯑ment indeed put one in mind of the papal diſpenſations, that were granted with like facility, as ſalvos for the rigorous canons of the council of Trent, which prohibited di⯑vorce on any occaſion whatever.

It is ſenſibly enough obſerved, by an anoymous writer, who ſeems nevertheleſs but little acquainted with the practice of the canon law in England, that, ‘according to the ſpirit of the canon law (by ſome called a diſgraceful veſtige of monkiſh barba⯑riſm and popiſh tyranny) marriage is ſtill held ſo religiouſly ſacramental as to be indiſſoluble, even for incontinence. The wedded pair muſt ſtill, as Milton ſays, ſpite of antipathy, fadge together.’ But [11] "this, to the ſcandal of our laws," continues the writer ‘is not the caſe in any other proteſtant country. And yet, as if we were going to turn Romaniſts, and devolve again into a ſtate of ignorance and bar⯑barity, we have lately ſeen the papal de⯑ciſions, reſpecting the marriage of adul⯑terers, and the impedimentum criminis of the ſchools, receive the ſanction of a Britiſh act of parliament. But, for heaven's ſake, why not give a political toleration to a perſonal attachment, when the ties are diſſolved which rendered it criminal! It is abſurd to ſuppoſe that ſuch an interdic⯑tion will operate to the prevention of adultery; or that a ſolicitude about fu⯑ture rights of marriage will affect their pre⯑ſent violation.’

An Engliſhman and a proteſtant muſt be far from wiſhing to ſee any more exam⯑ples of this kind. So far indeed muſt a con⯑ſcientious man, tenacious of civil and reli⯑gious liberty, be from applauding theſe par⯑liamentary conceſſions in favour of popery, [12] that he could rather wiſh to ſee a legiſlative reviſion of them, and a fair inveſtigation of the point; whether the legal abolition by ſtatute of that arbitrary tribunal, the ſtar⯑chamber, did not virtually annul both the precedents and practice of that court, as well reſpecting eccleſiaſtical as civil matters: in which caſe the matter of divorce would ſtand as it did juſt after the Reformation, and agree⯑able to the opinion of the church of Eng⯑land, in the beginning of the reign of Eliza⯑beth.^*

[13]But to confine myſelf to the caſe of matri⯑mony, I ſhall enter into an inveſtigation of the nature of the crime commonly called adultery, and inquire how far the modern practice of our ſpiritual courts, in granting or refuſing divorces under pretence of that crime, is conformable to the canons of the Chriſtian church and the laws of England.

There is hardly a word in our language of more vague and indeterminate import, than that of adultery. Our moſt accurate lexi⯑cographers have but ill explained it, as a word; nor have our lawyers defined it, as a technical term, with better ſucceſs.

Adultery, ſays the late learned editor of Bailey, "is properly the ſin of incontinency in married perſons defiling the marriage⯑bed; it is adultery, if but one of them be married, in the married perſon, fornication in the unmarried."^†

[14]Adultery, ſays Chambers, adulterium (in ancient law-books called advowtry) "is a crime committed by married perſons againſt the faith pledged to each other in marriage, by having carnal commerce with ſome other; or even by a perſon not married by having to do with another that is."

It is very plain that theſe lexicographers, by making uſe of the word perſon and one in the epicene gender, have given but a very imperfect definition of the term. The firſt ſays that, ‘if one of the parties concerned be [15] married and the other not, it is adultery in the married perſon, and fornication only in the perſon unmarried.’ But this differs with the ſex of the party; for, though an unmarried woman, lie with whom ſhe will, be not an adultreſs, yet an unmarried man, lying with a married woman, is univerſally allowed to be an adulterer.

Again, the latter ſays, ‘an unmarried perſon, having carnal commerce with ano⯑ther that is married, is guilty of adultery.’ But this holds good only when the unmar⯑ried perſon is the male; for, to reverſe the above propoſition, though an unmarried man lying with a married woman be allowedly an adulterer; an unmarried woman, lie with whom ſhe will, is never ſtigmatized as an adultreſs. A married woman only can be an adultreſs. The commiſſion of the crime of adultery abſolutely requires, that the fe⯑male party ſhould be a wife. And hence it is evident, that as a ſingle woman lying with a married man is no adultereſs, ſo a married man lying with a ſingle woman is [16] no adulterer. There is no wife criminally concerned in the caſe.

Our lawyers, as I obſerved, are as palpa⯑bly defective in their definitions as the lexico⯑graphers. Wood, in his Civil Inſtitute, gives us the following definition and illuſtration; for which he refers to the digeſt of Juſti⯑nian. ‘Adultery (adulterium, quaſi ad al⯑terius thorum, or ad alteram ire ^*) is a car⯑nal knowledge of another man's wife. So that a wife only can be guilty of adultery; and a married man, that lies with a ſingle woman, is not guilty of that crime. His guilt is only ſtuprum, becauſe in him there is no danger of a confuſion in families; no baſtardy to inherit or rob the legitimate children.’ ^†

What ſtrange inaccuracy! ‘Adultery is the carnal knowlege of another man's wife, [17] ſo that a wife only can be guilty of adul⯑tery!’ How can a wife only, or how can ſhe even at all, have carnal knowledge of another man's wife? This blunder, however, the author obviates, by his ſubſequent explana⯑tion; ſhewing that he meant to ſay, that no woman but a wife can be guilty of adultery; and that no man is guilty of it, who does not lie with another man's wife.

From getting rid of this blunder, our learn⯑ed lawyer proceeds nevertheleſs to fall into ano⯑ther. "By the divine law," ſays he, ‘adultery is every violation of the conjugal rites and marriage-bed, committed either by the man or woman. LEV. 20.10. And ſo it is by the canons, 32.4. C. Nemo. &c.’ Let us turn, now, to the text to which we are re⯑ferred. ‘And the man that committeth adul⯑tery with another man's wife, even he that committeth adultery with his neigh⯑bour's wife, the adulterer and adultereſs ſhall be put to death.’

[18]What do we find here, that ſhews the divine or canon law to be different from the civil? It expreſſly ſpeaks of the crime of lying with another man's wife. Why then is it ſuggeſted that any other violation of the con⯑jugal rites, is adultery?

It is certainly a breach of the conjugal rites and of the faith pledged in marriage, if the huſband turn away his wife without juſt cauſe; refuſing to love, to cheriſh and to hold her, for better for worſe, in ſickneſs and in health, as he promiſes. But this he may do, without violating the marriage-bed; with⯑out being guilty of adultery, or even for⯑nication. On the other hand, he may be guilty of fornication, without any violation of conjugal rites, or breach of his matrimo⯑nial vow; as I ſhall preſently ſhew.

But here it muſt be underſtood, that I ſpeak only of perſons married to each other, according to the rites, and ceremonies, of the church of England; and not of perſons of the Romiſh religion, or other perſuaſions. At the ſame time we are to take with us, that [19] the canons of the church, by which the eccle⯑ſiaſtical courts are in theſe caſes governed, are no farther binding in thoſe courts, nor can ſuch canons lawfully influence their de⯑ciſions farther, than they are ſupported by the divine law, as it is laid down in the holy ſcriptures. It is here alſo to be obſerved, that though the courts-chriſtian are governed by the canons of the church, which are founded on ſcripture, the ſcriptures do not, as the canoniſts affect to believe,^* contain ſufficient rules to decide all controverſies relative to matters agitated in thoſe courts.

The ſpiritual courts, in this proteſtant coun⯑try, are to judge by the canons of the chriſtian [20] church, as adopted at the Reformation by the laws and the church of England; not by the canons of the church of Rome; which the former can legally retain only ſo far as thoſe ca⯑nons are conſiſtent with the holy ſcriptures.

