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J"l 0
\>
THE
DOCTRINE AND LAW
OF
MARRIAGE, ADULTERY, AXD DIVORCE.
TH£
DOCTRINE AND LAW
OF
MARRIAGE, ADULTERY,
AND
DIVORCE;
EXHIBITIVO A
THEOLOGICAL AND PRACTICAL VIEW
OF
THE DIVINE INSTITUTION OF MARRIAGE;
THE RELIGIOUS RATIFICATION OF liARRIAGE:
THE IMPEDIBCENTS WHICH PRECLUDE AND VITIATE THE CONTRACT
OF BiARRIAGE;
THE RECIPROCAL DUTIES OF HUSBANDS AND WIVES:
THE SINFUL AND CRIMINAL CHARACTER OF ADULTERY;
AND
THE DIFFICULTIES WHICH EMBARRASS THE PRINCIPLE AND PRACTICE
OF DIVORCE:
WITH AN APPENDIX,
CONTAINING AN CSS AY ON THB HBLLENISTIC AND ECCLBSIASTfCAL MEANING
OF TUB WOBD IIOPNEIA, OBOINARILY TRANSLATED FORNICATION.
Sv^vymr »>MT§t§ rinw{«l» li^vy*. Nonnus.
Sed prudentinima pFOCuldubio est libertatis divortiorum coercitio, sive libidims
ansas evitandas, sive successiones, sive publicam aliter pacem atque pietatam
spectes. Selden, Ux. Ebr, 1. iii. c 34.
BY
HECTOR DAVIES MORGAN, M. A.
OF TRINITY COLLEGE, OXFORD ;
MINISTER OF CASTLE HEDINOHAM, ESSEX ; PRBBENDAAV 6y KRRCON; ANb
, - -eHAVLAZN TO THE RIGHT HON. LORD EeNYON.
/L^ ' ; \ VOL. II.
• r,.,.- - ,.'-/' OXFORD,
^- ' ' \\ -^ ^^ ^*- ■' PRINTED BY W. BAXTER,
ron J« rAViVi fAND c. and j. rivington, st. pacl's church yard, and
WATERLOO place; AND J. HATCHARD, PICCADILLY, LONDON.
18S6.
•
•
SYNOPSIS OF VOLUME 11.
CHAPTER VI.
THE DIFFICULTIES WHICH EMBARRASS THE PRINCIPLE AND
PRACTICE OF DIVORCE.
SECTION I.
The right of Divorce assumed arbitrarily and without
authority.
Fluctuations of human legislation on the subject of
divorce. Perpetuity of marriage asserted in the Scrip-
tures, and supported on reasons worthy of the divine
benevolence. Divorce not the necessary effect, nor the
penal consequence, of adultery. Divorce not conceded
but assumed under circumstances of impenetrable ob-
scurity; regulated by Deut. xxiv. 1 — 4?. Restrictions
added by the Jews in the interpretation of that law con-
cerning the occasions and forms of divorce. Divorces
among the Greeks and Romans. Abuses and unhappy
effects of the Roman law. Page 1*
SECTION II.
Restrictions involved in the received interpretation of the
Doctrine of Divorce for Adultery,
The Jewish law of divorce not approved by our Lord.
Cases of illegitimate divorce proposed by our Lord. The
clause of exception not to be understood where it is not
expressed. Appropriated to one single case ; and even in
its extension to other cases producing only a permissive law
of divorce. The clause restrictive in its terms. Inter-
preted in the sense of adultery, it implies clear proof of
the offence, and integrity in the accusing party. Cause of
divorce limited. Objection from 1 Cor. vii. Page 63.
VI
SECTION III.
Ohjectmis to tJie received interpretation of the clause of
ea)ceptio7i in the loM of Divorce^ trnd attempt to recover
the original and primitive signification.
Objection, 1. from the ambiguity of the word frogve^oLi
2. from the omission of the clause of exception by Saint
Mark and Saint Luke: 3. from the violence of the in-
ference under the received exposition: 4. from the con-
text : 5. from Saint Paul's doctrine, 1 Cor. vii. 2 Cor. vi.
16. Opinions of TertuUian and Cyprian ; of Miegius and
Dodwell concerning unequal marriages, or marriages out
of the peculium. Page 86.
SECTION IV.
History of the Christian Doctrine of Divorce.
Variations of the doctrine in the several ages before
Constantine: between Constantine and Justinian: from
the time of Justinian to the decay of the Eastern Empire
and the Reformation. Council of Trent. Multiplied-
causes of divorce. Page 143.
SECTION V.
The English Law of Divorce.
Indissolubility of marriage the constant doctrine of the
English law. Divorce a vinculo and divorce a mensd
merely technical terms. Divorce a mensd limited to cases
of cruelty and adultery. Practice of courts in suits of
divorce a mensd on the ground of adultery. Objections
from the Reformatio Legum^ and the case of the Marquis
of Northampton not conclusive of the dissolubility of mar-
riage, and opposed by Tables of Archbishop Parker, and
Canons of 1603. Precedent of the Bill for dissolving the
marriage of Lord Rous slowly adopted, and eventually
abused. Attempts to restrain the abuse. Debates on
Lord Auckland's Bill. Anomalies of the existing law and
practice of divoi^e. Page 214.
Vll
SECTION VI.
Private Jets of Separation.
Private separations' subversive of the end of marriage :
not sanctioned by the precedent of Jewish divorce : con-
demned' by the law of Christ : violate the particular vow
of marriage: liable to be superseded by suits for the restitu-
tion of conjugal rights : impede actions for criminal conver-
sation and petitions for Bills of divorce : not approved by
the judges : resting not on principles of law, but the pre-
cedent and practice of the courts: not justified by any
expedience. Page 266.
CHAPTER VII.
PRACTICAL RESULTS OF THE ADMISSION OF MARBIAGE TO
BE A MERELY CIVIL CONTRACT.
Doctrines of Milton. Laws of France: the Batavian
republic : Connecticut. Difficulty of proving the marriage
in Scotland, and facilities of divorce on the ground of non-
adherence and adultery. Page 314.
CHAPTER VIII.
THE LAW OF RAPE, SEDUCTION, AND BASTARDY.
The Jewish law of rape and seduction. The English
law of rape. Aggravated guilt of seduction, and inade-
quacy of the punishment. Progressive changes and exist-
ing defects in the law of bastardy. P^e 349.
CONCLUSION.
Recapitulation of the argument. Page 38S.
APPENDIX-
No. I.
ON THE HELLENISTIC AND ECCLESIASTICAL MEANING OF
THE WORD ffoqvua.
1. Mof;^fff« means adultery : 9,, fiotxe^ct distinguished from
ffo^ua : 3. iJi'Oix^M not included under ?rojve»a. 4. The texts
VIII
in which the words seem to be confounded are not con-
clusive. 5. ^ogvua in the use of the Hellenistic writers
signifies chiefly the apoatacy of idolatry. Citation of texts
in which the words irogvevoOf ixiro^evoo^ irogvriy and Trogveia,
occur in the sense of apoatacy: of texts in which the same
words denote idolatrous initiation: and in which they
denote incestuous marriage of the faithful with the un-
believing. Application of the argument in exposition of
Acts XV. 20, 29. Matt. v. 32. xix. 9. The argument con-
firmed by the use of the words in the writings of Philo
Judseus, Josephus, and other Hellenistic writers before the
time of Christ, and by the use of the Christian writers of
the three first centuries. Page 396.
No. II.
DOCUMENTS EXPLANATORY OF THE OBJECTIONS OF UNITA-
RIANS AND FREE-TMINKING CHRISTIANS TO THE OFFICE
FOR THE SOLEMNIZATION OF MATRIMONY, AND OF THE
GROUNDS UPON WHICH THEY SEEK THE PRIVILEGE OF
MARRYING IN THEIR PRIVATE CONVENTICLES.
Petition to the Houses of Parliament. Resolutions of
the Unitarifiin Association. Forms of Protest. Defence
of Protest. Page 551.
No. III.
COLLECTION OF OFFICES FOR THE SOLEMNIZATION OF
MATRIMONY.
Offices of the Greek Church— of the ancient Latin
Church — ^from the Salisbury Missal — King Edwards's first
Book — the American Liturgy — the Liturgy of Geneva.
Page 570.
CHAPTER VI.
THE DIFFICULTIES WHICH EMBARRASS THE
PRINCIPLE AND PRACTICE OF DIVORCE.
SECTION I.
The Right of Divorce assumed arbitrarily and without
atUhority.
The divine institution of marriage is not only a
speculative opinion, but it is a powerful principle,
affecting the whole law and doctrine of marriage,
elevating its dignity, requiring its religious ratifica-
tion, restricting its impediments, enforcing its duties,
and aggravating the guilt of its violation. It is also
a principle of the highest authority, in settUng the
term and period of marriage. If marriage be but a
civil contract and nothing more, no reason can be
alleged why the contract should not be limited to a
certain period, or why it should not contain a cove-
nant for the dissolution of the contract at the mutual
pleasure and discretion of the parties. It is certain,
that wherever the divine institution and the religious
ratification, conformable with that institution, have
been depreciated or neglected, the facilities of sepa-
ration have been indefinitely increased: and this is
the natural result which might be expected, that
parties to a contract merely civil should fix the terms
upon which they shall enter into a conventional
agreement, into a voluntary association of persons
VOL. II. B
2
and of interests. There is nothing in marriage, con-
sidered merely as a civil contract, which essentially
distinguishes it from other contracts, or which proves
that it contains, what many have ascribed to it, a
natural incapacity of being dissolved by the consent
of the parties, at the option of both or either of
them*. Expedience is the only ground of the per-
manence of marriage, considered merely as a civil
contract.
" It is evidently most essential, according to every
view of public expediency, as well as of justice
between private parties, that of all contracts, that of
marriage should have a fixed and indelible character,
which it shall not be in the power of the husband to
alter at pleasure. But the municipal laws as to
divorce in almost every state, ancient and modem,
are peculiar and local. These too are sometimes
quite opposite even in neighbouring provinces of the
same state. No example can be more striking than
that of the three kingdoms of the British empire ; in
two of which marriage is indissoluble by judicial
sentence; while in the other it may be dissolved
dther for adultery or continued non-adherence after'
legal requisition. By the law of the French revolu-
tionary governments, and by the law of Russia, as-
to certain classes, incompatibility of temper has been
made a ground of divorce. In the Netherlands
opposite rules prevail. Those of the several states
of Germany are altogether different from each other,
and at variance. The municipal systems of the
« Palej's Mor. Philos. b. iii. pt 3. c. 3. Selden de Jure Nat.
et Gent 1. v. c. 7.
other countries of Europe are equally discordant on
this head. In America, while some of the United
States follow the English rule, in others six weeks'
absence is a sufficient ground of divorce : and the
European colonies throughout the world follow each
the law of the kingdom to which they belong.
Indeed, quotations from each would only prove, that
perfect agreement between any two of these codes,
as to the extent of the remedy to be afforded for
conjugal wrongs, if it exists at all, is extremely rare;
and that there is scarcely any other point on which
such un¥)bunded freedom of judgment has been ex-
erci^d by each legislature. ...***'
" Regulations as to divorce, both in respect of
their origin and of their nature, have been held to
form a subjiect altogether different, and to belong to
a class entirely separate and distinct, from the essential
qualities of marriage. No contrast indeed was ever
more striking than that which subsists between them.
Never Was the different impress of divine and human
origin more manifest. According to views of exp^
diency and internal policy, often doubtful and tran-
sient, e$ch legislature^ following exclusively its own
objieetsl^ has not' only laid down peculiar rules, but
has changed these from time to time as the circum-
stances of its own subjects happened to alter. Hence
in tbes6 municipal rules there is so little of fixed and
essiential principle, that a collection of the whole,
evehupbh the single article of divorce, would at first
sight appear little better than a ludicrous exhibition
of human inconsistency and caprice. Nor even
^ Fergusson*B Reports of Consistorial Decisions, p. 101.
B S
after a stricter examination would satisfactory reasons
always be found in the peculiar situation of each
community for its peculiar provisions ^.^^
In the fluctuations of human legislation on the
subject of divorce, and in the precarious tenure of
the bond of marriage considered merely as a civil
contract, it is the more necessary to insist on the
true principle of its divine institution ; and to main-
tain, that persons marrying in conformity with the
divine institution, are bound to comply with the
terms which that institution prescribes. The words
of the primary institution certainly establish the
permanence and perpetuity of marriage, as an union
which is indissoluble, as a contract which cannot be
revoked. There is not only the leaving of the father
and mother, the abandonment of the most powerful
of all natural relations ; but there is the cleaving of
the man unto the woman, the adherence of the one
to the other, and so perfect a consolidation of the
parties, that in virtue of their marriage they are
pronounced to be no more two but one flesh **, com-
bined in such unity as is incapable of division. The
terms of the contract are irreconcileable with the idea
of separation ; and there is certainly no qualification
of the terms, nothing which authorizes the presump-
tion, that any dissolution of the contract was con-
templated in the original institution. Such pre-
sumption is not only unauthorized, but it is posi-
tively precluded by the first and highest authority,
which has pronounced, in reference to the practice
* Fergusson, 183. * Gen. ii. 24. Matt. xix. 5. Mark x.
7,8. '
of divorce, that from the beginning it was not so ;
and that what God hath joined together it is not for
roan to put asunder^.
The same doctrine, of the perpetual unity of mar-
riage, is asserted in a perplexed and intricate passage
of the prophet Malachi', and is made the principle
upon which the Lord declares his abhorrence of
divorce, or his permission of it only for the pre-
vention of greater evils. But the most ordinary
allusion to the doctrine is made in describing the
connexion of God and of Christ with the Church,
under the figure of a nuptial union. This descrip-
tion affirms the permanence and perpetuity of the
union ; not only from the historical fact that God
has never forsaken the Church, but from the frequent
allusions of the prophets to the prevailing practice,
and to the authorized law, under which a man
might not receive the wife whom he had divorced.
This was a wholesome restriction upon the licence
of divorce ; but even to divorce thus restricted, the
Lord would not give the sanction of his practice in
respect of the Church ; rather intreating her to return
to him, notwithstanding her adulteries ; and recalling
the backsliding Israel to himself, notwithstanding the
bill of divorce which she had received^. It was the
opinion of one of the most learned, if not the most
judicious, of the primitive fathers**, and may be
alleged in proof of the caution with which he thought
it necessary to .guard the doctrine of divorce, that
^ Matt. xix. 4, 6, 8. Mark x. 6, 9. ' Maiachi ii. 16.
' Jeremiah iii. 1, 7, 12. h Origen. Com. in Matt. torn. xiv.
s. 19* See also tom. xii. s. 4.
B 3
6 '
Christ did not attach himself to the Church of the
Gentiles, before the Church of the Jews had with-
drawn herself by a manifest apostacy from the truth.
The permanence however of this divine union, or
marriage of Christ and the Church, may be more
c|early and unexceptionably maintained on the sa-
cred truth, that the body of the faithful has ever
constituted the true Church and Bride of Christ,
and that, in the admission of the believing Gentiles
as well as the Jews into the covenant of his grace,
t
be has not so much transferred his favour, as proved
the constancy of his love to them that believe and
trust in him.
The permanence and perpetuity of marriage are
too firmly established in the terms of the divine
institution to need even the indirect support which
may be derived from the figurative and mystical
union of Christ with htis Church : and the proofs of
wisdom and mercy conspicuous in this arrangement
are worthy of the providence of God. If that which
is injurious to the common happiness of mankind is
contrary to the law of nature, provisions which are
made for the security of that common happiness are
worthy to be interpreted in proof of the divine bene-
volence. The several designs proposed by the Deify,
and the characters under which he appears in the
institution of marriage, agree in recommending the
permanence and perpetuity of marriage.
tt was worthy of the wisdom of Him, who created
the male and the female, to ordain the perpetuity of
marriage, that the woman, who is always inferior in
power, might not be subject to the arbitrary humours
and caprices of the man. It was wise and necessary
to add a stability to the condition of married women,
more secure than the continuance of a busband^s
affections ; to supply to both, by a sense of dvty
and of obligation, what satiety has impaired of pas-
sion and personal attachment ; to prevent the injury '
which is inseparable from the condition of the repu-
diated wife ; and to provide that the real happiness
of one half of the species should not be sacrificed to
the voluptuousness of the otber^ The effects of
this wise provision are seen in strong contrast with
the degraded condition of woman in heathen and
Mahometan countries, where she is liable to be dis-
charged when she ceases to be the instrument of
pleasure or of profit: and the common sense of
mankind has agreed- in making the permanence of
the relation the grand distinction between the wife
and the concubine. It was the fine observation of
Quintilian upon another occasion. Our affections are
not at our command. . . . Matrimony is then only
perpetual, when it is founded in mutual good will :
when a man seeks for himself a wife, the partner of
his bed, the companion of his life, the choice must
be made for ever^.
It was worthy of the wisdom of Him^ who ordained
diat it was not good that man should be alone, to
provide, in the perpetuity of marriage, an help meet
for him throughout the whole condition of his in«^
firmity. The man himself might otherwise be ne-
glected ^hen he should most need the consolatory
assiduities of a wife's attention. The woman might
• Paley's Mor. Philos. b. iii. pt. 3. c. 3. ■* Quint. Declam.
376.
b4
9
riage. In which case each ptrty roust take pains to
give up what offends, and practise what may gratify,
the other. A man and woman in love with each
other do this insensibly : but love is neither general
nor durable ; and, where that is wanting, no lessons
of duty, no delicacy of sentiment, will go half so far
with the generality of mankind as this one intelligible
reflexion, that they roust each make the best of their
bargain, and that seeing they must either both be
miserable, or both share in the same happiness,
neither can find their own comfort but in promot-
ing the pleasure of the other. These compliances,
though at first extorted by necessity, become in time
easy and mutual, and, though less endearing than
assiduities which take their rise from affection in
general, procure to the married pair a repose and
satisfaction sufficient for their happiness".^^ Thus
*^ though in particular cases the repugnance of the
law to dissolve the obligations of matrimonial co«
habitation may operate with great severity upon
individuals, yet it must be remembered, that the
general happiness of the married life is secured by
its indissolubility. When people understand that
they must live together, except for a very few reasons
known to the laws, they learn to soften, by mutual
accommodation, that yoke which they know they
cannot shake off; they become good husbands and
good wives from the necessity of remaining husbands
and wives; for necessity is a powerful master in
teaching the duties it imposes. If it were once
understood, that upon mutual disgust persons tnig"^
■ Paley's Moral Philos. b. ui. pt. 3. c. 3.
10
be l^lly separated, many couples, who now pass
through the world with mutual comfort, with atten-
tion to their common offspring and to the moral
order of civil society, might have been at this mo-
;m^nt living in a state of mutual unkindness, of
^trangement from their children, and of unrestrained
wd licentious immorality'.^'
The perpetuity of marriage is also worthy of the
wisdom which provided marriage as the best means
of securing the education of a godly seed®. Children
l)five an inaljent^le interest in the continued union
of their parents ; and it has been argued in the spirit
of a true philosophy, that it is the order of the divine
Providence in respect of other animals, that tiie union
of the parents shall continue so long as is required
for the rearing of their young: and that even in
aav^e life, where the traces of the primeval institu-
tion are all but obliterated, the casual intercourse of
the parents is converted into a permanent relation, by
1^ influence of thpt natural affection which leads
th?m to reside together, that they may act in concert
with e^ other, and unite their efforts in the pre-
a^atio|B luujl caxe of their offspring. ^' But the
4flng cultme which is Becesi3ary in rearing the human
^fff^^es will generally afford to the parents a second
p]^ge of their comoi^pce before their assistance can
1^ witl^idiAwn f)^m the former. Their attention
t)^i:)efore is extended from one object to another as
long as the n;iother is capable of child-bearing, and
tb^ir union is thus continued by the same causes
* Judgment of Sir W. Scott, in Evana v. Evans. *> Malachi
u. 15.
11
which first gave rise to it. Even after t^is period
they will naturally be disposed to i^ipi^jp in a soqief^y
to which they have been so long accqstqnx^ : more
especially as by living at tjie bead .of a npn^erous
family they enjpy a degree of ease, r^p^t, and
security, of whfch they would ptherwi^e be d^priyi^^
and have rea^pn in their pld age (o expect t^e ^ssis>
ance and protection of their posterity under all those
diseases and infinnitjes by which they are rendered
incapable pf prpvidjng for thempelvesP/^ :Iq t^
improved policy pf civilized life, and in the better
duties which the Christian religion enforces, there 19
no termination of the parept^s q^re,^ of tb^ benefits of
his experience, or the requjtgl pf 1ms love, but in the
silence of the grave. Unnatural separations '' are
manifestly inconsistent with tt^e duty which the
parents owe to their children, whi^h dqty can never
be so well fulfilled, as by their coh^bitat;iqn aqd
united care. It is also incompatible with the right
which the mother possei^es, as well as the ^tber, to
the gratitude of their childreii, and ^he comfort .of^
their society, of both of which she is s^lmost neces*
sarily deprived by her di9ixii9sion fron^ her h.usb^nd^^
femily^.^^ It is only in it^ permanence thf^jt if^tiTr?
mpny, blessing ^nd bles9ed in ,t;he dischaigp of req^
procal ^utrie^, fulfils its grea^t purppf^, and becoiqes
the auxiliary even of them Ij^a^t are ^vj^qed in,
ye^rs, afibiidipg the pon^l^Qt a^iduity of a wife, and
prpducing chil^rei^ % tj^fi^ sHpppjct of old age'. Py
d)^ ^Sifffi^ means tbi^ cpnfi^on of &mi^es is pre-
p MiUar's Origin of Ranks, p. 18, 19. ^ Paley's Moral
Philos. p. iii. pt. 3. c. 3. ' Clem. Alex- Stroio. 1. |i. c. alt
12
vented, the union of families is maintained, and chil-
dren and children's children are brought up under
their proper heads in a feeling of common affection
to their parents and to each other, without the
intrusion of that jealousy and partiality which are
occasionally seen in the issue of second marriages,
and which are more conspicuous in the polygamy
and the capricious unions which prevail in the East.
The evil which follows the voidability of marriage is
the fruit of human folly : the sure benefit which fol-
lows the permanence of marriage proves its divine
institution*
The casual benefit of marriage in the restraint of
unlawful passion requires the perpetuity of the union,
of which the interruptions are so full of danger, that,
in the strong language of our Lord, of his apostle,
and of the primitive Church', when the man deserts
or neglects his wife he causes her to commit adul-
tery, and opens a way to the temptations of Satan
through incontinence. Whenever the privilege of a
second marriage is conceded upon divorce, the pre-
ference of another woman is a temptation too strong
to be resisted ; the possibility of marrying her se-
ducer overcomes the scruples of the adulteress, and
•* new objects of desire would be continually sought
after, if men could at will be released from their
subsisting engagements^'^
Little objection will probably be offered to the
abstract argument for the indissolubility of marriage
which is derived firom the terms of the divine insti-
* Matt ▼. 32. 1 Cor. vii. 5. Origen. Com. in Matt. torn. xiv.
8. 24. ' Paley's Mor. Philos. b. iii. pt. 3. c. 3.
13
tution, and from the proofs of divine benevolence
exhibited in that arrangement. But in the practical
application of the argument, as the fundamental
principle of subverting the licence of divorce, there
are many prejudices, many established opinions^
many elaborate* judgments, many venerated names,,
to be resisted : there is little to support the view .
which it is proposed to take of the absolute indis-
solubility of marriage, besides obscure intimations
and remote authorities, which have ceased to in^
fluence the opinions of mankind; and it would be.
presumptuous to expect any immediate effect of the
argument, beyond the excitement of enquiry into
the received doctrine of divorce, the recommendation
of new care and caution in interfering with the insti-
tution of God, and some restraint upon the temerity
of men, in claiming to themsdves a right to dissolve
the bond of marriage, in pronouncing adultery at
least a dissolution of the union, and in conveying to
the innocent or the guilty party a licence to marry
again. In proceeding to maintain the entire indis-
solubility of marriage, it is proposed to examine the
law and licence of divorce, first in itself and in its
principle, without reference to the authority of our
Lord.
It is necessary, however, to obviate a common
and primary objection, that adultery is in itself a.
virtual dissolution of the bond of marriage, and
equivalent to ai> act of divorce. It would not be
difficult to'^hew that this position rests entirely upon
authorities of the New Testament, (misinterpreted
and misapplied as they will be proved to be,) and
that it was unknown to the more ancient systems oC
14
diTori^, of which the licence wds extended fkr be-
yond My prindple connected with the unity or the
bond of minrriage. The argament is thus stated by
Bistiop Jei-eray Tayl6V, and itfade to rest on the
abused authority of (he Scriptures: ".Since' an adul-
terer is made one fl^h witli the hariot W|t1i whom
he mfingfes impiltre embraces, it follows, that he fiath
dissolved the union which he had with his wife, or
sbef \tith her husband : fbr he cannfot be otie with hi^
wife, and one with the harlot, and yet be one in
himself' and they two ; for that is a perfect contra-
dii:i(iod ; for thtelt! Which is one with two i^ not one
but two/' The Bishop proceeds to argue upon his
&ffti statement: "The adulterous ndan is one with
the bariot, bat this union is not a natdral union, but
a spiritual and leg^Eil, as appears by thi^ effect of
second and third marriages : for one person can no
tfiore bttone nafnrally wiA two or three successively,
tH^iih he can be one with many' at one time ; and
wfien the patridHchs were mai'ried to diveris women
at ototee, they were not naturally one with them alf,
but legblly thi^y Werfe"; that is, they Wfere conjoined
in holy bands, and w)^re to vefy niany' purposes to
be reckoned but as one. 'Ev yoj eio'iv avijf xai ywvjj tij
^WT%i^ rp o^ftwoio, ri) ^<rei, rp ZioAwu^ rep /Sim, tap r^aal^
x«x«^0-fftmi U tm T» (Tj^jXtfTi X0» ofit/Dif; said Clemdils.
They were one person by union of affection ; they
had one bed, one purse, one' interest, commtknity of
childl^n, communicationof bodied, eqiial rights as to
the power of marriage, the same band of duty ti^
by the same niystery 1 NoW he or she that commits
adultery, breaks this union, and divides or imparts
some of the rights dUe to each other to an impure
15
person, and tbey become one flesh in am impure
mixture. Now because be or she that first breaks
this union loses their own right by invading or giving^
away another's, therefore the off^fiding person mtiy
be put away, or refused Jd their petition of right;
which they have lost by *doit)g wrongs But the
adultery hath not so United the offending persons,^
but that the union can, and may better, be broke,
and the erring party be reduced to his rule and ta
bis ri^t. For it is but a legal and it is a spiritual
or intdlectual union which is to be done not by
material but by moral instruments which can et^*^-
naliy return and be effective when tbey do*/'
It is obvious to renaork, that the argument of the
bishop proceeds prindpally on^ the common misap«
prehension of the language and doctrflie of the apo^
stle^ in his dasoouise of the unequal obarriages of the
believing with the unbelieving; and thatno condttmni-
cation with a harlot, in the ordin&ry acceptation of the
term, can constitute that unity of fksh which is acM
cribed to marriage in the terms of the divine idstitu^
tion. The mere intercourse of a married nian with a
woman to whom he is not mamed, cannot appropriaM
to the woman any portion of the nuptial ui^n, or^ be
' in itself an act of divorce and dissolution of the bond
of marriage: for upon that hypothesis, not only as
is admitted by the bishop^ would each sncceedicigi
wife of a polygamist seize to herself the priviteges of •
the former wife: not only would Lieah forfeit her
rights to Rachel, but the rights^of the wives would »
be prostrate before^ the rights of the concubines^ the^
» Ductor Dubitantium^ b. i. c. 5. rale's. * 1 Cor. vi^ 16.
»»
16
injury of the wives would devolve upon their chil-
dren ; and the inheritance of the patriarchs would be
thrown into irretrievable confusion. The gift of
Hagar to Abraham did not dissolve the matrimonial
union of Abraham with Sarah ; nor did SauPs
transfer of Michal his daughter from David to
Phaltiel abrogate the title of David to his wife^^.
Under the hypothesis that adultery is a virtual
dissolution of the conjugal union, it will not be
denied, that being committed by the one party, it
may be concealed from the other, and form no
impediment to their continued cohabitation. Are
the children, born of parents thus cohabiting, after
adultery, according to the hypothesis, has dissolved
the matrimonial union, born in marriage ? If it is
answered that they are born in marriage, the answer
tacitly implies, that adultery does not in itself dissolve
the bond of marriage : if the answer is qualified, and
it is argued that adultery does not of itself dissolve
the bond, without the legal interposition of a court
of competent jurisdiction, then it is plain that the
aid of authority is required to give the dissolving
effect to the act of adultery ; and there is room for
enquiry into the ground and origin, the right and
reason, and the practical extent of this authority.
. ^' It is to be observed, that adultery of itself does
not operate a dissolution of the marriage; it is
merely the mean or ground of seeking a dissolution
of it. The action of divorce itself is of the nature of
a pure personal cause of complaint, which neither
the public nor any third party upon even the strong-
' 2 Sam. iu. 14.
17
est ground of patrimonial interest, will be allowed to
plead. • . . Divorce is a remedy which the injured
party alone can seek ; and if that party is willing to
abstain from demanding it, the marriage will still
subsist, and the rights and privileges of the parties
will remain the same, just as if the adultery had
never been committed*." The dissolution of the
marriage will also be prevented by collusion of the
parties, remissio injuriasy and other personal bars
which are admitted exceptions to the action of
divorce.
But the strongest proof that the act of adultery
does not dissolve the bond of marriage, or justify the
other party in presuming to dissolve the bond by
any private act, is founded on the legal doctrine of
compensation, or the allegation of proof that the
plaintiff or '^ promoter, whether previously or subse-
quently to the infidelity of the party accused, whe-
ther before the commencement, or at any time during
the dependence, of the suit, has also committed the
like offence ; in which case the parties are in eodem
delicto^ and the party cited is dismissed from all
observance of justice as respects the particular griev-
ance complained of, and consequently stands, in
point of the relative rights of matrimony, as though
no offence had been committed." Even if the hus-
band should be living separate from the wife in
consequence of her adultery, adultery committed by
him during such separation would be so complete a
compensation of her offence, as to bar him of his
remedy, as to render him liable to all the claims of
* Fergusson, 317.
VOL. H. C
18
a licentious wife and a spurious issue, and to subject
him to an action for the restitution of conjugal
rights, which would terminate in obliging him to
receive his wife, and to treat her with conjugal affec-
tion*. It is impossible to reconcile this state of the
law with the plea that adultery is a virtual dissolu-
tion of the bond of marriage ; under which it must
be dissolved by the first offence ; and being dissolved
by the act of the one party, it could not claim the
observance of the other. It is impossible to suppose
that an act cancelled by the infidelity of one
party can be restored to its original validity by the
infidelity of the other ; that in a mutual covenant
between two parties, it is in the power of either, by
a specific act, to destroy the obligation upon both ;
but that the concurrence of both parties, whether
simultaneous or successive in similar acts, shall result
in the interminable renewal of the obligation.
The plea is in direct opposition to the ordinary
practice of the English courts in suits of divorce on
the ground of adultery, in which sentence of separa^
tion^a mensd et thoro is granted, upon the condition
that the parties shall not enter into other marriages,
(which marriages would be void,) in contemplation
of their reconciliation, an issue which is as impos-
sible as the caution is unnecessary, if the 'act of
adultery had already dissolved the bond. On this
supposition, the only condition of divorce would be
the act of adultery and proof of the act: but instead
of this simple process, the courts must wait the
"" Poynter's Doctrine and Practice of the Ecd. CourtSy p. 79, 81.
Fergusson, 351.
19
iliscretion of the injured party in making tlie com4>
plaint, and the injured party is dependent on tbe
view which the court may takd, not of the simple
fiict, but of the circumstances under which the act
was committed ^ and under which the accusation is
brought ; and the result is not a recognition of th^
dissolution of the bond, but a partial Mparation,
directed prospectively to the reconciliation of the
parties, and founded on the continuance and tbe
indissolubility of the bond of marriage.
The doctrine, that adultei^ of itself and in its own
nature is a virtual dissolution of the bond of mar-
riage, is not authorized by a just exposition of the
Scriptures: it is opposed to the received law and
practice of the courts, and it involves the most
fearful consequences and the most striking inconsist*
ency. It precludea tbe possibility of reconciliation ;
it renders repentance unavailing and forgiveness im-
practicable: it takes away aU distinction between
the boldness which triumphs in vice, and the return-
ing sense of propriety which would make every
atonement for the offence ; between the exasperated
spirit which spurns the offender and hurries to- its
revenge, and the compassionate forbearance which
in remembrance of former affection waits in patient
hopQ for the effects of penitence and contrition. If
the bond is broken by the adulterous act, there are
no means by which it can ibe renewed or repaired ;
nor any principle upon which the continued inter-
course of the parties can be justified or approved.
It would convey to either party a power, and offer a
temptation, to dissolve a union which may be dis-
agreeable; and to seek an engagement which pro-
c 2
20
mises more tiappiness, by ao act of sin ; and allow
the guilty to take advantage of bis own wrong : and
if a restriction sbould be placed upon the criminal
party, for which, if the bond of marriage is dissolved
by the offence, there is no pretext, it would leave
the same obligation in force upon the one party and
not in force upon the other ; it would take from the
guilty the very name of marriage, and give to the
innocent a licence of bigamy. It is opposite to the
nature of marriage, considered as a civil contract, to
suppose that it may be dissolved by the adulterous
act of either party, not only without the concur-
rence, but in defiance of the will, of the other : and
lastly, if adultery be a dissolution of the bond, the
marriage may be dissolved by the criminal act of
either party : the claim and licence of divorce is no
more restricted, as it has been usually restricted, to
the man ; but is thrown open indiscriminately and
without any limitations ; and the bond of marriage
is rendered the bond which beyond all others it is
most easy to dissolve.
