OBSERVATIONS, CIVIL AND CANONICAL, ON THE MARRIAGE CONTRACT, AS ENTERED INTO Conformably to the RITES and CEREMONIES OF THE CHURCH OF ENGLAND.
By W. KENRICK, LL. D.
Mulier siquidem, quae à viro secedit, alterique adjungitur, adultera judicatur, nec amplius à viro suo recipietur. Virum autem, etiamsi fornicatus fuerit, aut adulteratus, mulier relinquere haud potest.
Zonar. de Can. xi. Basilii.
LONDON: Printed for S. HOOPER, No . 34. on Ludgate-Hill. M.DCC.LXXV.
ADVERTISEMENT.
THE licentiousness of the
married
women of the present day, and the encouragement given them by the
Spiritual Court,
in admitting their
recrimination
on their Husbands, in order to prevent
divorce,
threaten such dreadful consequences to society, that the publication of the succeeding observations, originally written to serve a private purpose, has been represented to their author as a laudable expedient, that may possibly check in some measure that dissoluteness of manners, which distinguishes the present from any former aera, and reflects the highest dishonour on our age and nation. He would be wanting therefore, in his duty to community, should he with-hold from the public any thing that promises to contribute to so salutary a purpose; even though the following strictures should be deemed among the feeblest efforts of his pen. To the ladies he makes no apology for proving, that
infidelity
in a
husband
is less criminal
in the eye of the law,
than
prostitution
in a
wise
; as he cannot suppose the profligacy of the former a tempting example to the latter, unless he could subscribe to the poet's severe satire on the sex, when he says,
Ev'ry Woman is at heart a rake.
POPE.
OBSERVATIONS, CIVIL AND CANONICAL, &c.
ACcording to the present practice of our ecclesiastical courts, in cases of matrimonial infidelity, if the party accused prove that the accuser hath also committed adultery,
Or even
fornication,
which our modern practice has confounded with
adultery,
contrary to the sense and spirit of the
canons,
and the scriptures, or
divine law,
on which the
ecclesiastical
law is confessedly founded.
such proof is held a compensation for the crime of the accused, and the accuser 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 then granted
a vinculo matrimonii,
from the bonds of matrimony; and it was the opinion of the church of England, at the commencement of the reign of Queen Elizabeth, 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 consent 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 sometimes as ignorantly of their
religious
as of their
civil
liberty, in extravagantly boasting the effects of the Reformation.
Had indeed the
reformatio legum,
projected in the reign of Henry the Eighth, been carried 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 entered into the constitution of the church of England, and the institutes of our ecclesiastical 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 expressly mentioned, in most of them, that nothing 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 above-mentioned took, of the failure of the intended reformation of the church-laws, to establish in the
star-chamber
a doctrine diametrically opposite to the opinion of the learned and pious fathers of the Reformation. Martin Bucer, in the tract he addressed to Edward the Sixth on this subject, employs a whole chapter
Chap. xxxii.
to prove from the best authorities as well of the primitive fathers, as of the doctrines of the Christian church, that a manifest 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 establishment 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 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 required and claimed therein, or else to be dissolved, if it cannot be undergone; this is to make marriage most indissoluble, by making it a just and equal dealer, a performer of those due helps which instituted the covenant; it being otherwise a most unjust contract, 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 forbid divorce; it can only take care that the conditions of divorce be not injurious.
For this, as a real state of the case, he appeals 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
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 infants, and forever infants, Lombard and Gratian; him the compiler of canon iniquity, t'other the Tubal Cain of scholastick sophistry, whose over-spreading barbarism hath not only infused their own bastardy upon the fruitfullest part of humane learning, but obscured the clear light of nature and of nations, 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 authorities 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 modern practice, of refusing a divorce in cases of adultery, must be allowed to be a barbarous and oppressive instance of the remains of priestcraft and popery; the consequence of an imperfect reformation.
Nor do the ancient authorities abovementioned want later confirmation, as to their justice and propriety. Even Blackstone himself, in admitting that, tho' the canon law (which the common law most exceptionably follows only in this particular case) deems so highly and with such mysterious reverence of the nuptial tie, that it will not allow it to be unloosed for any cause whatever, which arises after the union is made; he yet plainly insinuates that such doctrine does not appear to him well grounded.
It is said,
proceeds this learned writer,
to be built on the divine revealed law, tho' that expressly assigns incontinence, as a cause why a man
may
put away his wife and marry another.
See Blackstone's commentaries on the laws of England,
Book I. chap. xv.
This argument may be carried still farther, and the practice of admitting the plea of recrimination and of refusing a complete divorce
a vinculo,
even in cases of adultery, be proved totally inconsistent with the spirit and practice of the common and statute law; by which the canon law should be controuled.