Taking things in this light, the whole practice of the ſpiritual courts, in refuſing a divorce a vinculo, in caſes of adultery, is ille⯑gal, antichriſtian and oppreſſive, Nor is this any novel doctrine, calculated for the preſent purpoſe; Adultery was held a ſufficient cauſe for divorce a vinculo, in the times of Henry VIII. Edward VI. and in the begin⯑ning of the reign of Elizabeth. In the de⯑bates of the houſe of lords, on the celebrated caſe of Lord Roſs, Biſhop Cozens proved, beyond a doubt, on the beſt authorities of the ſcriptures, the primitive fathers and councils, that adultery works a diſſolution of marriage [21] between chriſtians. His words are remark⯑able. "The firſt inſtitution of marriage that the parties may be one fleſh, is by adul⯑tery diſſolved; when the adultereſs makes herſelf one fleſh with another man, and thereby diſſolves the firſt bond of her mar⯑riage."

To this purpoſe the learned biſhop quotes, among other reſpectable authorities, the argument of Ameſius: which concludes thus. "By adultery the very eſſence of the contract is directly violated; now the contract ceaſing, the bond depending on the contract ceaſes of courſe. It is againſt all reaſon that the matrimonial duties ſhould be for ever taken away, yet the bond or obliga⯑tion to thoſe duties ſhould continue."

Serjeant Wright, in his pleadings before the commons in the duke of Norfolk's caſe, caſt a very bold and juſt reflection on this practice of the ſpiritual court. "There is an exception to the general councils and ca⯑nons, [22] in the refuſal of a divorce a vinculo, in caſes of adultery; Mr. Speaker, I ſay it is an eccleſiaſtical conſtitution which is contrary to the law of God."

By what law then, are our eccleſiaſtical courts in England governed? By the canons of the church? What church? the church of Rome, or the church of England? It can⯑not be the latter; for, to uſe the words of the learned biſhop above mentioned, "I know not why they ſhould be called the church of England, that join with the council of Trent, and plead ſo much to uphold it rather than others, who join with all the reformed churches, and plead againſt that canon of the church of Rome; which hath laid an Anthema upon us, if we do not agree with them."

I ſhall not trouble the reader therefore with inſignificant authorities from the popiſh ca⯑nons. With proteſtants of the church of England, marriage is not a ſacrament: it is [23] merely a civil contract; ^* the terms of which are preſcribed in the ritual; which is confirm⯑ed by act of parliament; and, though the meaning of theſe terms is to be explained in a ſcriptural ſenſe; yet that ſenſe is to be de⯑termined by the divine law, as laid down in the ſcriptures; and not by the canon laws, derived from popiſh councils or papal de⯑crees.

Before I proceed, however, to conſider the terms of the matrimonial contract, as entered into by the members of the church of England, I ſhall endeavour to elucidate a point, which ſeems to have perplexed ſome of our ableſt civilians, reſpecting the nature and puniſhment of adultery.

[24]Having explained, what is meant by the crime of adultery; the author of Wood's inſti⯑tute proceeds to enumerate the ſeveral puniſh⯑ments, that have been inflicted on ſuch crimi⯑nals in different ages and countries. He ob⯑ſerves that, by the conſtitution of Conſtantine, it was puniſhed with death; agreeable to the Levitical law; and for a good reaſon, con⯑tinues he, ‘becauſe it might include the worſt kind of robbery, that of depriving innocent children of their lawful inheri⯑tance.’

‘But it is not made death, in the wife, by the novels of Juſtinian. She only undergoes a ſcourging and the loſs of her dower; and if afterwards ſhe is confined to a monaſtery, the huſband hath liberty to receive his wife at any time within two years: but by that law it is death in the huſband.’ ^*

On the apparent incompatibility of mild⯑neſs and ſeverity contained in this law, [25] our modern inſtitutor has the following remark:

But, granting this effect of female influence on the auther of the Novels; fickle as he was in the light of a lawgiver, he could never be ſo favourable to the fair ſex and cruel to his own, as to puniſh incontinence in the one with death, and to excuſe the other with only the loſs of dower and a ſcourging; eſpecially if we conſider that the civil con⯑ſequences of the one and the other are ſo very diſproportionate.^*

[26]But, though Wood could not comprehend the reaſon why the huſband was puniſhed with death, when the wife eſcaped with ſcourging, it is plain from this very circum⯑ſtance, that by adultery in the huſband was not meant mere fornication, or the ſimple act of incontinency. It was the crime of lying with another man's wife; a crime much more heinous in a married man, who had a wife of his own to go to, than in a ſingle man, who had none; the crime of the mar⯑ried man being, what our lawyers call dou⯑ble adultery; and therefore, it is no wonder it was ſeverely and ſignally puniſhed.

At the ſame time, we may learn, from the Code, that adultery, even in a huſband, was not thus ſeverely puniſhed, unleſs it was committed knowingly and wilfully.

It Is hence extremely clear, that the car⯑nal commerce of a married man with a wo⯑man, whom he does not know, or has not reaſon to believe, is married; is not adul⯑tery in the man; whether the woman be married or ſingle: while, on the contrary, a married woman is guilty of adultery, by carnal commerce with any man but her huſ⯑band; becauſe ſhe cannot be inconſcious of her own marriage, and therefore muſt know that ſhe is both principal and accomplice, in the lying with another man's wife; which is of the very eſſence, as the ſchoolmen ſay, of adultery.

This diſtinction between adultery and ſim⯑ple fornication is perfectly conformable to the ancient canons of the chriſtian church, and the judgment of the ableſt ſcholiaſts; [29] before they were ſuperſeded by the modern innovations of popery. Thus Theodore Bal⯑ſamon, in his Scholium on the 48th Apoſto⯑lic canon, ſays that, if a married man has to do with a ſingle woman, he does not com⯑mit adultery, but only fornication; but, if he lies with a married woman he is an adul⯑terer. Whereas, if a married woman has the carnal knowledge of any man whatever, except her huſband, ſhe commits adultery.^*

The ſame doctrine is laid down alſo in the canons of St. Baſil, and appears to be uni⯑verſally received by the primitive fathers of the ancient Greek and Latin churches.

Nor was this doctrine merely preceptive; it was confirmed by diſcipline: for the huſ⯑band [30] was permitted, nay enjoined, to put away his wife for adultery; but the woman was expreſſedly forbid to leave, or put away, her huſband for fornication, or even adul⯑tery.

In the ninth canon of St. Baſil, it is de⯑clared, on the authority alſo of Hieremias, that ‘if a married woman goes aſtray with a man, ſhe ſhall not be returned to her huſband; but remain in her pollution. For to live with an adultereſs is ab⯑ſurd and impious.’ ^* At the ſame time the ſame canon declares, and is ſtrenuouſly ſeconded by the ſcholiaſts, that a married woman cannot lawfully leave, or put away, her huſband, though he be a fornicator and even an adulterer.^†

[31]I have already mentioned that Martin Bucer, in his famous treatiſe on divorce, ad⯑dreſſed to Edward the Sixth, devotes a whole chapter to prove it unlawful for a chriſtian to cohabit with a known adultreſs. Not having his book, I cannot cite any of his arguments; but muſt content myſelf with the authority of Milton, for his having fully proved his point. Not that I need rely on it. The Moſaic law expreſſly commanded the huſband to put away his wife on juſt cauſe of diſlike; and certain it is that not [32] only the primitive fathers were of this opinion; but the chriſtian neceſſity, of a man's caſting off a known, and even a ſuſpected ^* adultreſs, was declared by ſeveral of the earlier councils; it was indeed enjoined pro ſalute animae, on pain of ſpiritual cenſure and corporal penance, particularly by the councils of Eliberis, Neo⯑caeſarea and Nants. The firſt decreed the huſband excommunicate, who kept his wife knowing her to be adultreſs; and the laſt condemned him to a ſeven years penance.