These are some of the objections against the prin-
ciple of making adultery, of itself and in its own
nature, a virtual dissolution of the bond of marriage ;
and it is conceived, that these objections will not be
easily removed : and if adultery be not a dissolution
of the bond, and a sufficient principle of divorce,
it is vain to seek the principle in any other of-
fence.
It is admitted, that in death there is an actual
dissolution of the bond of marriage : but against the
exclusive use of this position it has been argued with
extraordinary flippancy, that men sometimes inflict
21
death upon men, and that although this is done
solely by the permission of God, who in this case
appears rather to cut than to dissolve the bond of
marriage : hence may be drawn the singular conclu^*
sion, that marriage is dissolved in as many methods
as are permitted by the Deity ; and there is room
for the enquiry whether it may not be dissolved in
olher manners also. Such was the littleness to
which the mind even of Beza^ could resort, in
arguing against the indissolubility of marriage, as
founded in the divine institution. He might have
remembered that death necessarily precludes a second
marriage during the life of the parties.
Adultery, as the violation of a divine institution
and the transgression of a, divine commandment, is
unquestionably a sin against God, a sin which more
than any other sin he has upon various occasions
interfered to prevent, to threaten, and to punish ;
upon which, under the law of Moses, he pronounced
the last penalty ; and which for a long series of
years he punished by a most extraordinary and mira-
culous intervention. In the minute gradations of
punishment denounced on the various kinds of de«
bauchery, death is the only punishment of adultery
recognized in the law of Moses. There is not an
allusion to any other punishment of persons con*
victed of adultery : there is not the most distant
intimation of divorce, as the arbitrary or judicial
consequence of matrimonial infidelity. When the
case of the woman taken in adultery was submitted
to our Lord^, he neither disapproved nor rescinded
** De Repadiis. * John viii. 3—1 1.
c3 '
22
the capital penalty prescribed by the ancient laws^
to both of which he appears to have alluded in the
sentence, Let him that is without sin, and c»n fiilfil
the condition required in the law of the bitter waters,
cast the first stone at her, and execute the law of
adultery. From the moral deficiency of her accusers
he did not himself condemn her, nor did he take
upon himself the office of a temporal judge : but he
did not recomibend ally more lenient course than
that which the law' ordtined ; he did not suggest to
the husband 'that thefe Wiis the easy remedy of
divorce ; he did not advise the separation of the
parties, as if the adultery* (of Which tbe^ fiict wais in-
sinuated in the exhortatioti. Sin no more;) had
effected a dissolution of the boiid of didrriage. ' ^
Death is the only^'punishinent of adultery rteog-
nized in the Jewish Scrfptures. When David' in-
flicted lipon his concubines^ a rigorous and perpetual
confineihent, he w^ resti<ained by his own con-
science and the sense of the divine judgments irom
bringing them to capital ptinishment : but it did not
enter into his contemplation to divorce them ; nor
could the wives of a kibg^ hate become the wives of
a subject**. Ndther had he the power, to take
Abishag the Shunamite to wife, because the number
of the kinged wives wa^'limited, and he Was not at
liberty to divorcel th^m*j In- process of time, when
the punishment of deatk for addltety had (alien into
disuse, and had ceas^to b^' administered by the
»
* 2 Sam. XX* 3. Cf. 2 Sim. xii. II* Anc. Univ. Hist vol. iii.
p. 148. '
• 1 Kings i. 3, 4. See Ux. Ebr. I. iii. c. !9.- ^
23
Jews ; when the law of the bitter waters was inope-
rative, and the subtlety of Jewish commentators had
coUected from that law many licences of divorce';
when the husband was unwilling to proceed to
extremities, or unable to produce the proof which
was required in the case of adultery, he availed him-
self of a common liberty to put away his wife arbi-
trarily and without assigning any reason for the
divorce. Joseph, if he had not been prevented by
the vision, would have made use of this privil^e
when he was minded' to put away his wife privily i^,
because though he himself was a just man, and
therefore could not consent to the dishonour of his
betrothed wife, he was nevertheless unwilling to
make her a public example, by bringing forward the
proof which the case was supposed to admit. It is
obvious however, that these private divorces cannot
be considered in the light of legal consequences, or
punishments of adultery, because they were evasions
of the law of adultery ; they waived the proof upon
which alone the conviction of the adulterer de-
pended : and it is a circumstance too important to
be overlooked, that divorce was so for fix)m being
the issue of adultery, that adultery was excepted
among the causes and occasions of divorce, because,
as the Jewish doctors maintained, there was another
remedy in the case of adultery.
This opinion of the Jewish docjtois may serve to
obviate the hasty inference, that if the Lord com-
manded that the adulteress should be stoned, he
much more intended that she should be divorced.
' See Ainsworth in Numbers v. U-^dl. « Matt. i. 19.
C 4
24
It has been argued, in reply to this position, that
the capital punishment requires legal conviction and
public judgment ; that the judge is bound to admin-
ister the law in its positive enactments, not in its
remote inferences and conclusions ; that the husband
is under no obligation to accuse the wife ; that he is
free to pardon her, or to put her away privately;
and that it was not unlawful to retain her in the
hope of her recovery and repentance**. The sen-
tence upon adultery relates to the duty of the judge
before whom the case is brought, not to the indi-
vidual who suffers the wrong': and this sentence
includes in its demands the adulterer and the adul-
teress, and cannot by any parity of reasoning be
applied to the practice of divorce, which was princi-
pally the act of the man, and of which adultery was
not the cause. The law of adultery was in itself a
rigorous law, and its rigour may probably have been
intended, that there might be no appeal to its judg-
ments but in cases of aggravated necessity, under a
conviction that there could be no mitigation of its
penalties if the offence was proved : but if the hus-
band, under any circumstances, or from any private
motive, was unwilling to resort to this law, he had
no authority, however he might presume of himself,
to argue upon the intentions of the Deity, or to seize
to himself the execution of laws which were not
delivered, or which had no reference to his case.
God has commanded that the blood of the murderer
shall be shed by man : but if man refuses to shed
the blood of the murderer, and assumes a right of
** Ductor Dubitaotium^ b. i. c. 5. rule 8. * Beza de Divortiis.
25
inflicting the lighter punishments of noutitation, im-'
prisonment, or confiscation, however he may flaitter
himself in his humanity and compassion, he has no
more the sanction of divine autliorit}', or of any
legitimate inference from that authority, for the pe-
nalty which he is willing to exact. So the divine
law has commanded that die adulterer and the adul-
teress shall be stoned, and the fulfilment of that law
was, even in Beza^s judgment, the most efifective
means of superseding all the difficulties of divorce :
but there is not the remotest connexion between that
divine rule and the human assumption of the licence
of divorce. It may not be necessary to exact the
penalties of that law ; but, when the appeal is made
to that law, there is no extenuation of its severity :
and the inference which is claimed in favour of
another system is liable to the objection, that there
is no power under the law of divorce to divorce the
adulterer^ and that there is no authority under the
law of adultery for the partial divorce of the adul-
teress.
What then is the origin of the law of divorce,
which, with more or less of restriction, has fi*om a
very early period prevailed in most countries of the
world. It has been asserted^, that the law of divorce
is a natural right, traditionally derived fix)m the law
delivered to Noah, an assertion which there is the
highest and the best authority for contradicting. It
was not so from the beginning'. It is reasonable to
suppose, that any exceptions to the primary record
would have been as distinctly noticed as the permis-
*» Ux. Ebr. 1. iii. c. 22, 26. ' Matt xix. 8.
26
sive law of divorce, delivered by Moses : and no
tradition however ancient, no practice however uni-
versal, which is not supported by a positive revoca^
tion of the original law, can be put in competition
with the terms of the original law, reccNnded by
Moses, and repeated by our Lord and the apostle '",
in proof that the* true rule of marriage has always
been, that the man shall cleave unto his wife, and
they two shall be ' one flesh : wherefore they are no
more twain, but one flesh : yjvhvA therefore God hath
joined together, let ndt man put asunder. The
licence of divorce* therefore," so &r from being a
natural right, is in opposition to die first law deli-
vered to man, as a social being, and is a licence of
which there is a primeval prohibition conveyed in
the original terms, and not counteracted l^ any
subsequent provision. <' It must be recollected, that
divorce is in reality a deviation from the original
institution of marriage, which was intended to be
perpetual. The perpetuity of marriage, says Lord
Stair, is evident, and the dissolution of it is only
natural by death ".^^
It is not easy to ascertain at what period this
licence of divorce was assumed. It was the opinion
of the learned father, Jerome % that, so far from
being an original right, it was not given before the
flood, or before the law, but was introduced after the
deluge, as was the permission to feed upon flesh.
There is no reason to believe that the patriarchs
were acquainted with the practice; they lived in
<" Gen. ii 24. Matt. xix. 5. Mark x. 7, 8. Ephes. v. 31.
*" Fergusaon, 353. ** Adv. Joviniao, I. i. apud Selden.
27
polygamy, but there is no record that divorce was
known among them. Abraham did not divorce
Sarah, although she bore him not the son, whom he
so passionately desired, nor was he permitted to
alienate her to Pharaoh or to Abimelech, although
his life was endangered by retaining her. Rebekah
did not desire that even Esau should be divorced
ftom'his wives, although she grieved' that they were
of the -daughters cif the^hnd'; nor did £sau attempt
to recover her favour by their tepudiationi nor did
Jacob think of divoraing Lesih^ although she was
imposed upon -him fraudulently and'^ithout his con-
8eiiC,^a»d he hated b^ in comparison with Raebel.
Hagar, whom Abraham put away, was not his wife;
and it is but an apdcryphsd fable/ Which the Jewish
paraphrast has invented, concerning* the divorce of
the Ethiopian woman 6rTharfoi from Moses p.
There is extant a record of renttote antiquity, col-
lected from the astrological tables of the Chaldeans
and Egyptians, which affirm^ the pertnanence of the
manriage of parties in whose nativity there is a cer-
tain configuration of the heavenly luminaries, and
the easy dissolution^ upon any pretext, of those
marriages in which there is a variation in tlae posi-
tion of the stars. It will not be denied, that the
invention of such principles of divorce is the arbi-
traiy assumption of human folly : but it would be
•••■ • 1 • . •-• •
p Ux. Ebr. 1. iii. t. 26. Anc. Univ. HisL vol. liL p. 147.
fmrm Tv^xfifmri^tfttm ^XV wttfi^ttf . . • 2mXvwtm ii f» rttt rvx^^rm
tfrofSfTMf 5#3W rtfxiwtf n *. T. A. CL PtoleuL apud Selden. Ux.
Ebr. ]. iii. c. 22.
28
vain to affirm, that this was the origin of divorce, or
that the Jews learned the practice from the Egyptians.
Ail that can be asserted with confidence is, that
Moses permitted divorce, and that, in adding the
requisition of the bill of divorce, he restricted the
licence, and distinguished the practice, of the Jews
from the practice of other nations'. The permission
which was given to the Jews was extorted by the
hardness of their hearts, which Moses at once in-
dulged and restrained.
The first authentic law of divorce upon record is
the restrictive law delivered by Moses': When a
m^ hath taken a wife, and married her, and it come
to pass that she find no favour in his eyes, because
he hath found some uncleanness in herS then let him
write her a bill of divorcement, and give it in her
hand, and send her out of his house : and when she
is departed out of his house, she may go and be
another man's wife : and if the latter husband hate
her, and write her a bill of divorcement, and give it
in her hand, and send her out of his house; or if the
latter husband die, which took her to be his wife, her
former husband, which sent her away, may not take
her again to be his wife, after that she is defiled*, for
' Ux. Ebr. 1. iii. c. 22. • Deut. xxiv. 1—4.
t <* Understand from the former verse, Arid if he shall write;
for this is not a commandment^ but a permission, as our Saviour
saith. Matt. xix. 8. So after, in ver. 3. And the latter man
shaU hate her, that isyif he shall hate her ; for all is supposition
and permission until ver. 4. where she is forbidden to her first
husband.^ Ainsworth in loc.
" She is caused to he deJUed, or, is caused to defile herself*
The Greek and Chaldec translate she is defiled ; but the Hebrew
39
that is abominatioir before the Lord ; and thou shah
not cause the land to sin, which the Lord thy God
giveth thee for an inheritance.
If no divine commentary had been delivered upon
the merits of this first authentic law of divorce, and
if no notice had been taken of it in any other part of
the Scriptures, it would have been justly described
as a permissive, restrictive, and remedial law, de-
signed for the prevention of greater offences. Our
Saviour hath confirmed this view of it, by asserting,
that it was given to the Jews by Moses in contra-
vention of the primitive institution, for the hardness
of their hearts. It was not a law which the better
part of the Jews approved, or of which the sacred
writers thought fit to record the practice, and an
interval of seven hundred yeans elapsed between its
publication and any allusion to it in the Scriptures.
The Levite did not divorce his concubine-wife, who
forsook him, but demanded her again ; Samson also
demanded his wife, after she had been given to
another man ; and the only case of divorce recorded
in the Old Testament is that of the men who put
away their foreign wives, whom they had married
during the captivity \ It was in the prophecies of
Isaiah that the first allusion is made to the bill of
divorcement ; and it was by Jeremiah that the Lord,
word Hattaajnah is of such composition as implieth both the
defiling of herself and the cause thereof by her husband who put
her away first. It was therefore an error in the Jews to take
this for a commandment of God, which he tolerated only for the
hardness of their hearts, and shewed the woman to be defiled by
her second marriage after her first unjust divorce/* Ibid.
■ Judges xix. 1. xv. I. Ezra x. Anc. Univ. Hist. vol. iii.p. 148.
30
reproTing the idolatries of his Church, and threaten^-
ing to take vengeance of them, introduces himself in
the character of a husband refusing to take advan-
tage of this law, under whidr he might have divotted
a wife that was disagreeable to him, upon condition
of abandoning h^ for ever 3^. The same allusion
afterwards became frequent in the prophetical writ-
ings; but although the Ld^, in condescension to
man's infirmity, expressed himsdf in language which
the manners of the age had rendered but too easy to
be understood, these frequent allusions proved rather
the prevalence, than the divine approbation, of the
practice^ and it certainly received no' countenance
from the conduct of the Lord in respect of his
Church. The prophet Malachi, in the name of the
Lord, strongly protested against these excesses and
abuses of the law of divorce, at a time when it was
not uncommon with the Jews to put away their
native wives, and marry the daughters of the hea-
then : Judah hath dealt treacherously, and an abo-
mination is committed in Israel and in Jerusalem :
for Judah bath profaned the holiness of the Lord
»^ which he loved, and hath married the daughter of a
strange god. The Lord will cut off the man that
doeth this, the master and the scholar, out of the
tabernacle of Jacob, and him that offereth an offer-
ing unto the Lord of Hosts. And this have ye
done again, covering the altar of the Lord with
tears, with weeping, and with crying out, insomuch
that he regardeth not the offering any more, or re-
ceiveth it with good will at your hands. Yet ye
^ Isaiah 1. L Jerem. iij. 1.
»1
I
say. Wherefore ? Because the Lord hath been witness
between thee and the wife of thy youth, against
whom thou hast dealt treacherously: yet she is thy
companion, and the wife of thy corenant. And did
not he make one ? Yet had be tlie residue of the
Spirit. And wherefore one ? That he might seek a
godly seed. Therefore take heed to your spirit, and
let none deal treacherously against the wife of his
youth : for the Lord, the God of Israel, saith, that
he hateth putting away ; f<Mr one covereth violence
with his garment, saith the Lord oi Hosts! there-
fore take heed to your spirit, that ye deal not trea«
cherously'. The expression of the wife of youth
means the first wife, and the divorce of ^he first wife
was reckoned so aggravated an otfence, that, in the
judgment <^ the Jews, the altar shed tears upon the
occasicHi: and it is to this ofience that the prophet
is supposed to allude, when he speaks of covering
the altar of the Lord widi tears, and with weeping,
and widi crying out. There is an ambiguity in one
sentence of this passage, and the words admit of
difierent interpretations ; but in either interpretation
they condemn the practice of divcnce, whether the
Lord saith absolutely that he hateth divorce, or
whether he pronounces it to be only a less evil than
retaining a wife in hatred : If he hate her, put her
away. In the latter interpretation the doctrine of
the prophet coincides with the position of our Lord,
that the law of divorce was given to the people for
the hardness of their hearts.
It was a common opinion of the primitive Church,
'Malachiii. 11— 16.
32
founded on the declaration of our Lord, that the law
of divorce did not originate in the will of the Deity ;
and that the divine Author of marriage reserved to
himself the power of separation, not by the hard
measure of divorce, which he at once condemns and
mitigates, but by the death which is due from all
men*^. It was held upon the same principle, that
Moses delivered the law of divorce of his own au-
thority, and on account of the hardness of the heart
of the people; not that God either recommended
divorce or willed it to be^: and that Moses, like
Paul, being divinely inspired and invested with the
power of making laws, permitted certain things to
the people, (and especially the power of divorce, in
accommodation to the hardness of their hearts,) in
which it was lawful to obey him, although he legis-
lated of his own authority ; because his power of
legislation was accompanied by the Spirit of God^.
The same opinion was more fully expressed l)y
Ptolemaeus^, one of the earliest of the writers who
* Tert. de Monogam. s. 9. To marriage may be applied Ibe
beautiful expressions of Cicero, concerning the dissolution of the
human body. Opus ipsa suum eadem, quae coagmentavit, na*
tura dissolvit. Ut navem, ut sedificium idem destruit fecillime,
qui construxit, sic hominem optime eadem, quae conglntinavit,
natura dissolvit Jam omnis conglutinatio recens aegre, inveterata
facile divellitur, De Senect s. 20.
^ Origen. in Num. Hom. xvL s. 4.
^ Origen. Com. in Matt. tom. xii. s. 18.
d Apud Grabe, Spicileg. vol. ii. p. 72. He is arguing upon the
position, that the precepts of the law are to be ascribed by a
threefold division to the Deity, to Moses, and to the elders : and
having recited Matt. xix. 6, &c. he proceeds with the commentdry
recited.
33
have borne the name of heretics, who in commenting
upon the text of our Lord, argues, that our Lord
shews the law of Qod in forbidding divorce to be
difierent from the law of Moses, who permitted the
bond to be dissolved for the hardness of the heart of
the people. In this respect the law of Moses is at
variance with the law of God ; for it counteracts the
prohibition of divorce. If the intention of Moses in
making this law be examined, he will be found to
hatre acted not from choice but necessity, and in
accommodation to the weakness of the people to
whom he gave the law : for since they were not able
to keep the commandment of God, and to refrain
fix>m divorcing their wives with whom they lived
unpleasantly, and were in danger upon that account
of acting with more injustice, and falling into de-
struction, it was the design of Moses to cut off an
offisnce which threatened ruin, and to substitute,
according to the occasion, a less evil for a greater,
by introducing of himself the law of divorce ; thai if
they could not keep the one law, they might at least
keep the other, and be restrained from that iniquity
and sin, which could only terminate in their entire
destruction. This was the design of Moses in mak-
ing a law in opposition to God.
But whatever be the origin of the Mosaic law of
divorce; whether it was dictated and suggested, or
only approved, by the Spirit of Grod ; its plain
characters are, that it is remedial ; palliative of the
severer laws which had been delivered. concerning
* the punishment of adultery, and the law of the bitter
waters, designed to counteract their effect and pre-
vent their abuse ; distinguished from other laws of
VOL. II. D
34
«
divorce by the introduction of the bill of divorce^
ment, and the prohibition to resume the woman
once divorced ; and probably intended as an inter-
pretative law to regulate, and not as an original law
to authorize, the practice of divorce, which previously
existed, and to which allusions had been made in the
injunction upon the priest not to marry a woman
divorced, and in the denial of the licence of divorce
to the man who brought a false accusation against
his bride, and to the man who was constrained to
marry the woman whom he had debauched. This
law was also a permissive not a preceptive law ; it
permitted what it did not command. It was a pre-
ventive law; forbidding the precipitate and angry
divorce of the woman, without a writing of divorce-
ment, which could not be prepared without delibera-
tion, nor delivered into her hand without affording
an opportunity of compunction and reconciliation.
This law was favourable to the woman, in releas-
ing her from a husband who might use her un-
kindly, and permitting her to marry another man.
If the second husband hated her, he also might give*
her a bill of divorce :. but until the bill was delivered,
the divorce was not complete, and the woman was
not at liberty to marry again ; and thus she was
restrained from quitting her husband. The bill of
divorcement was a protection to the woman under
any imputation which the malice of her enemies
might bring against her. The bill once delivered
was irrevocable ; and thus the feelings and delicacy
of the sex were consulted. The man who had once
given to his wife a bill of divorcement, could upon
no occasion be united to her again ; a wholesome
35
provision, ivhich prevented the prostitution of a wife
under the name of a divorce, and the corrupt practice
of usurary wives, which prevailed among the hea-
thens; and required the divorcing party to Reflect
maturely, whether he would consent to a divorce
whith it would never be in his power to recall.
The Jews were rigorous in upholding the strict
intentions of this law, and in maintaining certain
forms which they judged proper to give validity to
the sentence of separation. They laid down ten
principal rules, which they collected- from the law of
Moses, and which they held to be indispensable to
its right administration. 1. The husband must give
his voluntary consent to the divorce, although the
divorce was not vitiated if this voluntary consent
was extorted by corporal chastisement. The consent
of the wife was not necessary, 9. The act of divorce
could only be effected by writing. 3j 4. The bill
must discharge the woman from the control of her
husband, and the woman must be separated from
her husband, beyond the power of reunion, and
receive full liberty to marry another man. 6. The
bill must be written in the name of the wife. 6. The
bill must not only be written but delivered. 7. It
must be delivered into the hands of the wife. 8. It
must be delivered before witnesses, who might pro-
tect the woman under the imputation of adultery.
9. It must be delivered and received in the name of
a bill of divorce. 10. The husband or his deputy
must deliver the bill to the wife, and the divorce was
not complete without such delivery. If this order was
not observed, the divorce was imperfect; the wife was
not properly or irrevocably separated from her former
D 9
36
husband ; nor was her marris^ with a second husband
altogether valid. The Jews added of their own au-
thority some additions concerning the insertion of time
and place ; concerning witnesses and deputies ; and
concerning the errors of notaries, and the forms of the
letters. The bill of divorce was drawn in this form :
*^ In such a day of the week, in such a day of the
month, N. in such a year, from the creation of the
world, or from the supputation of Alexander, after
the account which we are wont to count by, here in
the place N. I, N. the son of N. of the place. N.
or if there be any other name or surname which I
have or my fathers have had, or which my place hath
or my father's place hath had, have voluntarily, with
the willingness of my soul, without constraint, both
dismissed, and left, and put away, thee, N. the
daughter of N. of the city of N. or if thou hast any
other name or surname, thou or thy fathers, or thy
place or thy fether^s place, who hast been my wife
heretofore ; but now I dismiss thee, leave thee, and
put thee away, that thou mayest be free and have
power over thine own soul, to. go away, to be mar-
ried to any man whom thou wilt ; and that no man
be refused of thine hand for my name from this day
and for ever. And thus thou art lawful for any
man : and this bill is unto thee from me a writing of
divorcement, and bill of dismission, and epistle of
putting away, according to the law of Moses and
^^^^^' N. son of N. witness,
N. son of N. witness*.^*
* Ainsworth in Deut. xxiv. 1 — 4. Ux. Ebr. 1. iii. c. 24, 25*
Godwyn's Moses and Aaron, b. vi. c. 4.
37
The cause allied for divorce in the law of Moses
is, if the woman finds no favour in her husband^s
eyes, because he hath found some uncleanness in
her. She finds no favour in his eyes if he dislikes
her absolutely or in comparison widi some other
woman ; and the uncleanness which he finds in her,
according to some of the Jews, comprehended, any
cause of offence, while others restricted it to some
particular cause, short only of incest and adultery.
Abarbinel comprehends under it, either behaviour,
which made her suspected ; or difference of temper,
which made her society disagreeable; or natural
diseases, as leprosy, and even offensive breath ^
In the time of our Lord, the extent of the licence
of divorce was vehemently debated in the two schools
of Hillel and Sammai. The school of Sammai re.
stricted the right of divorce to uncleanness, {turpi"
tudo;) the more relaxed school of Hillel extended it
to any other cause. Of the latter school were, the
philosopher Philo, who admits that women may be
divorced for any cause ; and the historian Josephus,
who also asserts that there are many causes of di-
vorce, and who bears record of himself, that he had
separated from one wife soon after her marriage, and
that not pleased with the manners of another, he
had divorced her after she had borne him three
children s.
It would be vain to deny that there is a difficulty
in the restrictive words used in the law of Moses,
which admitted of evasion ; and in process of time,
' Patrick in Deut. xxiv. 1 — 4. See also Anc. Univ. Hist
vol. iiL p. 147.^ » Ux. Ebr. 1. iu. c. 20, 21.
D 3
38
tbe Jews, with their accustomed subtlety, instead of
interpreting the law as one connected rule of a dis-
like founds in uncleanness^ xlivided it into two
separate parts, and made it one general rule of
divoix:e, that the woman Jognd no favour in her
husband's eyes; and another, that he found some
uncleanness in her. Under each head they intro*
duced many specific causes ; and in.addition to their
conclusions firom the law of the bitter waters, they
enlarged the grounds and increased the facilities of
divorce.
j. There are some causes of divorce not contem«>
plated in the law of Moses, which may be alleged in
proof of the extent to which it was abused, without
insisting upon those which fall more properly and
Qaturally under the sentence; If the woman find no
favour in his eyes because he hath found some un-
cleanness in her ^. '
The man might divorce his. v^ife, if there was no
issue of the marriage within; ten y^rs ; if he was too
poor to supply her with food, clothing, and medi-
cine ; or if he was under an unredeemed vow to
refuse clothing and food, to prohibit the seasonable
access of friends, and to restrain her from public and
solemn occasions of mourning and rejoicing. If
under a vow he interdicted her frOm proper employ<«
ments, he was obliged to pay her dower and divorce
her, because the want. of employment was esteemed
prejudicial to virtue. If a Jew of the Holy Land
should marry a woman in Assyria, Arabia, or Egypt,
he had the option of bringing her with him to the
^ Ux. Ebr. 1. iii. c. 5, 6, 7, 8, 10.
39
Holy Land, or if she refused, of divorcing her
without dower. If she was willing to accompauy
him, but he refused to admit her company, sbe
might be divorced, but without loss or forfeiture of
dower; If the woman waa of the Holy Land^ she
might refuse to go with her husband into any other
province ; and if he divorced her, she might claim
her dower: but the husband might compel her to
change her residence with him in the same province^
under penalty of divorce. A husband might not
divorce a captive wife without redeeming her, unless
the marriage had been originally unlawful, or she
had fallen into captivity within a period in which he
had intended to divorce her. In the case of a second
captivity also he might divorce her, and on the
payment of her dower leave her to redeem herself.
The priest was required to redeem a wife that had
fallen into captivity among the heathen, and he was
also required to pay her dower and divorce her, for
she had fallen into a state in which it was unlawful
for him to retain her.
The law which.restrained the priest from renewing
his union with a wife who had been defiled, even by
a compulsory residence among the heathen, attests
die nature of the great separation of the strange
wives under Ezra and Nehemiah, which proceeded
upon the principle rather of a nullity in the original
marriage than of a divorce or dissolution of the
. bond*. These marriages were invalid, because they
were contracted in opposition to the express com-
^ Ezra ix. x. Nehem. xiil. 19—27. Patrick and Poole's Synops:
in loc. •
D 4
40
maudment of God, in a renewed compliance with
which the people consented to abandon their wives.
This interpretation is confirmed by the treatment of
the children, who upon Jewish principles inherited
the condition of their heathen mothers, and were
therefore rejected as aliens from the commonwealth
of Israel.
In this view of the Jewish doctrine of divorce,
nothing has appeared worthy to counteract the pri-
mary institution of the indissoluble perpetuity of
marriage, or to give to divorce the character of an
authorized principle or a natural right. The origin
of divorce is buried in impenetrable obscurity; and
the first law which is extant upon the subject is a
law of restrictions, accommodated to the hardness of
heart which it was intended to mitigate. The abuses
of this law were condemned by the prophets, and it
was incumbered by the Jewish doctors with many
restrictive ceremonies, which were not abated or
evaded but in the decay of; Jewish discipline and
virtue. The divorces, which were common among
the Greeks and Romans, were equally deficient in
point of principle and authority.
In the different states of Greece, different pretexts
and rules of divorce were admitted. The Cretans
allowed the privilege of divorce to the man who was
apprehensive of too numerous a family by his wife ;
while the Lacedemonians, on the contrary, permitted
Aristo to divorce his wife, because she was barren,
although they can hardly be said to have approved
the practice of divorce, since they fined Lysander
for putting away his wife. The principles of the
Athenians were more relaxed. They permitted di-
41
vorce on frivolous occasions ; requiring, by a rule of
Jewish OEigin, the exhibition of a ImII stating the
cause of divorce, which was subject to the approba-
tion of the magistrate, if the party divorced should
think fit to appeal. Women were not generally per-
mitted to leave their husbands: but the Athenian
law allowed them to appeal to the Archon, and to
present a bill of grievances ; and by thus demanding
their personal appearance in the court, they afforded
to the husbands an opportunity of remonstrating
with their wives, and of endeavouring, by persuasion
or by force, to retain them. Hipparate, the wife of
Alcibiades, was impatient of his debauchery and
conjugal infidelity, and withdrew to the house of her
brother: but when she presented the necessary in-
struments to the Archon, Alcibiades forcibly carried
her home, and she continued with him to her death.
Husbands who divorced their wives, were required
to return their portion, or constrained by the laws to
supply them with alimony^. It was deemed dis-
honourable in a woman to forsake her husband, and
it was customary to return the dower. It sometimes
occurred, that the matrimonial union was dissolved
by the consent of both parties, when they were at
liberty to dispose of themselves in a second marriage.
Plutarch mentions a case of this kind in the life of
Pericles, who not being able to agree with his wife,
parted with her to another man, and with her con-
sent was himself united to the celebrated Aspasia.
So far divorce was a remedy which might be
obtained with ^^ some cost and inconvenience to the
^ Ux. Ebr. 1. iii. c. 27. Potter's Gr. Ant. b. iv. c. 12.
42
party, who might purchase it or not at his option:
but in reference to adultery it assumed a very dif*
ferent aspect. In this case divorce was not optional,
but compulsory. Demosthenes states, that the
Grecian laws rendered it obligatory on a man to put
away. his wife after the dis(k>very of an adulterous
intercourse. No husband was allowed to live with
bis wife after she had defiled his bed ; and if he did
not put her away, but allowed his returning affection
to prompt a condonation, he was to be termed Acn/M^,
infiimous'/'
The common method of divorce among the Ro^
mans was to send a bill to the woman, containing
the reasons of the separation, and the tender of all
her goods which she brought with her. This was
termed repudium mittere. It was otherwise exe*
cuted in her presence before sufficient witnesses, with
the formalities of tearing the vinritings, refunding the
portion, taking away the keys, and dismissing her
from the house ; in other words, discharging her
from the service which she held under the Roman
economy. A certain formulary, res tuas tibi agitOj
was pronounced by the husband, or, in the time of
Juvenal, was delivered by a freedman. The more
solemn marriages were dissolved by rites of an oppo^
site tendency, called diffarreatio^.
It has been remarked, that divorces are not usual
HI the early history of nations : in which the wife,
as the mother of the children, is generally the person
1 Tebbs^s Essay on the Scripture Doctrines of Adultery and
Divorce, p. 50 — 55,
Adam's Romail Antiquities.
m
43
most proper to be intrusted with tbe office of rearing
and maintaining them ; and her serviceis in other
respects are afterwards too valuable to be dispensed
with": and thus there is a natural necessity for
retaining the order of the divine institution, until
the growth of luxury depraves the genuine manners
and principles of men. It was consistent with this
view of the state of primitive society, that Romulu^
ordained the indissdubility of marriage, in respect
both of the man and the woman, by a law, requiring
that married women should conform to the manners
of their husbands, as having no other refuge to
which they might turn themselves; and that the
men should keep possession of their wives, as a pro-
perty which is necessary, and from which they cannot
be separated^. The law which required the Flameii
Dialis to be the husband of but one wife, has also
been deemed an example of the' original indissolu-
bility of marriage among the Romans. Plutarch
has however recorded a law of Romulus, which he
calls a hard law, and which suffered not a woman to
leave her husband ; but gave the man the liberty of
divorcing his wife, who should be guilty of adultery,
or of poisoning his children, or of counterfeiting his
private keys. If however the husband should divorce
his wife for any other cause than adultery, he for^
feited one moiety of his estate to his wife, and an-
other to the goddess Ceres ; and he was commanded
to offer an atonement to the gods of the earth f".
" Miliaria Origin of Ranks, p. 42.- o Dion. Hal. Antiq.
]. iL Hooker's Eccl. Pol. b. v. p KenneU*s Rom. Antiq. pt. ii.
b. V. c. 9. Nuptias Sacrse, p. 20, 116.
44
There is a precision in this law, not consistent with
the rude age of Romulus, the fierce manners of his
subjects, or the arbitrary tyranny which the Roman
husband held over the wife, and which would seek
under the provocations allied a more summary
vengeance than is afforded in the process of divorce :
and the question has been acutely asked by Gibbon,
whence could the husband provide the sacrifice to
' the terrestrial gods, when both moieties of his estate
had been otherwise appropriated '' ? The answer to
the question will leave little doubt that the law was
originally impracticable, or that the accounts which
are extant of it are imperfect. If the wife was guilty
of infidelity she forfeited her dower; which was re-
stored to her if she was divorced without fault on
her side. When the separation was voluntary en
both sides she sometimes also retained the nuptial
presents of her husband.