This indeed is the generally-received opinion; altho' it is whimsically observable that there is a difference between the opinions of our most approved lawyers even on this point. Burn lays it down as a certain and universal rule, that the civil and canon law, in all cases, is subordinate to the common and statute law. This was the opinion also of Judge Hale and Lord Chief Justice Coke. Blackstone, on the other hand, tells you that the common law follows the canon law in cases of divorce for adultery; tho' he himself allows elsewhere, that it is beyond a doubt that the civil and canon laws, tho' admitted in some cases by custom in some courts, are only subordinate and
leges sub graviori lege.
When doctors thus differ, it is not to be wondered at that inferior practitioners are so ready, on all occasions, to give that opprobrious and illiberal toast, "the profitable
uncertainty
of the law!"
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 incontinency 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 common 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, who shall be at the time of such marriage divorced by any sentence in the ecclesiastical court. Now the commentators, on this proviso, all agree that the divorce therein intimated, cannot mean the divorce
a vinculo matrimonii
; for then, without the aid of any proviso, either party may freely marry; but it must be intended of divorces merely
a mensa et thoro.
It is hence plain that the statute law, by excepting persons marrying under such a predicament from the penalty inflicted on polygamy, tacitly admits of such marriages; which is plainly incompatible with the starchamber decision above mentioned. To this may be added, that in most cases the common 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 parliament are obtained for divorces on the censures of the ecclesiastical court, is a plain 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 parliament 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 divorce 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 barbarism 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 "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 barbarity, we have lately seen the papal decisions, respecting the marriage of adulterers, 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 interdiction will operate to the prevention of adultery; or that a solicitude about future rights of marriage will affect their present violation.
An Englishman and a protestant must be far from wishing to see any more examples of this kind. So far indeed must a conscientious man, tenacious of civil and religious liberty, be from applauding these parliamentary concessions in favour of popery, 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
starchamber,
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 agreeable to the opinion of the church of England, in the beginning of the reign of Elizabeth.
Dr. Burn indeed congratulates his contemporaries, and says, it is the glory of the present age that the contests between the courts of the common and the ecclesiastical law, regarding their respective jurisdictions have subsided. "Persecution," says he,
hath departed to its native hell; and fair benevolence hath come down from heaven. The distinctions, which were introduced during the plenitude of papal power, have fallen away by degrees; and we shall naturally recur to the state wherein popery took us up: in which there was no thwarting between the two jurisdictions, but they were amicably conjoined, affording mutual help and ornament to each other.
Doubtless this is a consummation devoutly to be wished: but before it is compleated, I conceive it will be necessary to make some essential alteration, or more properly speaking,
reformation,
in the practice of the ecclesiastical courts, respecting divorce.
But to confine myself to the case of matrimony, 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 lexicographers 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 marriagebed; it is
adultery,
if but one of them be married, in the
married
person,
fornication
in the
unmarried.
"
See Bailey's dictionary folio (edited by Dr. Scott) under the word
adultery
; also
fornication,
under which latter head, we have the following remark.
Query,
whether fornication in the scripture use of the word is not distinct from concubinage; and, if so, whether our modern acceptation of the word gives a just idea of it? And by the way, if adultery, in the scripture use, means only the cohabitation with another's wife,
query
if the modern use of this word also should not be reconsidered?
Now, that the
scripture use
of these words should determine their sense, in the
spiritual court,
is evident; because the decisions of that court are determined by the canons of the church, confessedly founded on the divine law, as it is laid down in the Scriptures; according to the Decrees.
Divinum jus in scripturis divinis habemus.
Distinct 8.
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 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 another that is married, is guilty of adultery.
But this holds good only when the unmarried 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
female 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 no adulterer. There is no
wife
criminally concerned in the case.
Our lawyers, as I observed, are as palpably defective in their definitions as the lexicographers. Wood, in his Civil Institute, gives us the following definition and illustration; for which he refers to the digest of Justinian.
Adultery
(adulterium, quasi ad alterius thorum,
or
ad alteram ire
He might have added that an adulterer is also called in latin
Moechus,
from
, ex
, quod à domo sua aversus aliò se convertat.
) is a carnal 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.
Wood Inst. Book III. chap. x.
What strange inaccuracy!
Adultery is the carnal knowlege of another man's wife, so that a wife only can be guilty of adultery!
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 explanation; 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 learned lawyer proceeds nevertheless to fall into another. "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 referred.
And the man that committeth adultery with another man's wife, even he that committeth adultery with his neighbour's wife, the adulterer and adulteress shall be put to death.