Into what a dilemma therefore were chriſ⯑tian huſbands reduced by the popiſh council [33] of Trent; which decreed the marriage bond indiſſoluble on any account whatever? They could neither lawfully get rid of the adul⯑treſs, nor live lawfully with her.

This doctrine, of the indiſſolubility of marriage, was a moſt excellent expedient for the church of Rome. By opening a channel for the trade of diſpenſations, it added not a little both to her wealth and power. But, as we have no ſuch diſpenſations, in the church of England, the proteſtant huſbands in this kingdom are in a worſe ſituation than the huſbands of other chriſtian countries; while our ſpiritual courts remain ſo inexorably attached in this particular to the popiſh ca⯑nons.

The whole body of the legiſlature alone can relieve Engliſh huſbands; but the mode of relief, by act of parliament, is much more difficult and expenſive than that of the papal diſpenſations. Add to this, that the legiſlature ſeldom interferes in theſe caſes, till after the [34] parties have obtained a divorce, or paſſed at leaſt under the coſtly ceremonies of attempt⯑ing it, in the eccleſiaſtical courts.

There are indeed ſome inſtances on record in which the parliament has taken up ſuch caſes originally; as in that of the duke of Norfolk before mentioned. In this caſe a divorce a vinculo was granted by parliament, without any previous proceedings in the ſpiritual courts. It is true the counſel, in behalf of the dutcheſs, ^* laboured extremely hard, to convince the lower houſe of the propriety of referring the cauſe to the eccleſia⯑ſtical courts. But their pleas were only thoſe of precedent; tending only to prove that thoſe courts had on all occaſions delayed, protract⯑ed, and as much as in them lay, prevented the obtaining of divorces both in and out of par⯑liament.

[35]The arguments of Sir Thomas Powys and Dr. Pinfold in particular, evidently betrayed that the craft was thought to be in danger. They had nothing material to urge againſt the divorce, but much againſt its paſſing in parliament without the previous ſanction of the ſpiritual court. "What is it," ſaid Sir Thomas, ‘that guards you from an infinite application of this nature but requiring per⯑ſons to take the ordinary courſe firſt, and to come round about to the parliament, as the laſt remedy, to carry the ſentence per⯑haps farther than the eccleſiaſtical court can do; but if perſons can come up directly hither, I am apt to think your lobby will be crowded with petitioners of this nature the next ſeſſions: though the ſeſſions now are long and frequent, this ſingle buſineſs may be ſo great as to obſtruct all other bu⯑ſineſs; I am ſure a committee for adultery would have full employment.—I know nothing can be ſaid on the other ſide with good reaſon (unleſs that which I heard in another place) why they ſhould not go to [36] the eccleſiaſtical court, which is that thoſe courts cannot divorce a vinculo matrimonii therefore it would have been a vain thing; this may be a good reaſon for them to come to you afterwards, but 'tis no reaſon for them to come here at firſt.’

In confirmation of this argument, Dr. Pin⯑fold confirmed the aſſertion as to the practice, and endeavoured to juſtify it, as being agree⯑able to our eccleſiaſtical conſtitution, ground⯑ed on the ſenſe of the ancient canons.^‡

To this plea Serjeant Wright very perti⯑nently replied. ‘Mr. Speaker I am of coun⯑ſel for the duke of Norfolk, who is your ſuppliant for this bill, for redreſs againſt the higheſt injury that can be offered: the rights of his marriage-bed have been in⯑vaded, and he comes for that relief here, [37] which no other court can afford him; for the learned doctor, on the other ſide, tells you plainly from the canon law, that there can be no divorce a vinculo matrimonii in their courts; now to ſend us to a court for relief, that they tell us before hand can give us none, is in effect to tell us we ſhall have none at all.’

The parliament ſeemed ſenſible of the pro⯑priety of this reflection, and gave the duke relief without ſending him to the ſpiritual court. They acted in the ſame manner in the caſe of the earl of Macclesfield, in whoſe favour an act was paſſed, before ſentence of di⯑vorce obtained in the eccleſiaſtical court.

Theſe, with ſeveral other caſes of a ſimi⯑lar nature, ſufficiently ſhew that the practice of the courts-chriſtian; in reſpect to divorce, has long been repugnant to the wiſdom and juſtice of the legiſlature.

This will appear ſtill farther on a retroſpect to the caſe of the Marquis of Northampton, in [38] the reign of Edward the Sixth. ‘The marquis was married to a daughter of the earl of Eſſex, and ſhe eloped from him, and was proſecuted in the eccleſiaſtical courts, and there was ſentence againſt her of di⯑vorce; the marquis from thence took upon him to marry a daughter of the lord Cob⯑ham, and after four years marriage of her he obtained an act of parliament to ratiſy the ſecond marriage, which act recites a ſettlement of divorce in the eccleſiaſtical court.’ But, though the act does recite the proceedings in the ſpiritual court, it is plain the marquis married again in open defi⯑ance of their canons. It is plain alſo that the legiſlature approved of ſuch marriage as be⯑ing conformable to the laws of God, however incompatible with thoſe of the church.^§ The divorce alſo was not made any plea for paſſing the bill; ſo that the act was expreſſly granted, [39] to deliver the marquis from the inquiſitorial tyranny of the ſpiritual court.

In the before mentioned caſe, alſo, of Lord Roſs, afterwards Earl of Rutland, we are told that, notwithſtanding he had obtained a di⯑vorce in the ſpiritual court, no mention is made of it in the act.

It is hence evident the legiſlature very juſtly conceives that adultery does really diſ⯑ſolve the marriage, and therefore it permits the parties divorced to marry again; though it leaves them abſurdly open to the miſcon⯑ſtructions of the canons, and the mercileſs fangs of an eccleſiaſtical cenſor.

Is it not ſtrange, therefore, that it ſhould ſtill continue to countenance ſuch practice, eſpecially as it is evidently inconſiſtent with the ſenſe and ſpirit of the common and ſtatute law of the realm?

I have already hinted that the ſtatute againſt polygamy excepts the party who is divorced, [40] though but from bed and board, by the ſpi⯑ritual court: by which it is evident the le⯑giſlature conſidered the ſecond marriage of ſuch party not only conformable to the law of God, but alſo conformable to the common law of England. Quod non prohibetur, per⯑mittitur.

The ſuggeſtion therefore is not true, which is laid down by modern practitioners, viz. that ‘by the canon law, which is approved and confirmed by the laws of this realm in this behalf, it is not lawful for perſons who are divorced in theſe caſes to betake them⯑ſelves to a ſecond marriage, whilſt their former huſband or wife is alive; becauſe the matrimonial bond once perfected, can⯑not be diſſolved by man, but only by death.’ ^†

Now I again affirm, and that on the beſt authorities,^‡ that the exceptive clauſe above⯑mentioned [41] in the ſtatute of 1 J. c. 11. does in fact permit perſons, under the predica⯑ment here ſtated, to marry again; ſo that this practice of the canon law is not, as it ought to be and is pretended, approved and confirmed by the laws of this realm.