In the earlier ages of the republic a domestic
tribunal was erected for the trial and redress of
matrimonial disputes and offences: and ^' the ancient
worship of the Romans afforded a peculiar goddess
to hear and reconcile the complaints of married life :
but her epithet of Viriplaca^ the appeaser of hus-
bands, too clearly indicates on which side submission
and repentance were always expected. Every act
of a citizen was subject to the judgment of the cen-
sors; the first who used the privilege of divorce
assigned at their command the motives of his con-
ducts and a senator was expelled for dismissing his
1 Rom. Empire, c. 44. Tebbs> p. 65.
Valerius Maximus^ 1. ii. c. 9. With some propriety he
r (t
45
virgin spouse without the knowledge or advice of his
friends. Whenever an action was instituted for the
recovery of a marriage portion, the proetor^ as the
guardian of equity examined the cause and the cha-
racters, and gently inclined the scale in favour of the
guiltless and injured party. Augustus, who united
the powers of both magistrates, adopted their dif-
ferent modes of repressing or chastising the licence
of divorce. The presence of seven Roman witnesses
was required for the validity of this solemn and
deliberate act : if any adequate provocation^had been
given by the husband, instead of the delay of two
years, he was compelled to refund immediately, or in
the space of six months : but if he could arraign the
manners of his wife, her guilt or levity was expiated
by the loss of the sixth or eighth part of ber marriage
portion*/^
In the equal progress of Roman dominion and
profligacy the same privilege was granted to the
women as to the men, and the licence of divorce
was extended by the laws of the Twelve Tables, in
imitation of the institutes of the Athenians. The
fact has however been disputed ; and it does not
appear that they possessed this liberty even in the
time of Plautus, except in the event of the bus-
band^s absence for a certain period, when they were
free to marry another man. Afterwards wives di-
vorced their husbands so frequently and with so
little shame, that they were reproached with reckon-
ing their years from the number, not of consuls, but
judges divorce more criminal than celibacy : illo namque conju-
galia sacra spreta tantum, hoc etiam injuriose tractata."
' Gibbon's Rom. Emp. c. 44.
46
of husbands ^ The practice was by no means re-
spectable, but it continued to prevail notwithstand-
ing the endeavours of Augustus and Domitian to
restrict it".
A long period elapsed before the law of Romulus
was brought into practice^ and the first instance of
divorce among the Romans is ascribed to the con-
sulate of Albinus and Carvilius, (A. U. C. 525,)
when the censors, observing that the number of the
citizens was considerably lessened, and imputing it
to men^s marrying only with a view to interest, and
, afterwards deserting their wives and carrying on
unlawful intrigues with other women, obliged the
citizens to swear that they would not marry with
any other view than that of increasing the subjects
of the republic. This oath raised many scruples,
and caused many ruptures between husbands and
wives. Among the rest, one Carvilius Ruga, a man
of distinction, thought himself bound by his oath to
divorce his wife, who was barren, although he pas-
sionately loved her. He therefore put her away,
and married another, and incurred the general odium
of the people, who were equally offended at the act
' " Sic fiunt octo mariti,
Qiiioque per aatumnos. Juv. Sat. vi. 20.
A rapid succession, which may yet be credible, as well as the non
consulum numero sed maritorum annos suos computant, of Seneca,
(De Ben^ficiisy iii. 1 6.) Jerome saw at Rome a triumphant hus-
band bury his twenty-first wife, who Had interred twenty-two of
his less sturdy predecessors. 0pp. tom. i. p. 190. ad Gerontiara.
But the ten husbands in a month of the poet Martial is an extra-
vagant hyperbole. 1. vi. epigram 7.** Gibbon.
" Adam's Roman Antiq. p. 468.
47
of the individual and the interference of the censors.
At this time it is Supposed that marriage contracts
were introduced to secure the portions of women in
the case of their divorced
^' The warlnest applause has been lavished on the
virtue of the Romans, who abstained from the exer'»
cise of this tempting privilege above five hundred
years : but the same fact evinces the unequal terms
of a connexion in which the slave was unable to
renounce her tyrant, and the tyrant was unwiUiog lo
relinquish his slave. When the Roman matrons
became the equal and voluntary companions of their
lords a new jurisprudence was introduced, that mar-
riage, like other partnerships, might be dissolved by
the abdication of one of the associates. In ttu'ee
centuries of prosperity and corruption, this principle
was enlarged to frequent practice and pernicious
abuse. Passion, interest, or caprice, suggested daily
motives for the dissolution of marriage: a word, a
sign, a message, a letter, the mandate of a freedman,
declared the separation ; the most tender of human
connexions was degraded to a transient society of
profit. or of pleasure. According to the various con^
ditions of life, both sexes felt alternately the disgrace
and injury; an inconstant spouse transferred her
wealth to a new family, abandoning a numerous,
perhaps a spurious, progeny to the paternal autho-
rity and care of her late husband ; a beautiful vii^in
might be dismissed to the worlds old, indigent, and
firiendless : but the reluctance of the Romans, when
they were pressed to marriage by Augustus, sufli-
' Anc. Univ. Hist. vol. xii. p. 216.
48
ciently marks that the prevailing institutions were
least favourable to the males. A specious theory is
refuted by this free and perfect experiment, which
demonstrates that the liberty of divorce does not
contribute to happiness and virtue. The facility of
divorce would destroy all mutual confidence, and
inflame every trifling dispute : the minute difference
between an husband and a stranger, which might so
easily be removed, might still more easily be for-
gotten, and the matron who in five years can submit
to the embraces of eight husbands must cease to
reverence the chastity of her own person y.*^
The history of Roman divorce exhibits a practical
argument in favour of the indissolubility of marriage.
" The frequency of divorce among the Romans was
attended with bad consequences, which were felt in
every part of their domestic economy. As the hus-
band and wife had a separation constantly in view,
they could repose little confidence in each other, but
were continually occupied by separate considerations
of interest. In such a situation they were not likely
to form a strong attachment, or to bestow much
attention to the joint concerns of their family. So
far otherwise, the practice of stealing from each other
in expectation of a divorce became so general that it
was not branded with the name of theft, but, like
other fashionable vices, received a softening appella-
tion. The action for the recovery of such stolen
goods was not called conditio Jitrtivoj but actio
return amotarum.
" The bad agreement between married persons,
' Gibbon, Rom. Emp. c. 44.
49
together with the common infidelity of the wife, had
a natural tendency to alienate the affections of a
iather firom his children, and led him in many cases
not only to neglect their education, but even to
deprive them of their paternal inheritance'/^
The causes of the dissolution of matrimony were
restricted by Romulus to adultery, drunkenness, (or
poisoning the children,) and falsification of the hus-
band^s keys : to these were added, barrenness, age;
disease, madness, and banishment: and divorces
were also made arbitrarily, and without assigning
any reason for the act. Plutarch assigns the pretext
of Cicero^s divorcing Terentia, that she had sent
Tullia to Brundusium in a mean equipage. Caius
Sulpicius Gallus repudiated his wife because she
bad appeared in public with her head uncovered.
Antistius Vetus divorced his wife because he had
seen her in the street in conversation with a woman
of infamous character. Sempronius Sophus dis-
solved the conjugal tie because his wife had gone
to see the public games with her head uncovered*.
Ceesar dismissed his wife on the pretence that the
wife of Caesar should not be suspected. Nero di-
vorced Octavia for her sterility : and Augustus put
away one of his wives because he did not like her
temper. Sometimes the parties separated because
they were tired of each other; this was called a
divorce band greriid ; a repudium sine ulld querela :
perhaps the consul iflmilius is an instance of this :
he dismissed a handsome and fruitful wife, and would
assign no reason for it^.
» Millar's Origin of Ranks, p. 104. • Valerius Maximus,
1. Ti. 3. recited in Gent. Mag. ^ Tebbs's Essay, p. 169.
VOL. II. E
50,
Thus ^^ llie liberty of divorce was so much extended
and abused, that among persons of condition mar-
riage became a very slight and transient. connexion.
By the Roman law, about this period, divorces were
granted upon any pretence whatever, and might be
procured at the desire of either party. At the same
Ijme, the manners which produced this law, disposed
the people very frequently to lay hold of the privi-
lege which it gave them ; insomuch that we read of
few Romans of rank who had not been once di-
vorced, if not oftener. To mention only persons of
the gravest and most respectable character: M. Brutus
repudiated his wife Claudia, though there was no
stain upon her reputation. Cicero put away his
wife Terentia, after she had lived with him thirty
years; and also his second wife Publilia, whom be.
bad married in his old age. His daughter Tullia
was repudiated by Dolabella. Terentia, after she.
was divorced by Cicero, is said to have had three
successive husbands, the first of whom was Cicero^s
enemv, Sallust the historian. M. Cato, after bis
wife had borne him three children, gave her away to
bis friend Hortensius. ... As a further proof of the
profligacy of that age, it is observed, that men were
sometimes induced to marry from the prospect merely
of enriching themselves by the forfeiture of the wife^s
dower when she committed adultery ''.^'
It is not necessary to produce other proofe of the
. arbitrary capriciousness of divorce ; and it may be
useful to bring together the results of this examina-
tion of the progress of the law and licence of divorce
« ** Valerius Max. 1. vi. c. 3/' Millar's Orig. of Ranks, p. 103.
51
before the time of Christ. It has been attempted to
shew, that divorce is a counteraction of the perpetuity
implied in the divine institution of marriage, and
supported on reasons worthy of the divine wisdom
and benevolence ; that it defeats the principal ends
and designs of marriage ; that it is not the necessary
consequence of adultery, nor the proper substitute
tot its capital penalty; and that it has no pretensions
to be considered a principle of natural reason, or £^
right of social law. In all the obscurity of its sur-
reptitious origin, it may be confidently affirmed, that
it is not only destitute of the authority, but is op«
posed to the authority, of the law of God. The first
law which is extant upon the subject was conceded
to the hardness of heart, which it was designed to
mitigate, and was in its very provisions restrictive
and remedial ; the neglect and abuse of *these provi-
sions called forth the strong animadversions of the
prophets ; and although they were enforced by many
cautionary ceremonies prescribed by the Jewish
teachers, the practical abuses of this law, and of the
subtle inferences from the law of the bitter waters,
proceeded, in defiance of every divine and human
restriction, with the decay of the Jewish polity, to
the most arbitrary and unjustifiable excess. The
divorces of the Greeks and Romans have been
shewn to be equally arbitrary and devoid of prin-
ciple. In the best ages of the Roman republic, as
in all primitive conditions of society, divorce was
unknown : it followed in the train of luxury and
moral and political degeneracy, producing the worst
effects on domestic happiness and virtue, spurning
the restraint of religion, reason, and law, and resting
£ 2
52
upon pretences the most frivolous and unjust. If
raquiry be made into the origin of divorce, it is the
pride of man interfering with the institution of God ;
kito its immediate motive, it is ungoverned passion ;
or into its direct tendency and operation, it is vice.
In kself it possesses no advantage which can cover
the obliquity of its principle, or the mischief of its
effect: it has never proceeded but in opposition to
the opinions, the laws, and the example, of wise and
good men : its baneful tendency has challenged the
censure of the infidel historian, who has pronounced,
that, after the most free and perfect experiment, it
has been demonstratively proved not to contribute to
happiness and virtue : it has destroyed the virtue of
individuals and the peace of states : and its unre-
strained licence has been the common sign of ruined
justice and declining empire. It is the wise apho-
rism of Selden, that there is the most indubitable
wisdom in restraining the licence of divorce, whether
respect be had to the restraint of passion, the main-
tenance of succession and inheritance, or the defence
of the other interests of public peace and piety ^.
* Ux. Ebr. I. iiL t. 33.
SECTION II.
Restrictions invohed in the received interpretaium of the
doctrine of divorce for aduUery.
It is of the highest importance to ascertain how
fer the views which have been taken of the Jewish
law and practice of divorce are sanctioned by the
comments of our Lord. In bis discourse upon the
mount he referred to this among various provisions
of the law which were either deficient in principle,
limited in extent, abused in practice, or corrupted
by false glosses and interpretations. / It hath been
said. Whosoever shall put away his wife, let him
give her a writing of divorcement : but I say unto
you. Whosoever shall put away his wife, saving for
the cause of fornication, causeth her to commit adul-
tery ; and whosoever marrieth her that is divorced
committeth adultery*. In this contrast of the law of
Moses with the law of Christ, no merit is ascribed
to the cautionary requisition of the bill of divorce-
ment ; no notice is taken of the popular dispute, whe-
ther there were more or fewer causes for which divorce
should be allowed. These matters are dismissed as
unworthy of the most cursory consideration ; the
whole law, as it existed in the practice of the Jews,
is superseded and abolished ; no imperative rule is
substituted in its stead ; the act of repeal is not
qualified but by the insertion of a clause of excep-
tion, by which the divorce is exempted from certain
• Matt. V. 31, 32.
£ 3
54
consequences, which are otherwise inseparable from
it. With the only exception* of the case of fornica-
tion, the parties could not be even separated without
temptation to adultery ; and they could not proceed
t6 a second marriage without the actual commission
of adultery. The man is charged with causing the
woman to commit adultery, by putting her into a
condition to marry again during his life : and even if
she does not avail herself of the privilege, ^^reus
tamen ille,^^ says Lightfoot, and Origen held the
same opinion fourteen centurie3 before him : ^' de
omnibus diroissse libidinosis sestuationibus, nam li-
bidinose concupiscens mcBchari dicitur^.^'
There was another occasion^ upon which our
Lord^s opinion of the Jewish law was more fully
and explicitly delivered. The controversy between
the rival schools of Hillel and Sammai, on the extent
jof the privilege of divorce, was submitted to hi9
judgment ; and he was asked, with a secret intention
of betraying him into an offensive answer, whether a
man might divorce his wife for every cause. Instead
of immediately and directly resolving the question,
be confounded the enquirers by referring them to the
original law and doctrine of marriage : Have ye not
read, that he who made them at the beginning made
them male and female? and said. For this cause
shall a man leave father and mother, and cleave unto
his wife, and they twain shall be one flesh. What
therefore God hath joined together, let not man put
asunder. The' pharisees perceived that this reason-
- •
** Lightfoot, Hor. Hebr. in Matt. v. 32. Origen, Com., in Matt,
torn. xii. 8. 24. ^ Matt. xix. 3—12.
55
ing was unanswerable ; and that according to this
primeval authority, and the just and natural inference
which our Lord drew from it, there was originally
no law or licence of divorce: but they thought to
perplex him with an enquiry drawn from the per^
missive law of Moses ; and therefore they said unto
him, Why then, why, if no man may separate what
God has united in marriage, did Moses, the prophet
and messenger of God, command to give a writing
of divorcement, and to put her away ? This was a
question which called for a direct opinion on the
law of divorce delivered by Moses : and how was it
resolved ? He saith unto them, Moses, because of
the hardness of your hearts, suffered you to put
away your wives ; but from the beginning^ it was
not so. In this sentence he taught that the law ot*
divorce was not an original law, but a remedial pro-
vision, conceded to the Jews upon no better prin-
ciple than the hardness of their hearts, for which
they were permitted to put away their wives, rather
than required to retain them in hatred and ilUwilf.
Having thus adverted to the original institution of
marriage, and to the hard necessity which introduced
the permissive and remedial law of divorce, our Lord
laid down his own rule : Whosoever shall put away
^ Dr. Clarke supposes that the original words imply a reference
to the Book of Genesis, which the Hebrews denominated, from
its prefatory words, BeresckUh^ translated f» «CX9> intimating that
the account given in Genesis was widely different, and that there
was no divorce or polygamy in the first £unily. Tebbs's Essay,
f). 80. But the words of Saint Matthew are, •w u^^^ and
of St Mark, uw 1% §^x!^ utmtH, referring evidently, not to the
text, but the time. '
£4
56
bis wife, except it be for fornication, and marrietb
another, committeth adultery : and whosoever mas^
rieth her that is put away committeth adultery.
In the narrative of Saint Mark% the discourse is
reported with some trifling variations, which call for
immediate notice ; while those which are more im*
portant are reserved for separate consideration. The
question of the pharisees is met by another question ;
as if it had been said. You ask me my law, and
profess to consult me : but are you ignorant of tbe
law of your own prophet, or not content to observe
the rule which he has delivered ? What did Moses
command ? They answered, Moses suffered to write
a bill of divorce, and to put her away. In Saint
Matthew's Gospel they say that this was com-
manded ; and our Saviour allows that he suffered
it^: and in fact there was both a permission and a
commandment : the divorce was suffered, the instru-
ment or bill of divorce was commanded. On this
representation our Lord replies, that the licence
was conceded to the hardness of their hearts, and
contrary to the institution which had obtained from
the beginning.
Our Lord therefore did not deliver his own new^
• Mark x. 2—12.
' " Lege scilicet politica non moraii, hsec enim perpetna est
ragula divinae jiistitin, ilia aeae aliquando, ut regula Lesbia in-
iMtit." Besa in Matt. xix. 8. '< Repudia quee lex loleravit>
D«ug nunquam probavit.*' Beza in Marc. x. 4, Schleonier iar
terprets »nXXfuu, as equiralent to irir^w^. Is it possiUe, that
our Lord, in the qnestion, n vftiv wnuXmw Mmrn i explained (as
of other texts by Schleusner,) What doctrine did Moses deliver ?
intended to refer them to Oenesis rather than Deuteronomy, as
in the question, Have ye not read^ &c. ?
57
rule, without prouounciug bis opinion on the law
which was already in force, or without declaring it
to be a remedial law, brought in by the hardness of
their hearts : a law which was so far from being a
natural or an original law even of the Jewish polity
and discipline, that it was contrary to the primitive
law and institution of marriage. In both reports of
the iconference with the pharisees, our Lord con-
firmed his objection to the prevailing practice of the
Jews, by drawing the strongest and most pointed
contrast and comparison between marriage as a dU
vine institution, and divorce as a human interposi-
tion with that divine institution^: What God hath
joined together, let not man put asunder: and if
under the name of man, or a man, he alluded to
Moses, and his permission of divorce, he superseded
that permission ; or if the allusion was general, and
not restricted by any particular reference, the prohi-
bition was universal. With these marked and (de-
cided objections to the Jewish law, not in its maK
administration and abuse, but in its best and simplest
form, our Lord proceeded to deliver his own rule,
and to restore' the spirit of the original institution.
Moses bad permitted a liberty of divorce under
certain regulations^ restricted to a case of dislike
founded in uncleanness; and this liberty had been
accommodated, in the practice of the Jews as well
as of the Gentiles, to comprehend almost every o^
fence for which a man could pretend to dislike his
wife. Our Lord explained the corrupt origin of this
' B«ia (de Repudsk) allowft) tkat the words exclude all causes
of divorce besides that which is expressly idlowed.
58
liberty ; and restrained its future operations to the
single case of fornication. He did not directly per-
mit or coaiinand divorce in any case ; but he briefly
mentioned a particular case, in which consequences
otherwise unavoidable would not attach. He did
not, in reference to any circumstances, say impera-
tively, Put away your wives; or let thena be put
away : his doctrine was, that they could not be put
away for any cause but fornication, without hazard
of adultery : and hence the utmost inference which
can be drawn is, that for fornication they may be
put away, without incurring the imputation of adul-
tery.
Four different cases of divorce are proposed by
our Lord, and they embrace the chief varieties of
illegitimate divorce ; 1. the case of a man divorcing
bis wife : Whosoever shall put away his wife, and
marry another, committeth adultery^. S. The case
of a woman divorcing her husband : If a woman
shall put away her husband, and marry another, she
committeth adultery*. 3. The case of a man mar-
rying a woman divorced : Whoso marrieth her that
is put away, doth commit adultery^. 4. The case
of a woman divorced, but not marrying again':
Whosoever shall put away his wife, saving for the
cause of fornication, causeth her to commit adultery',
1. e. if she avails herself of the permission which he
gives, and throws her into temptation if she does not
marry. It is certain that our Lord gave no law or
liberty of divorce, but by acquitting the divorce
^ Matt xix. 9. Mark x. 11. Luke xvi. 18. * Mark z. 12.
* Matt. V. 32. xix. 9. Luke xvi. 18. > Matt. v. 32.
59
under peculiar circumstances^ of the charge of adiiU
tery, which would otherwise ensue : for where the
exception operates, the consequences are removed ;
where the exception does not operate, the conse-
quences remain : and therefore it was rightly judged
by Tertullian; If a man marries a woman unlawfully
divorced, supposing her to be divorced, he is an
adulterer : for the matrimony remains which is not
duly dissolved ; and while the marriage remains, the
woman can'not marry without adultery".
The word Jhrnication^ in the clause of exception,
is ordinarily int^reted of adultery, which is con-
ceived to be the only fornication of which married
persons can be guilty. This exposition is received
too generally and on too high authority to be treated
with any disrespect, or to allow a hasty transition to
the interpretation which it is intended to propose,
without ^ a mature consideration and a distinct as-
sertion of the restrictive conclusions which may be
drawn even from the common hypothesis.
It is usual with writers who insist upon the law-
fulness of divorce for adultery, to understand the
clause of exception in the several sentences in which
it is not. expressed, and to conclude that they all
denote a divorce which is lawful, as well as a divorce
which is not lawful. The licence of divorce is thus
extended to several more cases than are admitted
under a more rigorous interpretation, which allows
immunity and redress to none but the injured hus-
band. But before the usual interpretation is im-
plicitly admitted, it is of importance to observe, that
^ Adv. Marcion, h iv. s. 34.
60
there is but one case in which the clause of exceptkm
is expressed, and that is the case of a man divorcing
his wife : Whosoever shall put away his wife, saving
fcxc the cause of fornication, causeth her to commit
adultery : Whosoever shall put away his wife, except
it be for fornication, and shall marry another, com-
mitteth adultery. If he puts away his wife for any
other cause, he causes her to conmiit adultery, by
exposing her to temptation, and putting her into a
condition to marry again : and if he marries himself,
he actually commits adultery. In either case the
guilt or hazard of adultery is incurred ; because,
notwidistanding the pretended divorce, the obliga-
tion of the original marriage continues, and cannot
be violated without adultery : it is only when forni-
cation is the ground of divorce that this consequence
is avoided.
In all the other sentences divorce is forbidden
absolutely, and without any reservation expressed:
and it is necessary to enquire, whether there is any
peculiarity in the case to which the clause is apfdied,
which appropriates and restricts the exception ; and
whether there is any deficiency in the statement of
the other cases which needs to be supplied. In the
first sentence in which the clause is inserted, the
restrictive exception is indispensable: Whosoever
shall put away his wife, saving for the cause of
fornication, causeth her to commit adultery : but if
be puts her away for fornication, and if fornication
means adultery, the divorce is obviously not the
cause of the guilt, which is the occasion of the
divorce. In respect also of the other text, in which
the clause is inserted, it has been justly ai^ued, that
61
^* there is do opposition between the language «of
Saint Matthew and the other evangelists. Putting
away one's wife is absolutely forbidden in all the
passages. The exception for the cause of adultery
does not allow it. For by the Mosaic law nobody
was put away for adultery. The adulterous parties
were not put away by divorce, but were put to
death. There was no divorce for adultery. The
interpretation of the passages in Saint Matthew ap-
pears to have been embarrassed by applying to the
second clause, the exception which Christ confines,
to the first: Whosoever shall put away his wife^
except it be for fornication, and shall marry another^
committeth adultery: (the case of fornication was
excepted, because the adulterous wife having suffered
death, the husband who married again was not guilty
of adultery against her:) and whoso marrieth her
which is put away, (except for adultery,) committeth
adultery. The exception is inapplicable here, be*
cause it implies that a wife could be put away for
adultery .... and that after being put away she
might marry again, which the law precluded by her
death. The misapplication of the exception to the
second clause, seems to have led to an inference,
that by the law of Christ a man may put away his
wife, in the ordinary sense of the term, for adultery ;
though the exception, as made by Christ in the first
charge, which derives its whole force fi'om the death
of the adulterous party, requires the very reverse of
this inference ".''
" Greek Orig^iial of the New Testament asserted by Bishop
Burgess, p. xxxii.
62
If in the clause of exception our Lord intended
any allusion to adultery, and especially to the capital
punishment of adultery, the clause must necessarily
be restricted to the first sentence, and can have no
application to the second, which relates to the mar-
riage of a divorced woman. All the other sentences,
if there be no forcible insertion of the clause of
exception, will be found to amount in perfect bar-
mony to a general prohibition of divorce, and there
will be no deficiency which demands the least inter-
polation. The express authority of Saint Matthew
will govern the only case of exception, and the
remaining sentences are perfect and complete in
themselves. Let the sentences be all read, without
the clause of exception, as general .prohibitions and
interdicts of divorce : Whosoever putteth away his
wife causeth her to commit adultery : if he marries
he comnjits adultery : the man who marries a di-
vorced woman commits adultery: the woman who
puts away her husband and marries another commits
adultery. These are all propositions corresponding
in universality of extent with each other: they are
all suited to the occasion, directly replying to the .
question of the pharisees, which related not to di-
vorce for adultery, but to divorce for every cause:
they all coincide with the indissoluble unity of the
conjugal relation, and with the unlimited rule; What
Grod hath joined together, let not man put asunder.
This interpretation is also agreeable to the use of the
earliest fathers, who recite the clause in referring to
the texts in which it is expressed, and not only
omit it in adverting to the texts in which it is not
found, but digress from the texts in which it is
63
wanting to argue upon those in which it occurs''.
But in the argument which is constructed upon the
interpolation of the clause of exception, it is for-
gotten, that the propositions are all originally not
particular but general propositions ; that the only
limitation is contained in a clause of exception, in-
serted in a- parenthesis, and, where it is inserted,
applied originally and exclusively to the case of the
injured husband, but used by-the commentators and
writers on divorce with such force as to convert a*
series of general affirmative propositions into a series
of particular negative propositions. The rule of our
Lord is. If a man divorces his wife and marries
another, he commits adultery. The converse of the
* Chryaostom has been said (Nupt. Sacr. p. 68*) to have been
** so strnck with the necessity of applying the exception to both
clauses, if to either, that in his account of the corresponding text,
in Matt« ▼. he sometimes leaves it out altogether. He makes the
two cases perfectly parallel, and proves that in his mind the
reservation belonged either to the whole of the passage, or to no
part of it.*' The argument would have been more relevant and
more convincing, if it had exhibited proof of the insertion of the
clause in the texts in which it is wanting. Some instances may
be alleged of the precision of the earlier fathers in referring to.
the texts in question. Theophilus, Ori^en, Com. in Matt. torn,
xiv. s. 24. and Tertullian de Monog. s. 9. De Pud. s. 16. quote
Matt. V. 32, with the clause : Cyprian de Bono Pndicit. quotes
Matt. xix. 9, with the clause. Tertullian ad Ux. 1. ii. s. 2.
quote* the clause without any context, but with sufficient al-
lusion to Matt. xix. 9. Adv. Marcion. 1. iv. s. 34. he recites
Luke xvi. 18, without the clause, and in the process of his dis-
course quotes Matt. v. 32, with the clause. The point of his
argument is' directed against marriages after divorce, which he
ooneetves to be granted upon the condition that no marriage
shall follow the divorce.
64
rale maintained by expositors is, If be divorces an
adulterous wife and marries another, he does not
commit adultery.
It is the argument of a writer, venerable and
venerated for virtue and learning, wherever bis name
is known, that the clause of exception must be
understood ^' according to the common rule in pa-
rallel testimonies, that the fuller and more compre*
hensive passages shall supply those which are less
explicit^." But in one sense at least the propositions
are most comprehensive without the restrictive ex-
ception: and they are certainly more explicit, for
the terms in which the clause is expressed are so
ambiguous as rather to embarrass than define the
sense.
It is further argued, that ^^ it seems to be almost
inconceivable, that the words in the latter clause,
which I have restrained by the supplementary ex-
pression to the same case which is regarded in the
former part of our Lord's sentence, i. e. to the case
of divorce for insufficient reasons, can be considered
absolutely, and therefore be applied to any other
cause of divorce, whether for insufficient or sufficient
causes. It is not to be imagined, that our Lord
would introduce a new case or a general position in
close connexion with the special circumstances he
had just considered, and where the same parties too
continued still under contemplation, without some
mark of distinction to shew, that when speaking of
the woman he then passed a different judgment. It
is natural enough not to introduce words of limita-.
>' Christ. Remembrancer, vol. ii. p. 738.
65
tion or enlargemenit where the context shews the
case to be. the same ; but it is utterly unnatural and
improper to omit distinctions where a new case is
suddeoly. introduced*"/' The advocates of divorce
for adultery will not deny that all the propositions
agree in proscribing divorce for insufficient causes :
and the only doubt or question whigh is entertained
in opposition to their opinion is, bow far it is neces-
sary to understand the clause of exception in the
sentences in which it is not expressed so as to justify,
in all cases divorce for the sufficient cause of adul-
tery. The exception, when it is expressed, refers
entirely to the case of a man divorcing his wife ; but
when our Lord proceeds to introduce the new case
of a divorced woman, he treats it generally, without
limitation, and without any insinuation or allusion
which can justify the supposition that he connected
the sentence ^^ with the special circumstances he had
just considered, or that the same parties continued
still under contemplation ;'' he does not say ; He
that divorces his wife causes her to commit adul-
tery ; and he that marries her>^ or that woman, or
that man's divorced wife; but he that marries a
divorced woman, any woman divorced from any
husband, in the most general and indefinite form.
The language of Saint Luke is equally unrestricted.
Whatever opinion be formed of the grounds of the
omission, the fact is unquestionable ; the application
of the exception to a particular case, and its separa-
tion from all the other cases, cannot have been
without design.
•» Christ. Remembrancer, vol. ii. p. 750.
VOL. II. F
66
Another writer admits the objection, and labour^
to refute it: '^ Perhaps it will be urged, that the
former part of the passage is to be understood with
a reserve^ because that reserve is expressed : and thei
second generally, because it is generally stated. I
answer, that such is not the method to be used on
this occasion . . . the parties remaining under the
same circumstances, the exception expressed in one
place is only to be supplied word for word in the
other. Whosoever putteth away his wife and marrieth
another committeth adultery ; and whoso marrieth
her that is put away committeth adultery. These
are general propositions, and they are reciprocally
stated. But there is not the same completeness in
the terms employed under each of them. The first
is attended with the particular clause, except foi^
fornication : this once expressed is dropped in the
second. The mind is now prepared by the previous
mention of it, and calls it in again, as a necessary
and consequential part, to supply that fulness of
meaning which the divine writer manifestly intended,
and of which he had already given a leading indica-
tion'." The argument proceeds on the supposition
that the two propositions are both general propo^
sitions, which is immediately counteracted by the
admission that the first, containing the limitation, is
a particular proposition. The reciprocity of state-
ment appears to be grounded in the opinion that it
is one and the same woman who is the subject of
both propositions, an opinion which corresponds
with the public version, but which has no foundation'
' Nupt. Sacrae^ p. 65^ 69.
67
in the original. If the divine writer bad intended
tha^ any fulness of meaning which he did not express
should be understood, he would have attached the
eiause of exception to all the cases to which he meant
that it should be appropriated. He would not have
confined the expression of it to the one single case
of a man divorcing his wife, and have taken advan-
tage of a second occasion to enforce its application
in that particular case, shewing its effects at one
time upon the man, at another upon the woman.
Such repetition and restriction, with the entire omis^
sion of the clause in reference to any other case, are
indeed a leading indication of the writejr's design.
If the clause of exception be exclusively appro^
priated to the sentences in which it is inserted, it is
necessary to conclude, that the permissive licence of
divorce is restricted to the man who can prove
against his wife a case of fornication ; and if that
ofience be not charged the wife cannot be separated
from the husband, nor the husband from the wife^
without danger of adultery, which is actually com-
mitted by the marriage of either during the life of the
other. Thus the liberty of divorce is conceded only
to the husband of the adulteress ; and even Besa*
concedes that if the texts of Mark and Luke aie not
supplied from the texts of Matthew, those texts have
no reference to the doctrine of divorce for adultery.
But let the opposite interpretation be received,
and let the clause of exception be understood in all
the sentences in which it is not inserted, and let
enquiry be made into the effect of the propositions
* Dft Repadib et Dhrortiis.
f2
68
thus pegtricted in proving the liberty of divorce for
adultery. Whosoever putteth avtray his wife for the
cause of fornication doth not cause her to commit
adultery ; nor does he commit adultery if he marries
again. Whosoever marrieth her that is divorced for
fornication doth not commit adultery : if a woman
putteth away her husband for fornication and mar*
rieth another, she doth not commit adultery. Id
this statement of the several cases, the law is evi*
dently permissive, not imperative ; hypothetical, not
positive. In the retention of an adulterous wife no
wrong is imputed ; in her rejection no duty is re-
cognized. The guilt of the party before the divorce
has no effect but to vitiate the consequences which
would otherwise follow the divorce. The conse-
quence of adultery following an unlawful divorce is
founded in the continuity of the bond of marriage^
in which, notwithstanding the pretended divorce, the
parties are still bound, and therefore cannot proceed
to another marriage without incurring the guilt of
adultery. It is upon this principle that adultery is
made the consequence of unlawful divorce; and that
this consequence may not be imputed to a lawful
divorce, it is usual to suppose, that the adultery pre-
ceding the divorce dissolves the bond of marriage,
and that the dissolution of the bond renders the par-
ties free to separate from each other, and to enter
into new marriages without hazard of adultery. It
IS remarkable, however, that the dissolution of the
bond is maintained, not by contrasting the conse-
quences of lawful and unlawful divorce, nor by
insisting on the opposite meanings of the texts^ as
they are construed with or without the clause of
69
exceptioDy but on an argument perfectly ^jistinctt
constructed on the act of the adulteress in alienating
herself from her husband, and transferring her person
to another man, and thus destroying the conjugal
unity. The basis of this argument is a text the
most irrelevant ; for whatever be the meaning of the
words; He that is joined io an harlot is one body^;
they have certainly not the remotest reference to
adultery. It is hardly necessary to state^ that the
whole of this argument was unknown to the writers
of the three first centuries : Lactantius is the first
writer who adverts, and he only adverts to the rup-
ture of the bond by infidelity °. But if adultery be
in itself a dissolution of the bond of marriage, it
must be a dissolution under all circumstances ; and,
notwithstanding the fearful consequences with which
the doctrine has been shewn to be pregnant, would
the 'separation of the guilty from the innocent be
merely permitted ? Would it not rather have been
commanded with all authority, and made a duty of
moral obligation, founded in a natural sense of pro-
priety ? But in confutation as it were of the alleged
dissolution of the bond, the divorce for adultery is so
far from being commanded, that if the man does not
separate from his wife he may continue the con*
nexion without any imputation of offence, and the
obligation of the bond of marriage, instead of being
broken, is renewed and strengthened; not only in
the inference of theologians from the sacred records ;
* 1 Cor. vi. 16.