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 conjugal 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; without being guilty of adultery, or even fornication. On the other hand, he may be guilty of fornication, without any violation of conjugal rites, or breach of his matrimonial 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 the canons of the church, by which the ecclesiastical courts are in these cases governed, are no farther binding in those courts, nor can such canons lawfully influence their decisions 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,
Thus in the case of divorce between the earl and countess of Essex, heard before the King's delegates in the 11th year of James I. The archbishop of Canterbury began his arguments by saying, "In as much as we firmly believe, that the scripture doth directly, or by consequence, contain in it sufficient matter to decide all controversies, especially in things appertaining to the church, as that marriage among christians can be no less accounted than a sacred thing, as being instituted by God himself in paradise, honoured by the presence of our Saviour himself, declared by St. Paul to be a sign of the spiritual conjunctions between Christ and his church."
In reply to this, his grace's preamble, however, the king's answer declared the opinion to be puritanical and preposterous. "The orthodox proposition," says he, "is, that the scripture doth directly, or by consequence, contain in it sufficient matter to decide all controversies in points of
faith
and
salvation
; of which sort MARRIAGE
cannot
be accounted for one."
contain sufficient rules to decide all controversies relative to matters agitated in those courts.
The spiritual courts, in this protestant country, are to judge by the canons of the christian 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 canons 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 illegal, 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 beginning of the reign of Elizabeth. In the debates 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 between christians. His words are remarkable. "The first institution of marriage that the parties may be
one flesh,
is by adultery dissolved; when the adulteress makes herself
one flesh
with another man, and thereby dissolves the first bond of her marriage."
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 obligation 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 canons, 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 cannot 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 canons. With protestants of the church of England, marriage
is
not
a sacrament:
it is merely
a civil contract
;
As it is in other protestant countries. In Holland the ceremony of marriage is not celebrated merely by the priest, but by the magistrate; as it was in England, during the inter-regnum, by the justices of the peace; which marriages were confirmed by act of parliament on the restoration.
the terms of which are prescribed in the ritual; which is confirmed 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 determined by the divine law, as laid down in the scriptures; and not by the canon laws, derived from popish councils or papal decrees.
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.
Having explained, what is meant by the crime of adultery; the author of Wood's institute proceeds to enumerate the several punishments, that have been inflicted on such criminals in different ages and countries. He observes that, by the constitution of Constantine, it was punished with death; agreeable to the Levitical law; and for a good reason, continues he,
because it might include the worst kind of robbery, that of depriving innocent children of their lawful inheritance.
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.
See Wood Inst. Book III. chap. x.
On the apparent incompatibility of mildness and severity contained in this law, our modern institutor has the following remark:
The reason of this I cannot understand. It is said that Theodora, the wife of Justinian, was the contriver of it. Some pretend that allowances ought to be made for the weakness of the sex.
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 consequences of the one and the other are so very disproportionate.
Especially too as the affair of scourging was what the wife must of course be supposed to have been used to; unless her husband, neglecting Solomon's advice, by sparing the rod, had spoiled the child; for the civil law gave the husband a very wholesome authority over his wife; allowing him for some misdemeanours
flagellibus et fustibus acriter verberare uxorem,
that is, according to some translators, "to
cane
or
lace her sides
very handsomly:" an unpolished custom, it is true; prevailing at present, I think, only in Russia, under the government of an Empress remarkable for her matrimonial obedience.
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 circumstance, 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 married man being, what our lawyers call double 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.
If one lies with another's wife, not knowing her to be married, as in the publick stews, this punishment ought not to be inflicted; for, though a man, who attempts an unlawful thing, shall be liable to the consequences of it, yet those
consequences
ought to be of the same nature with the first design.
Agreeably, as he might have observed, to the ancient maxim,
actus non facit reum, nisi mens sit rea.
As when one intends to kill
Titius,
and kills
Marius
by mistake, he shall die for it; because he intended murther. But he that intended to commit fornication with
Titia,
and ignorantly commits adultery with her, not knowing her to be married, ought not to be punished for adultery; for a crime of a different nature was intended. What if the man designed adultery with Titia, and it appears that Titia is unmarried? Neither ought he in this case to be punished as an adulterer, for the
intention
and the
act
ought to pursue each other, at least in the general design.
Wood Inst. page 273. See also Justinian's Code.
It Is hence extremely clear, that the carnal commerce of a married man with a woman, whom he does not know, or has not reason to believe, is married; is not adultery 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 husband; 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 simple fornication is perfectly conformable to the ancient canons of the christian church, and the judgment of the ablest scholiasts; before they were superseded by the modern innovations of popery. Thus Theodore Balsamon, in his Scholium on the 48th Apostolic canon, says that, if a married man has to do with a single woman, he does not commit adultery, but only fornication; but, if he lies with a married woman he is an adulterer. Whereas, if a married woman has the carnal knowledge of any man whatever, except her husband, she commits adultery.
Scias autem, quod vir quidem, si adhuc constante matrimonio cum aliqua muliere liberâ-rem habeat, fornicationem,
non adulterium,
committit: non ita autem, si cum ea quae viro conjuncta est; tunc enim ut adulter punitur. Mulier autem, si cum
alio quocunque,
constante matrimonio coëat, ut adultera punitur.