It is true that the ſpiritual court may take notice of ſuch marriages and annul them; but nothing is more clear than that the ex⯑ceptive clauſe in the ſtatute proves ſuch prac⯑tice to be inconſiſtent with the common and ſtatute law of the realm; by which the deciſions of the canon law ought con⯑feſſedly in England to be controuled; nay, are expreſſly, tho' not practically, controuled; for by two acts of parliament made in the 25th of Henry the VIII. and the 3d and 4th of Edward the VI. it is declared that no canons ſhall be allowed, that be any way repugnant to the laws of God, or the ſcripture, the king's prerogative royal, and the ſtatutes of the land.

[42]As a farther confirmation of the ſenſe of the laws in this particular, the ſtatue law impoſes a moſt heavy fine on huſbands, who ſhall be reconciled to their wives, and con⯑ſent to receive them again after elopement or cohabitation with an adulterer; by re⯑ſtoring ſuch wives to their right of dower, which they had forfeited by their adultery. And yet, not withſtanding this, an injured Engliſh huſband is under the neceſſity, from the modern practice of the ſpiritual courts, either to live a life of celibacy, deprived of the ſweets of matrimonial ſociety, and a help meet for him, according to God's holy or⯑dinance; or he muſt take back and continue to cheriſh an adultereſs in his boſom, at the peril of reſtoring her forfeited rights of ali⯑mony and dower, and of bearing himſelf the ſevere reproaches of an enlightened con⯑ſcience, and the juſt contempt of the world! Do the popiſh inquiſitions of Spain, Italy or Portugal, impoſe a heavier, yoke on the minds and bodies of men than this; which is laid on them by the proteſtant ſpiritual courts in England? Aſſuredly not!

[43]But, granting it expedient that the di⯑vorce a vinculo, unleſs for cauſes exiſting be⯑fore marriage, ſhould be ſubjected to the wiſ⯑dom of parliament; the practice of refuſing the divorce a menſa et thoro to a huſband, in caſe of his wife's adultery, on her plea of recrimination, is in the higheſt degree injurious, illegal and inquiſitorial: it is con⯑trary not only to the apoſtolic and, other ca⯑nons of the chriſtian church, but alſo to the common and ſtatute laws of this kingdom.

It is laid down, in the practice of the ec⯑cleſiaſtical courts, as before mentioned, that ‘a compenſation of the crime, doth hinder a divorce, that is, if the defendant, doth prove, that the plaintiff hath alſo committed adultery, the defendant is to be abſolved, as to the matters requeſted in the libel of the plaintiff.’ ^*

Agreeable to this maxim Dr. Pinfold, in behalf of the dutcheſs of Norfolk, pleaded [44] that, according to the text law de divortiis, if the adultreſs ‘can prove the ſame thing againſt her huſband, the fault of the one muſt be ſet againſt the fault of the other, and he can't have the advantage of his prayer.’ But what is the preciſe meaning of all this? Prove the ſame thing! what thing? Adultery! or merely carnal copula⯑tion? Here is a ſtrange want of diſcrimina⯑tion. If one fault be to be ſet againſt, or make compenſation for, another; they ſhould both be proved exactly ſimilar, or acts of equal criminality. The mere act of copulation, ſup⯑poſing it criminal, is no more adultery, than the accidentally-killing a man would be mur⯑der. It is the circumſtances of the parties, and intention of the perſon committing the act, that conſtitute and diſtinguiſh the crime. Hence, Serjeant Wright very properly replied, ‘the doctor hath inſiſted on one thing, which I think is very extraordinary. He tells you, by the rules of their law, if the woman can recriminate, and prove her huſband guilty, [45] in ſuch a caſe, they muſt ſet the fault of one againſt the fault of the other.—I wiſh the doctor could have told you the offence had been equal, that the injury to families had been equal: A man by his folly of this kind brings no ſpurious iſſue to inherit the lands of his wife; but a woman de⯑prives her huſband of any legitimate iſſue; for when ſhe converſes in this manner with another man, the iſſue may be equally look'd upon to be that man's, if not more.’

To this pertinent plea no ſufficient anſwer could be given. Sir Thomas Powys indeed en⯑deavoured to divert the force of it, by aggra⯑vating the ſtate of the caſe, and making the idle ſuppoſition, that the debauching a man's wife, with the getting a baſtard to inherit his eſtate, is a leſs evil than the caſual contagion of the venereal diſeaſe. ‘They ridicule’ ſays he ‘the doctor's notion of recrimination: But I apprehend the doctor is right in it: for it would be hard if a man ſhould marry a young woman and give her [46] an ill example in his own family, (I do not ſay 'tis ſo in this caſe^*) and bring her ac⯑quainted with looſe and ill company, and by his example or provocation lead her into the ſame offence, would that man deſerve to be rewarded with a new wife, and another por⯑tion, becauſe his firſt wife had only follow⯑ed his example? They ſay, the offence is not equal, becauſe the man brings no chil⯑dren into the family. I doubt it happens oftentimes to them that go abroad, that they bring home that to their wives, which ſticks longer by them than their children.’

Who does not ſee through the fallacy, or rather inanity, of this reply? Should a fooliſh huſband, indeed, ſet his wife an ill example in his own family, and bring her acquainted with his miſtreſſes, as here ſuppoſed, he cer⯑tainly would deſerve his fate; and the huſ⯑band's [47] crime might well be adjudged a com⯑penſation for that of the wife. But when is this the caſe? Hardly ever.^* Admitting, ne⯑vertheleſs, that, in all ſuch caſes, the plea of female recrimination were juſtifiable I have already made it ſufficiently clear, that the mere carnal knowledge of a woman by a married man (if ſuch woman be not, or be not by him known or believed to be, married) is not, ac⯑cording to the canons of the chriſtian church,^† to be denominated or adjudged adultery. So [48] that a married woman, accuſed of adultery by her huſband, muſt alledge farther than, that ſuch huſband has had carnal knowledge of looſe women; otherwiſe ſhe offers not the adequate compenſation required, even by the profeſſed rules of the court.

I have indeed gone farther, and ſhewn that, if ſhe could even prove adultery in him (that is, his wilfully and knowingly lying with another man's wife) that alone would not, ac⯑cording to the apoſtolic and primitive canons, be a ſufficient ground for her leaving him. Not but that the primitive church did in ſome caſes, admit of a woman's leaving or put⯑ting away her huſband, on good grounds of divorce.

Of theſe the moſt applicable to modern manners and pertinent to the preſent pur⯑poſe, are the three following. 1ſt. When the huſband, by laying a trap for her, aſſiſts or connives at her ſeduction, and counte⯑nances her proſtitution to another man. 2d. [49] When, having accuſed her of adultery he cannot make good his accuſation by ſuffi⯑cent proof.^* 3d, When he holds carnal commerce with another woman in his own houſe or neighbourhood; and, being admo⯑niſhed by the wife or her relations, ſtill per⯑ſiſts in ſuch practice.^†

[50]We ſee here that the ancient canons very juſtly diſtinguiſhed between the ſimple act of ſecret fornication; which was regarded in a venial light, and the open commiſſion of ſuch act in the preſence, or with the know⯑ledge of the wife: and, for a very good reaſon, becauſe, though ſuch act in the huſ⯑band, abſtractedly conſidered and unknown to the wife, was judged a matter of indif⯑ference, the keeping a ſtrumpet in his own houſe, or under her noſe, as the vulgar em⯑phatically expreſs it, was juſtly held to be an inſufferable inſult; which might poſſibly provoke her to revenge it, by being on her part guilty of adultery; which is a moſt heinous and abominable crime. Hence mere fornication in the huſband, ſo circumſtanced became a reaſonable cauſe of divorce, to be pleaded by the wife.

But to return to later principles and prac⯑tice.