" Div. Inst. Epit. c. Ixvi. ** Ut nunquam conjugalis foederis
vinculum nisi quod perfidia ruperit» reaolvatur.'* -
F 3
70
not only in the doctrine of primitive writers antici<>
pating the reconciliation and reunion of the parties ;
but in the daily practice of the courts of law, in
which an act of condonation is made a permanent
bar to a divorce.
Another argument has been drawn from the Jewish
law of adultery for the dissolution of the matrimonial
bond by adultery. ^' Death, and not divorce was
the punishment of adultery by the Jewish law, and
therefore it is manifest, without meddhng with their
punishments, which perhaps at the time when our
Lord spake could not be enforced, that our Lord
declared in general terms that adultery was that
breach of the nuptial contract, and of the whole ob-
ligation of the marriage vow, which furnished a just
cause for divorce'.'^ But is it not precipitate to
assume, not only the insertion of the clause, and its
interpretation in the sense of adultery, but the sub-
stitution of divorce for the Jewish penalty of death,
and the equal effect of both in the annihilation of the
bond of marriage. Without this remote conclusion
the argument is confessedly inappUcable. If divorce
as the consequence, were coextensive widi death as
the punishment, of adultery, could it allow, as the
text supposes, the adulteress to marry again ? ^* 1
have no alternative but to suppose that our Lord
might respect the disuse of that punishment at that
time or in times to follow : but, as the supposition is
gratuitous, I will not urge it^.'^
Such arguments are certainly not conclusive of the
dissolution of the bond of marriage by adultery :
Chr. Remembr. vcd. iu p. 740. * Ibid. p. 750.
71
and whether the clause of exception be or be not
understood, there is certainly no obligation to the
practice of divorce ; it is merely a permissive law,
limited to the use of the injured husband, if the
ckuse of exception be restricted to the texts in which
it is inserted, and only susceptible of a larger appli-
cation, by the interppIatioQ of the restricting or re*
stricted clause.
Whatever be the meaning of the chief term in the
clause of exception, the liberty of divorce is restricted
by that term. The form of the clause, according to
its scriptural use and meaning, is such as is exclusive,
absolutely and not comparatively, of all other causes,
and cannot be supposed to imply that a divorce for
fornication is less offensive than a divorce for other
causes. If other causes had been meant, the excep*
tion would have been expressed more generally, and
not limited to one specific cause; nor is it usual,
under the terms in question, to signify opposition or
contrast, without the exhibition of both parts of the
comparison. Such, comparison of offences was not
intended by our Lord, nor was it called for by the
question of the pharisees, which professed not to
enquire into the unlawful but the lawful causes of
divorce, which were restricted by our Lord to the
single case of fornication p.
The usual interpretation of the clause of exception
in the sense of adultery introduces a new and addi-
tional restriction, in the nature of the proof which is
required of the guilt of the offending party. The
Jews knew nothing of the crime of adultery by im-
■* Gerhard de Conjugio, s. 564, 569.
f4
7^2
plication or suspicion. It was only when direct
proof was wanting that the husband was allowed to
resort to the law of the bitter waters ; to appeal to
the omniscient Judge for the removal of suspicions
which he could not substantiate ; and to prove him-
self entitled to the redress of wrongs which he could
not establish. In other cases the crime of adultery
was to be proved by evidence ; and in allowing a
husband under his new law to divorce an adulterous
wife, it could not be the intention of our Lord at
once to relax the law of adultery delivered in their
sacred records, and the practice of divorce as it was
guarded by the Jewish writers ; or to sanction an
arbitrary licence of divorce for reasons which might
satisfy an interested, a jealous, or offended husband ;
but which could not produce conviction in the court,
in which the adultery must be alleged, and the
divorce must be obtained. Whatever may be thought
of the gratuitous and unsup[>orted opinion of Philo,
that adultery was of necessity punished with death,
and that the husband was at liberty to slay the adul-
terer with impunity, divorce was a forensic matter :
and although, under the abrogated practice of divorce
for all but every cause, the husband was entitled to
demand a divorce without assigning any reasons,
and the court was unable to refuse his demand ; yet
when the law was renewed and invigorated, and
adultery was made the only and exclusive cause of
divorce, adultery did not lose its criminal character,
and it was necessary to produce adequate proof of
the offence, before a competent tribunal, before the
remedy could be obtained. Under the old system,
the woman's confession did not convict her of the
capital offence, although, in the actful inteFpretatioii
of the Jews, it entitled the husband to a divorce,
and deprived the woman of her dower. If it was
our Lord's design to enforce and not to relax the
law of divorce, he would hardly suffer the parties to
be separated upon slighter testimony than was re*
quired to justify the infliction of the capital punish*
ment.
But on the hypothesis that fornication means
adultery, and that adultery justifies divorce and a
liberty of marrying again, there is further necessity
of a public trial, conviction, and judgment, without
which, a person marrying either of the parties dir
vorced, as well as the parties themselves, is liable tp
a charge of adultery. It is not enough that a man
divorces bis wife, or a woman her husband : it 13
necessary, for the validity of the future marriage, and
for prevention of the- adultery which might otherwise
be imputed to that marriage, that the grounds of the
divorce should be publicly known and approved.
Divorce even for adultery cannot be the act of the
individual : it is the judgment of the law, and the
law decides upon evidence. Under the Jewish law
a man might put away his wife for every cause, and
they might proceed to new marriage, without en-
quiry and without imputation : but even the bill of
divorcement, according to the requisition of thq
Jewish doctors, must be delivered before witnesses,
who might protect the woman from a charge of
adultery if she should marry again. Under the
Christian law it cannot be less necessary to exhibit
the true ground of separation, without which divorce
74
is the occasion of sin, and marriage following the
divorce is actual sin.
The method of our Lord, in permitting divorce
only by vitiating the consequences of divorce, is of
the last importance, in proving what is commonly
called the woman^s right of recrimination. It was
one principal part of our Lord^s design in treating
of marriage and divorce, to restore the equal rights
of the man and the woman, as they were at the be-
ginning ; not to increase the fecilities of divorce, but
to revive the primitive doctrine of the perpetuity of
the conjugal union. It is certain that the right of
recrimination on the part of the woman was known
to the Jews, and divinely authorized in the law of
the bitter waters, of which it was one express condi-
tion, that the man should be guiltless from iniquity :
a condition which the Jewish writers agree in inter-
pieting of innocence of adultery, and to the want of
which they are wont to ascribe both the general and
particular suspension of the powers of this singular
ordeal. In addition to his marital integrity, the
husband was required to exercise a scrupulous jea-
lousy over the conduct of his wife, and to forbid the
access of any persons whose intentions he had
reason to suspect; and unless he could prove that
he had thus admonished his wife, he was precluded
from the remedy which he desired. It is suggested
by Patrick, that the prophet Hosea alludes to this
trial of the bitter voters, and to the condition of
marital int^rity, which was necessary to the convic^
tion of the wife, when he introduces the Liord pro-
nouncing the sentence of judgment: t will not
75
piuiish your daughters when they cominit whores
dom, nor your spouses when they oommit adultery ;
for themselves are sefMirated with whores and they
sacrifice with harlots *<• The Jewish law of adultery
contained in the bitter waters, did thus expressly
admit the « doctrine of recrimination ; and the pre>-
vious law, which pronounced a capital punishment
equally on the adulterer and the adulteress, effec-
tually prevented the accusations of a guilty hus-
band.
In the writings of the New Testament there is at
least no objection to this principle and law of recri-
mination : there is not the most distant notice of its
repeal. It is the opinion of Lightfoot, that in the
case of the woman taken in adultery there is a clear
and strong allusion to the law of the bitter waters ;
and that both in his action and his posture our Lord
condescended to a striking conformity with the rule
prescribed to the judge in that trial. His sentence
upon that occasion was, Let him that is without sin
cast the first stone at her : and the reference to him
that is without sin corresponds with the condition
required m the Mosaic law, that the man should be
guiltless fix)m iniquity. In the paraphrase of Light-
foot, our Lord is represented hearing the accusation,
and addressing the accusers in woixls to this effect :
You have brought this woman before me under a
charge of adultery : I appeal to your own law upon
the subject, which requires the integrity of the
accuser : I know your hearts as well as He to whom
' ^Hos. IT. 14. See Ainsworth and Patrick on Num. t. 31.
Ux. Ebr. 1. ui. 6. 13,14, l^-
76
the appeal is made in the bitter waters ; and I de^
mand of you, Are you guiltless of the sin of aduL
tery ? Are you yourselves in a moral condition to
prosecute the woman to conviction ? Let him that
is guiltless, as that law requires the accuser to be,
cast the first stone at her, and carry into execution
the sentence which another law has pronounced on
the offender^ In this exposition the passagie throws
considerable light on the doctrine of recrimination.
An argument yet more direct and more distinct
may be drawn from those passages in which our
Lord permits divorce for the cause of fornication by
nullifying the' consequences with which the divorce
would otherwise be chargeable. In the two cases
proposed in Saint Mark's Gospel, the right of recri-
mination is necessarily implied, for the consequences
are absolutely incompatible with a state of guilt. Who-
soever putteth away his wife, and marrieth another,
committeth adultery : and if a woman shall put away
her husband, and n^arry another, she committeth
adultery'. The innocence of the divorcing party is
supposed, or otherwise the guilt of adultery would
be previous, not subsequent, to the divorce. It is
true that the clause of exception is omitted ; but as
the commentators require, let it be inserted and in-
terpreted of adultery, the effect will be the same.
The propositions will then be reduced to this form :
Whosoever putteth aviray his wife for adultery, and
marrieth pnother, doth not commit adultery; and
the woman who putteth away her husband for adul*
tery, and marrieth another, doth not commit adul-
' Hor. Hebr. in Johan. viii. * Mark x. 11, 12. .
11.
tery. The first proposition is the exact converse of
the words of Saint Matthew, on which the whole
scheme of divorce for adultery is founded. But will
the rule thus expressed admit the supposition of
guilt in the divorcing party ? Can it be said that an
adulterer divorcing an adulteress and marrying again
doth not commit adultery ? or that an adulteress
divopcing an adulterous husband and marrying again
doth not commit adultery ? It is in vain to pretend
that it is the marriage after an illegal divorce which
alone constitutes the adultery in contemplation : for
it is impossible under any circumstances to maintain
that an adulterer is not an adulterer, or doth not
commit adultery. It is an equivocation, it is a
solecism, which' it is impious to fasten on the Ian.
guage of inspiration, but which is nevertheless into-
parable from such expositions of the law and licence
of divorce, as exclude the right of recrimination, and
sanction a divorce of the accused, without demand-
ing proof of the accuser^s integrity.
Under any interpretation an equal privilege or an
equal prohibition is assigned to both parties. If the
clause of exception be not understood, the prohi-
bition is universal, and cannot be violated by either
party without sin. If the clause be understood, the
man may put away his wife, and the wife her hus-
band, without incurring the imputation of adultery
which follows an unjust divorce.
The very principle upon which our Saviour founds
his restriction of the law of divorce does also imply
the right of recrimination. The principle is. What
God hath joined together let not man ))ut asunder.
The only exceptions of which this rule admits are
78
the cases of those whom, by the impediment of an
incestuous and unlawful marriage, God hath not
joined together, and of those whom, according to the
common ailment, man, by adultery, and by di-
vorce, in retribution of the adultery, hath put asunder.
The innocence of the marriage following a lawAit
divorce is inferred from the dissolution of the first
marriage by the act of adultery : but if the bond is
indeed broken by the adulterous act, it is broken by
the first offender, be that ofiender the husband or the
wife : and that ofiender is responsible for the conse-
quences of his own act, and cannot be permitted to
break the bond himself, and then to come fbrwapd
and plead for a divorce on the ground that the
woman hath broken it. It was the argument* of
Lactantius, that, under the Christian scheme, the
husband and the wife are incorporated with such
equal privilege as to impute adultery to that party
which first divides the conjugal union, and that the
adulterous wife of an adulterous husband does not
commit but retaliate the injury^. The adulterer
cannot therefore complain, or seek the redress of
wrongs which he has brought upon himself; which
he has rather originated than sustained. It is no
common authority which has pronounced of the
woman that is unjustly divorced. Whoso putteth
away his wife, except for the cause of fornication,
causeth her to commit adultery, by putting her into
a condition to marry during the life of her husband.
But is this the height and aggravation of an adul-
terer's offending ? Is it nothing that he was himself
< Div. Inst. 1. n. c 23. See abore, Vol. i. p. 426.
79
guilty of adultery before he divonied his wife ; that
as far as in him lay he put her asunder from him by
the adultery ; dissolving, as is pretended, the matri-^
monial bond before he applied the formal divorce ?
The temptation which the bill of divorce afforded
could not exceed the temptation subsisting in the
adulterous example. The principle of the divine
union was, on the common hypothesis, destroyed in
eidier case.
Thus the odore carefully the law which our Saviour
hath delivered, the cases which he hath proposed,
and the principle upon which those cases are argued,
be examined, the more evident will be the right of
recrimination, especially if it is remembered, that he
made no exception to the right involved in the pre-
ceding law of the bitter waters, or to that more
ancient law which, by the capital punishment of
adultery, deprived a convicted adulterer of the right
of complaint and the capacity of redress.
It is generally admitted, that the bond of marriage
is possessed of «uch permanence and force as to
render marriage after an unlawful divorce an act of
adultery : but it is at the same time contended, that
the adultery, which alone is supposed to justify the
divorce, is such an entire dissolution of the bond of
marriage as to set the parties at liberty to marry again.
The general difficulties of the question relating to the
supposed dissolution of the bond of marriage by adul-
tery have been again and again insisted Upon, and need
not now to be repeated, except as they are connected
with the circumstances under which our Lord con-
ferred with the Jews, in whose daily practice divorce
' implied a freedom to marry again. " The reference
80
to the Jews may serve to shew to what extent the
sentence of divorce allowed by our Lord will reach ;
for the Jews never doubted of the liberty to marry
after sentence of divorce, and therefore if our Lord
be thought to decide the matter with any view at all
to the received usage of his own time during his
ministry it is plain that the liberty to marry is im
.plied; and his silence on the point, when it was
certainly understood in one way, becomes more than
a negative argument in favour of that liberty"." The
utmost force which can be given to this argument is
counteracted by the objection, that the Jewish law
of divorce was never conceded but for hardness of
heart; that divorce was reproved by the prophets,
and abhorred by the Lord; that it was contrary to
the divine institution of marriage, and was in all its
forms abolished by our Lord.
It is remarked by some of the commentators, that
if our Lord had intended to give any liberty of second
marriage, he would have specified it, and not have
passed it over so obscurely and indistinctly. To
this remark it is replied, that '' if our Lord had in-
tended to d^ny the liberty contended for, there was
much more resaon for him to do it in specific words;
because, if he were silent, his whole determination
in the former words would be sure to be understood
according to the known usage of those to whom he
addressed them, who never dreamed of such restraint
after legal divorce*." But adultery was unknown
to the Jews as a ground of divorce, cognizable in
" Chr. Remembr. yol. ii. p. 741. Beza de Dtvortiis. * Chr.
Remembr. vol. ii. p. 746.
81
their i?ourts : it was known to them chiefly as a
capital offenoe, completely exclusive of all considera-
tion of subsequent marriage; and when the condition
of divorce was changed, and adultery, and adultery
alone, was made by a divine law, and not by human
connivance, the ground of reparation, there viras the
more occasion that the effects and extent of the new
law should be declared.
The capital punishment of adultery precluded all
those doubts of the condition of the guilty party
which are inseparable from the doctrine of divorce
for adultery. It is not possible, that the alleged
dissolution of the bond by adultery should not be
liable to perpetual abuse. Offence may be encou-
raged by the very immunity which is offered, and
men may commit adultery in the view of disengag-
ing themselves from a marriage which has ceased to
please, .and of putting themselves into a condition to
enter upon another which promises more satisfaction.
The contingent benefit of sin is in itself a temptation
to sin. Be^a was sensible of the whole force of the
objection, which he endeavoured to remove chiefly
by challenging the civil magistrate to perform his
duty, and to execute the last punishment upon aduly
tery. It has also been proposed to prohibit the mar-
TiBge of the adulterer with the adulteress: but if
adultery is a virtual dissolution of the bond, and the
criminal act separates the parties from each other,
they are free to marry whom they will, and it is but
an arbitrary law which restrains them. It is never-
theless reasonable to suppose, '^ that our Lord did
not intend to give liberty to the guilty party to con-
tract a new connexion with the partner of his crime;
VOL. II. G
82
for thisBlso ^eems to: be against tlie perpetual ground
of equity, which cannot be thought to suffer guilty
persons to profit by their own crime. If we may
not fiame any presumption or conjecture concerning
what might be our Lord^s intention in this respect,
yet it appears to be both poHtic and just that such
marriages should be restrained '^.'^ In the absence
of more direct and more efficient measures in retri-
bution of adultery, there can be no doubt of the
moral policy of the proposed restriction ; and al-
though the right cannot be collected from the sup-
posed dissolution of the bond, which gives equal
liberty to both parties, its scriptural authority may
be established by the limitation of the clause of
exception to the cases it which it is expressed. The
husband divorcing his wife for the cause of fornica-
tion may marry another woman without imputation
of the adultery which attaches to the marriage of
any woman divorced under any circumstances, whe-
ther for fornication, or any other cause : in respect
of her the consequences are not avoided ; if there be
any dissolution of marriage, it is in favour of the
injured husband, who may or may not avail himself
of the privilege.
It is admitted, that the doctrine of the dissolution
of marriage has a further effect in discouraging the
repentance of the offender. ** It is this ; that if
fepentance has the privilege to renew a contract not
less solemn than that of the marriage tie, even that
by which the believer stands, bound in covenant to
his Lord, it is hard to think that repentance may not
y Chr. Remembi^. toI. ii. p. 743.
83
restore the breach made in the nuptial bond. It
was fiir froai my intention to deny this privilege, or
to shut the door of reconciliation on repentance to
the guilty party: and therefore with respect to the
conflicting sentiments of the early writers on this
particular, some pleading, on the score of charity,
for the restoration of the faulty party to forgiveness
and affection, and others declaring it to be the part
of a weak and even a base mind to put up with the
injury, I conceive that these cases must be measured
by their circumstances ; by the sincerity evinced of
their repentance, or the various grounds of palliation
which it may be fit for the reasonable and the well-
disposed to consider and admit'.'' But are these
considerations compatible with the dissolution of the
bond of marriage? Are they not founded on the
supposition that the bond is not dissolved, and that
time and space are allowed for the reunion of the
parties, for repentance on the one hand, and recon-
ciliation on the other, after that great example Which
tejected not an apostate Churc^, but waited for its
fehim to pardon and peace?
What then, if adultery be intended in the clause
of exception, is the extent of the divorce allowed by
our Lord ? Embarrassed and perplexe^l as if is under
the common interpretation in* respect of the disso^
iution of the bond of marriage, and the'' application
of the clause of exception, it is a law founded on the
denunciation of the remedial divorces of the Jews,
and ih its own nature merely permissive, restricted,
unless the law of exception be interpolated, to the
■ Chr. Remembr. yol. ii. p. 752.
G 2
84
use of the husband proving his wife guilty of aduU
tery, without excuse or temptation from his example,
operating in the mere avoidance of consequences
which would otherwise ensue, and only by the
avoidance of those consequences conveying to the
husband the privilege of marrying another woman
without imputation of adultery.
But it has been again and again contended, that
adultery is not the only cause of divorce. The
origin and progress of this opinion will be hereafter
detailed : but it is obvious to remark, that when our
Lord was correcting the facilities of divorce, which
had grown out of the misinterpretation and abuse erf*
the law of Moses, it is not probable that he should
have used a general ambiguity of expression, by
which the force of his own law would be evaded..
He was asked, whether a man might divorce his
wife for every cause. In his answer to this ques-
tion, and in his voluntary interpretation of the.an<-
cient law, he denied this licence and latitude of
divorce, and made adultery, with one only: specified
exception, to be the natural, necessary, and unavoid-
able consequence of divorce. Was this particular
eiCception of so genera) and unHmited a nature as to
admit all equivalent offences, or was it not rather a
distinct and specific ofience, of which, whatever be
Its present difficulties, the title was at the time
familiar to the Jews, and such that they who heard
him could entertain no doubt of its meaning and
intent ? Whatever was the ofience, it was an ofience
which must be interpreted with reference to the
divine institution and rule of marriage, and by the
fault of which God had^ not joined the parties to-
85
gether, or man was at liberty to put them asun*
der.
It is nevertheless maintained with considerable
plausibility, that Saint Paul' admits idolatry to be
a ground of separation ; and it is inferred, that if
idolatry be admitted by the apostle among the
grounds of divorce which are restricted by our Lord
to fornication, other offences of the same class may
be admitted. But before any inference is drawn
from this statement let there be a clear understand-
ing bcfth of the words of Saint Paul and the words
of our Lord, and let all the difficulties, accumulated
upon those which have been already stated in the
received doctrine of divorce for adultery, be taken into
consideration. This consideration will involve the
doctrine, that marriage rightly contracted is, without
any exception or reserve, indissoluble: and that
there is not under any circumstances a law or
licence of divorce authorizing the second marriage
of parties properly married, of parties whose mar-
riage is not null and void. from the beginning, during
the life of each other. The argument is offered to
candid and serious consideration, with less aid of
authority than might be desired, and therefore with
humble diffidence, but not. without mature delibera-
tion, or a gradual but full conviction of mind, that
the word Jbrnicaiion in the clause of exception does
not signify, and cannot be proved to signify^ adul-
tery ; and that, in the necessity of resorting to an-
other interpretation, new harmony and consistency
nay be introduced into the Christian law of divorce.
* 1 Cof*yil. 15.
g3
SECTION in.
Objections to the received interpretation of the clause of
exception in the law of divorce^. arid attempt to recover
the original and primitive signification.
The chief authority for the received interpretation
of the clause of exception in the law of divorce deli-
vered by our Lord is^ .the current of tradition for the
last fifteen centuries^, in which it has been explained
of adultery : and the argument which has been con-
structed chiefly upon other passages of Scripture,
and fastened upon this interpretation, is, that the
essential unity of omrriage is destroyed by the adul-
terous intercourse; and that in adultery there is
such a violation of the mutual fidelity of marriage,
such a renunciation of the proper consort, such a
transfer of the person and the affections, as amount
to a virtual act of divorce. An attempt has been
already made to obviate this argument in favour of
divorce upon proof of adultery : and whatever may
be the strength of the prescriptive authority of fifteen
centuries, it will be opposed by the doctrine of the
three preceding centuries, in which the doctrine of
divorce for adultery was unknown,. and in which the
principal term in the clause of exception was inter-
preted in a very different sense. :
The received doctrine is neverthdess so ancient,
and has been so universally received, as almost to
justify the implicit belief of its truth and scriptural
authenticity: and the opposite doctrine, that mar-
87
riage is permaoeDt and indissoluble in such sense,
that there are no circumstances under which a mar-
riage, properly contracted, can be dissolved, is so
contrary to the received opinions of commentators,
and to the undisputed practice of almost all ages
and all countries, as to excite a suspicion of singular
presumption, of wanton innovation, and love of
paradox, in any man that shall attempt to sustain it.
There is a strong prepossession in the public mind,
which nothing but slit)nger arguments can overcome,
and which nothing but a firm conviction of the truth
should venture ta disturb. It is not without deep
and serious reflexion that objections have been enter-
tained and suffered to prevail in the mind, against
the received interpretation of the clause of exception,
which is the principal authority firom which the per-
missive law of divorce has been collected. In as-*
suming the right of divorce upon proof of adultery,
it is conceived that five capital objections are over-
looked; and that these objections cannot be re-
moved, unless it can be shewn, 1. that the word
iro^MK, translated ^riitca/ion in the clause of excep-
tion, does mean adultery : 9. that the clause of ex-
ception ought indeed and of necessity to be under-
stood in the texts in which it is not inserted : 3. that
the right and privilege of divorce can be fully col-
lected firom the clause of exception : 4. that the
doctrine can be reconciled with the tenor of our
Lord^s discourse: and, 5. that it can be made to
harmonize with the doctrine of Saint Paul, in argu-
ing with the Corinthians upon marriage and il-
voice.
1 . The first objection relates to the interpretation
G 4
88
of the word vo^ia, translated ybriiica/<oii, ^nd ex*
plained in the sense of adultery, i. e. of unlawful
communication between two parties, either of whom
is married.
The word iro^no, thus translated, if its classical
etymolc^y be respected, signifies, primarily, the
passing over of property from one to another ; and
secondarily, exposure to sale: and thus remotely
suggesting the notion of personal prostitution, it has
been ultimately applied to every kind of lascivious-
ness and debauchery. To suppose that in the texts
in question it denotes lasciyiousuess generally, would
be to introduce a cause of divorce, not less variable
and indefinite than the uncleatmess which had been
abused in the law of Moses : and it is by the gene-
rality of commentators and Christian writers ex-
plained in the more restricted sense of adultery. It
is a powerful objection to this interpretation, that
not only is another word appropriated to the offence
of adultery, but that the word so appropriated, fAoix^M
and its derivatives, are specifically distinguished from
'M(¥na and its derivatives: and that in the texts
under review, the legitimate divorce is restricted to
TogwiOj and the effect of an illegitimate divorce is
described by /xoixfroi, which implies adultery properly
and ordinarily so called.
The word mfwM is not however of such frequent
use in the classical writers as to circumscribe its
meaning, or to render it unequivocal and undisputed.
There \b another etyn>ology, adopted by the eccle-
skstical writers, more conformable with the use of
the LXX, in which aposiacy or alienation from
God constitutes the leading sense implied in the
89
word vo^Mc, and other words of the same family*
This is however a point of verbal criticism, of which
the details are most properly reserved for the Ap-
pendix*.
Expositors have also varied in the interpretation
of the text ; and it may be proper to take notice of
some of the principal expositions.
Whitby^ is inclined ^^to take the word in its
proper sense, of fornication committed before mar-
riage, and found after cohabitation : 1 .^ because
Christ, speaking of this divorce here and elsewhere,
doth never use the word fMixif^, which signifies adul-
tery, but always irogmoj which word, both among
Jews and Gentiles, doth properly import the sin of
unmarried persons, lying one with another, and so ,
being made one body. 1 Cor. vi. 16. It is not
therefore likely that Christ receded from the known
and common acceptation of the word. 9. The pu-
nishment of adultery after marriage was strangling ;
after sponsalia, stoning ; divorce not being mentioned
in either case : but simple fornication was not thus
punished by the Jews : and 3. by this interpretation
the law of marriage is by Christ reduced to its pri-
mitive institution; that conjunction with another
makes them both one flesh ; and so the woman who
had thus transgressed was to be dismissed, because
she before was one flesh with another, and therefore
could not be so with the man to whom she did after-
wards marry /^ But is there any proof that the
crimen prcerepice virgimtaiis was called iro^ma ?
And was not that crime also a capital ofience, for
* See Appendix, No. I. ^ Com. in Matt. xix. 9.
90
which, as for adultery, there was no divorce, and'
very different from the offence of simple fortiication»
which among the Jews was punished with the
scourge ? It is also dangerous in principle, to ascribe
the effective unity of marriage to the licentious com-
merce of a man with a woman out of marriage : this
is at once the degradation of virtue, and the elevation
of vice : and it is equally dangerous hi practice, to
condemn the offenders to a state of irretrievable
shame ; to abridge the means of amending their con-
dition ; and to exclude them from the possibility of
marriage, except by a formal union between the
partners in the original offence. The whole pro-
ceeds on the inveterate misapprehension of a single
text of Scripture; in which the apostle adverts to
the unequal marriages of the beheving with the un-
believing; and which, by a perversion the most
extravagant, is applied to the law of divorce : *^ that
she who has previously united her person with one
man, cannot become the wife of another. It is ob-
vious to what an extremity of danger the marriage
system among us must be exposed ; and what an
alarming extent of guilt must be involved in the
present operation of it, if this is realty a maxim of
the Gospel. But indeed, 'those who have produced
the opinion do not insist exclusively upon it, ... .
and happily for the argument, they affirm, that
whenever a marriage is lawfully dissolved, it is also
lawful to marry again : for if even a casual union
renders the parties unalienable from each other, far
stronger is the inference from the fixed condition of
marriage. ...
^^ There is still another branch of this opinion.
91
By the custom of the Jews a certain interval took
phoe from the time of the betrothing to the comple-'
tion of the marriage. The liberty of divcm^e has
therefore been thought to belong only to persons
thus mutually pledged, for the dissolution of contracts
hitherto imperfect: and fornication has been ex^
cepted from the full state of matrimony, and applied
to the offences committed against the incipient ob^
ligation, and during the continuance of the spon-
saiia.
^*It is true, a betrothed woman was by anticipa^
tion called a wife. In case of misconduct she was.
also to be divorced, though the parties had not yet
come together ; and a bill for that purpose wa» ne-
cessary to the voiding of the incomplete contract.
But to waive all smaller reasons — it will be sufficient
to oppose to this inference the general sense of the
transaction, and the wideness of meaning which the
term in question had attained. The proposal made
to Christ was evidently allusive, in the mind of the
speakers, to the general subject of matrimony. It
arose from the universal practice that had prevailed
in divorces after full marriage, and the Saviour would
not have given an answer inapplicable to the pur-
pose. At all events, if so minute a part of the ob-
ligation had been exclusively intended; there can be
no doubt, I think, that Christ, who was repeating an
important part of his own moral law, would have
stated it with that precision which became the sub-
ject, and which Moses had so particularly observed.
He would not have declared himself merely on the
preliminary state of marriage, which was so short in
duration, and therefore liable to so few accidents.
92
and left the marriage itself, a point of so much higher
importanoe, to a tacit and indirect inibenoe of an
opposite nature. No : his answer is given generally :
and whether the sponsalia are involved in it or not^
it manifestly comprehends the full condition of mar-
riage*.^^
Selden, who is very inconsistent in the exposition
of the word in other passages, introduces a long and
unsatisfactory disquisition of its meaning with riefer*
ence to divorce, by asserting, that in the writings of
Phiio there is a distinction in the sense ofwof¥eiei and
fMi;^ffMt, and that the same distinction may be ob-
served in three texts of Saint Matthew^s Grospel.
He observes also, that capital punishment, and not
divorce, had been consequent upon adultery ; and
that neither the pharisees nor the disciples considered
the doctrine of our Lord to be new or unheard of,
although it met with but little countenance or sup-
port, except in the school of Sammai. With a view
of ascertaining more exactly the meaning of the
clause of exception, he proposes three different ques-
tions for discussion ; 1 • In what language the words
were originally delivered and recorded ; which he
determines in favour of the Syriac language ; affirm-
ing, that the Rabbinical dialect was as common to
the theological disputations of the Jews, as is the
Latin to those of modern universities. 2. The second
enquiry relates to the words originally used ; and if
our Lord spoke in the Syriac language, the clause of
exception would be. Except for the cause of fornica-
tion : and if, as is most probable, the conference was
< Nupt . Sacrae^ p. 27—3 1 .
93
conducted in the dialect of the schools, the question
of the Pharisees would be. Is it lawful to put away a
wife for every cause ? This was the popular opinion
of the school of Hillel, who thus interpreted the
words of the permissive law of Moses ; saying, that
it was for uncleanness, or for any other cause. A
disciple, of the more rigid school of Sammai in op-
posing this opinion of the Hillelians, would answer
in the language of the schools, If a man divorces his
wife, except for the cause of uncleanness, he causes
her to commit adultery. This was the doctrine of
the Sammaeans, who restricted the licence of divorce
to uncleanness alone. 3- In respect of the meaning
of the words used, it is the opinion of Selden, that
the Jews understood the word, translated vo^eio, in a
larger and in a stricter sense. In the stricter sense
they applied it to any intercourse of the sexes out of
marriage, and to any incestuous marriage, corre-
sponding with their views of incest, and their expo-
sition of the harlot, alien, or iro^, whom the priest
was forbidden to marry ; of a woman not of the
bouse of Israel ; of a woman incestuously married,
or. with whom a profane person had incestuously
lain. (This is the exposition on which it is now
proposed to insist, but) it is added by Selden, that
they also applied it to adultery in the ordinary sense,
and that even in the Old Testament the word may
be used by a synecdoche of a particular name for a
general, or of a general for a particular name. Selden
allows that the word is used in a more relaxed sense to
signify idolatry and the various abominations of idol-
atry, as in Acts xv. and perhaps also in Wisdom xiv.