See Beveridge's Synodicon.
Tom. I. p. 32.
The same doctrine is laid down also in the canons of St. Basil, and appears to be universally 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 husband 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 adultery.
In the ninth canon of St. Basil, it is declared, 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 absurd and impious.
Si fuerit mulier cum alio viro, non revertetur ad virum suum, sed polluta polluetur. Qui habet adulteram
stultus
et IMPIUS?
Bas. Can. IX.
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.
Mulier siquidem, quae à viro, secedit, alterique adjungitur, adultera judicatur, nec amplius a viro suo recipietur. Virum autem, etiamsi fornicatus fuerit, aut
adulteratus, mulier relinquere haud potest.
ZONAR
de can.
IX.
Basilii.
—The same scholiast, in his note on the 48th Apostolic canon, expresses himself also as follows. "If a married man have to do with a woman not his wife, we judge him guilty of fornication; but
we have no canon
that subjects him to the punishment of
adultery,
if the woman, he lies with, be
unmarried:
the wife therefore must receive the husband returning from fornication, but the husband may turn his incontinent wife out of doors."
Si vir uxori cohabitans, cum altera fuerit, fornicatorem talem judicamus:
Non
tamen
habemus canonem,
quo adulterii crimini subjiciatur, si sit in non-nuptam peccatum. Uxor itaque a fornicatione redeuntem maritum suum recipiet; maritus vero pollutam ab aedibus suis excludet.
Beveridge's Synodicon ubi supra.
I have already mentioned that Martin Bucer, in his famous treatise on divorce, addressed 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 only the primitive fathers were of this opinion; but the christian necessity, of a man's casting off a known, and even a suspected
The spirited delicacy of Julius Caesar on this head is well known. "It is not enough that Caesar's wife be innocent, she must not be suspected."
The Novels of Justinian allowed the husband privilege to kill any person, whom he but suspected of abusing his bed, after he had given him three warnings, in writing, before witnesses, not to converse with her: for then, if the person admonished neglected this notice, and was found thrice in suspected places with her, the husband was excused from the penalty of murther if he killed him.
See Wood Inst.
Book III. chap. x. also
Just. Nov.
117.
c. ult.
See also on this Subject
Wagenseil de uxore adulterii suspecta.
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, Neocaesarea 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 christian husbands reduced by the popish council of Trent; which decreed the marriage bond indissoluble on any account whatever? They could neither lawfully get rid of the adultress, 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 canons.
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 parties have obtained a divorce, or passed at least under the costly ceremonies of attempting 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,
Consisting of two able barristers, Sir Thomas Powys and Mr. Dodd, assisted by that celebrated civilian Dr. Pinfold.
laboured extremely hard, to convince the lower house of the propriety of referring the cause to the ecclesiastical courts. But their pleas were only those of precedent; tending only to prove that those courts had on all occasions delayed, protracted, and as much as in them lay, prevented the obtaining of divorces both in and out of parliament.
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 persons to take the ordinary course first, and to come round about to the parliament, as the last remedy, to carry the sentence perhaps 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 business; 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 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. Pinfold confirmed the assertion as to the practice, and endeavoured to justify it, as being agreeable to our ecclesiastical constitution, grounded on the sense of the ancient canons.
With all his abilities, however, he did it very lamely. Indeed there was no ground for his doing it better, as will be seen by comparing the several authorities quoted in this tract: in which I have been the more particular, because I would not have the reader misled by great names.
To this plea Serjeant Wright very pertinently replied.
Mr. Speaker I am of counsel 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 invaded, and he comes for that relief here, 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 propriety 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 divorce obtained in the ecclesiastical court.
These, with several other cases of a similar 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 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 divorce; the marquis from thence took upon him to marry a daughter of the lord Cobham, 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 defiance of their canons. It is plain also that the legislature approved of such marriage as being conformable to the laws of God, however incompatible with those of the church.
It is farther remarkable that on this occasion the house of peers was so unanimous, that there were but two temporal and two spiritual lords dissentient, on passing the bill.
The divorce also was not made any plea for passing the bill; so that the act was expressly granted, 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 divorce 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 dissolve the marriage, and therefore it permits the parties divorced to marry again; though it leaves them absurdly open to the misconstructions 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, though but from bed and board, by the spiritual court: by which it is evident the legislature 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, permittitur.
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 themselves to a second marriage, whilst their former husband or wife is alive; because the matrimonial bond once perfected, cannot be dissolved by man, but only by death.
See Consett's translation of Clarke. Part VI. sect. 2.
Now I again affirm, and that on the best authorities,
See Burn's ecclesiastical law. Art. Polygamy. Also the authorities there quoted.
that the exceptive clause abovementioned in the statute of 1 J. c. 11. does in fact permit persons, under the predicament 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 exceptive clause in the statute proves such practice to be inconsistent with the common and statute law of the realm; by which the decisions of the canon law ought confessedly 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.