It is certain that the modern and deſultory uſe of the word adultery, gives a kind of [51] ſanction to the practice of the ſpiritual court, in miſtaking for it mere fornication: but courts of juſtice ſhould abide by the preciſe and technical, not the looſe and popular, meaning of words. If their ſentence be di⯑rected by the canons, their proceedings in hearing the cauſe ſhould be directed by the canons too. I ſay, therefore, that, if a wife, againſt whom a ſuit is inſtituted for a divorce, ſhould recriminate; the fulleſt proof ſhe can bring againſt her huſband of ſtuprum or forni⯑cation, will not be ſuch a compenſation of her crime, as ſhould prevent his obtaining his ſuit.

With regard to recrimination in general, it may not alſo be improper to obſerve, that, being uſually the effect of revenge, it has for that reaſon been regularly prohibited in ancient practice.

Now, taking ſimple fornication for adul⯑tery, or even admitting real adultery proved againſt the huſband, it will hardly be pre⯑tended that adultery is a greater crime in the huſband than the wife. Nay, it will hardly be pretended that it is not a leſs. With what kind of propriety then can a ſpiritual court admit the female plea of recrimination, ac⯑cording to the modern practice?

[53]But farther, to deprive the advocates for this practice, even of a ſhadow of argument in its favour, I ſhall proceed to conſider the ma⯑trimonial vow or contract, entered into by perſons married according to the rites and ceremonies of the church of England; not merely as a civil, but alſo as a moral cove⯑nant. And, even in the latter light, it will appear that the huſband, in being guilty of concubinage or mere fornication, is not guil⯑ty of any breach of ſuch matrimonial cove⯑nant; for which he is juſtly liable to cen⯑ſure either in foro conſcientiae or court-chriſ⯑tian; although the wife, in being guilty of adultery, is liable to the cenſure of both.

To determine whether a covenant or con⯑tract is broken, it is firſt neceſſary to en⯑quire fully into the ſenſe and meaning of the terms of it. For, as Cicero obſerves, ‘Quae à ratione ſuſcipitur de aliqua, re inſti⯑tutio, debet à definitione proficiſci, ut in⯑telligatur quid ſit id de quo diſputetur.’ ^*

[54]The troth plighted in marriage is expreſſed, on the part of the man, in the following words: ‘I. N. take thee N. to my wedded wife, to have and to hold from this day forward for better for worſe, for richer for poorer, in ſickneſs and in health, to love and to cheriſh, till death do us part, according to God's holy ordinance; and thereto I plight thee my troth.’

On the part of the woman, the engage⯑ment is mutatis mutandis, expreſſed in the ſame words, except that the words and to obey, are added after the word cheriſh. In theſe few words, of the moſt important con⯑cern however, lies the difference between the matrimonial contract on the one part and the other, on the ſide of the man and that of the woman.

For, by obedience is univerſally known and underſtood, the acting in conformity to the known will of the perſon, to whom ſuch obedience is due. So that if a huſband [55] does not, by ſome open conceſſion or pal⯑pable connivance, permit the adultery of his wife, ſhe muſt neceſſarily be ſuppoſed to act in diſobedience to her huſband; when ſhe is guilty of violating the marriage-bed. For otherwiſe ſhe can never conceive it to be con⯑ſiſtent with her huſband's will, that ſhe ſhould proſtitute herſelf to other men, to get children for him to maintain, or to inherit his ſub⯑ſtance.

Here then is a very eſſential difference be⯑tween the terms of the vow, or matrimonial contract, on the ſide of the man and that of the woman. The man promiſes the woman no ſuch obedience. He is not guilty, there⯑fore of conjugal infidelity, by diſobeying her, or acting againſt her known will, either by converſing with other women, or any other act. He may be cruel, wicked and unjuſt; but, while he continues publickly to hold for better for worſe, for richer for poorer, in ſickneſs and in health, to love and to cheriſh his wife, he may privately [56] love and cheriſh as many other women as he pleaſes, without being guilty of conju⯑gal infidelity, or breach of his matrimonial vow.

It is ſuppoſed by ſome, that the terms of the queſtion put by the miniſter previous to plighting the troth, and to which the huſ⯑band aſſents, are underſtood in the troth it⯑ſelf: I mean, and forſaking all other, keep thee only unto her. From which it is miſtakenly conceived, that the parties promiſe to have no carnal commerce with any other perſon.

But that this promiſe, of keeping only to each other, can have no relation whatever to ſuch commerce, is evident; becauſe it is expreſſly founded on their forſaking all other for that purpoſe. So that, if we are to take the latter part of the ſentence in the ſenſe ſuppoſed, we muſt take the former part ſo too; and the conſequence is a direct inſinuation that both parties lived before in a ſtate of concubinage or fornication; which ſuppoſition would be abſurd.

[57]It is evident that this paſſage means no more than, what is expreſſed by the divine command, at the firſt inſtitution of marriage, when it was ſaid, ‘Therefore ſhall a man leave his father and mother and cleave unto his wife.’ ^* From which all idea of carnal copulation is neceſſarily foreign. The huſband, therefore, doth not bind himſelf, either directly or indi⯑rectly by his marriage-vow, never to be guilty of an act of incontinence; as the wife does, by evident implication, in ſwearing fealty and obedience.

And here it is to be obſerved, that in the queſtion put by the miniſter to the woman, the words ſerve him, are added to thoſe to obey him, though omitted in the form of the troth. Thus the duty of a married woman is, ſworn ſervice to a lord and maſter; who binds himſelf only to provide for, love and cheriſh his vaſſal or ſervant. Now it is in the very nature of all contracts between lord and vaſſal, maſter and ſervant, that the due [58] diſcharge of the ſervice of the vaſſal or ſervant is the condition of the obligation on the part of the lord and maſter.

That this conſideration ſhould be more par⯑ticularly attended to, in the matrimonial ſuit and ſervice, than in any other feudal tenure, will appear from hence; that the lord has it not in his power to enſure the fidelity of his vaſſal, as in other fiefs. For, though the divine lawgiver in his inſtitution of marriage expreſſly ſays to the woman, "Thou ſhalt be under the power of thy huſband," we all know, that the huſband is, with regard to the fealty of his wife and the honour of the marriage-bed, in the power of his wife. The huſband would be in a critical predicament, indeed, therefore, if, poſſeſſed of the right without the power, he is to contend for the right of puniſhing wrong in her, who with⯑out the right, has the power to do as ſhe pleaſes.

We have indeed had lawyers abſurd enough to pretend, in juſtification of the practice of [59] refuſing divorces, that the comparative words "for better for worſe," are ſynonimous to the poſitive words good or bad, virtuous or vicious, and that the incontinence of the wife is there⯑fore an adventitious circumſtance, like ſick⯑neſs or health, to which the huſband binds himſelf to ſubmit, by the terms of the contract. But the fallacy of this is evident; both man and woman bind themſelves to live together according to God's holy ordinance; which prohibits female incontinence.

Were it otherwiſe, a woman might pro⯑ſtitute herſelf, with the conſent of her huſband, without breach of her matrimonial vow; pleading the moral neceſſity of conforming to the will of her huſband, according to her ſworn promiſe of obedience.

I am well aware that the miniſterial divine, who repeats the form of ſolemnization of matrimony, does, in the preceding part of the ſervice, give a formal expoſition of the cauſes for which matrimony was ordained; [60] which cauſes, as there laid down, may be ſuppoſed to conſtitute God's holy ordinance; according to which, married perſons bind them⯑ſelves, by the oath and mutual troth plighted to each other, to live.

Theſe cauſes are as follows.

"Firſt, It was ordained for the procreation of children, to be brought up in the fear and nurture of the Lord, and to the praiſe of his holy name.