19 ; and by Philb, and in 1 Cor. v. 1, where the or-
94
dirtary toterpretatioo does not adequately describe the
enormity :of the offence. The Hebrew and Greek
KnxdB )axe both e<}Qivocal, diatinguisbed indeed fh>m
iMi^c^tf, when that word is used, and at other times sus-
ceptible of the widest sense and exposition, and de-
scriptive of an alien state, of a life opposed to the
Jaw, and estranged from the covenant of God. In the
Syriac language they might mean any kind of unclean-
ness, wbidi he supposes to be implied whenever the
harlots are mentioned in conjunction with the publi-
cans, (whose offence however was chiefly legal un-
cleanness^ and estrangement from the commonwealth
of Israel :) and if the words were delivered in the
rabbinical and scholastic language of the Hillelians
they would denote unrestricted turpitude, and include
every thing which ought to be concealed^.
In the proaecution of his arguoient, Selden adverts
to the opinions of Origen '', who assumes the objec-
tions of a Jew, understanding our Lord^s exceptive
clause to be of the same extent with the law of
Moses. Origen, according to Selden, would not
have anticipated this exceptipn but in the conviction
of the large sense of mpnm entertained among the
Hellenists ; and it is remarkable, that he supposes
<* Ux. £br. 1. iii. c. 23. compare c. 27, where it is observed,
** fomicationem tripUdter intelligi : proprie, quae carnis est, ut
•tupnim seu adulterium ipsum : commonitery qu» est infidelita-
lis, ut idoloUtranim et apostataruia; et commivuve, atque ita
actus cujuscunque peccati est foruicatio.*' No mi^i who consi-
ders all the difficulties of the question will reftlise to acquiesce in
the modest conclusion: <' Nihil hie definimus: consideranda
iamen proponimus/*
« Comm. in Matt. torn. xii. g. 23, 24.
95
ibe uQcleanness of the Mosaic law to be equivalent
to any offence ^ and si^ggests a doubt whether the
pnncipaL offence of adultery or fornication may not
be meant to designate other crimes confessedly of a
different nature, but of :equ$il magnitude. Thus wofHut
among the Jews would be equivalent to maii mares
anu>ng the Ronjans in a suit of divorce. But it is
not probable that our Lord would object to the rule
of Moses as an accommodation to the hardness of
^ The' question ik, Wh'&t is meant by the words, if he find any
mmleannesst turpitude^ or nakedneis m ker? The Jtfwt are
dmdad in. theit opinion about it : the^ Christianis are aoieis so :
some oopfining.it tp adultery and other enppnons crimes, such aa
idolatry, apo^tacy, and the like, which the Scriptures often call
fornication, and is the word made use of by our Saviour for adul-
tery. For our part we cannot beHeve any of these cases to be
meant hf the words of Moses ; because, as these were all capital
crimes, it would' have been ridiculous to have ordained a diroroe
against those who were to be put to death« We think rather
therefore that it meant some involuntary uncleanness, whether
natural or contracted, which rendered her loathsome in his eyes,
or unfit for the nuptial intercourse ; which Christ therefore dis-
tommendsin the Gospel, not only because it was become too
Sequent, and permitted upon every trivial occasion, but also to
assure the jieofde that the marriage knot was not to ho dissolved
upon any pretence except that of infidelity. The words may also
be rendered, /or any turpitude^ or immodesty of words, discourse,
or even behaviour. So that this indulgence might have been
designed to deter the wanton sort of wives from such immodest
speeches or behaviour as might be apt to disgust a sober hus^-
band, and to ini^ire. them with such chaste deportment as could
alone preserve a true conjugal affection. According to this sense
also oar Saviour's reflection will be very just, that it was their
indocible temper that extorted such an indulgence from Moses,
which was manifestly contrary to the original design and institu-
tion-of marriage." ^c. Univ. Hbt. vol. iil. p. 147.
96
heart prevailing among the Jews, and himself imme-
diately authorize the same licence. • There is a dif-
feretice also in the language of the two laws: by the
law of Moses, as Origen answers to the Jew, the
adulteress was to be stoned : her offence was not
therefore the uncleanness, or wr^yi^ ^^?«yf*«> for which
Moses permitted divorce, which our Liord restricted
to fornication, or vo^io, and these are all representa-
tives of different words in the original: and it is
gratuitous to suppose that our Lord used the word
not ordinarily translated by vo^ia, and baring a
different signification, especially when there is no
reason to believe that vo^ia Was an unintdligible or
indefinite word among the Jews, with whom our
Lord was conferring.
Grotius< also, in a prolix comment on Matt. v.
39, 33. has adopted the loose suggestions of Origen,
and argued, that under the word vo^eia other offences
and causes of divorce may be included. His com-
ment is adapted to accommodate the precept of
Christ to the laws of the later emperors, rather than
to bring back the laws of the empire to the precepts
of Christ. The whole tendency of our Lord's dis-
course in Matt. xix. and in Mark x. shews that di-
vorce was unlawful and marriage indissoluble, either
in all cases, or with one particular exception ; and
although the exception was so strict as to excite the
scruples of the disciples, it was certainly not relaxed
in accommodation to those scruples.
Lightfbot^ interprets uncleanness^ in the Mosaic
law of divorce, of adultery, and argues, that the
« Poli Synopt. in loc. •» Hor. Hebr. in Matt. v. 32. xix. 8.
97
capital punishtiient previously pronounced upon the
woman was abated by that law : he ha» therefore no
diffibulty in^ asserting, that the law of Christ was a
lestoration of the true spirit of the old larw, which
was properly intended to restrict die permissive law
of divorce to the single case of adultery. TertuUian
also, in a perplexed argument with MarcionS sup-
poses the uncieanness in the law of Moses to be equi-
valent to Jbrmcaiian in the law of Christ: but he
puts upon both a pisculiar construction, which seems
to imply a fiiult rather precluding than dissolving the
marriage. There will be other occasions for bringing
the details of this argument under discussion; it is
sufficient for the present to oLaerve generally, that
^^ in the Jewish law fornication and adultery had
been regulariy distinguished from each other, both
in name and in the mode of punishment ; and it
was to Jews, who had long understood and acted
upon these distinctions, that the Saviour now ad-
dilessed himself ^.*^
Let the reader weigh these different opinions, and
determine for himself whether these differences could
have subsisted, if in the clause of exception the word
fM^iiA had been substituted for vo^io, or if wopfua
had ever been in common use to signify adultery;
whether, if our Lord had intended to make adultery
the principle of exception, he would have used a
word at least of ambiguous signification, in prefer-
ence to one of ^ich the sense is indisputable ; and
whether it is altogether improbable, that the word
had at the time a peculiar and definite meaning,
i Lib. iv. s. 34. ^ Nupt. Sacr. p. 26.
VOL. II. H
98
which has been gradually lost and disused, and for
which the classical sense and meaning of ^nfmm,
improperly restricted to adultery, has been substi-
tuted. Selden, in his discussion of the text, notices
the opinion of the Jewish commentators, that the
unlawful and incestuous marriages of Jewish men
with alien women were acts of vo^veio, or fornication.
The learned DodweiP explains the word, in the use
of Justin Martyr, of the piaculum contracted by an
unholy or unequal marriage ; and, without ascribing
this sense to the LXX. or the writers of the New
Testament, he infers the same meaning from other
contiguous expressions, and pronounces the marriage
of a believer with an unbeliever, or a marriage out of
the pecuiium, to be an act of apostacy or alienation,
which the believer was not at liberty to make. Con-
tinental writers have produced scriptural examples
of this sense of the word, which is not now discounte-
nanced, but embraced, by Scbleusner. The grounds
of this interpretation are examined at length in the
Appendix, and it may be permitted here to recapitu-
late the heads of that investigation : viz. that /xoi;^ffi0e
means adultery, and is distinguished from vo^vsia, and
neither included under vo^io, nor synonymous with
it; that the ecclesiastical etymology of Trogveia im-
plies the notion of apostacy^ or idolatry, which is
recognized by the Lexicons, and confirmed by the
constant usage of the Septuagint and other Hel-
lenistic writers, who apply the word in this predo-
*
' Concerniog Marriages in different Communions ; in a Sermon
at Chester, (by Charles Leslie :) prosecuted by Henry Dodwell,
s. 14, 43.
99
minating sense to tlie peculiar desecration of the
heathen priesthood, and to the marriage with the
Gentiles, in which the Jew apostatized from his
family and his God. There is no clear and un-
exceptionable example of the use of the word in the
Old or the New Testament to denote adultery ; it
is not ordinarily to be interpreted even of simple
fornication ; but it is in continual use to signify
apostacy and the several acts of apostacy, and there
are indisputable examples of its appropriation to
marriage out of the peculium^ which was a principal
act of apostacy and alienation from God.
It is certain, that these marriages were proscribed
under the Old Testament ; that the Creator, in the
language of Tertullian, every where proscribed or
annulled marriage with foreign tribes'"; and that the
marriages contracted with heathen women during
the captivity at Babylon, where the people might
suppose themselves in a state of legal pollution and
separation from the pecuiium, were afterwards dis-
solved ; and that the foreign wives were put away
under the authority of Ezra and Nehemiah, the great
reformers of the .Jewish Church. The author also
of the book of Tobit, who is supposed to have lived
near to the apostolic age, represents Tobit as giving
advice to his son to beware of all ^ogyeio, fornication,
as it is called, and chiefly to take a wife of the seed
of his fathers, and not to take to wife a strange
woman, who was not of his father^s tribe; and
when Tobias had obtained his bride, he makes
confession ; I take not this my sister for lust, for
"» Adv. Marcion, 1. v. c. 7.
H 2
100
ir9fn$a, but uprightly^. It is of yet more importance
to observe, that this exposition of the word has the
authority of apostolical use, and that marriages of
this description, the marri^es of believers with un-
believers, are condemned in the pointed question of
the apostle^; Shall I take the members of Christ,
and make them the members of an alien woman,
«^V9^9 by contracting marriage vnth her ? It is rea-
sonable also to believe, that tlie opinion which pre-
vailed among the primitive converts, as well of the
nullity as of the offence of these marriages, suggested
the case which was submitted to Saint Paul, and
resolved by him, and to which he adverts under the
singular expression, ^m ito^mc^p, meaning, as is con-
tended on the most ancient authorities, and in conr
sistency with the apostle's language in the preceding
chapter, the marriages contracted among the unbe^
lieving before their conversion to the faith. The
frequency of these marriages was also the occasion
of earnest remonstrance in the second Epistle^. The
apostle's doctrine will be hereafter examined at
length : the present argument relate only to the use
<^ the word, a word which would naturally be dis-
used and misunderstood among the heathen con-
verts, but of which it is important to observe, that
both the word and the doctrine expressed by the
word were known to the Hellenistic Jews, to the
LXX, to the apocryphal writers, to the writers of
the New Testament, to Philo, (and it may be to
Josephus,) and to the earliest writers of the Christian
» Tobit iv. 12. viii. 7. See Dodwell, s. 18. M Cor. vi. 16.
P 1 Cor. vii. 2. <» 2 Cor. vi. 14—18.
101
Church. If their united authority, in the absence
of all example for explaining the word in the clause
of exception of adultery^ be admitted, that clause
must be interpreted of an impediment precluding
marriage, not of an offence dissolving marriage.
The doctrine of our Lord will thus be conclusive
of the indissolubility of marriage ; and divorce vtrill
be followed by adultery, or a guilty temptation to
adultery, in all cases, with the only exception of that
in which apostacy or incest in the Jevnsh sense has
annulled the original contract, and rendered the par-
ties finee to enter into a new connexion without
imputation of adultery, which implies the validity
of the previous marriage.
S. The second objection to the doctrine of divorce
in cases of adultery is founded on the omission of
the clause of exception in the Gospels of Saint Mark
and Saint Luke.
It is generally maintained, that it is necessary to
understand the clause of exception where it is not
expressed. There would be the more reason for this
supposition, if &e clause were in itself clear and
unambiguous ; if the proposition containing it were
the more general proposition ; if the propositions
omitting and containing it had been precisely the
same, illustrated by the same cases, and necessarily
requiring the same exposition ; if, instead of being
restricted to two varieties of one specific case, it
had been applied to other cases ; and if it had been
omitted in one Gospel only, as it has been asserted
in one Gospel only. But, while it is found in
Saint Matthew^s Gospel, it is omitted in the Gos-
pels of Saint Mark and Saint Luke : and thus the
u 3
102
preponderaoce^ of authority is against the insertioo :
for although there are one Gospel, and one case, and
two sentences, in which it .is expressed ; there are
six sentences, three cases, and two Gospels, in which
it is not expressed.
Doubts have been already thrown on the neces-
sity of understanding the clause, if it be explained in
the sense of adultery : it remains to shew, that there
is no occasion for its insertion if it be interpreted of
marriage with aliens.
It is of the first importance to notice the different
design and purpose with which these Grospels were
written. Saint Matthew wrote for the native Jews :
Saint Mark wrote for the foreign Jews ; or, as others
suppose, he and Saint Luke both wrote for the
heathen converts. It is therefore reasonable to sup-
pose that it especially concerned the native Jews, in
whose Gospel it was inserted ; and was of less im-
portance to the foreign Jews and Gentile converts,
in whose Gospel it was omitted. It will probably
be objected by the advocates of the received inter-
pretation, that under this distinction Christ must be
understood to deliver a new law to the Jews ; but
that in the sermon on the mount he ai^ues not for
the partial use of the Jews, but for the general in-
struction of all mankind. The exception is never-
theless contained in an express comment on the
' This and Uie preceding objections are noticed con amove by
Gibbon, c. 44. n. 131. '< In pure Greek iri^iiMi is not a common
word, nor can the proper meaning, fornication^ be strictly ap-
plied to matrimonial sin. . . . There are two (Mark x. 1 1. Luke
xvi. 18.) to one, (Matt. xix. 9.) that such ground of divorce was
not excepted by Jesus."
103
Jewish law, and in a direct and immediate confer-
ence with the Pharisees ; and it is only in the sense
of adultery that it can be called a new law to the
Jews. Interpreted of fbrbidden marriages with aliens,
it proceeded on principles which were recognized in
the law and the history of the Jews, and of which
the exact observance might be expected of the Phari-
sees: and our Lord may be supposed to have al-
luded to the prevailing facility of the native Jews, in
dissolving lawful and contracting unlawful marriages,
when he permitted the dissolution of the one, and
affirmed the absolute indissolubility of the other,
with an address which could not be offensive to the
foreign Jews, in whose circumstances such marriages
would be more venial. Thus the clause is primarily
appropriated to the discipline of the Jews, in whose
Gospel it is inserted ; and thus authoritatively re-
corded, it conveys general instruction, interesting to
all ages and all nations, on the indissolubility of
marriage ; at the same time that in the allowance of
divorce or nullity of marriage in a specific instance,
it insinuates a caution in respect of marriage with
aliens, founded in the Jewish law, and so far pecu-
liar, but recognized also in the laws of Athens and
of Rome, enforced in the Canons of the Christian
Church, and not practically violated without accu-
mulated danger and offence.
The different purposes of the writers may there-
fore have led ta the designed omission, and the
designed insertion, of the clause in the different
Gospels. The proposition without the clause is
universal ; it abolishes, in all cases of valid marriage,
the licence of divorce, with a perspicuity and a force
H 4
104
which leaves no doubt on the reader's mind: the
proposition with the clause is of limited application ;
it admits an exception, but that exception is involved
in doubts and difficulties, which it is hardly possible
to remove.
But it will be contended, that the occasion upon
which two of the texts, one inserting the other ex-
duding the clause, were delivered, was the same;
and hence it is inferred, that they require the same
expository exception. It is incumbent upon every
man who discovers, or imagines that he discovers, an
opposition or contradiction in the Scriptures, to
pause, and consider the means by which they may
be reconciled : and the opposition which is perceived
in the omission and insertion of the clause of excep-
tion, appears to admit of an easy and natural adjust-
ment. In the Gospel of Saint Matthew there is no
contradiction ; the doctrine is delivered in two texts,
both containing the clause of exception : and al-
though the doctrine is illustrated by two different
cases, there is no opposition or contrariety in the
cases.
Matt. V. 39. I $ay unto you, that whosoever
putteth away his wife, except for the cause of forni-
cation, causeth her to commit adultery ; and whoso-
ever marrieth her that is put away committeth adul-
tery.
Matt. xix. 9. Whosoever shall put away his wife,
except it be for fornication, and shall many another,
committeth adultery ; and whosoever marrieth her
that is put away committeth adultery.
The effects of an Unjust divorce, in respect of the
divorcing husband, are differently put, but the cases
105
do not <N)iiflict, and they need oot to be reconciled.
If be puis away bis wife for any other cause than
tofwa^ he causes her to commit adultery, if she
marries; and he himself commits adultery if he
marries: because, notwithstanding the pretended
divorce, the original marriage remains in force. If
be puts her away for wogwM ; if the original marriage
be doubtful ; if it be no more than «»^eia ; the con-
sequence of unlawful divorce is removed r adultery,
which implies the validity of the marriage, is impos-
sible ; not because the matrimonial obligation is dis-
solved, but because it never subsisted. The per-
mission, and even in this case it is no more than
permission, (^ divorce is properly restricted to the
husband, to the Jewish husband of an alien woman,
by the analogy (^ history in the divorce of the foreign
wives ; and by the use of the terms, and especially
with respect to the issue of such marriages, which
would be children iro^io^, inheriting the conditicm of
their alien mother : the children of a Jewish mother
would not be aliens; and her alien husband, not
being amenable to the Jewish law, could not be
guilty of wofnuL in respect of that law, and could not
be separated by its rules or prohibitions. If the
clause of exception were not restricted to the hus-
band uppn its own grounds, it is remarkable that the
following sentence, which respects a divorced woman,
contains not the remotest reference to the preceding
law of the man. In respect of her, the words of
Saint Matthew in both texts, as well as of Saint
Luke in the corresponding text, are the most inde-
finite that can be conceived : he does not call her the
divorced woman, or that man's divorced wife, as
106
might have been expected, if the clause were to
be understood ; but with Saint Luke, Moxixufunnf*,
in the sense of any divorced woman, any woman
divorced under any circumstances. The rule with-
out the clause is most comprehensive: If any man
divorces his wife, he causes her to commit adultery,
and he commits adultery if he marries ; and if a man
marries a divorced woman, he commits adultery, a
consequence which is avoided only in a case of
ToqyuoL. The doctrine may be illustrated from the
practice of the English courts : if a man marries a
woman divorced from her husband on the ground of
incest, there is no adultery, because the original
marriage was null : if he marries a woman separated
from her husband by sentence of divorce, a mensd^
there is adultery, because the original marriage re-
mains. The Jewish law forbade the high priest to
marry an alien woman, (^fyqv,) and a divorced wo-
man, (fleroXfXujxeyijy,) and if a law of marriage were to
be collected from our Lord's law of divorce, his dis-
ciples would be restricted fix)m marrying any divorced
woman, because her previous marriage would annull
any subsequent marriage; and any alien woman,
because such marriages would be dissoluble. The
essential permanence of marriage prohibits either
party from entering into any new marriage during
the life of the other, without imputing adultery to
the party divorcing and the party divorced : the alien
• " Not * her that is divorced* or dismissed, but any one that is
divorced. This distinction may appear frivolous, but the prin-
ciple of the distinction is important." Middleton on the Greek
Article, p. 188.
107
only may be separated, rather in censure o£ the un-
lawfulness of the marriage, than in commendation of
the lawfulness of the divorce, which is permitted
only in a single case, by an inference and an excep-
tion from the general law.
, The words of Saint Luke are also thought to be
the same with those of Saint Matthew : Whosoever
putteth away his wife, and marrieth another, com-
mitteth adultery ; and whosoever marrieth. her that
is put away from her husband {eex av$go^,) committeth
adultery ^ The clause of exception is omitted by
Saint Luke, and inserted by Saint Matthew ; and
Saint Luke recites the case not only of a woman
divorced, but of a woman divorced from a husband;
and the first writer who copies his words adds,yrom
another husband. It may be a minute criticism,
but the omission of the clause of exception, joined
with the addition of other words, can hardly be un-
meaning or undesigned, and gives countenance to
the opinion that Saint Luke founds the charge of
adultery, consequent upon unlawful divorce, on a
valid obligation of marriage between a lawful hus-
band and a lawful wife, which is excluded from the
exception recorded by Saint Matthew. It is not
easy to discover the connexion and order of the
words in Saint Luke : if, as is supposed by some
commentators, the rule is intended as an example of
the superior purity of the Gospel compared with the
law, the absolute prohibition of divorce will form the
strongest contrast with the licence of divorce under
. * Luke xvi. 18. #$ ym^^u MrtP^tAv^mv «^'iTf^«v iiH^H ff^xftm.
Just. Mart. Apol. i. s. 15.
108
the hw : or if, as was suggested by TeitiiUian, the
rule is to be connected widi the mention of John,
and the tacit reference to his rebidie of the adulterous
intercourse of Herod with Herodias, it was sutilcirat
to reflect on the unlawful possession of a divoroed
woman, and there was no occasion for the clause of
exception. The general resemblance of the words
reported by the two evangelists, will not alone prove
that they were delivered upon the same occasion.
In the points already noticed, the words of Saint
Luke differ from the conference with the pharisees ;
and the case put in the first clause is perfectly dis-
tinct from that reported in the sermon on the mount.
It is not therefore necessary to understand the clause
of exception in exposition of Saint Luke, or in
reconciliation of the two evangelists. The one may
have been justified in admitting what the other was
equally justified in excluding.
But it is confessedly the same transaction which
is variously reported by Saint Matthew and Saint .
Mark. The identity of the occasion is unquestion-
able, but there are many differences in the two narra-
tives. In both histories the conference begins with
the same, or nearly the same, question, on the part
of the pharisees ; but in the one that question is
answered by a reference to the primitive institution
of marriage ; in the other by a reference to the law
of divorce, and the reference to Genesis forms a
subsequent part of the conversation. Saint Matthew
makes the pharisees to ask, why Moses permitted
divorce, which our Lord resolves: Saint Mark re-
presents our Lord to ask, wkai Moses commanded,
and the pharisees give the answer. In Saint Mat-
109
thew our Lord delivere bis rule with the clause to
the Pharisees, and they make no objection : in Saint
Mark be delivers the law without the clause to the
disciples, and they, according to Saint Matthew,
make an objection. These differences, and other
▼ariations of lighter import, which have been already
noticed, may be easily reconciled on the supposition
that the two evangelists relate each parts of a larger
conversation, which may be arranged in the follow-
ing harmony, compiled firom the two evangelists, in
which the passages from Saint Mark are distin<«
guished by the Italic character :
^^ He departed from Galilee, aiid came into the
coasts of Judea beyond Jordan, and great multitudes
followed him, and he healed them there, andj as he
was wontj he taught them again* The Pharisees
also came unto him, tempting him, and saying unto
him. Is it lawful for a man to put away his wife for
every cause ? And he answered and said unto, them^
}Fhat did Moses command you? And they said^
Moses suffered to write a bili of divorce^ and to
put her away. And he answered and said unto
them. Have ye not read, that he which made them
at the beginning, made them male and female, and
said. For this cause shall a man leave father and
mother, and shall cleave to his wife, and they twain
shall be one flesh ? What therefore God hath joined
togedier, let not man put asunder. They say unto
him, Why did Moses then command to give a
writing of divorcement, and to put her away ? He
saith unto them, Moses, because of the hardness
of your heart, wrote you this precept ^ (and) suf-
fered you to put away your wives: but from the
no
beginning it was not so. Bui \from the begimnng
of the creation God made them male amd female.
For this cause shall a mam leave his father amd
mother^ and cleave umta his wife^ and they twain
shall be one flesh: so they are no more twain^
but one flesh* What therefore Ghd hath joined
together^ let not man put asunder. And I say-
unto you, Whosoever shall put away his wife, ex-
cept it be for fornication, and shall marry another,
committeth adultery ; and whosoever marrieth her
that is put away committeth adultery. And in the
house the disciples asked him again of the same
matter: and he saiih unto ihem^ Whosoever shall
put away his wife and marrieth another committeth
adultery against her ; and if a woman shall put
away her husband and marry another she commit'
teth adultery. His disciples say unto him, If the
case of a man with his wife be so, it is not good to
marry. But he said. All men cannot receive this
saying, save they to whom it is given : for there are
some eunuchs which were so born from their mo-
therms womb ; and there are some eunuchs which
were made eunuchs of men ; and there are eunuchs
which have made themselves eunuchs for the king-
dom of heaven^s sake. He that is able to receive
it, let him receive it.*'
On this harmony of the two Gospels, as far as the
clause of exception is concerned, it is important to
observe, not only that our Lord insists in opposing
the original doctrine of the indissolubility of mar-
riage to the divorce permitted under the Mosaic
law, and in giving to the original doctrine the sanc-
tion of his word, but that the pharisees made no
Ill
t
objection to the doctrine, when it was coupled with
the clause of exception, which they would hardly have
failed to make if the clause had related to the novel
cause of adultery. On the other hand, the attention
of the disciples was excited by the conference, and
when in the house they asked the Lord of the same
matter, he repeated his doctrine, omitting the clause
of exception, and applying his new law in the most
indefinite and unrestricted terms to the several cases
of the man and the woman, not allowing any man to
divorce his wife, nor any woman to divorce her hus-
band, and to marry again, without imputation of
adultery. In Saint Mark's report he makes no re-
ference to the passive case of the woman divorced,
but dwells exclusively on the act of the man in
divorcing his wife, and of the woman in divorcing
her husband, and charges both with adultery if they
marry again. The disciples immediately objected
to this general statement : If the case, or, as Whitby
explains it, if the original state, of a man with his
wife be thus, it is not good tomarr}'. Did they
then understand the clause of exception, or were
they more prone to make objections than the pha-
risees? Did not their objection imply, that there
was no ground of divorce, that the state of marriage
was under all circumstances indissoluble? How
then did our Lord meet the objection of his disci-
ples ? Did he palliate the rigour of his doctrine by
referring to the clause of exception ? No ; but he
sustsiaed it in its extreme and utmost latitude ; he
did not concede the divorce for adultery, which as
men they might have desired, but he maintained his
doctrine in all its severe simplicity, confessedly
]12
unaccommodated to the temper of men, saying, AH
men cannot receive this saying, save they to whom
it is given : — he that is able to receive it, let him
receive it.
It is not therefore unreasonable to conclude, that
the doctrine viras delivered both with and without the
clause of exception, and that the reports in which it
IS excluded are equally faithful and authentic with
those in which it is inserted. There are also the
marks of a reasonable design in the .reports of both
evangelists. As aposdes of the Jews they were
required to insert what was immediately addressed
to the Jews, and what might be intended to convey
an indirect permission (it is not an obligatory pre*
cept) to other men : as evangelists of the Gentiles,
they were justified in omitting what was not ad*
dressed to the Gentiles ; and in enforcing, without
any exception, the strict prohibition of divorce.
Saint Matthew, writing for the native Jews, repented
the doctrine which satisfied the pharisees : and they
for whom his Gospel was intended, would not be
surprised at the exception from the general indissolu«*
bility of marriage, of such matrimonial alliances as
were contracted with aliens. Saint Mark, who
wrote for the foreign Jews, whose notions of matri*
monial purity were less severe, and among whom
the forbidden marriage with aliens was, from local
circumstances and association, more frequent and
more venial: and Saint Luke, who wrote for the
heathens, who would be offended if marriages with
them and with their women were called «o^ci«, even
in the Hellenistic sense of alienation, and held to be
voidable, omitted the clause, and were content to
113
ttffirm, that lawful marriafge was without any ex-
ception indissoluble. The same address would not
liave been required if the word had signified adul-
tery, which the heathens admitted to be a just cause
of divorce.
3. The third objection to the doctrine of divorce
in teses of adultery is, that it cannot be fully and
fairly deduced even from the clause of exception.
In amending the law and practice which formerly
prevailed, the language of our Lord is very definite
and precise. In referring to the old law, he says,
It has been said: in proposing the new law, he
introduces it with authority; I say unto you. It
is thus that he speaks of the law of divorce ; It hath
been said*". Whosoever shall put away his wife, let
bim give her a writing of divorcement: but I say
unto you. That whosoever shall put away his wife,
saving for the cause of fornication, causeth her to
commit adultery ; and whosoever shall marry her
that 18 divorced committeth adultery. This is lan-
guage which leaves no doubt of the repeal of the old
and the establishment of the new law. The clause
of exception, comprehensive as it is supposed to be,
18 delivered in a very different form : it has no con-
trast in the old practice, and pretends to no authority
beyond a permissive inference. Divorce for forni-
cation is not sanctioned as the adulterous look is
« Matt. V. 31, 32. Whitby remarks, '' Here Christ saith not
aS'befiire» It hath been said to them of oM; but only, It hath
been said : to note, that this was not a precept given by Moses
to divorce their wives, as the pharisees suggested, ch. xix. 7, but
only a permission in some cases so to do, as our Lord there
answers."
VOL. II. I
114
foi1>idden : nor is it capable of the forcible a
with which the fathere afterwards intiated on lAie
divorce ibr aduheiy: as Jerome aaith, Aat, if a
woman hath committed adultery, she ought not to
be kept by her husband ; he being pronounced a fool
and a wicked person who retains an adulteress, as
the LXX. read Proverbs xviii. 97. as the Greek
fathers say, it is honourable to cast her out ; and as
it is laid down in the Apostolical ConstitutioDs, that
he who retains an adulterous wife is a transgressor of
the law of nature*. Very difierent is the language
of our Saviour in coupling divorce in all other cases
with adultery as its necessary consequence, and per-
mitting divorce in a particular case, by vitiating or
denying the consequences which would otherwise
result from the divorce. He who putteth away his
wife for fornication and marrieth another doth not
commit adultery, and so far is negatively righleous ;
he neither sins himself nor leads another into sin.
This is the full extent of the permission of which he
avails himself: he obeys no precept, he performs no
duty ; he merely does not transgress the law. The
objection is as old as the third century, that oof
Lord did not say. Let no man divorce his wife,
except for the cause of fornication ; but. Whosoever
divorces his wife, except for fornication, causes - her
to commit adultery y.
It should be remembered, that this exception, in
its received and ordinary interpretation, amounts to
no less than the introduction and establishment of 'ft
' Whitby in Matt. xix. 9. sr Origen. Com. in Matt, tolii.
xiv, 8. 24.
115
npw c^um and occasion of divorce^ which bad nol
pi^eviously been allowed among the Jews; to the
es;teQ3ioii, if the cbuae of exceptsoo be interpolated^
of;.tfai9 right to the woman, who bad no sucbprivi*
l^e, under the law of Moses.; and to the repeal of
vwQUs Oipital puDishmentB, which had been- sanc-
Ikuied by that law, and which were either in force,
or of which the operation was only suspended, as
appea» froqi the case of the woman taken in adul-
tery : and it may be judged, whether it is consistent
with the usu^ practice of our Saviour to make so
ComiNiebensive a revision of<tbe ancient law in -ithe
loere iorm of a clause of exception, an exception
which did not meet the question firoposed, nor cor-
respond wijtb the general topic of his discourse. The
strong judgment which he pronounced in the sermon
on .the mount, on even the thpught of adultery,. wiU
not allow the supposition that fae>mentioDed it inci-
deqtally and in a fiarenthesis as an offence for wlyich
a man uight use his^ own discretion in divorcing his
wife.. . .
.The cause of fornication appears to be a forensic
term ; but .whether it relates to a «uit instituted, or
the aentenceof a law delivered, it has no correspond-
ing term lin the ancieqtt law, if it he interpreted of
adultery, for which no suit of divorce could be
maiotained, and which under that name was not
even forbid^^.. Divonee on the ground of adultery
was, as in the case of Joseph, entirely a private
transaction, unknown to the public tribunals ; and if
it had heed the intention of our hovd to substitute
divorce for the capital punishment of adultery, the
case of the woman taken in adultery would haye
I S
116
afforded a just and convenient occasion for the deli-
very of the doctrine. If the cause of fornication be
interpreted of mairiage with aliens, it has a corre-
sponding term in those texts in which such mar-
riages were forbidden, and their issue declared illegi-
timate, and in those histories which relate to the
dissolution of such marriages. Dodwell', without
adverting to the clause of exception, has not scru-
pled, to interpret the reproach, or oytiSo^, which the
sons of Israel attached to the marriage of their sister
with, the uncircumcised, of the charge of an adversary
in a legal court, comparing it with the calumnia of
the Roman law, and observing that the piaculum
contracted by those unholy marriages is called
Tn^nieu The case of these marriages, familiar to the
Jews of the . age, and in their estimation null and
invalid, might be properly insinuated into the doc-
trine of divorce, and a clause of exception might
supply the place of a more clear and explicit law, at
the same time that the general doctrine would meet
the question of the pharisees, and in respect of the
woman would make no addition to the ancient law.
The pharisees asked, if divorce was lawful for every
cause, and our Lord answered their question without
any reserve in the negative, by making adultery, or a
temptation to adultery, the common consequence of
divorce. He assumed the validity of the previous
marriages, advising them in the parenthesis, or clause,
of exception, that he did not speak of odier mar-
riages, of cases of m^iwa, of marriages, or of women
subject to the xoy^ wofwui$j or of women who were
'Of Marriages in different Communions, p. 38 — 52.
117
wives only twt xofvua. In such cases he left the
parties to use their own discretion ; it was not
necessary for him to give to such marriages a vali-
dity which they did not possess, and from the want
of which adultery could not follow their dissolution.
They were marriages in which God had not joined
the parties together, and in which man was therefore
free to put them asunder.
4. A fourth objection to the doctrine of divorce
on the ground of adultery is, that it is not authorized
by the context.