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 consent to receive them again after elopement or cohabitation with an adulterer; by restoring 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 ordinance; or he must take back and continue to cherish an adulteress in his bosom, at the peril of restoring her forfeited rights of alimony and dower, and of bearing himself the severe reproaches of an enlightened conscience, 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!
But, granting it expedient that the divorce
a vinculo,
unless for causes existing before marriage, should be subjected to the wisdom 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 contrary not only to the apostolic and, other canons of the christian church, but also to the common and statute laws of this kingdom.
It is laid down, in the practice of the ecclesiastical 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.
Consett. Pract. of eccl. courts, part. vi. s. 2. p. v.
Agreeable to this maxim Dr. Pinfold, in behalf of the dutchess of Norfolk, pleaded 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 copulation? Here is a strange want of discrimination. 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, supposing it criminal, is no more
adultery,
than the accidentally-killing a man would be
murder.
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, 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 deprives 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 endeavoured to divert the force of it, by aggravating 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 an ill example in his own family, (I do not say 'tis so in this case
No, nor will the circumstance hardly ever be found in any other.
) and bring her acquainted 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 portion, because his first wife had only followed his example? They say, the offence is not equal, because the man brings no children 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 certainly would deserve his fate; and the husband's crime might well be adjudged a compensation for that of the wife. But when is this the case? Hardly ever.
Not but that in such a case, I could wish that by the laws of England justice might be done to all parties; which perhaps can never be better done, than by adopting some or other of the juris-prudential maxims or customs of the ancients. By a law of Ethelbert, the seducer of a married woman was condemned to purchase for the injured husband, another wife; in the stead of her he had seduced. Perhaps in this case such a compensation might be just; if the seducer did not buy a better, or worse wife than he seduced. Otherwise indeed, the maxims of the ecclesiastical courts may be right, and it would be more just, that the man should have his jade again!
Admitting, nevertheless, 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, according to the canons of the christian church,
I say the christian church, in contradiction to the Romish church, that mother of abominations, and spouse of antichrist!
to be denominated or adjudged adultery. So 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, according 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 putting away her husband, on good grounds of divorce.
Of these the most applicable to modern manners and pertinent to the present purpose, are the three following. 1st. When the husband, by
laying a trap
for her, assists or connives at her seduction, and countenances her prostitution to another man. 2d. When, having accused her of adultery he cannot make good his accusation by sufficent proof.
It is to be here observed that, in favour of the ladies of antiquity, though not much to the credit of their modesty, this sufficiency of proof was no very easy matter. Balsamon, in his scholium on the eight canon of the council of Neocaesarea, tell us that, by several laws, a woman could not be convicted of adultery, unless
five witnesses
would depose on oath they saw her in the
precise act.
"Diversae leges jubent mulierem non aliter condemnari ut adulteram, quam per apertas probationes;
id est,
per quinque testes jurantes se vidisse in IPSO ACTU fieri
adulterium. Vid.
Beveregii pandecta canonum, &c. Tom. I. page 408.
3d, When he holds carnal commerce with another woman in his
own house
or
neighbourhood
; and, being admonished by the wife or her relations, still persists in such practice.
1. Si pudicitiae conjugis insidias, struens aliis eam stuprandum tradere conatus fuerit.
2. Si maritus, uxore adulterii accusata, rem non probaverit.
3. Si alia cum muliere coeat eadem domo, vel eadem civitate, ac monitus ab uxore, vel parentibus ejus, non velit abstinere.
Matt. Mon. Syn. Alp. Lit. G. Chap.
13.
This latter case comes to the argument of Sir Thomas Powys, before quoted, viz. the setting a bad example to the wife; the only circumstance in which the incontinence of the husband can make any compensation for that of the wife.
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 knowledge of the wife: and, for a very good reason, because, though such act in the husband, abstractedly considered and unknown to the wife, was judged a matter of indifference, the keeping a strumpet in
his own house,
or
under her nose,
as the vulgar emphatically 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 practice.
It is certain that the modern and desultory use of the word adultery, gives a kind of 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 directed 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 fornication, 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.
Antecatagoria, says Wood, (a cross accusation) is either by way of
exception,
when one that is accused retorts the same crime upon the accuser, or a different crime, rather for his own defence than for a publick punishment. For the principal design is, that the accuser should be silenced as an infamous person. Now if the accused person charges a lesser crime upon the accuser, he must be stopp'd, till he was cleared himself; but if it is a crime of a higher nature,
that
shall be heard first.
See Wood, Inst. Book IV. chap. iv. Also the Code, in locis, to which he has referred.
Now, taking simple fornication for adultery, or even admitting real adultery proved against the husband, it will hardly be pretended 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, according to the modern practice?