"Secondly, It was ordained for a remedy againſt ſin, and to avoid fornication; that ſuch perſons as have not the gift of continency, might marry, and keep themſelves undefiled members of Chriſt's body.

"Thirdly, It was ordained for the mutual ſociety, help, and comfort, that the one ought to have of the other, both in proſperity and adverſity."^*

[61]It is very juſtly obſerved, by Milton, that the order of theſe cauſes is reverſed. By the divine inſtitution, the laſt was firſt and the firſt laſt. ‘And the Lord God ſaid, it is not good that man ſhould be alone, I will make him a help meet for him.’ It was after this, that God bleſſed them, and ſaid unto them, "Be fruitful and multiply."

As to the ſecond of the above aſſigned cauſes, I do not ſee that it entered, at that time, into God's holy ordinance, at all; and yet the miniſter expreſſly ſays, in the ſervice, that the holy ſtate of matrimony, as he is going to celebrate it, is an honourable eſtate, inſtituted of God in the time of man's innocency, though not a ſyllable is ſaid in the ſcripture about the ſecond cauſe.

There can be no doubt that chaſtity is a moſt amiable virtue as well in man as woman, and that the cauſe in queſtion is a laudable incite⯑ment to marriage; it is a prudential and virtu⯑ous ordinance of man; but ſtill it does not appear [62] to be the ordinance of God, at the inſtitution of marriage; if that inſtitution took place, as the ritual ſays, in the time of man's in⯑nocency.

On the contrary, if we judge by the con⯑ſequences, it was quite otherwiſe. So far was the practice of the patriarchs, and their ſuc⯑ceſſors, living under the Moſaical diſpenſa⯑tion, from giving countenance to any ſuch cauſe of ordination, that they indulged them⯑ſelves freely in concubinage and fornication. Abraham, Iſaac and Jacob had their wives and concubines. David, the man after God's own heart, rioted in concubinage; nay his adulteries were not even checked, till he ag⯑gravated their guilt by accompanying them with murder. It was not till Uriah, the huſ⯑band of the fair adultreſs Bathſheba, was ſlain; till, by the moſt infamous contrivance of the royal adulterer, that brave and loyal officer, had fallen in the "forefront of the hotteſt bat⯑tle," that Nathan was ſent by the Lord to reprehend him with "Thou art the man."

[63]The number of wives and concubines of King Solomon, the wiſeſt of men, is prover⯑bial; and yet, if marriage was originally inſtituted in the days of man's innocency, as a remedy againſt ſin and to avoid fornication, the wiſeſt man in the world muſt have been the wickedeſt man in it.

But, to give the faireſt play to the ar⯑gument; I will juſt, for the ſake of it, admit that God's holy ordinance, confeſſedly inſtituted in the days of man's innocency, might receive ſome additional confirmation under the chriſtian diſpenſation. I ſay might, not that it did. Our Saviour himſelf came to fulfil the law: but, we do not find, that he varied or changed it. He did not even condemn the woman taken in adul⯑tery. ‘Hath no man condemned thee? Neither do I condemn thee. Go, and ſin no more.’

Occaſion indeed ſeems to have been taken, from a very equivocal paſſage in St. Paul's [64] firſt epiſtle to the Corinthians, to add this merely-moral motive to the religious cauſes of God's holy ordinance.

The paſſage is this:

The apoſtle, however, expreſſly ſays, ‘I ſpeak this of permiſſion, not of command⯑ment.’ By which he plainly intimates that he ſpeaks from doubtful, and not di⯑vine, authority; as he does in like man⯑mer, in more places than one in the ſame chapter.^*

[65]And indeed, who, that has any reſpect for the fair ſex, or the original inſtitutions of God and nature, can conceive the apo⯑ſtle to have been here divinely inſpired; when in the very introduction to theſe, his re⯑marks on the diſcipline of the marriage ſtate, he declares totally againſt it, by ſaying "It is good for a man not to touch a WOMAN." I might ſafely appeal againſt him to the grav⯑eſt and chaſteſt of our divines; to the whole male and female world; but I will examine firſt into the pretended authority.

In the beginning of the creation, ſays the evangeliſt Mark, ‘God made male and fe⯑male.—For this cauſe ſhall a man leave his father and mother and cleave to his wife.’ Agglutinabitur uxori ſuae," ſays Theodore Beza.

On the contrary, St. Paul, in a confeſſed reverie, ſays, ‘It is good for a man not to touch a woman.’ Is not this diametrically oppoſite to the firſt inſtitution of the ordi⯑nance [66] of matrimony? Is it not directly con⯑trary to the expreſs command of God, given to the ſexes at their creation? Is it not abſo⯑lutely defeating the very end, for which they were created male and female?

Shall we then ſet aſide ſuch poſitive and expreſs commands of God, for the mere ſug⯑geſtion of an apoſtle, profeſſedly uninſpired at the time of his ſuggeſting it?

But even granting that St. Paul was in⯑ſpired, at the time of promulgating theſe in⯑junctions; it will not appear, on a fair exa⯑mination of the text, that they militate againſt polygamy and concubinage, much leſs enjoin monogamy.

It is true, that in our Engliſh tranſlation the words [...] and [...] are rendered by the word wife, but the original Greek hath, by no means, that preciſe and con⯑fined ſignification. It means a female or woman in general, thoſe words being indiſ⯑criminately [67] made uſe of to ſignify faemina, mulier, uxor and even virgo, viz. a female a woman, a wife or concubine, ^* and even a virgin. Indeed the very etymology of the word, which is formed from [...], natus ſum, becauſe we are born of a woman, ſhews it had originally no reference to the conjugal, but rather to the maternal relation: it is thus uſed for mater in the Greek tranſla⯑tion of the Old Teſtament.^† Again, it is uſed by the evangeliſt Mark, chap. vii. ver. 26. for a woman in general, without any rela⯑tion to huſband or wife. [...], erat autem mulier Graeca, the woman was a Greek. It is uſed indeed as uxor, quaſi unica ſoror, ^‡ by St. Paul in his epiſtle to Titus, [68] chap. 1.6. [...].^* But in his epiſtle to the Galatians, chap. iv. 4. it is made uſe of to ſignify the mother of our Saviour, confeſſedly a virgin: nay, in the 28th verſe of the very chapter before us, he uſes [...] for every ſingle or unmarried woman.^†

[69]It is alſo uſed in the ſame ſenſe, by Ho⯑mer, who, in the firſt book of his Iliad, calls Briſeis [...], who was then a virgin, and is is called by him in another place [...], adoleſ⯑centula.^*

Again our Engliſh verſion does not ob⯑ſerve the diſtinction between the pronoun poſſeſſive, joined to the woman; and the epithet, or adjective, annexed to the man; which is made both in the original Greek and in Beza's tranſlations. It is in Engliſh, in both caſes, the ſame, his own wife and her own huſband; but, in the original, the terms are different. Beza alſo has it SUAM uxorem but PROPRIUM virum: by ſuam denoting the mere poſſeſſion of a thing, to which the poſ⯑ſeſſor is not ſingly and wholly attached; but may have others of the ſame kind: whereas by proprium is meant ſomething ſingular and peculiar, to which the poſſeſſor is particu⯑larly [70] and wholly devoted. Thus in the Greek it is [...] but it is [...]. On the difference of which terms the learned Paſor has the following remark: [...], poni ſolet pro [...], vel [...] ſuus, inter quae haec eſt differentia, quod [...] dicatur de multis. Non enim quae⯑cunque noſtra ſunt, propria dici queunt.^*

On the whole, it appears that St. Paul is here adviſing the Corinthians, in a matter of moral diſcipline, and not laying down religious precepts. In the preceding chapter he gives his reaſons for having nothing to do with common harlots; on which ſubject he enters by previouſly ſaying, it was rather [71] inconvenient than unlawful. Omnia mihi licent at non omnia conducunt. Indeed there were both phyſical and religious reaſons then, as well as now, againſt promiſcuous copulation. On this account, ſays St. Paul, in the paſſage before us, ‘let every man have a woman of his own, and let every woman have her own proper or peculiar man.’