It has been already shewn,* that the text of Saint
Luke is too isolated and detached to derive any
certain advantage of exposition from the context, and
that without the interpolation of the clause of excep-
tion, and in the plain and obvious meaning of the
words, adultery is represented without any restriction,
to follow divorce from a lawful wife.
In the sermon on the mount the new law is
stroqgly contrasted with the old : the latter is abo-
lished, the former is affirmed. But the old law had
no reference to adultery, which it is not therefore
necessary to understand in the new, to complete the
points of comparison. The great offence. under the
old law was, that it admitted the divorce of a wife.
The Lord is said to have hated divorce, or putting
away, for this reason, that he had been witness
between a man and the wife of his youth, who,
notwithstanding his treachery towards her, was his
companion, and the wife of his covenant; and it
was the aggravation of their offence, that the .Jews
added regveiet to divorce ; that they not only aban-
doned their proper wives, but entered into new
I 3
118
alliances with foreign women ; and that Judah mar-
ried the daughter of a strange god*. The Christian
law is therefore suflSciently opposed to the Jewish
law in superseding the divorce of a lawful wife, by
ascribing such perpetuity to the conjugal relation
that the consorts cannot separate fW>m each othei*,
and be United tvith other contorts, without cotnmif-
ting adultery against the party that is abandoned,
and the union with whom is such as cannot be
dissolved. The main design of the new law wiis
not to make provision for cases of adultery, but (o
restrict or suppress the practice of divorce. The
only exception relates to the unlawful wife: the
antithesis, if there is ad antithesis, is not betweetr
marriage and adultery but between the lawful and
the unlawful, the native and the alien wife, between
the real wife that is ^ofncn^ xoyoi^ vo^ia^, and the wife
that is not wagtxro^ xoy^ wog}^M$. AduTtery is the
unavoidable efl^t of marrrage after the divorce of
the former, by reason of the continuity of the dWi-
gatron : but aduUety, being founded on the validity*
of the marriage, would not result from any new
marriage following the divorce of the latter.
The object 6f the pharisees id the question Which
they ' fnrdposed to' our Lord, tempting him, was,
according to Origen, to embarrass him in a dilemma,
and to accuse him if he permitted divorce fbr ev<!^ry
cause, of distohring marriage on ordinary pretences ;
and if he prohibited divorce altogether, of suffering a
man io dWell with his wife after her bfience. He
avoitted this dilemtdd, fii^t, by forbitlding divorce %t
• •> .
•Malachiy. 11, 14.
119
every cause ; and secondly, by answering the objec*
tions Itoib the bill of divorce: he perceived that
every cause does not justify divorce, and that it
becomes the man to dvireli with his wife as with the
weaker vessel ; rendering her honour, and bearii^
the burthen of her offences ; and he insisted oa the
words* of Genesis, as an irrefragable argument with
Bieii who boasted in the writings of Moses ; and he
conficroed the force of the argument against divorce
for every caiase, vrith the words. What God hatk
joined together let no man put asunder^.
The gmnd purpose of our Lord in all the texts,
and especially in the conference with the pharisees^
is to supersede the law and licence of divorce, and to
restore the original doctrine of the indissolubility of
marriage, by affirming that the nature of that relation
is so obligatory, that divorce is, under any circumr
stances^ a temfptation to adultery, and that it can*-
not be followed by marriage^ without the actual
commission of adultery. Divorce under any li-
mitation is confessedly opposed to marriage, and
the opposition is not relieved by the tenor of our
Lord's discourse. The question of the pharisees.
Is it lawful to put away a wife for .every cause?
was a question requiring a fuU and direct answer :
and no answer could be more fiill and direct than
the reference to the primitive institution of marriage,
which required that the man should cleave unto his
wife, afDd ordained that the two should be one, ia-
oorporated in indissokible unity. This incorporation
asd individuality of the sexes in marriage is asserted
* Or^en. Cm. in Matt. unu. xii. «. 16. -
I 4
1:20
by our Lord, ou the authority of the sacred text,
aud con6nned by hiii . own immediate inference ;
Wherefore they are no more two but one, combined
in unity which admits not of division : and it is
further sustained, on the. supposition that the con- .
jugal union is sanctified and confirmed by the Deity:
What God hath joined together let not man put
asunder. There was a solidity in these principles,
to which even the pharisees could not object; and
they therefore brought forward, the permissive law of
Moses ; to which our Lord was so far fit>m giving
^ny. countenance, that he imputed the origination of
that law to a concession on the part of Moses to the
hardness of the people's hearts ; and again insisted
on the divine institution and confirmation of mar^
riage ; asserting, according to Saint Matthew, that
fix>m the beginning it was not so, nor was there any
divorce ; and, according to Saint Mark, reciting the
words of Genesis, and inferring from these words the
incompetence of man to separate what Grod had
joined together ; and concluding his whole arguo^ent
by the publication of a new rule on his own au-
thority : And I say unto you. Whosoever shall, put
away his wife, except it be for fornication, and shall
marry another, committeth adultery; and whoso
marrieth her that is put away committeth adultery.
It is remarkable that our Lord should make the only
unequivocal mention of adultery, in representing not
the justifying cause, but the offensive consequence,
of divorce ; and that the clause of exception, in its
ordinary interpretation, not only, introduces a new
ground and rule of divorce, but is opposed to the
whole tenor of our Lord's discourse, in pressing the
121
iodi^soiubility of marriage, od its primitive iuatitu-
tioD ; OD its essential unity ; on its divine confirma-
tion, which took from man the power of divorce ;
on the partial concession of the Mosaic law^ opposed
to what was in the beginning; and on the conse-
quence of adultery, which the validity of the original
marriage attached to divorce. Is the whole force of
this consolidated reasoning to be dissolved by a
clause of exception, interpreted, without any au-
thority, of adultery ; and made, by an inference finom
that unauthorized i interpretation, to convey a saoc*
tion and licence of divorce. But it will be said, that
the disciples objected to this doctrine with the ex-
ception, according to Saint Matthew : If the case of
a man with his wife be so, it is good not to many.
Were they then the disciples of the loose school of
Hillel, and so passionately impregnated with Jewish
prejudices in favour of divorce for every cause, that
the concession of divorce for adultery did not satisfy
them ? But, according to Saint Mark, the exception
wks omitted in the private conference, in which the
disciples made the objection ; and our Lord, so far
from removing their objection by adverting to the
permissive exception, maintained his doctrine in its
utmost rigour : All men cannot receive it. . . . He
that is able to receive it, let him receive it.
It is not consistent with this view of the context,
to infer, even from the clause of exception, a permis-
sive law of divorce on the ground of adultery : and
it is the argument of Beza himself, in meeting the
objection from the omission of the clause of excep-
tion, that even if the clause had been omitted by
Saint Matthew, it would have been iio prejudice to
the doctrine ; for the question of the pharisees did
122
not relate to divorce for adultery, nor was there
any occasion for our Lord's resoltiog that questioD.
He was asked, not whether divorce was aUdwed for
aduhery or any paiticnlar cause, bnt whether it was
allowed for every cai»e. This was the ground of
debate, beyond which the reply is not to be carriedi
dtiless the eicceptive clause be added to the passi^^iea
ni Saint Mark and Saint Luke, firooi the texts^ of
Sahit Matthew*.
Beza, acquiescing in the ftiU forccof the position,
What God hath joined together let not man puC
asunder, and from thence taking occasion to deny
the competence of man to admit new and arbitrary
principles c^ drvorce, nevertheless insists on th^
divine right and anthority of drvorce for adultery ; i»
which he infers the divine concurrence from the
capita! punishment of the offence, and the conse*
qtrent dissolution of the marriage under the Moiaie
law ; and enforces the ckuse of exception, which be
suppose to have been conceded to the scruples of
men, and for the guidance of magistrates, in ques-
tions of divorce. These are but remote conclusions
from the text. The first argument is opposed by
the general opinion of the first ages, that God dis-
solves the union of marriage, not by divorce, bnt by
death in the course of nature: and it is bold Co
argue from the capital punishment of adultery under
the law, in interpretation of a rule of divorce equally
foreign and unknown to that law. The clause of
exception, interpreted in connexion with the position.
Those whom God hath joined together let no man
put asunder ; and converted into a permissive law (3^
* Bexa de Repudiis.
123
divorce, can only be appropriated to those whom
God hath not joined toother, or to those whom
man bath put asunder. It is applied to adultery,
on the ground that that ofi&Yice, iti destroying the
essential unity, dissolves the obligation of marriage.
It is not necessary to r^ert to the di£Sculties of this
interpretation, in interpretation which cannot be
pufd'ued to its extreme results, without leading to
the enquiry, How, if adultery makes the achilteress
one with the adulterer, so as to be incapable of re-
union with her husband, did not the previous union
with her husband preclude her subsequent union
with the adulterer ? There is less difficulty in coU
leetii^ the invalidity of marriage from the former
clause, and in shewing that in incestuous and un-
lawfi^l marriages, especially in the marriage of a Jew
with an -alien, God was so far from joining the
parties together, that he had forbidden their union ;
and the man who married a heatlien wife, whom he
divorced for the marriage of a Jewess, in availing
himself of the clause of exception, would not commit
adultery by the second marriage; because the former
diarriage had been ilTegal and invalid. This inter-
pretation corresponds with Griesbach^s reading of
the text : Sg av caroXua^ nifv yiivMxa camu ^i} twi iro^fioe, in
which the words in question relate to the siaie^ of
the Woman, add not to the act or cause of divorce,
and may be properly translated. Whosoever shall
divorce his wife, not being in a state of to^io, or
^ Ewt ** in quum statum quendam rei significamus . » . . Demo-
sthenes ytyftifmf riwv §wi rv/«f •ftfK.*' Schleusoer* Compare Sap.
i. 14. ii. 23. •
124
alieaation, i. e. not being a merf, or an iilien wife.
The term of ywni tin wofw^iy or p) nri vb^i^ will ex-
actly correspond with the ytmi fU| ira^txro; Xoyov *o^ia^
and the yw^ To^tim^ xoyou mpmoff with the wife ex-
empt or not exempt from the charge of alienship, to
which the other text of Saint Matthew relates, and
beyond or beside which there could be no divorce
without adultery. This interpretation also coincides
with the opinion of Tertullian, that the marriage of
ihe faithful with the unfaithful is conciliated by the
evil one, and condemned by the Lord, who would
rather that such marriages should be without ratifica-
tion, than that there should be a dissolution of mar-
riage ; and therefore forbids divorce nisi stupri causd^
I. e. according to Tertullian's frequent use of the
word, except in the case of the unlawful marriage of
the believer with the unbeliever, which could not be
contracted without violating the divine prohibition,
and incurring the guilt of fornication, or alienation
by marriage*.
5. The fifth and last objection to the received
doctrine of divorce for adultery is founded on the
argument of Saint Paul to the Corinthians, in which
he evidently refers to the doctrine of our Lord.
The apostle asserts the perpetuity of marriage
without any limitation or reserve, except only of
death : The woman who hath an husband is bound
by^ the law to her husband, so long as he liveth ; but
if the husband be dead she is loosed from the law of
her husband : so then, if while her husband liveth
she be married to another man, she shall be called
• Ad Ux. 1. ii. 8. 2, 3.
125
an adulteress ; but if her husband be dead, she is
free from that law ; so that she is no adulteress,
although she be married to another man^ He re-
peats the same doctrine in the Epistle to the Co-
rinthians ; and in both texts the doctrine which he
delivers is in perfect conformity with the law of our
Lord, that the marriage of a man during the life of
his wife, or of a woman during the life of her hus-
band, is an act of adultery ; that divorce, under cbver
of which the marriage proceeds, does not abate the
adultery; and that there is no dissolution of mar-
riage but in death. It is of importance to enquire,
whether upon any other occasion he admits any
other exception to the general rule and law of mar-
riage, whether adultery or kny other cause.
The privilege possessed by the proselytes to the
Jewish religion, who, after their regeneration and
admission into the commonwealth of Israel, were
at liberty to abandon all the relations which had
bound them in their heathen and unregenerate con-
dition, together with the opinions which the Jews
maintained of the nullity of such marriages as were
contracted out of the pecuHum^ may have suggested
the doubt which the converts at Corinth entertained
of the propriety of retaining the consorts to whom
they had been married before their conversion,, and
which they submitted to the judgment of the apostle.
If he did not acquiesce in the principle of the ques-
tion, he expressed neither offence nor surprise at the
propoisition. The first and most general judgment
which the apostle pronounced in reference to these
' Rom. vii. 2, 3.
V26
cases of alien marriages, was, t^at every 0)jfM).At|(pukl
fH^D an^ kfep ppes^on jof lu9. qwq wj^i Md
?very 'womifft Pf bflT .Q?rn, bu^^d. This .;v«%.bis
geqeral opioiw /oundf^d xm ^^ natural pen^iMiice
apd perpetuity pf the comjugal relation, iu ihe k^oq**
f fact of wi;i.icb. the part^ Ivid) as it were, trausGOTed
tlieqfiselves o^^e to ; another, and h»jd no moi^.ibe
poijirer of disposing of theniselves. This was the
case of pc^ons Mth of whom bad b$en tcoavettedf
and were therefore under, t^ ^poptle's juriadietion^
although they bad been married before » their coa-*
yei^ion; wd be affirms his own.iopinion of tb«ir
ease by alleging the aiithority of ihe Lord-: Unto
the married I command, yet not I, but the Lord,
Let not the wife depart. from her iiusband ; (and if
sbe depart, let her remain unmarried, or be reconciled
to her husband ;) and let not the husband put away
bis wife. It is the sound exposition of Uofheiy^
tiiat when the apostle in this chapter makes refeisence
to ihe i#ord and to a commandment,. he me^ns to
lecite a rule delivered: by our Lord during bisrm w-
istcy: and tbat.wben he.spieaks in his. own name
9nd by permissioniF^e m^nt to deliver a prc^pt on
his own authority, recommended in tbe^.full aBsur-
anoe or persuasion of his divine inspiratipn^. la
referring therefore to our Lord's doctrine of the
perpetuity of marriage, he recites it in its utmost
latitude, requiring,, that the wife should not be
separated, (x«;i9V«i>) and that the husband should
not divorce his wife, adding, that if the wife should
be (or, in reference to an event which had already
taken place, should have been) separated by her
own or her husband's will, she should remain un-
12J
married, or be recoocHed to her husband s. In thus
reciting the doctrine of our Lord, in proof of the
iodisaolubiHty of marriage, be asserts the doctrine in
its utmost latitude : and the only exception which
he makes, either refers retrospectively to an actual
state of separation by reason of fnf¥tuif or even if it
be interineted prospectively, and have any relation to
the exception in our Lord's own doctrine, it is of im*
portance to observe^ that it was not an exception
which dissolved the marriage; which released the
woman from the obUgation of remaining unmarried ;
which excluded the hopeof reconciliation, or allowed
the woman to put,herself in a condition in which that
hope could not be fulfilled. It.could not therefore be
adultery, according to the rec^xred opinion of divorce
for adultery: and if the objection be made,, that the
woaian would have been free under the proposed
interpretation of the invalidity, of an alien marriage,
it may be answered) that the ease to which the
exception is appropriated is a case of aUen marriage,
in which both parties contracted under the same
circumstances, and with the same views, both ad-
mitting the lawfulness of divorce^ and the liberty of
marriage, after divorce. The apostle without scruple
confirmed the marriage in; consideration of the cir«
cumstanoes under which it -was contracted : in. virtue
' 1 Cor. yii. 10» 1 1. It is renuurkaUe, thi^ Tertullian givw t4>
this rule the authority of our Lord : ** Atquin et Christus, qum
pnecipit mulierem a viro noii depedere, aiit si aiscesserit manere
inniiptam, aut* reconciliari viro ; et repudium permisit, quod non
in t^tttiB prol&ibttity ^ ddatrimoiiiunl ccfo&rmMt, quod pnois
vetuit disjungi ; et si forte disjunctum/yoluit reformari.'* Adv.
Marcion, 1. v. c 7.
\2S
of his own authority over the parties after their con-
version, he prohibited the new marriage, which, on
the principle of the original union, might have fol-
lowed the separation, but was incompatible with the
Christian law, which attached adultery to the mar-
riage of a woman divorced. The restriction of the
woman only agrees with the restriction of the clause
of exception.
The next case to which the apostle adverts, is the
case of parties who were married before conversion,
and one of whom was converted after the marriage :
and he argues this case upon his own authority ; re-
commending that the believer, whom alone he had
power to instruct, should neither divorce nor desert
the unbeliever of his own accord. It would seem,
therefore, that the apostle was unwilling to apply the
doctrine of our Lord to this variety of alien nlar-
riages ; and that he was rather desirous of arguing it
in his own name and authority. He introduces his
judgment with this distinction : To the rest speak I,
not the Lord: If any brother iiath a wife that be-
lieveth not, and she be pleased to dwell with him,
let him not put htfraway : and the woman which'
hath a husband that believeth not, and if he be pleased
to dwell with her, let her not leave him ; for the un-
believing husband is sanctified by the wife, and the
unbelieving wife is sanctified by the husband : else
were your children unclean, but now are they holy^.
While the parties were willing to cohabit, he insists
on the continuance of the union, from the effect
which the behaviour of the believer might have upon.
»• 1 Cor. vii. 12—14.
129
the unbeliever^ in winning hini by the purity of ber
conversation to the belief of the truth ; and from' the
advantage which their common issue would derive
fix>m from the federal holiness of the parent devolv-
ing on the children ; from the probable initiation of
the child into the Christian covenant by means
of the believing parent ; and from the loss of both
advantages by the separation of the believer from the
unbeliever^ It id remarkable, that the apostle ar-
gues this case solely upon the ground of expedience ;
that he cautiously abstains from the application of
our Lord's doctrine, in respect either of the marriage
or the separation of the parties ; and that he does
not make the duty of the believer in maintaining the
union to rest on the obligation of the conjugal
lekttion.
He proceeds to another case, which is more com-
plicated, that in which an unbeliever married to a
believer might insist on the right of divorce, and
require to be separated ; and, as neither his advice
Ror authority was likely to prevail with the unbe-
liever, he arbitrarily decides the case : If the unbe-
liever depart, let him depart : § brother, or sister,
i« e. a believer, is not under bondage in such cases ^.
By the general rule of Christian duty, and on mo-
tives of expedience, the believer is not allowed to
originate the separation, but required to continue
peaceably in the state in which he was called: but
if the unbeliever will separate, if he will insist upon
the privilege of divorce implied in his Original con-
tract of marriage, the other party is not bound by a
» Dodwell, 8- 20. ^ 1 Cor. vii. 15.
VOL. II. K
130
Gorepanti wbicb, on the principle^ of the aliens, wa^
confessedly dissoluble^ and is firee to assent tp t^e
separatioa. The apost)^ saith Ambrose, denies it
to be part of the divine law, that marriage should
under any circumstances be dissolved ; and he neither
commands nor gives authority for the. act of djB-
sertion ; he merely takes away all blame from the
party deserted. Other fathers have given a more
extensive interpretation to the absence of the bond :
thus Hilary saith : ^^ the Christian is free in this
case to marry another Christian : He is free, saith
Photius, to depart, because the other hath dissolved
the marriage. If he depart, say Chrysostom, C£cu-
menius, and Theophylact, because thou wiit .opt
communicate with him in his infidelity, be thou
divorced, or quit the yoke ; for it is better that thy
marriage should be dissolved, than thy piety. These
fathers therefore plainly suppose, that the laws whic^
say. He that marries her which is put away copip
mitteth adultery, Matt. v. S3, and that the wife is
bound to the husband as long as he livetb, Rom. vii.
1, 9, 3. concerned only equal marriages, partly be-
cause the apostle saith, he hath no commandment gf
the Lord to produce for the decision of this case,
and partly because he doth not here say, as in the
case of equal marriages, {§w x^^^h*) ^^ ^be be sepa-
rated let her remain unmarried ^'^ It is natural to
ask, if the rule of indissolubility relates, only to equal
marriages, to what but unequal marriages does the
clause of exception relate ?
But is it certain, that the believers being not
' Whitby Com. in 1 Cor. vii. 15.
131
bound {ou $fSovAwr«i fv roi«t;ro«^) is equivalent to his
being released, (iMrrn^yiyraci^) and being free, (iXtufejo,)
as tbe same apostle on another occasion, ,and in the
conclusion of tbe present argument, describes tbe
condition of the wife on tbe death of her husband ?
Is there not rather in the words an alhjsion to tbe
servile condition of the wife in the marriage of the
heathens and the Jews, and it may be to the peculiar
condition of tl^e slave, who was not emancipated nor
free to marry without the express consult of the
master, who had debauched and deserted her. The
believer was transferred to a new lord, who bad the
paramount claim upon her allegiance, which she was
not permitted to renounce at the will of an unbe-
liever, but which she did not compromise while she
followed the rule of peace, and continued to cohabit
with a husband who did not desire the separation.
The extent of the believer's release must depend on
the principle and authority on which the apostle
means to assert that he is not under bondage. He
affirms, with a limited exception, tbe continuance of
the union contracted between two converts before
their conversion on the authority of our Lord : he *
advises the continued union of the believer with the
unbeliever on his own argument of religious expe-
dience, expressly distinguished fix>m the rule of our
Lord: and then suddenly, and without any direct
assertion or avoidance of the divine rule, permits the
unbeliever to depart if he will, and decides that the
believer is not bound in such cases. There is a
remarkable contrast in the order of the two de-
cisions : the permanence of the believer in marriage
was expressly governed by the apostle, and not by
k3
132
the Lord ; did the Lord then allow him a licence of
separation ? The believer is affirmed, without refer-
ence to any authority, to be not bound to the un-
believer: on what principle then is he free ^ If the
decision proceeds oh the law of our Lord, it must
be understood in connexion with the clause of ex-
ception, inserted in that law, permitting the separa-
tion of the believer from the unbeliever, but with a
restriction, enforced by the apostle, precluding the
believer, as a divorced person, from the right of mar-
riage after separation. If it proceeds on the dissolu-
bility implied in the terms of the original contract,
the freedom which it gives to the woman is never-
theless subject, to the admonition, Art thou loosed
from a wife ?. Seek not a wife". The only principle
on which the believer can be separated from the
unbeliever is the fault and invalidity of the original
marriage, contracted in the name of false divinities,
and upon terms repugnant to the divine institution ;
affirmed in the case of two converted believers, with
the admission only of a restricted separation ; com-
promised in the case of a believer with an unbeliever
only on grounds of religious expedience; and held
to be not binding upon a believer married to an
impracticable unbeliever. The clause of exception
is the principle on which the parties are separated ;
but it is so restricted as not to allow persons divorced
to marry again.
*" It is the comment of Tertullian, after reciting 1 Cor. vii. 39.
Hinc quoque earn demlonstrat intelligendam^ quas et ipsa sic
faerat inventa soluta a viro, quomodo et vir solutus ab uxore :
per mortem utique non per repudium facti solutione, qiiia repu-
diatis non permitteret nubere adversurpristinum prseceptum.
133
It has been conceived, that the apostle's argument
on the ground of expedience in favour of marriages
contracted by unbelievers before their conversion,
abated the prevailing offence of such marriages, and
was perverted into a licence for the marriage of the
believer with the unbeliever after his conversion ; and
that the prevalence of this abuse was the occasion of
the animated admonition of the apostle in his second
Epistle ; Be ye not, in violation of the divine com-
mandment concerning the use of beasts of different
kinds, unequally joined together with unbelievers:
for what fellowship hath righteousness with unrigh-
teousness, or men that are justified with men that
are not justified ? What communion like that of
marriage is between the opposite states of light and
darkness, between men who know and men who do
not know the Lord ? What confederacy can there be
between the hostile powers of Christ and Belial?
What common part or portion hath he that believeth
with aU' unbeliever? Or what common agreement
and acknowledgment hath the temple of God with
idols ? If there can be union with men within and
men without the covenant of God ; if light and
darkness can be brought together ; if hostile powers
can be associated and confederate ; if the believer
and the unbeliever can partake of the same mystical
portion ; if in the sTct of marriage an obligation can
be laid upon both by a vow and covenant attested
on the one part by idols, and on the other by the
true God — then may the believer contract a suitable
and valid marriage with an unbeliever, and there is
DO occasion for preserving the distinct and peculiar
holiness of the ^unily of God, and keeping it separate
K 3
134
from all tnatrimonial pollution with aliens and
8trang^»^ from the aacred covenant''.
It was the iliame case which was argued in the
first Epistle, in the question of the apostle^: Shall I
take the members of Christ, and make them the
members of an alien ? The aposde assumes the
indignant answer of the believer, and in abhorrence
of such a proposition exclaims, God forbid ! But, in
anticipation of tbe exception, that such an anion
would either not be marriage, or would not be a
desecration of the members of Christ, he proceeds to
ask, Know ye not, that he who is joined to an alien
is one body, one body with her whom he marries, or
one body with Christ whose member he is ; for in
respect either of the proper or the mystical marriage
it is written, The two shall be one. The first ques-
tion which he urges on the ground of its sinful ten-
dency and violation of the purity of the Christian
body, in terms of the inbst striking resemblance to
those of the second Epistle, is the strongest dissua-
sive, if not an absolute prohibition, of these tinequal
marriages; however' in the second question he may
be thought to affirm them, by appropriating to tliem
the terms of the divine institution, terms which may
be justly and with little exception interpreted of
the myslicat union of the believer with Christ, or of
Christ with his Church.
There is therefore no part of the aposde^s argu-
ment in which he adverts to the clause of exception
in our Lord^s doctrine of divorce, if the clause be
interpreted of adultery : if it be understood of this
» 2 Cor. vi. 14—18. See Dodwell, s. 22—29. « 1 Cor. vi. 16.
135
dissolubility of equal marriages, there are points of
striking coincidence between the doctrine of the
apostle and the doctrine of our Lord. They both
speak of the same marriages, but under different
circumstances:, they both permit the separation,
which they do not require, and which the apostle
under the circumstances holds to be inexpedient:
and they do not concede to divorced persons the
privilege of entering into new marriages. This re*
striction limits the operation of the clause of excep-
tiod.
An argument resting so entirely upon its own
merits should not be deprived of the strong corro-
boration which is found in a passage of the writings
of Tertullian, in which he obviates the objection
founded in the affirmation of such marriages con-
tracted before conversion, and the prohibition of such
marriages after conversion : It was asked ; What is
the difference in the cases of him who embraces the
faith in marriage with a heathen, and of him who
believes before such marriage, that they should not
take equal care of their own persons, (or of the flesh
or body to which they properly belong, carni suce^)
that the one should be restricted fix)m a marriage in
which the other is required to persevere ? Why, if
there be pollution in marriage with a heathen, is not
the one separated, as the other is not bound ? This
was tlie objection : in the answer, Tertullian chiefly
relies on the authority of our Lord, who would
rather that such marriages should be without ratifica-
tion, than that being ratified they should be liable to
dissolution, and therefore forbids divorce nisi stupri
causdj except in the case of the marriages of the
k4
136
faithful with the unbeUeving. He argues further,
that the one is under a necessity of persevering in
the marriage, while the other has a discretionary
power of not marrying. According to the Scripture
also, they who are apprehended by the faith in mar-
riage with a Gentile, are not polluted, because others
may be sanctified with them: but without doubt,
they who were sanctified before their marriage, if
they combine themselves with strange flesh, cannot
be supposed to sanctify that flesh. The grace of
God sanctifies men in the state in which it appre-
hends them. He then asks, Shall we on such occa-
sions present the registers of such marriages at the
tribunal of the Lord ; and pretend that the marriage
which he has forbidden is duly contracted ? Is not
this the offence which he has forbidden under the
name of adulterium, stuprum ? (or Tognui.) The
admission of a stranger does not more violate the
temple of God ; it is not a worse contamination of
the members of Christ with the members of an
alien P.
The sense in which Tertullian understood both
the word and the text in this passage, are too clear
to be disputed ; and in the absence of other explicit
and distinct assertions of the absolute nullity of these
unequal marriages, an appeal may be made to the
fact, that such marriages were from the very age of
the apostles, discountenanced in the Church; and
that the 'strongest exhortations were used to prohibit
and prevent them. When the apostle permits a
woman, after the death of her husband, to marry
r Ad Ux. 1. ii. s. 2, 3. Sec Appendix, No. I.
137
whom she will, with the reservation that the marriage
be only in the Lord\ he has been generally understood
to require that a Christian woman should marry
none but a Christian man. This was the exposition
of Tertullian, that the apostle, in the words only in
the Lord^ forbids the marriage of the believing with
the unbelieving, and refers to the law of the Creator,
every where forbidding, as the ancient law annulls,
marriage with men of foreign tribes': and asserting
of his own autjiority, that men, in contracting such
marriages, were liable to the imputation of to^sio.
Cyprian follows the authority of his master, and
maintains, in a distinct proposition, that marriages
are not to be contracted with the heathen ; and that
to form the bond of marriage with the unbelieving is
to prostitute the members of Christ to the Gentiles'.
Jerome, Ambrose, Sedulius, and Theodoret, all un-
derstand the apostle's words, of marrying only in the
Lord^ in the same sense, and are earnest in their
admonitions against sui^h marriages. Augustin, who
(as might be expected in a later writer) was less
decided than other fathers . in thinking that such
marriages were forbidden, nevertheless admitted that
it was a doubtful and difficult question, and con-
tended that he had no power to sanction such mar-
riages^.
It is but natural that very different opinions
should now prevail, of the effect of such marriages,
from those which were entertained by the primitive
^ 1 Cor. vii. 39. ' Adv. Marc. 1. v. c 7. ■ Lib. Test,
ill. s. 62. De Lapsis. ' Bingham's Eccl. Antiq. b. xxii, c. 2.
s. ],
138
writers, who were witnesses of the evil, which they
hboured to restrain. TertuUian describes their per-
nicious operation with the most affecting eloquence:
The handmaid of the Lord now tarries with the
strange deities ; and among them the daemon, at the
beginning of the month, at the beginning of the
year, is to be moved with the • smoke of incense, in
all the solemnities, in all the honours of kings.
Crowned with laurel, and conducted by the light of
candles, she proceeds froni the gate, as from the
court of public lust : she lies down with her husband
in the association of his colleagues ; and she, who
was once accustomed to wait upon the saints, now
ministers to the impious: and shall she not here
read the prelude of her own condemnation ? How
shall she observe those whom she was about to
judge ? Whose hand shdl she desire ? Of whose
cup shall she partake ? What shall her husband sing
to her, or she to her husband ? She may hear indeed
of the stage, the tavern, and the brothel ; but what
mention is there of God? what invocation of Christ?
what encouragement of faith from the mutual read-
ing of the Scriptures ? where is the refreshment of
the Spirit ? where is the blessing of God ? All is
foreign ; all hostile ; all disapproved ; sent by the
evil one for the confusion of salvation".
This is not the place to enter into detail of the
opinions which different ages have entertained of
these marriages, or of the measures which have been,
devised for restraining them. Their nullity was
asserted in successive Canons of the Church ; and
" Ad Ux. 1. ii. s. 6.
139
fieza, who objected to this judgment, nevertiheless
maititafined that Ihey were dangerous, that they were
unwise, and worthy to be restrained by ^ivil pe-
nalties. The teamed Miegius' ascribed to the pre-
valence of these tin^qual marrit^es the dehige, and
the confusion of the tongues at'Babel ; and insisted
on die care of Abraham to prevent them in bis
posterity, and on the stricft prdbibition of them in
the ancieM law. Heprononnees them the fountain
of evil manners, heavy judgments, a depraved pos-
terity, and the corruption of religious comtiaunion ;
and from their natural oonsequedce jtistifies the dis-
solution ^of the marriages with the 'strange wives, and
the r^noval df their issue at least Irem the privileges
of Jewish cMldten. He maintains the prdiibition
of these marriages in- the New Testament, (2 Cor.
vi. 14. 1 Cdr. vii. 39. Actsxv; 20.) and among the
primitive writers ; and hn the conclusion insists upon
the effect of these marriages, that where there is not
a community of religious principle, there will be a
continual attempt, on the part of one consort, to
withdraw the other 'from his religious profession, and a
consequent escitement of hatred among the children,
in the family, and m the whole conversation. Leslie,
the reasoner not to be reasoned against, exposed the
practical inconvenience "Of Marriages in different
Communions ;" and in reference to the agreements
on which sucAi marriages usually proceed, affirmed
that neither party could engage to acquiesce in a
false religion, without attempting to satisfy the scru-
ples and instruct the reason of the other ; and that
« De Off. Pttstorisy c. xvi. s. 21.
J 40
the parental duty rex]i]]red the education of the
children in the belief of the truth. The very learned
Henry Dodwell, in bis elaborate prosecution of the
ai^ument of Leslie, held, that in unequal marriages
there is a disparagement of the issue of the faithfiil,
which thus becomes a mixed seed, separated and
estranged from the foederal holiness of the believing
parent; and that the offence is aggravated by the
different mysteries, matrimonial and economical, ob-
served by the different parties. He pursues the
course of this argument through the several histories
of the Old Testament, to the time of the apostles ;
when he asserts, that the prevailing opinion of the
effect of marriages out of the peculium, suggested
the question proposed by the Corinthian converts.
He presses into his service the argument of the
apostle upon this occasion, corroborating his position
by the authority of the earliest fathers, and observing
the effects of the naturalization of either parent upon
the issue. He further argues, that the marriage of a
believer with an unbeliever was an act of apostacy
or alienation, which, being dedicated to God, he
was not free to make ; and that all contracts, made
for the education of the children in different religions,
are void ; because the wife, by the inequality of her
condition, is incapable of contracting ; and the hus-
band cannot alienate the property which belongs to
God, especially if he himself is contracted in the
mystical union of Christ with his Church, which is
the ground of the apostle's argument for the nullity
of marriages out of the Church. The same obliga-
tion is upon the woman, who is not capable of alien**
ating herself, or of being alienated by others.