But farther, to deprive the advocates for this practice, even of a shadow of argument in its favour, I shall proceed to consider the matrimonial 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 covenant. And, even in the latter light, it will appear that the husband, in being guilty of concubinage or mere fornication, is not guilty of any breach of such matrimonial covenant; for which he is justly liable to censure either in
foro conscientiae
or
court-christian
; although the wife, in being guilty of adultery, is liable to the censure of both.
To determine whether a covenant or contract is broken, it is first necessary to enquire fully into the sense and meaning of the terms of it. For, as Cicero observes,
Quae à ratione suscipitur de aliqua, re institutio, debet à definitione proficisci, ut intelligatur quid sit id de quo disputetur.
De Officiis.
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 engagement 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 concern 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 does not, by some open concession or palpable 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 consistent with her husband's will, that she should prostitute herself to other men, to get children for him to maintain, or to inherit his substance.
Here then is a very essential difference between 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, therefore 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 love and cherish as many other women as he pleases, without being guilty of conjugal 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 husband assents, are understood in the troth itself: 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.
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.
Gen. chap. ii. v. 24. Also Matt. chap. xix. v. 5.
From which all idea of carnal copulation is necessarily foreign. The husband, therefore, doth not bind himself, either directly or indirectly 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 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 particularly 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 without 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 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 therefore an adventitious circumstance, like sickness 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 prostitute 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; which causes, as there laid down, may be supposed to constitute God's holy ordinance; according to which, married persons bind themselves, 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."
See the matrimonial service.
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 incitement to marriage; it is a prudential and virtuous ordinance of man; but still it does not appear 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 innocency.
On the contrary, if we judge by the consequences, it was quite otherwise. So far was the practice of the patriarchs, and their successors, living under the Mosaical dispensation, from giving countenance to any such cause of ordination, that they indulged themselves 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 aggravated their guilt by accompanying them with murder. It was not till Uriah, the husband 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 battle," that Nathan was sent by the Lord to reprehend him with "Thou art the man."
The number of wives and concubines of King Solomon, the wisest of men, is proverbial; 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 argument; 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 adultery.
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 first epistle to the Corinthians, to add this merely-moral motive to the religious causes of God's holy ordinance.
The passage is this:
Nevertheless, to avoid fornication, let every man have his own wife, and let every woman have her own husband.— Let the husband render unto the wife due benevolence: and likewise also the wife unto the husband.
— I. Cor. chap. vii. ver. 2.3.
The apostle, however, expressly says,
I speak this of permission, not of commandment.
By which he plainly intimates that he speaks from doubtful, and not divine, authority; as he does in like manmer, in more places than one in the same chapter.
Thus in verse xi. But to the rest speak I, not the Lord. And again, verse xxv. Now concerning virgins I have no commandment of the Lord, yet I give my judgment, &c.
And indeed, who, that has any respect for the fair sex, or the original institutions of God and nature, can conceive the apostle to have been here divinely inspired; when in the very introduction to these, his remarks 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 gravest 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 female.—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 ordinance of matrimony? Is it not directly contrary to the express command of God, given to the sexes at their creation? Is it not absolutely 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 suggestion of an apostle, professedly uninspired at the time of his suggesting it?
But even granting that St. Paul was inspired, at the time of promulgating these injunctions; it will not appear, on a fair examination 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 confined signification. It means a female or woman in general, those words being indiscriminately made use of to signify
faemina, mulier, uxor
and even
virgo,
viz. a female a woman, a wife or concubine,
For so Horace uses
uxor.
Uxor invicti Jovis esse nescis?
Ode l. iii. 27, 73.
nay,
uxor
was sometimes used as the female of brute animals.
Olentis uxores mariti.
Ode l. i. 17, 7.
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 translation of the Old Testament.
As
Isaiah xlix. 15.
Again, it is used by the evangelist Mark, chap. vii. ver. 26. for a woman in general, without any relation to husband or wife.
,
erat autem mulier Graeca,
the woman was a Greek. It is used indeed as
uxor, quasi unica soror,
A sister or companion, not
sponsa,
a spouse or wife, as Cicero has it, to Atticus,
sua cuique sponsa, mihi mea.
by St. Paul in his epistle to Titus, chap. 1.6.
.
This passage may be supposed to make against my argument, because St. Paul recommends the husband of one wife, or more properly of one woman: but for what does he recommend him? Why, to be a bishop! It is very natural for a saint, who thought it good not to TOUCH a WOMAN, to prefer a monogamist to a polygamist in the affair of episcopacy: but at the same time this recommendation tacitly permits that practice in the laiety. He may indeed be supposed to censure the practice, by saying, a bishop should be blameless: but should not every man be blameless? If polygamy, or concubinage, therefore, were in itself sinful, it ought to have been as well prohibited in the laity as clergy.