But, though to enjoin a man not to go to common harlots, but to have a woman of his own, be enjoining him not to be without a wife or concubine; it is not ſaying, he ſhall have no more than one; he might have two, three or more; every one of them would be ſtill a woman of his own, or which is the ſame thing, one of his own women. He would obey the apoſtle's injunction in having [...], uxoram ſuam.—On the other hand the woman cannot have more than one [...], maritum or virum proprium, who might nevertheleſs be the maritus or vir proprius, viz. the particular man or huſband to ſome other woman.

[72]Thus Jacob was the only huſband of Rachel as well as of Leah, both of whom being Jacob's wives, each of them might certainly be called Jacob's wife, as either might with equal propriety call Jacob her huſband. Indeed the altercation which paſſed between them, on account of Ruben's man⯑drakes, will ſhew that they both thought themſelves equally entitled to his ‘bene⯑volence,’ as the apoſtle terms it, ‘And Reuben went in the days of wheat-harveſt, and found mandrakes in the field, and brought them unto his mother Leah. Then Rachel ſaid to Leah, give me, I pray thee, of thy ſon's mandrakes. And ſhe ſaid un⯑to her, is it a ſmall matter that thou haſt taken my huſband? and would'ſt thou take away my ſon's mandrakes alſo? And Ra⯑chel ſaid, Therefore he ſhall lie with thee to-night for thy ſon's mandrakes. And Jacob came out of the field in the evening, and Leah went out to meet him, and ſaid, thou muſt come in unto me, for ſurely I have hired thee with my ſon's mandrakes. [73] And he lay with her that night. Gen. chap. xxx. ver. 14, 15, 16.’

Milton, like a ſhrewd caſuiſt, takes a very unfair advantage of St. Paul's particular no⯑tions of chaſtity; but, with all his caſuiſt⯑ry, he labours in vain to reconcile them ei⯑ther to divine inſpiration, or the general feel⯑ings of human nature.^†

How different the polemic and the poet!

It is indeed pretended that the ſtrictneſs of conjugal diſcipline, ſuppoſed to be recom⯑mended [74] by the apoſtle, is confirmed by our Saviour himſelf; who is conceived alſo to have prohibited a man's having more than one wife, as well as a wife's having more than one huſband.

But this ſuppoſition is groundleſs: for, as I before obſerved from our Saviour's own words, he came not to deſtroy the law or the prophets, but to fulfil them. Now under the law polygamy was allowed; as plainly appears, not only from practice but pre⯑cept.^‡

[75]In ſaying "Thou ſhalt not commit adul⯑tery" the law did not ſay, thou ſhalt not have more than one wife: as it does when, reſpect⯑ing idolatry, it ſays ‘thou ſhalt have no other God but me.’ It ſaid, thou ſhalt not lie with another man's wife: it did not ſay, thou ſhalt not lie with as many wives as thou wilt of thy own. On the contrary it ap⯑pears to have been commonly permitted to have two or more. ‘If a man have two wives one beloved and another hated, &c.’ Deut. xxi. 15. And again, II. Sam. xii. 8. The prophet Nathan, reproaching David, ſays, ‘thus ſaith the Lord God, I gave thee thy maſter's houſe and thy maſter's wives into thy boſom.’

It is true that, after the world became to be ſomewhat populous, and perhaps ſome com⯑munities apparently too numerous for the land they poſſeſſed,^† the practice of polygamy [76] was prohibited by the civil magiſtrate, for the political ends of ſociety.

According to the laws of Juſtinian, it was not lawful to have two wives at a time, nor even a concubine with a wife. The canons of the church alſo confirm this prohibition, under the pretence of its being founded on the words of our Saviour, in his reply to the phariſees. But, if we turn to the text, we ſhall ſee that no ſuch prohibition is there either expreſſed or implied.

‘I ſay unto you, whoſoever ſhall put away his wife, except for fornication, and ſhall marry another, committeth adulte⯑ry. Matt. xix. 9.’

[77]Very true; but if, without putting away his wife, he marry another (as was the caſe with Jacob; when after marrying Leah, he mar⯑ried alſo her ſiſter Rachel) it does not appear that he would commit adultery.

It is the putting away the firſt wife that made the marrying a ſecond, adulterous. Nor was this a direct commiſſion of that ſin, but an indirect and eventual one; as ſuch diſmiſſion of the firſt would naturally tend to make her form a connection with ſome other man; which would be direct adultery. This is plain from the words, in which the ſame prohibi⯑tion is expreſſed in another place, by the ſame evangeliſt,

It is true that ſome of our moſt learned di⯑vines have been of opinion that the adultery [78] ay in marrying the ſecond wife and did not de⯑pend on the putting away of the firſt. But in this, they have ſhewn themſelves to be better ca⯑noniſts than caſuiſts. Even Biſhop Coſens ſays, it is not the diſmiſſion of the firſt wife that is adulterous but the marriage of the ſecond. But this is clearly a miſtake; not only, becauſe polygamy was allowed at the time when our Saviour's injunction, reſpecting a man's put⯑ting away his wife, was promulgated; but becauſe the contrary appears on the very face of the text.

The phariſees did not aſk Jeſus about the lawfulneſs of a purality of wives; but mere⯑ly about putting away their wives: and though he anſwered them in a fuller manner than they ſeemed to require, he cannot be ſuppoſed to miſtake the full drift and ſenſe of their query.

The queſtion was, ‘Is it lawful for a a man to put away his wife for every cauſe?’ The reply is, ‘Whoſoever ſhall put away [79] his wife, except for fornication (and ſhall marry another) committeth adultery.’ That is indirectly, by depriving her of the protec⯑tion of a huſband, and reducing her to the neceſſity of accepting that of ſome other man; agreeably to the words of the text before quoted, "cauſeth her to commit adultery."

Our Saviour indeed goes farther, and ex⯑plains his meaning diſtinctly in adding, ‘And whoſo marrieth her which is put away, doth commit adultery.’ But how ſo, unleſs the criminality depended on the legal incapacity of the firſt huſband to put her away? This indeed made it adultery in the man marrying a woman thus unjuſtly divorced, becauſe ſhe was ſtill the firſt man's wife, and not lawfully ſeparated.^†

[80]That this was certainly the meaning of our Saviour, cannot be doubted. "Moſes" ſays he, ‘becauſe of the hardneſs of your hearts, ſuffered you to put away your wives.’ Or rather, as the tranſlators have more properly expreſſed it in Mark, chap. x. ver. v. "For the hardneſs of your heart."

A mere Engliſh reader might, from the former expreſſion of Matthew, take occaſion to ſay, that the term wives in the plural, is no more applicable to the individual than that of hearts; and that the former word, as well as the latter, muſt be meant of their wives collectively and not of the wives of each [81] ſeverally; but the original is in both places the ſame [...]. Beza has it pro duritia cordis veſtri,—for your hard⯑neſs of heart, in the ſingular number; but he has it dimittere uxores veſtras, put away your wives, in the plural; conformably to the original [...].

That this is the true ſenſe of the text, is farther confirmed by the remark, which the diſciples of Jeſus made on it, in the ſucceding verſe.