141
. These arguments against unequal marriages are
pressed, without any reference to the principal text
in question: but they do not abate the force of the
proposed interpretation, or of the objections against
the received doctrine of divorce for adultery, founded
on the unauthorized exposition of the clause of ex-
ception, on the omission of that clause, on the vio-
lence of the inference from that clause, and from the
context, and from the silence of Saint Paul in irefer-
ence to that clause, unless it be understood in the
sense proposed, which in this argument has been
adopted, chiefly because it is most agreeable to the
exposition of the word, the text, and the doctrine,
by Tertullian and Cyprian ; because it is most ana-
logous to the Hellenistic use of the word, and to the
predominating notion of the Jews, in the estimation
and description of the marriages in question.
The exposition of adultery is unauthorized by the
use of the Hellenistic and primitive writers. At
the same time there is no scruple in admitting, that
while the word, in the judgment and use of the
Jews, principally denoted the incest attached in their
sense to alien marriages ; it is also used by Saint
Paul, 1 Cor. V. 1. for another kind of incest, for
incest known and unknown to the heathen ; and,
according to Hammond, it denotes all the incestuous
marriages forbidden in the Levitical law. It will
not contradict the argument maintained in this sec-
tion, or that which is founded in the difficulties of
the doctrine of divorce for adultery, if it be under-
stood by a synecdoche of one for every kind of in-
cest, if its interpretation be only restricted to an
impediment precluding and vitiating, and not ex-
142
tended to offences foUowing the marriage, and dis-
solviog die contiaot. The entiie indissolubilttjr of
marriage, righUy contracted^ is the only codcIusioq
which it is proposed to draw fiom the difficulties
which embarrass the principle and practice of di-
vorce. Impediments to marriage have unquestion-
ably been admitted in all ages of the Church, in all
parts of the globe : are they also sanctioned by the
word and authority of our Lord ?
SECTION IV.
History of the ChiriiHan Doctrine (if Dii)arc€.
The objections which have beea made to the licence
and privilege of divorce, and the attempt to restrict
the dissolution of marriage to cases of previous dis-
qualification, involve a d<^ree of practical import-
ance, and at the same time rest on principles so
remote from the received practice and common ap-
prehensions of mankind, as to require the production
of every argument and authority which can be brought
forward in their defence. It will be necessary there-
fore to resume the history of the doctrine of divorce,
in which it may be convenient to follow the arrange^
ment of Selden, by whom it is divided into three
principal aeras ; including, 1. the age before Constan-
tine; S. the age between Constantine and Justinian ;
and, 3. the age between Justinian and the decay of
the Empire in the East, and the Reformation of the
Church in the West. Into these several periods the
chief writings and authorities of the Church may be
distributed; and materials may be collected, from
which it may be shewn, how far the rigour of the
original doctrine was from time to time accomnio-
dated to the rule which had obtained among the
Heathens and the Jews ; by which die faint traces
and lineaments of the primitive law may be drawn
out as they appear in the several ages and periods of
the Church ; and which may prove the necessity of
adhering to the strict sense and meaning of the words
of our Lord, if they can be ascertained, instead of
146
JMt causes of divorce. Bingham suf^ioses the finfc
and the last interpretations to be private opinions;
and die second, which restricted divorce to adulteiy,
to be the received doctrine of the Church^. The
difficulties of the question are such as cannot be
denied, and can only be resolved by the weight of
the evidence*
It may be useful here to recapitulate the diffeiept
cases, which, it is argued, have been decided upon
sacred authority. If our Lord, according to Whitby
and the aigument which has been maintained in
these pi^[es, delivers a general rule concerning equid
marriages, the permanence of those marriages is un«
equivocally asserted, and the clause of exception caa
relate only to the doubtful validity of unequal mar«
riages. The first case decided by the aposde is a
case of marriage, equal in a certain sense, in which
both the parties^ before the marriage, were aliens^
and after their marriage were converted. This mar^
riage was affirmed on the ground of the general peP4
manence of marriage, established on divine authority^
with an exception^ referring either to an actual sepa^
ration, before the appeal to the apostle, or to th^
contingency of a future separation ; but in eithei^
case prohibiting any new marriage, in consequence
of the separation. The next case is that of a mar*
riage, also equal at the time of contract, between
two aliens, 1>ut rendered unequal by the subsequent
couversion of one of the parties : and the continue
ance of this marriage is recommended upon motives
of e^cpedierice, on condition of the consent of the
** Bingham*s Eccl. Antiq. b. xxii. c. 5. s. 1, 2.
147
anbeliever ; motives and conditions from wfaicti the
^original invaliditjr of the contract may be inferred.
This invalidity is expressly asserted in the third case/
of an unbeliever desiring to be separated from a
believing consort ; in which the one is, without any
scruple, suffered to depart, and the other is pro«
nounced to be not bound. In the three cases, the
clause of exception in our Lord's law of divorce^
interpreted of alien marriages, of which, under that*
very name, the apostle is professedly treating, is the
principle on which the voidability of the marriage is
declared, so far as to allow the separation of the
parties, without permitting the Christian, consort to
enter upon another marriage— ^n indirect proof of
the restricted application of that clause. There is
yeC another case of a believer, after his conversion^
marrying an unbeliever ; and this is argued upon
such views of its sinful tendency, as would justify
the conclusion of a nullity of the contract, from its
oppositioQ to the will and institution of God. In
ail these cases there is not an insinuation: of the dis^
sdobility of a vaGd marriage, nor the shadow of a
deviation from either of the general assertions of the
apostle : A woman is bound by the law to her hus-
band, so long as her husband Itveth : but if her
husband be dead, siie is free to marry whom she
will, only in the Lord^. But the unbeliever may
depart : a bdiever is not bound in an unequal mar-
riage**.
It is of importance to remark, diat the first Chris^
tian writer who treats of divorce, whether he be or
• Rom. TiL 9, 3. 1 Cor. tU. 39. MCtr.vii. 15.
l2
148
be not the apoatolical Hermas, coiDcides entireljr
in the doctrine which has been maintained ; allowing^
a husband to separate from his wife for idolatry, bot
not permitting him to marry another woman, or to
put himself out of a condition to receive his wife in
the event of her i^pentance. It is also remarkable,
that the. case M4iich he puts is one which was unne-
cessary and had been decided, if the words of our
Lord and the words of Hermas (extant only in a
barbarous translation) are to be unde^tood in the
received and ordinary sense of adultery ; while in
the interpretation proposed in the last section and
detailed in the Appendix, Hermas supplies the only
deficiency in the series of cases decided upon scrip-
tural authority. The general rule of our Lord
governs all cases of equal marriage ; the. exception
relates to unequal marriages : the apostle determines
the respective cases pf two believers, both converted
after their marriage ; of a believer married before
conversion, whether to a practicable or impracticable
unbeliever ; and of a believer, after his conversion,
marrying an unbeliever: the only remaining case
supplied by Hermas, is that of a believing wife
apostatizing after her marriage with a believer. The
question which he puts is this: Permit me. Lord,
to speak a few words with ibee : If a man has a wife
believing in the Lord, and he detects her in apo-
stacy, {adulierio^) does he offend if he lives with her ?
The Lord answers : As long as her husband is ig-
norant, he is without crime in living with her : but
if he knows that she has offended, (or apostatized
deliguissej) and has not repented, but persists in her
apostacy, (Jbmicaiione^) and he continues to live
149
with h€r, he becomes guilty of her offence, and a
partaker of her apostacy (mcechationis). Hernias
pressed his question : What then if the woman per-
sists in her fault? And the Lord said, Let her
husband send her away, and let him remain by
himself. But if he shall send his wife away, and
marry another, he also commits adultery. Hermas
further asks : If the woman dismissed shall repent,
and desire to return to her husband, shall she not be
received by him ? The Lord answered : Yea ; if her
husband shall not receive her, he also incurs great
guilt : he ought to receive his offending wife upon
her repentance In contemplation of her re-
pentance, he ought not upon the divorce of his wife
to marry another. The course is the same in re-
spect of the man and of the woman. Adultery is
not only in those who pollute their flesh ; but he
who makes an image commits adultery, (or is guilty
of such apostacy as justifies divorce.) But if the
woman persists in these practices, and does not re^
pent, withdraw from her, and live not with her;
otherwise thou also wilt be partaker of her of^
fence*.
Without ascribing to this passage any authority
beyond that of a primitive and ancient testimony of
contemporary practices and opinions, it may be re-
marked, that if the passage be understood of divorce
for adultery, it is so far opposed to the common
argument of the dissolution of the bond by the adul«
terous act, that it plainly restricts the clause of ex-
ception, and gives no licence, even to the innocent
' HermsB Pastor. 1. i. Mandat. 4.
l3
160
busUand of an adulterous wife, to inarry another
woman, without incurriog the guilt of adulteiy : it
anticipates the repentance of the wife, and affirma
tli^ obligation of the husband to receive her on her
repentance ; an. obligation . quite incompatible with
the alleged dissolution of the bond. The ambiguity
of the term is however expressly admitted in tfa«
ccmclusion, which asserts that adultery, properly so
called, was not to be understood exclusively of apo*
Stacy as a ground of divorce, even if apostacy is not
the principal and only ground. If the term of
ofience be understood of religious apostacy, of the
apostacy of a believing wife after her marri^^, the
decision corresponds with the permissive law of
divorce suggested in the clause of exception, and
with the cases determined by the apostle, in the
series of which it supplies the only deficiency. ' It is
not easy to conceive that a husband, by living with
an adulterous wife, could or would be partaJcer of
her adultery ; but if the woman diould apostatize
after her marriage, he was instructed to separate
from her, for the vindication of his own purity from
the contamination of her influence and example; and
to continue the separation so long as she persisted in
the offence : but the bond of marriage subsisted not*-
withstanding the separation : the husband was not
free to marry any other woman, without imputa^
tion of adultery, nor at liberty to refuse his wife
upon her repentance. The case argued by Hennas
is that of a wife in the fullest sense of the term : be
throws no doubt on the validity of the original mar-
riage.
This passage of Hemms has been called "the
151
origin and fountain of all that persuasion concerning
the utter indissolubility of marriage, which was aftei^
wards so xeabifsly espoused by the Latins, which
the Greeks and Armenians refused to reoeive^^^
This opinion was derived from the highest and the
hcdiest souree, the law of marriage delivered by our
Lord in its purity^.and unembarrassed by the imr
proper use of the clause of exception : and it was
sanctioned by the best and earliest authorities in the
Church, and the fuU current of primitive tradition.
There can be little doubt, that the case proposed by
Hennas was founded on the original exposition of
the clause of exception, supported by the doctrine
of the apostle, and corresponding with the opinion
of theprimitive Church, which upon no other ground
could have made the apostacy of idolatry the first
and chief, if not the exclusive, principle of a lawful
divorce. This opinion may be illustrated by an in*
teresting anecdote of this primitive period, preserved
by Justin Martyr, of a Christian woman who sepa^
rated herself from a heathen and adulterous husband,
not on the ground of his adultery, but for the pre^-
servation of her own faith and pi^ty : and it was in
this period also, that the virgin martyr Thecia re*
fused, on the ground of hishatred to Christianity, the
marriage of a man to whom she had been espoused,
and divorced herself; for the bond of marriage lay
in the espousals^. In these instances there is a
plain recognition of apostacy as a ground of divorce,
in direct correspondence with the doctrine oi the
apostle: A brother or sister is not bound in such
unequal marriages.
^ Nuptias SacTKi p. 107. ' « Ux. Ebr. 1. ilL c 28.
L4.
152
Dodwell^ explains the precept of Barnabas r Tboii
sbalt Dot be jdned with them that walk in the way
of death ; of marriage out of the peculium, as an
interdiction of the contract, which in the general
course of his argument he holds to be nulL
The primitive heretic^ Ptolemaeus, whom Grabe
would make contemporary with Hyginus, or the
early part of the second century, in commenting
upon our Lord^s revision of the Mosaic law of di*
vorce, affirms, that ** our Lord shews that the law of
God, which forbids the separation of the husband
from the wife, is different from the law of Moses^
which permits the yoke to be dissolved, on account
of the hardness of heart prevailing among the people:
and in this respect Moses gives a law contrary to
that of God ; for his law is opposed to the indisso-
lubility of marriage^^^ The object of Ptolemseus is
to shew that the Mosaic law was composed of the
positive commandments of God, and of the private
Suggestions of Moses and the elders : his comment
affords evidence of the prevailing opinion of the in*
dissolubility of marriage in its widest sense.
Athenagoras continues the evidence of the indis-
solubility of marriage, of which with some of the
primitive writers he extends the obligation beyond
the grave; an extension perfectly irreconcileable
with the dissolution of marriage even for adultery*
'^ Every one of us esteems her to be his wife, whom
he married according to the laws, and conceives
himself under obligation to remain in the condition
^ Of Marriages in different CommunioiBy 8. 45. * Apud
Grabe Spicileg. vdt ii. p. 72.
163
whtth he held at the time of his spiritual birth, or to
continue in one marriage. For a second marriage is
but a decent adultery ; for the Lord says, Whoso-
ever shall put away his wife, and marry another,
committetb adultery; not permitting the divorce of
the woman whom he married in her virginity, nor
the accumulation of marriage upon marriage ; for
the man who separates himself from his first wife,
even if she be dead, is an adulterer in disguise,
violating the work of Grod ; for Grod in the beginning
created one man and one woman ; and dissolving
that union of flesh with flesh, which was consoli-
dated for the production of a common issue^.^^
Theophilus is the first writer who recites the
clause of exception, upon which he delivers no
commentary, beyond the general course of his argu*
ment, in which he adverts to the danger of marrying
a divorced woman, founded on the right retained ill
her by her former hbsband : '^ Concerning chastity^
the holy word teaches us not only not to sin in deed,
but even in respect of our thdtights, not to meditate
any evil in the heart, or even to look with the eye
upon another man^s wife, to desire her. Therefore
Solomon the king and prophet said, Let thine eyes
behold the thing that is right, and thine eyelids turn
to righteousness : make straight paths for thy feet.
But the voice of the Gospel teaches us yet more
earnestly concerning chastity: Whosoever looketh
upon another man^s wife, to desire her, hath already
committed adultery with her in his heart : and who-
soever marrieth a woman divorced from her husband
^ Legat. pro Cbrbtianui^ s. 33!
154
commitleth adultery: and whosoever puttetb away
his wife, except for the cause of fornication, causetb
her to commit adultery. Because Solomon saitht
Who shall bind fire in his garments, and not bum
his garments ; or who shall wiJk upon coals of fifiQ,
and not burn bis feet ? So every man that goeth
unto a woman that hath an husband shall be guilty ^'*
Sp clearly does he assert the woman divorced to be
ihr«(y$^;, liable to the claims of a husband.
In the time of TertuUian the question <^ marriage
and divorce was warmly disputed among the here-
tics, who would have taken away the rights of mai^
riage**. In opposition to their doctrine, it was bdd
by TertuUian, that Christ came not for the division
<^ marriage, or the destruction of the conjugal union *4
and he was zealous in upholding the indissolubility
of marriage, and the restrictions upon divorce. With
other monogamists he pushed the indissolubility of
marriage to the extravagant length of asserting the
continuance of the obligation after the decease of
the consort. It was thus that he made one part of
that sanctification which is the will of God to consist
in monogamy and the renunciation of the sex, when
the first marriage had been cut off: and he made
the merit of this virtue to rest in submission to the
will of God, who but for the purposes of his will
would not have brought the first marriage to a con-
delusion °. He affirms second marriages to be a kind
of fornication, (or incest,) and indulges in an argu-
ment which might affect the purity even of the
' Ad Autolyc. 1. iii^ s. 13. *° Adv. MarcioD^ 1. L s. 22.
- Ad Ux. 1. i s. ^. « De Exhort. Castitat 8. 1, 2.
155
pfigkial Diarriagef'. It is with the most artful ad-
dress that be eoosiders the relation which a woman
bears to a deceased, compared with a divorced* bus*
baod : *^ She is not divorced iiom the man, from
whom she has not leoeived, to whom she has not
lent, a bill df divorce: she retains possesion of the
man, whom she would not have lost; she should
therefore maintain her constancy to him, whom she
cannot divorce, and whom, if she were in a condition
lo divorce, she would not marry another man. She
prays for his soul, and makes offerings on the day of
his decease, in hope of the destined reunion in a
better state, where we shall recognize both ourselves
and those who are dear unto us^.^^ He enforces his
argument, by asking. What shall be the limit if
second marriages are allowed ? and .how, if the mif>-
iiters of the Church are to be the husbands of one
wife, can they concur in giving more than one wife
to the people, who, being in a certain sense a api*
ritual priesthood, should conform with the sacerdotal
itile? He again affirms second marris^ to be un-
lawful* and liable to the judgment of adultery ; for
what, he asks, is adultery, but unlawful marriage' ?
The doctrine <rf* the monogamists was in direct
composition to the doctrine of the apostle, which per*
mitted the wife to marry after the decease of her
huaband, with no restriction, but that she should
marry imly in the Lor di cr none but a Christian
man* The Psychici pressed the monogamists with
» De Exhort. CastiUt. 8. 9. ^ De Monog. s. 10.
'Ibid. s. 11, 15. Under the name of mduUery he probahly
neass i»^9m$ in the smse ofisbett* Cmnpsre Ad Uju 1. ii« »• 3.
156
this objection ; and there was at least ingenuity io^
the sophistry with which it was evaded by Tertullian^
alleging, generally, that if a second marriage was
allowed, marriage was allowed indefinitely ; that
second marriages Were at variance with the primitive
institution, with the discipline of the Church, and
with the apostle's admonition, that the time was
short. He supposes that the design of the whole
chapter (1 Cor. vii.) was accommodated to the infant
condition of the Church, and that in the beginning
of it the .apostle particularly addresses himself to
such as having been married before they embraced
the faith were apprehensive that it would not be
lawful to continue in the use of their proper marriagef
which the apostle rather permits than commands.
He supposes the same design in the apostle's argu*
ment upon divorce, and the same accommodation to
those who had actually meditated separation, and
did not think themselves justified in continuing in
their Gentile marriages after their belief; and tbcf
same address in respect of those who were boimd,
and those who were loosed. But if thou hast taken
a wife thou hast not ofiended : i.e. according to
TertuUian's exposition, if a man who had been
released from the matrimonial obligation before his
conversion should marry another wife, the wife whom
he took after his profession should not be called his
second wife, for faith (like the Jewish proselytism)
was the beginning of a new life with new relations*
It is with this exposition that Tertullian would
reconcile the permission of the apostle in the con-
clusion of the chapter, of the freedom of the widow
to marry in the Lord, which he restricts to a woman
167
ftee from a husband, as the husband is free from the
wife, by death, not by divorce ; fbr he would not
allow to' persons divorced a liberty to marry in oppo-
sition to the ancient precept. Thus the woman,
in marrying according to the apostle's licence, would
not offend against the principles of the monogamists,
for he would not be a second husband, who was the
first husband after her conversion, or, as the apostle
speaks, in the Lord. It was the case, according to
Tertullian, of the Christian widow of a heathen
husband, who was not restricted from marrying a
Christian husband*.
These opinions of the monogamists could not
have been embraced, but in a firm though exag-
gerated conviction of the indissolubility of marriage ;
and although it be true that Tertullian was a mono-'
gamist, he was more consistent in maintaining the
doctrine, than in adhering to the sect. The view
which he took of second marriages, as a kind of
fornication, adultery, or incest, corresponds with the
indiscriminate manner in which he translates the
clause of exception ; and, although' he does not
actually apply the clause in proof of the nullity and
dissolubility of these marriages, it is not unreason-
able to assume, that he held the opinion of their
invalidity. It was the substance of his argument,
that the permanence and indissolubility of a first
marriage gave to the second a character of incest ;
while the invalidity of a former marriage with a
heathen rendered a subsequent marriage with a
* De Monog. s. 11. Compare Ad Ux. ii. s. 2.
158
Christian a marriage in the Lord, a marriage just
in its principle, and firm in its obligation.
TertuUian affirmed not only the indissolubility of
marriage, but the restriction of divorce.
From the apostle's expression, that he has no
commandment of the Lord, but gives his advice
only, he takes occasion to assert, that there is not in
the Gospels, or in the Epistles of Saint Paul, any
precept of Grod permitting the separation of mar«
riage ; and from hence he infers the validity of one
single marriage, because what is not found to be
permitted, is concluded to be forbidden^. He as-
sumes, as the ground of an hypothetical argument,
that if Christ took away the divorce which Moses
commanded, . . . and that if it is not just that mar-
riage should be separated, it is not honest that it
should be repeated °. He argues, that as it was the'
purpose of Christ to restore all things to their primi-'
tive condition, so especially in the case of divorce,
which was conceded by Moses to the hardness of
the people's heart, but was not fix)m the b^inning,
Christ recalls the individuality of marriage to its
primary institution, and forbids man now to separate*
the two, whom God at the beginning joined into
one ; and thus the individuality of marriage, as it
was at the beginning, and the restraint of divorce,
which was hot fi'om the beginning, (are restored^)
and the whole man is recalled to paradise, where he
was in the beginning*. He further insists upon (he
reasons for which Christ prohibited the divorce
which was before permitted ; 1. because it was not
^ De Exhort. Castitat s. 4. *" De Monog. i. 14. ' Ibid. b. 5.
issr
from the b^inning ; 9. because man may not sepa-
rate what God has joined together. For he who
hath • consolidated should alone dissolve the union ;
and he will dissolve it, not by the rigour of divoi^ce,
which he disapproves and restrains, but by the debt
of death. There is another c6ncurring reason, or
rather die same, and not another, but one which
imposes the primitive form, and which moved the
divine will to the prohibition of divorce. Whosoever
pulteth away his wife^ except for the cause of fomi-<
cation, causeth her to commit adultery ; and whoso^
ever marries a woman divorced committeth adultery:
for a divorced woman cannot lawfully marry ; and if
she attempts any thing of the kind, without the title
and denomination of matrimony, it escapes thecharge
of adultery, because adultery is founded upon (thel
validity of) marriage. Matrimony is, when God joins
two persons into one flesh, or, finding them joined,
seak their union. Adultery is, when the two per-
sons are separated in any manner, and another and
foreign flesh is introduced, of which it cannot be
said, This is flesh of my flesh, and bone of my bone,
which can be said only of the original marriage.
Thi$ was the argument of TertuUian, in which he
insists upon the adultery following an unjust divorce,
and in which, although he recites it, he makes no
use of the clause of exception, and certainly does not
apply it to remove the prohibition of marriage after
divorce, or to abate the adultery consequent upon
such marriage, which are asserted in the succeeding
sentence. It was however objected against the
monogamists, that God, in forbidding the divorced
woman to marry during the life of her husband.
160
permitted it after his death : and hence it was. ar-
gued, that, if she is not bound to a deceased btis-
t>and9 she is not bound to a living husband, for
divorce supersedes the marriage not less than death,
and the woman is under no obligation to the man
from whom she is taken away. The argument rested
on scriptural authority ; the inference was at least
arbitrary and remote; the objection was however
strongly put ; and the answer proves the sentiments
of Tertullian, who replied, that, M^hether the husband
be living or dead, the woman is equally guilty of
adultery in admitting other flesh than that which
God had united, or had found united. Christ there-
fore took away divorce, which was not from the
beginning, that he might establish what was from
the beginning, the constant adherence of the two in
one, that there might be no occasion or necessity for
a third coocarnation, permitting divorce for the only
cause, if that should have happened which, it was.
intended to guard against, si forte prasvenerii cui
proscavetur^ . It will be admitted, that the final
allusion to the clause of exception is not of very
obvious or easy interpretation: the terms may. be
thought to imply an impediment or prohibition pre-
cluding the marriage, and it is consistent with the
immediate argument, and the general scope of the
discourse, to understand an union in which God has
not united the parties, nor found them united, and
especially of a second marriage voided by the con-
tinued validity of the first, notwithstanding the death
or divorce which was supposed to dissolve the obli-
gation.
y De Monog. s. 9.
161
It was an opinion common to Marcion and the
early hereticsr, that there were two separate divinities,
the one of the Old, the other of the New Testa-*
ment ; and in support of this opinion they alleged
certah) discrepancies in the doctrines of Moses and
of Chl'ist; Divorce was one of these differences :
Moses permitted what Christ forbade. Hence Mar-
cion objected : Christ forbids divorce, saying, Who-
soever shall put away his wife and marry another
commits adultery ; and whosoever marries a woman
divorced from a husband equally comtnits adultery :
thus prohibiting divorce by making it unlawful to
marry a woman divorced. But Moses permits di-
vorce : When a man hath taken a wife, and married
her^ and it come to pass that she find no favour in
bis eyes, because he hath found some uncleanness in
her; let him write her a bill of divorcement, and give
it into her hand, and send her out of his house. See
you not {therefore the difference of the Law and the
Gospel, of Moses and of Christ? In this objection
Marcion understood by divorce such a dissolution of
the former marriage as would authorize and confirm
a subsequent marriage, and, in supposing such dis-
solution peculiar to the Law, he ascribed to the
Gospel the doctrine of the indissolubility of mar-
riage, which he asserted it to hold without any
exception. Tertullian admitted the alleged differ-
ence,- and insisted upon the conditions on which
divorce was prohibited by Christ, replying, that
Marcion had overlooked the other Gospels, in which
our Lord discussed the proper question of divorce,
and by his answer defended the constitution of
Moses, as belonging to him, and set right the
VOL. II. M
\G2
institution of the Creator, as if it belonged to
and if it had been hfs design to piohilMt divmce, |ie
would rather have palliated than destroyed the law
of Moses. But^ instead of that, be made the pro*
hibition of divorce conditional, (so that it should be
an offence,) if a man should put away bis wife and
marry another : Whosoever shall put away his wife
and marry another commits adultery ; and he is
equally guilty of adultery who marries a woman
divorced from a husband, if she be divorced for a
cause (or end) for which it is not lawful that she
should be divorced, viz. that another may be mar*
ried : for the man who marries a woman unlawfully
divorced, is as much an adulterer as if the woman
had not been divorced at all. For the marriage
remains which is not duly dissolved ; and while the
marriage remains the woman cannot marry another
man without imputation of adultery. Thus if Christ
prohibits divorce conditionally, he does not prohibit
it altogether ; and what he does not altogether pro-
hibit, he allows. It is otherwise when there is an
absence of the cause for which he prohibits divorce :
he then indeed does teach in opposition to Moses,
whose rule he otherwise preserves, not to say affirms.
The reader will observe, that thus fiir Tertullian coo-
ducts the aigument on the sole authority of Saint
Luke, which he does not embarrass by inserting the •
clause of exception, or by any insinuation ih prefu-
dice to the indissolubility of marriage, or in &vour
of divorce, beyond the mere separation of the parties,
of which he makes the offence to consist in the con*
summation or the contemplation of marriage after
the divorce. Such views of divorce were consistent
163
witb the notions which as a monogamist he enter-
tained of the renunciation of the sex. He proceeds
to press his adversary with the consequence of his
own principles : If you deny altogether the permis-
sion of divorce by Christ, how do you dissolve mar-
riage, who neither join the man and the woman in
marriage, or admit them, if they are married, to bap-
tism and the eucharist, unless they conspire against
the fruit of marriage as against the Creator himself?
What does your husband do if his wife commits
adultery (or apostacy)? Does he retain her? Not
even your own apostle permits the members of
Christ to be made members pf an abandoned woman :
(prostituiice^ whether a prostitute or an alien.) Thie
righteousness of divorce has therefore the authority
oi Christ: and hence he confirms Moses, who per-
mits divorce for the same cause as Christ ; namely,
if there shall be found in the woman any unclean -
ness. For in the Gospel of Matthew ; Whosoever
shall put away his wife, except for the cause of
femication, causes her to commit adultery ; and be
is equally an adulterer who marries a woman di-
^sorced from a husband. But, except for the cause
of fornication, neither does the Creator separate
what he has indeed joined together : for the same
Moses, in another text, has ordained, diat the man
who marries a woman whom he has violated may
never dismiss her : and if marriage contracted by
violation shall stand, and be of permanent force and
obligation, how much more that which is voluntary
and by agreement ? According to Malachi : Thou
shalt not dismiss the wife of" thy youth. Christ is
therefore in every thing following the steps of the
M 9
164
Creator, both in permitting and in prohibiting di*
vorce. He, to whatever subterfuge you may resort,
is the guardian of marriage, which, by prohibiting
divorce, he wishes not. to be separated ; and which,
by permitting divorce, he sutfers not to be held with
a stain. Tertullian proceeds in the conclusion to
consider by what particular circumstance Christ was
led to deliver his doctrine, and to what point it was
directed. It was connected, in his judgment, with
the mention of John, and his opposition to the
incestuous and adulterous marriage of Herod with
his brother's wife, which the law only allowed on
the decease of the brother without children. Thus
be aimed at Herod in the figure of an unlawful
marriage and adultery, pronouncing him an adulterer
in marrying a woman divorced from her husband,
that he might load him with the more impiety in
marrying a woman divorced, hot less by death than
by divorce, and the wife of a brother who had a
daughter by her, and therefore unlawfully united
with him, from the instinct of passion, rather than
the instruction of the law'.
The portion of this passage which is most favour-
able to the received doctrine of divorce for adultery
will admit a different interpretation, an interpretation
more agreeable to the. usual sentiment and language
of Tertullian, and to the question proposed by
Hermas, whose translator, if not himself, was pro-
bably a contemporary writer. But even in its or-
dinary apprehension the passage is not an unequi-
vocal testimony in favour of the. popular doctrine, in
* Adv. Marcion, 1. iv. s. 34.
165
support of which it must be wrested to a sense
remote from the common use of Tertullian, and in
any case it involves a very singular exposition of the
Mosaic law of divorce. If adultery had been the
ground of a just divorce, as it is the effect of mar-
riage after divorce, or of divorce concerted with a
view to another marriage, there could have been no
difficulty in supplying the condition from the Gospel
of Saint Matthew: nor does adultery alone without
the addition of incest satisfy the supposed aim and
object of the discourse, which, according to Tertul-
lian, was the censure of the adulterous incest of
Herod. Christ, in permitting divorce, did not suffer
marriage to be held with a stain: Except for the
cause of fornication not even does the Creator sepa-
rate what he has indeed joined together. The stain,
under which marriage niay not be held, is equivalent
to the fornication for which God separates the parties
whom he has united. It is not impossible that there
may be a redundance in this difficult sentence, by
the application of which the sense may be expressed
in these propositions : God does not separate those
whom he has joined together : if there be fornication
he does separate them : therefore if there be for-
nication he has not joined them together; and in
the want of this divine consolidation there is a stain
upon marriage, under which it should not be main-
tained. This would be the case of all unlawful
marriage, and, in TertuUian's view, of all second
marriages and marriages after divorce, which should
therefore be dissolved. In a case of violation God
joins the parties by the express commandment of his
word, and therefore their marriage is indissoluble.
M 3
166
Whatever be the cause which justifies divorce, it is
one without which marriage is not dissolved, and
adultery would follow the marriage of a woman
divorced.
In another passage Tertullian denies more unequi-
^ vocally the licence of marriage after even lawful and
allowed divorce; referring to the doctrine of the
apostle, who, in restraining the separation of the
believer from the unbeliever, would substitute, for
their interrupted union, either perpetual widowhood
or peaceful reconciliation ; according to the Lord^s
precept against adultery, (understanding that precept
not of the cause but of the effect of divorce :) Who-
soever shall put away his wife, except for adulteiy,
causes her to commit adultery; and whosoever mar-
rieth a woman divorced committeth adultery*. Agaia
he speaks of the service which patience renders to
the penitence which is wont to come to the relief of
the sinful, when marriage being separated for that
only cause, for which it is lawful for the man or the
woman to be maintained in constant widowhood,
patience waits, desires, intreats the penitence of
those who shall enter into Salvation. What advan*
tage does she then confer upon both, making the
one not an adulterer, improving the other**?
In whatever sense Tertullian understands the
clause of exception, it is certain that he considers it
to contain the one only cause of separation ; of se-
paration which should be passed in widowhood, or
terminated in reconciliation. This rule he applies
to the state of separation of a believer from an unbe-
• De Pudicit. s. 16. *» De Patient s. P.