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.
This cannot be imputed to the sterility of the Greek tongue (than which perhaps none is more copious) as it affords not only
sponsa,
a bride or spouse, but also
sponsa,
a spouse or kinswoman. The ancient Greeks however are not the only people, who had no word in common use for the one wife of one husband. It is remarkable that the modern French, as if they held their wives in common, use the word
femme,
indiscriminately for wife or woman. But how would it sound in English, to say, instead of
my
WIFE, my
woman!
our translators, therefore, have made use of the word
wife,
agreeably to our manners, instead of the word
woman,
conformably to the original Greek.
It is also used in the same sense, by Homer, who, in the first book of his Iliad, calls Briseis
, who was then a virgin, and is is called by him in another place
, adolescentula.
Hom. Il. i. 348.
.
Ibid. ver. 336.
Again our English version does not observe 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 possessor 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 particularly 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 quaecunque
nostra
sunt,
propria
dici queunt.
When the duty, of husbands and wives, is again taken up by this apostle, in the 5th chap. of his epistle to the Ephesians, the same distinction is preserved. It is repeatedly
, but it is
and
. Verse 22, 24, 25, 28. Beza indeed, in one translation, takes the liberty, mentioned by Pasor, of substituting
suis
for
propriis
in the 24th verse; as he does also in the first epistle of Peter, chap. ii. v. 1, where this subject is again treated of; but the distinction is constantly preserved in the original Greek: it is both with Peter and Paul, always
.
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 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.
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 mandrakes, will shew that they both thought themselves equally entitled to his
benevolence,
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 unto her, is it a small matter that thou hast taken my husband? and would'st thou take away my son's mandrakes also? And Rachel 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. 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 notions of chastity; but, with all his casuistry, he labours in vain to reconcile them either to divine inspiration, or the general feelings of human nature.
See Milton's tracts on the doctrine and discipline of divorce.
How different the polemic and the poet!
Whatever hypocrites austerely talk
Of purity, and place, and innocence;
Defaming as impure what God declares
Pure; — — —
Our maker bids increase: who bids abstain
But our destroyer, foe to God and man?
Paradise Lost. Book iv.
It is indeed pretended that the strictness of conjugal discipline, supposed to be recommended 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 precept.
It were taking up the reader's time to little purpose, to prove what is so generally known; the learned Selden, in his Uxor Ebraica, shews fully that a plurality of wives was not only allowed of among the Hebrews, but amongst almost all other nations, and in all ages. In the East it was almost universal as it remains at this day. The ancient Romans indeed did not practise it, though it was not prohibited. Mark Antony, I think, was the first who led the fashion of having two wives. This fashion lasted between three and four hundred years, when it was prohibited by an express law, under the reign of Theodosius. The emperor Valentinian, however, permitted it in a fuller extent; nor did the christian bishops of those times make any opposition to this reintroduction of polygamy. Justinian and the latter councils put a stop to it.
In saying "Thou shalt not commit adultery" the law did not say, thou shalt not have more than one wife: as it does when, respecting 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 appears 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 communities apparently too numerous for the land they possessed,
There are writers indeed who have laboured to prove that polygamy does not tend to population. But, however ingeniously they have argued, they have contradicted all the experience both of ancient and modern times. If there are some countries, in which at this day polygamy is allowed, and yet they are not more populous than others where it is prohibited; the fact may be accounted for, by various other reasons. The desolation, occasioned by the plagues, wars, famine and licentiousness of those countries, would probably have long since depopulated them entirely, had not polygamy been allowed.
the practice of polygamy 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 adultery.
Matt. xix. 9.
Very true; but if,
without putting away his wife,
he marry another (as was the case with Jacob; when after marrying Leah, he married 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 prohibition is expressed in another place, by the same evangelist,
I say unto you, that whosoever shall put away his wife, saving for the cause of fornication,
causeth
HER
to commit adultery.
Matt. v. 32.
It is true that some of our most learned divines have been of opinion that the adultery ay in marrying the second wife and did not depend on the putting away of the first. But in this, they have shewn themselves to be better canonists 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 putting 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 merely 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 his wife, except for fornication (and shall marry another) committeth adultery.
That is indirectly, by depriving her of the protection 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 explains 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.