It runs in the vulgar tranſlation thus: ‘If the caſe of the man be ſo with his wife, it is good not to marry.’

But the verſion is here alſo palpably defec⯑tive. By the man may be miſtakenly under⯑ſtood a particular huſband; and by his wife, may, in like manner, be underſtood his ſole and only wife; but the word his is foiſted in⯑to the text; it is indeed uſually printed in Italics, to denote the interpolation. This pro⯑hibition [82] is expreſſed, on the contrary, in the moſt general terms. "Si tale eſt negotium hominis cum uxore," ſays Beza: conform⯑ably to the original: [...]; not the particular caſe between any one huſband and his ſole wife; but the matrimonial commerce (nego⯑tium) between the ſexes in general; or, as Paſor explains it, the condition or relative ſituation of a huſband reſpecting his wives. Si ea eſt conditio viri, &c.^*

If any other argument were neceſſary, to eſtabliſh the ſenſe of this reply, which our Saviour gave to the deſigning phariſees; per⯑haps ſome confirmation of it may be drawn from the queſtion, put to him by the ſadu⯑ces, with a deſign equally ſiniſter.

A woman ſaid they, ſucceſſively married ſeven huſbands; at the reſurrection, whoſe wife ſhall ſhe be?—Had a plurality of wives [83] not been permitted by the divine law, it would have better anſwered their end, if they had propoſed the ſame queſtion, with a change of terms: aſking him, if a man had ſucceſſively ſeven wives, to which of them, at the reſur⯑rection would the huſband belong?

But I am not pleading either for the piety or morality of polygamy. Under the chriſ⯑tian diſpenſation, and in times like theſe, I conceive one wife to be enough for any one man. Add to this, that, whether it be con⯑trary to the law of God or not, it is ex⯑preſſly contrary to that of man, being for⯑bidden in England by the written laws of the land.^*

[84]From the foregoing arguments, however, I take upon me to infer that matrimony, as a divine ordinance, inſtituted in the days of man's innocency, was originally ordained, as is expreſſly ſaid, for the ſake of ſociety and the procreation and education of children; to hinder man from being alone; for the peopling of the earth; and for no other direct cauſes civil, moral or religious.

It will alſo hence follow, that ſuch married perſons, as ſo live together to anſwer theſe great ends of the divine inſtitution, may be ſaid to fulfil their matrimonial contract accord⯑ing to God's holy ordinance.

[85]Now, not to dwell on the many phyſical and moral reaſons, which might be brought to prove that adultery in the female, ope⯑rates directly againſt the chief ends of this divine inſtitution; the univerſal principles and practice of the patriarchs and ſages, both under the law and the goſpel, ſufficiently confirm it, by their prohibitions and injunc⯑tions againſt this crime; while mere concu⯑binage or fornication in the man, has been conſtantly connived at, or expreſſly permitted.

Indeed the great and principal end of mar⯑riage, procreation, which may be juſtly ſtiled the firſt commandment given by God to man, in the words "increaſe and multiply," was ſo religiouſly obſerved by the antient pa⯑triarchs, that the raiſing up ſeed unto Abra⯑ham, was ſo ſtrictly and ſolemnly enjoined to his poſterity, that it was not to be neg⯑lected by the man; becauſe his wife might happen to be indiſpoſed, or unmeet, to co-ope⯑rate with him for that great purpoſe.

[86]The conduct of Abraham and Sarah, re⯑ſpecting her Egyptian handmaid Hagar, proves the due ſenſe they had of the na⯑ture of God's holy ordinance of marriage; inſtituted, as our matrimonial ſervice ſays, in the days of man's innocence.

The behaviour of Jacob alſo, and his two wives Rachel and Leah, is a farther more forcible confirmation of the ſenſe in which the duties of marriage were held under the patriarchal diſpenſation. During their tem⯑porary barrenneſs, both Rachel and Leah gave to their huſband their reſpective hand⯑maids Bilhah and Zilpah; nay Leah expreſſly imputes the cure of her ſterility to this act of duty and complacence. ‘And God heark⯑ened unto Leah and ſhe conceived and bare Jacob the fifth ſon.—And Leah ſaid, God hath bleſſed and given me mine hire, becauſe I have given my maiden to my huſband.’ ^*

[87]But, though concubinage, now called for⯑nication, was then deemed not only lawful in the huſband, but the contributing to it, in caſe of barrenneſs, meritorious in the wife, we find the act of adultery, or lying with another man's wife, univerſally regarded with horror, even among the Egyptians and Philiſtines. Thus when Abraham denied Sarah to be his wife, and ſaid ſhe was his ſiſter; in conſequence of which ſhe was taken from him by Abimelech, the preven⯑tion of adultery was deemed ſo important and momentous a concern; that God him⯑ſelf is ſaid to have appeared in a dream, by night to Abimelech; ſaying, ‘Behold thou art a dead man, for the woman thou haſt taken; for ſhe is a man's WIFE!’ ^*

Again, when Iſaac went up, on account of a famine in his own country, to dwell [88] in Gerar, and denied, in the ſame manner, his wife Rebeka; ſaying alſo that ſhe was his ſiſter; he received a ſevere rebuke from Abimelech for thus laying his people under the temptation of inadvertently committing even unintentional adultery. ‘And it came to paſs when he had been there a long time, that Abimelech king of the Philiſtines look⯑ed out at a window, and ſaw, and behold, Iſaac was ſporting with Rebekah his wife. And Abimelech called Iſaac, and ſaid, be⯑hold, of a ſurety ſhe is thy wife: and how ſaid'ſt thou, "ſhe is my ſiſter?" What is this thou haſt done unto us? one of the people might lightly have lien with thy wife, and thou ſhould'ſt have brought guil⯑tineſs upon us.’ ^*

Now, it will hardly be pretended by either our canoniſts or divines, that Abraham, Iſaac, and Jacob, though polygamiſts and fornica⯑tors (to ſpeak our modern language) did not live in the ſtate of matrimony, according [89] to God's holy ordinance, if that ordinance was, as is expreſſly ſaid in the matrimonial ſer⯑vice of the church of England, inſtituted in the days of man's innocency!

The prohibition of poligamy and concu⯑binage is a mere civil prohibition, of much later date than the days of man's innocency, or thoſe of the patriarchs.

The pretence that marriage was inſtituted for the ſecond cauſe aſſigned in the matrimo⯑nial ſervice, is therefore evidently falſe.

Not but that the liberty, taken by a huſband in concubinage may degenerate in⯑to licentiouſneſs; and be carried ſo far as to make him neglect the duties of the marriage-bed, the ſociety of his wife, and the education of his children. If it ſhould prevent his loving and cheriſhing her, ſo far as is requiſite to anſwer the real ends of the matrimonial inſtitution, ſuch huſband is guilty of a breach of his matrimonial vow, [90] and is in foro conſcientiae highly reprehenſible: nay, if his neglect of the nuptial duty be open, groſs and wilful, the court-chriſtian may take cognizance of it; and, at the wife's requiſi⯑tion, decree a reſtitution of conjugal rights;^* with which the huſband cannot in law, or in conſcience, refuſe to comply.

At the ſame time, it muſt be admitted, that with regard to men, entering into the ma⯑trimonial ſtate without diſcriminating the terms of the contract, thinking they are equally bound with their wives to live a life of perfect chaſtity, they are certainly repre⯑henſible in foro conſcientiae if they are guilty of incontinence; altho' not ſo criminal, ac⯑cording to the canons, as incontinent wives, who cannot miſtake the meaning of the contract, and are bound, by all laws, human and divine, to obſerve the ſtricteſt fidelity to their HUSBANDS.