The legality of the divorce appears evidently to depend on the criminality, on the part of the woman, which
ipso facto
dissolved the marriage; or, what amounted to the same thing, gave the husband a right to do it, at pleasure by giving his bill of divorce; and this seems to be particularly expressed in reply to the question, "whether a man might put away his wife for
every cause
;" and also to the additional question,
why then did Moses command, to give a writing of divorcement, and to put her away,
i. e. for every, or any, cause.—It is this circumstance, viz. the facility of men's divorcing their wives at pleasure, that accounts for the disuse of polygamy in countries, where it was allowed by law. It has been already observed that the ancient Romans did not indulge themselves in polygamy, though permitted; but this was for a good reason; they wisely chose not to have two wives in the house at the same time, and therefore repudiated one, before they took another; and this they did as often as they pleased, with no other formality than that of sending a message to the wife, by a slave, giving notice of their intentions, after the manner of the Hebrews.—
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 severally; but the original is in both places the same
. Beza has it
pro duritia cordis vestri,—for your hardness 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 defective. By
the man
may be mistakenly understood a particular
husband
; and by
his wife,
may, in like manner, be understood
his
sole and only wife; but the word
his
is foisted into the text; it is indeed usually printed in Italics, to denote the interpolation. This prohibition is expressed, on the contrary, in the most general terms. "Si tale est negotium hominis cum uxore," says Beza: conformably to the original:
; not the particular case between any one husband and his sole wife; but the matrimonial commerce (negotium) 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.
Pasori Lexicon, in loco.
If any other argument were necessary, to establish the sense of this reply, which our Saviour gave to the designing pharisees; perhaps some confirmation of it may be drawn from the question, put to him by the saduces, 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 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 resurrection would the husband belong?
But I am not pleading either for the piety or morality of polygamy. Under the christian dispensation, and in times like these, I conceive one wife to be enough for any one man. Add to this, that, whether it be contrary to the law of God or not, it is expressly contrary to that of man, being forbidden in England by the written laws of the land.
It may not be amiss, however, to observe here, that we are full as incorrect in the modern use of the word
polygamy,
as I have before observed, we are in that of the word
adultery.
Polygamy, says Burn, is where a man has several wives at the same time. He then proceeds to state the act of parliament, in which the word
person
is used, and a husband or wife is made equally culpable; as if he had defined polygamy, agreeably to its etymology and antient signification.
In like manner, Mr. Locke defines polygamy to be "the having more
wives
than one, at once." But this definition respects the modern, vulgar use of the word; and is defective, if we regard either the Greek etymology
, q. d. marriage with many;
As to the acceptation of the term in the Greek, it is affirmed, by J. Pol. Onom. l. iii. to have been a word applicable to either sex. See Harry Stephens's appendix ad Thesaur. Constantin.
or the statute, which subjects the woman to the same penalty as the man, (absurdly indeed enough); because, it is a felony within the benefit of clergy; so that, by the letter of the law, the woman must suffer death for what the man suffers only a burning in the hand, unless the woman also be ludicrously allowed the benefit of clergy too.
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 according to God's holy ordinance.
Now, not to dwell on the many physical and moral reasons, which might be brought to prove that adultery in the female, operates 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 injunctions against this crime; while mere concubinage or fornication in the man, has been constantly connived at, or expressly permitted.
Indeed the great and principal end of marriage, 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 patriarchs, that the raising up seed unto Abraham, was so strictly and solemnly enjoined to his posterity, that it was not to be neglected by the man; because his wife might happen to be indisposed, or unmeet, to co-operate with him for that great purpose.
The conduct of Abraham and Sarah, respecting her Egyptian handmaid Hagar, proves the due sense they had of the nature 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 temporary barrenness, both Rachel and Leah gave to their husband their respective handmaids Bilhah and Zilpah; nay Leah expressly imputes the cure of her sterility to this act of duty and complacence.
And God hearkened 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.
Gen. chap. xx. ver. 18.
But, though concubinage, now called fornication, 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 prevention of adultery was deemed so important and momentous a concern; that God himself 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!
Gen. chap. xx. ver. 3. Abimelech's reproaches, verse 9th of the same chapter are also very forcible and striking. In the xiith chap. of Genesis, we have also another instance of the like kind, where God is said to have plagued King Pharoah and his house with great plagues, because of Sarah, Abram's wife. Verse 17. et seq.
Again, when Isaac went up, on account of a famine in his own country, to dwell 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 looked out at a window, and saw, and behold, Isaac was sporting with Rebekah his wife. And Abimelech called Isaac, and said, behold, 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 guiltiness upon us.
Gen. chap. xxvi. ver. 8. et seq.
Now, it will hardly be pretended by either our canonists or divines, that Abraham, Isaac, and Jacob, though polygamists and
fornicators
(to speak our modern language) did not live in the state of matrimony, according to God's holy ordinance, if that ordinance was, as is expressly said in the matrimonial service of the church of England, instituted in the days of man's innocency!
The prohibition of poligamy and concubinage 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 matrimonial service, is therefore evidently false.
Not but that the
liberty,
taken by a husband in concubinage may degenerate into
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, 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 requisition, decree a restitution of conjugal rights;
See Blackstone, on private wrongs. Comment. Book iii. chap. 7.
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 matrimonial 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 reprehensible
in foro conscientiae
if they are guilty of incontinence; altho' not so criminal, according 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.
FINIS.