167 *
liever ; and it is just therefore to infer, that he con-
siders religious apostacy to be the ground of sepa-
ration, especially as in bringing forward what he
calls the precept against adultery, he argues chiefly
from the contingent effect of the divorce. It may
be useful here to consider the necessity which he
maintains of restricting the marriage of Christians
to the Christian body, which is the subject of his
second Treatise Ad Uxor em. He there affirms,
that the sanction which the apostle gave to heathen
marriages was restricted to marriages already con-
tracted before the conversion of the parties, which
were sanctioned, because we are called in peace,
and because the continuance of the union might be
the means of gaining the unbeliever. If the apostle
had meant to sanction the marriage of a believer
with an unbeliever, he would have made the licence
general, and not have required the widow to marry
only in the Lord ; a clause, as he remarks, of preg-
nant brevity. He then sets forth the evil of these
marriages ; the contamination of the holy flesh with
Gentile or alien flesh ; the guilt of incest [stupri^
iro^fux^,) incurred in these marriages ; the heinous
injury to the Lord, and the violation of his temple ;
the practical evils of the alien corrupting the Chris-
tian ; the difference of their occupations ; the re-
luctance of the alien to allow his Christian wife to
participate in the sacred rites ; and the obligation
imposed upon the Christian wife to participate in
the ceremonies of her heathen husband. He asks,
therefore, whether they who are judges of the divine
sentiments, who are most constant in adhering to
the Lord and to his discipline, are not justified in
M 4
168
interdicting the servants of Christ from alien mar*
riages, that they may not wander in lasciviousness,
that they may not desert their duty, nor betray the
Lord to strangers ? Shall they not be reclaimed to
their proper service, who after the publication of
their own masters, retain familiarity with the slaves
of another master ? Or shall earthly discipline be
more rigorous than heavenly precepts? Shall the
women who marry heathen slaves forfeit their liberty,
and Christian women join to themselves the servants
of the devil, and maintain their proper rank ? In
anticipation of the objection, that this is not the
interdict of the Lord by his apostle, Tertullian in-
sists ; I can conceive no cause of this fatuity, but
inconstancy of faith, always prone to secular in-
dulgence. In this exhibition of the guilt and danger
of heathen marriages, and in obviating an objection
founded on the supposed contrast, of the sanction
of a marriage contracted between two unbelievers
before their conversion, and the prohibition of mar-
riage between a believer and an unbeliever ; that he
alleges first, and before every thing else, the au-
thority of our Lord ; rather affirming that marriage
is not contracted, than that it is entirely dissolved :
lastly he forbids divorce, except for fornication ; but
he commends continence. It is most consistent
with the immediate argument of Tertullian, and with
his frequent reference to the word translated fornica«
tion throughout this treatise, to understand this diffi-
cult passage, dominum magis ratum habere matri'
monium non contrahi^ quam omnino disjungij with
the subjoined citation of the clause of exception, of
the invalidity of alien marriages, and of the indisso-
169
lubility of other marriages, and the unlawfulness of
marriage after divorce. Tertullian held the marriage
with aliens to be interdicted and null, destitute of
the protection of divine grace, conciliated by the
evil one, condemned by the Lord, and therefore
incapable of any prosperous issue. It was on the
ground of their nullity that he permitted the Chris-
tian widow, after the decease of her heathen hus-
band, to marry any Christian whom she pleased ; a
privilege, which as a monogamist he could not con-
cede upon any other principle, or without opposing
his general doctrine, that the validity of the previous
marriage would imply adultery in any succeeding
marriage.
The difficulties and embarrassments of Tertullian^s
argument are increased, not only by the general
abstruseness of his style, his extraordinary latinity,
and his peculiar modes both of thought and of ex-
pression, but by the variety and the ambiguity of
the words which he uses to represent the irogvfia of
the Scriptures, some of which, in their ordinary
sense, unquestionably mean adultery ; and all of
which he applies upon occasion to denote the incest
and offence of alien marriages. With whatever
errors the doctrine may have been mingled, it is not
and cannot be denied, that he held the indissolubility
of marriage in its widest extent ; maintaining the
continuance of the obligation after death and after
divorce, or at least, the necessity of remaining un-
married, and in a capacity of reconciliation and re-
union, with the only exception of the Christian
widow of a heathen husband : and however the
general indissolubility of marriage may have been
170
called the primitive error of Christianity, it was an
error in which Tertullian was consistent with him-
self, and which, detached from \t& extravagance and
excess, was held by him in common with odier con-
temporary and preceding writers, and was founded
on the basis of scriptural authority. Tertullian
wrote in an age in which there had not been time
for the corruption of apostolical traditions ; in which
the apostolical language had not ^len into disuse
with the neglect of primitive customs, institutions,
and discipline; in which the mass of forgeries^ which
disgraced the succeeding age, was unknown, and the
governors of the Church had not adopted a pliant
flexibility and accommodation to the manners and
maxims of the time^. The doctrine of the indisso-
lubility of marriage did not perish with Tertullian ;
and it required the lapse of another century before
the dissolubility of marriage upon divorce was posi-
tively asserted.
Cyprian, the immediate follower of Tertullian in
the African Church, attributed to the long continu-
ance of peace that the faithful prostituted the members
of Christ to the heathen ^, with whom he asserts, in
a distinct proposition, that marriage ought not to be
contracted^. In respect of divorce, he held the
doctrine and language of the apostle, that the wife
should not depart from her husband ; or if she
departed should remain unmarried ^ The author of
the Treatise De Singularitate Ciericorumj annexed
to the works of Cyprian, affirms, that our Lord
' See Dodwell, s. 4b. ' Lib. de Lapsis. * Lib. Test
iii. 8. 62. ' Ibid. s. 90.
171
foresaw the heresy which would take away marriage,
and contrary to the principles of nature and to the
Gospel, labour to separate what God hath joined
together*; and he speaks with the utmost indigna-
tion of men who were willing to put away their
Christian wives, that they might live with alien
women ^.
The practice proves a growing degeneracy from
the primitive rule and institution : but it is alleged,
that the doctrine of the indissolubility of marriage
was the doctrine of the Western rather than of the
Eastern Church ; and it is therefore important to
observe the progress of the doctrine in the writings
of the Greek Fathers, and to resume the examination
of their opinions, with no other remark than that
their acquaintance with the best models of the' Greek
language may have led them to overlook or to mis-
apprehend the Hellenistic sense of one of the prin-
cipal words in dispute. The difficulties of the case
are not increased more than might be naturally ex-
pected under the circumstances.
The authorities of the heretic Ptolemoeus, and of
the fethers Athenagoras and Theophilus have been
already recited.
Clemens of Alexandria was called to vindicate
marriage from the pretensions of such as called it
fornication and the tradition of the deviP: and in
this vindication he recites the clause of exception,
with strict attention indeed to the sacred narrative
and to the doctrine which it involves, but without
» Sect. 25. ^ Sect. 32. * Strom. 1. iii. s. 6.
172
any commentary, besides the suggestion, that the
remarjc of the disciples ; If the case of a man with
liis wife be so, it is not good to marry ; was put
interrogatively, with the intention of ascertaining if
a man whose wife was convicted of fornication was
permitted to marry another^. This opinion could
not have been entertained but under a very partial
conviction that the rule of our Lord, even with the
clause of exception, was decisive of the question ;
and if it had not been doubtful whether fornication,
in the sense of adultery, was a dissolution of the
marriage. Again ; he says, that our Lord renewing
the old law did not permit polygamy, but introduced^
monogamy ; and if the apostle permissively allows
any man for his incontinence to partake of a second
marriage, such a man does not offend against any
covenant, for there is no prohibition of second mar-
riages in the law ; but he does not fulfil the high
perfection of the administration of the Gospel ; and
that man purchases heavenly glory to himself^ who
remains single, and preserves without contamination
the marriage which death has dissolved, and willingly
yields to the dispensation under which he may follow
the service of the Lord without distraction^ In the
same spirit he proceeds to argue, that it is for the
admonition and restraint of such as are prone to
second marriages that the apostle speaks earnestly
and harmoniously : He that committeth fornication
sinneth against his own body : and, reverting to the
heretical expression which designated marriage as
fornication, he observes, that as the name of fomica-
»^ Strom. I. iii. 8. 12. Ubid.
173
tion is given to avarice, which is opposed to con-
tentment, and to idolatry, v^hich is the distribution
of one God into many, it is also appropriated to
the declension from one marriage to more: for in
these three cases does the apostle use the* terms
fornication and adultery. The opinions of Clemens
are however most decisively expressed in the con-
clusion of his positive discourse of marriage : In
proof that the Scripture recommends marriage, and
does not permit a man to separate himself from
marriago, Christ plainly proposes the law; Thou
shalt not put away thy wife, except it be for the
cause of fornication ; and he pronounces it to be
adultery if any man adds to his marriage during the
life of either of the parties that are separated, (rci
is-iyijfMM fyarrog iare^u row xaxa^gicrfuvonf*) • • • He says also.
Whosoever receives a woman divorced commits adul-
tery : for if any man divorces his wife he commits
adultery to her, i.e. he compels her to commit aduU
tery ; and not only is he who divorces her the cause
of this, but he also who receives her, in affording
occasion of offence to the woman, for if he did not
receive her, she would return to her husband*". It is
hardly possible to conceive a clearer or more striking
view of the indissolubility of marriage, or of the
restrictions upon divorce even for adultery .-
Appeal may be made to Origen, as evidence of
the doctrine and of the decay of the doctrine. Hq
comments at considerable length on the conference
of our Lord with the pharisees, whose question he
supposes to have been put with the intention of
" Strom. 1. ii. ad fin.
174
drawing our Lord into a dilemnna of either permit-
ting divorce for every cause, or of permitting co-
habitation after offence, v^hich he is supposed to
have avoided, by denying divorce lor every cause ;
by referring to the bill of divorce, and arguing the
necessity of men's bearing with the infirmity of their
^ives ; by pressing the Jews with the authority of
the Mosaic writings ; and by his own authoritative
prescription. What God hath joined together, let
not man put asunder. Origen, with other writers of
the age, affirmed, that the Jewish law o£ divorce
proceeded on the private authority of Moses, which^
as a divine legislator he was competent to exercise ;
and he is scrupulous in obviating any exceptions
which might be raised fi'om the separation of the
Jewish Church from the Liord. In answer to the
assumed objections of a Jew, pretending that Christ
allowed divorce as freely as Moses, and that the
cause of fornication in the Gospel was equivalent
to the uncleanness in the Law, he maintains, that
adultery under the Law was a capital offence, and
could not therefore be equivalent to uncleanness,
which was only a cause of divorce, and that our
Saviour allows divorce for no other offence than
fornication found in the woman. This is a singular
interpretation, but it shews that in Origen's judg-
ment the clause of exception was limited to the texts
in which it is expressed; and it might have been
thought to decide the point, that in the same judg-
ment adultery was the one and only cause of divorce :
but it was worthy of the versatility of Origen to
suggest the enquiry, whether divorce might not be
permitted for other causes than fornication ; as, for
175
example, sorcery, murder of the children during the
busband^s absence, murder of any kind, plunder of
the busband^s bouse; if such offences should be
committed without fornication. On the one side
he argued the unreasonableness of bearing with of-
fences worse than adultery ; and on the other the
impiety of transgressing the doctrine of the Lord.
He further remarks, that the Lord's words are not,
Let no man put away his wife ; but. If a man put
away his wife he causes her to commit adultery,
which aS'fer as depends upon him he does, when he
dismisses her without being guilty of adultery; when
he gives her occasion of second marriage ; when he
permits her to do what she will, and to associate
with whom she pleases; and when he separates
l^imaelf from her company ; and in the latter case he
is perhaps more blameable than the man who di-
vorces his wife, who is innocent of adultery indeed,
but guilty of sorcery, murder, and other grievous
offences. The woman would be an adulteress, how-
ever she might affect to be married to another man
during the life of her former husband ; and the man
who takes a woman divorced does not marry her, for,
according to the doctrine of our Lord, he does but
commit adultery".
Thus does Origen maintain the limitation of the
clause of exception, and assert the indissolubility of
marriage, by imputing adultery to the marriage of a
woman divorced for whatever cause. Origen was
however no monogamist; on the death of either
consort he freely permitted the marriage of the sur-
*" Com. in Matt. torn. xiv. s. 16 — 25.
17(>
vivor. He ratlier palliated than excused the practice,
wbicb was then in its origin, of marrying during the
life ctf the consort; and, alluding to certain gbrernoni
of the Church, who, beyond the authority of die
Scriptures, suffered a woman to marry while her
former husband was living, be held that the practice
was contrary to the Scripture, which saith, A woman
is bound by the law to her husband, so long as be
lives ; and she shall be called an adulteress, if while
her husband liveth she be married to another man :
but he nevertheless conceived that the permission
was not alt(^;ether unreasonable, for perhaps it wak
a concession to the infirmity of incontinent meni
and on a comparison of evils, what was not good
was tolerated, that what was worse might be avoided^
although the practice was in itself contrary to what
was originally written®. • •'*•
The indissolubility of marriage was from the ear-
liest period a settled principle of canonical law, in
which it was held, diat marriage, rightly contracted^
cannot be dissolved, for the parties who are joined
together by God, cannot be and ought not to be
separated by man p. This is the point which it is
the main purpose of these pages to establish on the
basis of scriptural authority, illustrated by catholic
practice and tradition. There is but little value in
the decretal Epistle ascribed to the pope Evaristus,
(A.D. 110.) in which it is maintained that matri-
mony cannot be dissolved : but there are other and
authentic Canons which speak the same language.
o Comm. ad Rom. 1. vi. s. 7. p Instil. Jur. Canon. 1. ii.
tit. 16. in Fergusson.
177
The firet council of Aries (A.D. 314.) decreed, that
husbands who should detect their wives in adultery,
and who should be young men and betievers, and be
forbidden to many, should be advised, as far as
possible, not to take other women during the life
of thar wives, notwithstanding their adultery. In
the council of Eliberis, about die same period, the
communion was . to be refused to a woman : who
should leave her husband without cause, and . many
another : if a Christian woman : should leave her
Christian husband, although he were an :adulterer,
she was forbidden to marry another ; and if .she did
marry another, the communion was to be refused
until after the death of her former husband, or. only
to be given in imminent danger of death : the com-
munion was also refused to a Christian woman who
should, marry a man that had left his wife, without
^ult on her part, and should not leave him when
she knew that he was the husband of a blameless
woman. The Canon of the council of Neocaesarea
relates only to the clergy, and ordains, that if the
wife of a laic be convicted of adultery, the man shall
not be admitted into the order of the clergy; if
be^ be ordained, it is ccMivenient that he divorce his
wife; and if ^ he continue to live with her^ he shall
not obtain the ministry committed to him. The
Canon of the council of Gangres (A^ D. 33i.) was
against divorce: If a woman, leaving her proper
husband, desire to depart in hatred of marrii^, let
her be anathema^.
There is the same current of tradition for the in-
<i Labbe Concilia : quoted by Selden, Bingbam, and FergusMm.
VOL. II. N
178
teidictioa aod dissdubility of heathen mamagea.
Theie is extant a decree, bearing the naoae of £uly«
cbianus the pope, (A. D. 980.) that if a heathoiy
before his baptism, should have dismissed his heathen
wife, he was free, after his baptism, to have or not to
have her ; and ia justification of the doctrine, ao
appeal is made to the words of the apostle : If the
unbelieving depart, let him depart'. It is certain,
that the attention of the Church was at the same
time employed in the prevention of these marriages.
Thus, in the first council of Aries, Christian villus
were forbidden to marry heathens, under pain of
being separated ftom the communion for a time:
and the council of Eliberis delivered a canon to the
same efiect, ordering parents who should consent to
these marriages to be separated from die communion
for five years ; and even in the hour of death, if the
marriage was contracted with an idolatrous priest*.
Thus the body of the Church declared its concuf-
rence in the private opinions of the fiithers; of
Cyprian, asserting that marriage should not be coa^
tracted with the heathen ; and of TertuUian, declaim
ing that die law of the Creator every where prohi-
bited marriage with men of other tribes ; and att
drew their doctrine from the fountains of apostolical
and divine authority.
The opinions of this period have been collected
with the more labour, and detailed with a minute*
ness' and a ^^ prolixity too much tedious,^' because
they have been depreciated or overlooked by the
' Ux. Ebr. 1. ui. c. 31. • Bingham, b. xxiL c. 2. s. 1. Sea
above, toI. L p. 248.
179
principal writers on divorce, and because they afford
the best evidence of the primitive doctrine, with
strong confirmation of the expositions and argu«
ments of Scripture which have been proposed. The
canonical rules, which were issued in the conclusion
of this period, and the incidental remarks of the
fathers, which have been recited, betray tha dege-
neracy of the Christian practice, both in respect of
marriages after divorce, and of marriages with the
heathen ; the latter of which the governors of the
Church, both in synodal and private admonitions,
endeavoured to restrain ; and of the former of which,
however they might allow the practice, they asserted
the doctrine to be a deviation from the sacred rule.
Throughout the whole period there is plain evidence
of the prdbibition and disallowance of alien mar-
riages, and of the indissolubility of marriage, which
in the earliest ages was carried to the extravagant
excess of extending its obligations beyond the grave.
Divorce was now held to be merely a permitted
state of separation, to be kept in singleness, in a
preparation for reunion, without a privilege of enter-
ing into a new marriage, which was conceived to be
inseparable from the imputation of adultery. In
respect of the clause of exception it may be observed
that it was not often recited ; that when it was re-
cited it was often passed without comment^ and
without being made the ground of any specific argu-
ment ; that it ^was scrupulously restricted to the
texts of Saint Matthew^s Gospel, and never attached
to the other Gospels, or allowed to limit the indis-
solubility of marriage generally asserted in those
Grospels ; and that it was perplexed by inappropriate,
N 9
180
inadequate, and indefinite versions, which at onoe
prove and enhance the difficultjr of ascertaining its
original signification, and some of which may have
led to the ultimate misapprehension of the term,
while others afford the means of recovering the pri-
mitive interpretation, especially evinced in the writ-
ings of TertuUian and the translator of Hermas, the
latter of whom uses it for idolatrous apostacy, and
the former applies the original term to signify incest,
the incest committed in second marriages, and in
marriages with the heathen. If die doctrine of di-
vorce for adultery could be fastened upon this primi-
tive period, it was a divorce very different fit)m that
maintained, approved, and recommended, by the
writers of a later age ; it was a divorce, of which
there was a bare permission, no encouragement ; a
divorce which anticipated the reconciliation of the
parties, and in which nothing was thought of the
dissolution of marriage. That doctrine was first
asserted by Lactantius, whose words will form a
suitable conclusion to the evidence of the state of
divorce before the time of Constantine: That no
man may think of circumscribing the divine pre-
cepts, it is added, for the removal of all imputation
and occasion of fraud, that the guilt of adultery is
upon him who marries a woman divorced from a
husband, and upon him who divorces his wife, ex-
cept for the cause of adultery, that he may marry
another, for God is not wiUing that the body should
be separated and torn asunder ^ And as the woman
is. engaged by the bond of chastity not to desire
» Div. Inst. I. vi. c. 22.
181
another man, the husband is held by tlie same law,
since God hath consolidated the man and the woman
in the structure of one body. Therefore he hath
commanded that the wife shall not be divorced,
except she be convicted of the crime of adultery,
that the bond of die covenant of marriage, which in-
fidelity has mot broken, may never be dissolved °.
The second period proposed for consideration is
the interval of two hundred years^ from Constantine
(A. D. 395.) to Justinian (A. D. 530.)
In this period very considerable alterations were
introduced into the law and licence of divorce, of
which the causes were multiplied almost indefinitely.
The relaxed discipline of the Church attested by
Origen ; the equivocal censure which he passed
upon that relaxation ; the doubts which he him-
self suggested ; and the positive assertion of Lac-
tantius, all agreed in preparing the way for these
innovations, and for the accommodation of the
divine rule to the secular practice. Constantine,
at once restricting the Roman licence, and enlarging
the Christian law, allowed to each sex three causes
of divorce : " The man was at liberty to give a bill
of divorce to his wife, if she Was either an adulteress,
a sorceress, or a bawd : and the woman on the other
hand might give a bill of divorce to her husband, if
he was a murderer, a sorcerer, or a robber of graves ;
but for being a drunkard, a gamester, or a fornicator,
she bad no power against him'.^^ This inequality
between the man and the woman, which marks all
human reasoning and legislation on the subject of
" Epit. c. 66. * BinghuD, b. zxii. c. 5. 0. 3«
N 3
182
divorce^ and by which, uader the law of Conatan-
tine^ theinan might divorce hia wife Amt adultery, for
wfaicb be hitnaetf could not be divoroed^ waa « iatal
proof of the rapid progresa of error, adopted both io
the singularity of the new restrictions, and in the
extension of the grounds of divorce beyond all con^
nexion with matrimonial impurity, from the loose
suggestions of Origen, and in direct opposition to
the simplicity, and to the impartial equity, of the
Christian rule. The ancient writers shewed that
the new provisions were an innovation even upon
the Roman law, although that law had allowed the
divorce of women for trivial causes^^. Lactantitis
had pointed out a further distinction : The Christian
scheme, he said, is not that of the public law, under
which adultery is imputed only to the woman, if
she has more than one husband ; but the husband,
if he has more than one wife, is free from the
charge. The divine law has joined the two in
marriage, which is one body with such equal rightSt
that adultery is the fault of that party who shall first
divide the structure of the body into different parts*.
Honorius added to the law of Constantine, allow-
ing to men free liberty to divorce their wives for
great causes, without forfeiture of espousal gifts or
dowry ; and on divorces for inferior offences he im*
posed no penalty or restriction except the forfeiture
of the woman^s dower, and a restriction from mar* '
riage for two years*. This limitation was a direct
assertion of the Roman dissolubility of marriage ;
and the penalties were such as few men would
7 BiDghaxn, b. xxii. c. 5. s. 3. ' Div. Instit. 1. vi. c. 23.
' Bingham, b. xxii. c. 5. s. 4.
183
scruple to incur, or sufier to interfere with their
passioBS, tfaeir caprices, and desires of divorce.
Theodosius the Younger repealed the laws of
X>onstantiiie and HonoriuS) and restored the aocieot
fteedom of (fivoroe, abolisbing at onoe the restric-
tiODS of ConstantiDe and the penalties of Honorius.
This restoration of the ancient licence of paganisin,
Bllowiog divorce fyt any cause whatever, aaturally
gave c^fiance, and the emperor, revoking his own
constitution, published (A. D. 449.) a new law,
specifyit^ the several causes for which divorce might
he obtained, and which in their multifdicity and
variety exhibited but the fewest and the faintest
shadows of die primitive permission. «« If any
woman found bar husband to be an adulterer, or a
murderer, or a sorcerer; or attempting any thing
against the government; or guilty c^ perjury; or
could prove him a robber of graves, or a robber of
churches ; or grnlty of robbery upon the high-way ;
or a receiver or encourager of robbers ; or guilty of
plagiary or man-stealing; or that he associated
openly in her sight with lewd women ; or that he
insidiously made attempts upon her life by poison,
sword, or in any other vray ; or that he vexed her
with stripes, contrary to the dignity of freeJyom
women : in aB these cases she had liberty to right
herself by a bill of divorce, and make her separation
good against him by the law. In like manner, if
the husband could prove his wife to be an adulteress,
or a sorceress, or a murderer, or a plagiary, or a
robber of graves, or a robber of churches, or a har-
bourer of robbers ; or that she feasted with strangers
against his knowledge or his will ; or that she lodged
n4
184
out all night, without any just or probable cause,
against his ccHisent ; or that she frequent the games
of the circus, or the theatre, or the place where the
gladiators or fencers used to fight, against his pro-
hibition ; or that she made attempts upon his Ufe by
poison, or sword, or in any other way^ or was
partaker with any that conspired against the gav^m-
ment ; or. guilty of aay false witness or peijury ; or
laid bold hands oa her husband : in all these cases
,the man had equal Uberty to give his wife a bill of
divorce, and make his action good against her at
law. But if the woman divorced herself without any
of the foresaid reasons, sh^ was to forfeit her dowry
and espousal gifts, and to remain five years without
marrying again, and if she pretended to marry again
within that time, she was to be reputed infemous^
and her marriage to be reckoned as nothing. But if
she rightly proved her cause, she was to recover her
dowry and antenuptial gifts, and had liber^ to
marry again within a year : and if the man proved
his action against the woman, he might retain her
dowry and espousal gifts, and marry again as soon
as he pleased ''.^^
The principal innovations in this rescript are the
multiplication of the causes of divorce beyond the
remotest connexion with matrimonial offences, and
the free permission to the parties divorced for causes
not permitted in the law of Christ to marry BgoiUf
without the faintest reference to the adultery which
the Gospel declares to be tlie consequence. of such
marriages.
b Bingham, b. xxiL c. 5. s. 5.
185
Valeotinian IIL abolished the old Roman cus-
tomv .which had again crept in, of making divorces
for da other cause than the mutual pleasure of the
parties, and restored the law of Constantine. Ana^
stasius (A. D. 497-) rescinded the law of Valentinian,
and ivhile he commended the last constitution of the
Younger Theodosius, deprived it of the little tbrce
which it possessed, by readmitting the validity of
divorces by mutual consent, without requiring the
all^ation of any of the causes specified in the law of
Theodosius, and by permitting to the woman di-
vorced the privilege of marrying at the expiration of
one instead of five years^.
It is ' natural to observe the proof which these
imperial edicts afford of the danger of admitting a
law of divorce, and of the fecility with which it may
be abused. It was abused among the Jews ; it was
abused in the rising and the falling empire, until it
lost all dependence on the law of the Gospel. It is
doubtful how far these imperial edicts met with the
concurrence of the hierarchy: Selden affirms the
assent of the fathers to the first innovations, which
Bingham sees reason to dispute. The Others at this
period were more occupied in recommending the
monastic life, than in upholding the true law of
marriage and divorce : the primitive interpretations
were fklling into disuse, and it would seem fix>m the
passages which are brought forward by the writers
on divorce, that the governors of the Church were
incapable of opposing the imperial will, and that
they not only adopted a new language in speaking
* Biagham, b# xxii. c. 5. b.6, 7.
186
of the privilegie and dmtj of difoioe, but were
divukd ia opiaioB Od the mmn quettiom of ds
'dissolubilifrjr of mairMge, and the ibroe of the dame
ofexceptioD.
Hilary, the earlieal writer of this period, reatricted
the cause of divoroe: As the Law conferred upon
the husband the power of giving a bill of dtvoaoe,
the fttith of the Gospel not only enjoins the desire of
peaoe, but throws upon him die guilt of foidng km
wife to commit adultery, if, fiom the necessity of
leaving him, she is put into a condition of marrying
another man ; prescribing no other cause of quitting
the conjugal relation besides the contamination of
the husband by the society of a prostituted wife^«
Ambrose, in an express comment upon the words
of Saint Luke, maintains ; If marriage is of God, it
is not lawful that marriage should be dissolved : be
unwilling therefore to dismiss thy wife, lest thou
deny Gvod to be the author of thy marriage. It has
been remarked^, that he mentions not a word of am
Lord^s exception ; but is it certain that be does not
allude to it in affirming the indissdubility of tbe
marriage which is of God, and in insinuating the
dissolubility of the marriage which is not of God,
(which is nothing but w^gnuu) And, if this supposi-
tion be rejected, is it iK>t reasonaUe to believe, that
Ambrose did not think it necessary to supply from
Saint Matthew the deficiencies of Saint Luke ; that
he considered the rule of Saint Luke to be genemi,
and not requiring the limitation of the clause of
exception, especially as he goes on to speak cf
^ Gomm. in Matt v. 32. * Chr. Remeiabr. voL ii. p. 745.
divorce for insufficient causes, in oppositkxn pro-
bably to the practice w^ich (be. new laws weyre
introducing: You dismiss yoi^r wjfe w^bout criiae,
as if you acted lawfully in dismissing ,ber: and you
think it lawful for you to do that which the iacw of
man does not forbid^ bul which the law of God
nevertheless forbids. Upoa the text of the apostfe ;
If the unbeliever depart^ let him depart ; he, or the
writer who assun^es his name, remarks ; The apostle
at the same time ^knies it to be of divine authority
that marriage of any kind should be dissolved, nor
does he advise the dissolution, or give authority of
deserting the consort, but he takes away the blame
from the party deserted. It is again' objected, that
the apostle positively determines that a brother or
lister is not under bondage in such cases; and hence
it might be inferred, that the comnoentator must have
misunderstood the apostle, or must have allowed the
dissolution of the marriage in question : but it has
been shewn, that the release from bondage does not
imply a licence of remarriage during the life of the
deserting party, and that the apostle only allows the
woman to marry if her husband be dead. The same
commentator appears to have given a singular pre-
ference to the man, which he justifies by the weakest
argument, by aigument evidently accommodated to
the existing law: allowing a husband divorcing a
guilty wife to many another; but not allowing the
wife to marry after dismissing her husband for forni-
cation ; for the woman is the inferior, and the man
has the more power, and is the head of the woman s.
' Chr. Remembr. vol ii. p. 746. ' Ibid.
188
With alluskm to the separation of the foreign wives
under Ezra, and the liberty of the Jews to many
women of Aeir own stock, he contradicts himself
and contends, that much more shall the wife, if her
infidel husband deserts her, have free Uberty to
many if she will to a husband of her own religion*
There is no offence, if the husband is dismissed for
the sake of God, in marrying another, for the indig-
nity offered to the Creator dissolves the obligation
of marriage with respect to the party deserted '^.
Jerome maintains that fornication is the only
cause of divorce, and, although he makes divorce
upon that ground to be a duty, he allows it to be
dangerous to marry after divorce, which he, widi
Tertullian, conceives to be lawful only upon the
condition of not marrying again : It is fornication
alone which can overcome the love of a wife. When
she divides one flesh into another, and by fornication
separates herself from her husband, she ought not to
be retained, lest she bring her husband also under
the judgment of the Scripture which saith. Whoso
holds an adulteress is a foolish and wicked man.
But as reproach may M upon an innocent woman;
and guilt may redound to a second marriage fit)m
the continuance of the first, the man is commanded
to dismiss bis first wife on the condition of not
taking a second during her life. For the plea is
this : if dismissing the^ first wife, not for lust, but
unjustly, why, having experienced the unbappiness
of a former marriage, do you expose yourself to the
danger of a second ? And, because it may happen
^ Bingham, b. xxii. c. 2. g. 12.
189
under the same law that the wife may give a bill
of divorce to her husband, the man is instructed
under the same caution that in marrying such a
woman he incurs, the guilt of adultery'. The last
words imply that Jerome understood the text with-
out the clause of exception, or that he supposed it
unlawful to marry a woman divorcing herself from
her husband even on the plea of adultery. He also
records the instance of a woman doing public pe-
nance in the Church for marrying a second husband
after she had divorced herself from the first upon the
account of his adultery and other abominable prac-
tices. This is to be considered of a voluntary act of
the woman, and not of any public censure of the
Church, which at that time did not punish or dis-
solve such marriages, but dissuade men from enter-
ing into them during the life of the consort* divorced,
and exhort them to repent of such engagements, as
offences prohibited by the apostle: and Jerome. him-
self speaks with his usual vehemence of a woman
who had so married a second husband, that she was
an adulteress for so doing, and ought not to receive
the communion till she repented of her crime^»
The opinions of Augustin were not only unsettled,
and even contradictory, but he acknowledged the dif-
ficulty of deciding the lawfulness of marrying after
divorce for adultery: Whosoever shall detept his
wife in adultery, and divorce her, and marry another,
is certainly not to be compared with such as without
the plea of adultery divorce their wives and piarry
* Chr. Remembr« vol. ii. p. 745. ^ Bingham, b. xxiL
c. 2. 8. 12.
190
odiers : and in the divine Scriptufes the point h no
obwure, whether he, who without doulrt may 'di-
vorce an aduherous wife, may also marry another,
that, as far as I can judge, any man may on that
point err without offence. And therefore he con^
eludes that all that the ministry has to do in this
case is only to persuade men not to engage in such
marriages; but if they will marry, notwithstanding
the contrary advice which is given them, he will not
venture to say that such men ought therefore to be
kept out of the Church. Saint Austin was fully
persuaded in his own mind that such marriages after
divorce were unlawful ; for he often repeats it in his
works, and uses what arguments he could to dis-
suade men from them, not scrupling to declare his
opinion of them, as suspicious and doubtful mar-
riages that might stand charged with adultery : but
then he no where intimates that the Church either
did or ought to tre&t persons so marrying, as she did
other adulterers, whose adultery was more india*:
putable, either by dissolving the marriage, or bringu
ing the persons under excommunication and public
penance in the Church. But rather declares the
error of such persons to be venial, because it was
not so expressly condemned in Scripture ^
On the clause of exception the judgment of Au*
gustin>was most undecided ; at one time departing
not entirely from the original exposition, and at an-
other accommodated to the imperial innovations.
Thus he held idolatry, and other ofiences equal to
fornicat^pn, to be just causes of divorce : but he
' Bingham, b. xxii. c. 2. g. 12.
191
admitted the extent of fornication to be an intricate
question, in which the onlj indisputable point was,
that proper fornication was a cause of diTOice. By
a kind of logical sorites he admits many other
grounds of divorce, under the name of fornication.
^Idolatry, which the infidels follow, and ^11 other
noxious superstition, is fornication ; and the Lord
permitted the wife to be put away for the cause of
fornication/^ Hence he proceeds to argue, that if
infidelity be fornication, and idolatry be infidelity,
and covetousness be idc^trv, there is no doubt to be
made that covetousness is also fmnication : and from
hence he concludes, that for unlawful lusts, not only
sudi as are committed by carnal uncteanness with
other men or women, but also for any other lusts
which make ithe soul, by the ill use of the bocfy, la
go astray from the law of God, and perniciously and
abominably corrupt it, a man may without crime
put away his wife, and a wife her husband ; because
the Lord excepted the cause of* fornication, which
we are compelled to take in the most general and
universal sense. The fallacy of this opinion was
obvious, and Augustin eventually retracted it^ and
fell into the recdved opinion of the age, which made
adultery the ground of divorce".
But in all their uncertainty and inconsistency
the writers of the Latin Church in this period are so
iar from raising any doubts on the indissolubility of
marriage, from superseding the more decided testi-
monies of the ancient writers, or from betraying a
servile deference to the imperial will, that it is ad-
in
BiagliAoiy b. xxii c. 5. «• 2.
192
mitted that the * cioctrine was mamtained in the
Western Churdi, and only rejected by the Gfeeks
and Armenians, whose authority it is again neees**
sary to take into consideration.
. Epiphanius' affirms, that when a person is not able
to be satisfied with one wife who is deceased, or
when a separation is made on the ground of fornica-
tion or adultery, or some evil plea, the divine word
does not condemn the man who is joined to a second
wife, or the woman who is joined to a second hus>
band, or exclude them from the Church and from
eternal life, but tolerates their infirmity; not how-
ever allowing the man to have at the same time two
wives (or a second wife) while the first is still sur-
viving ; but if, being separated from the first, be
happens to be joined to another lawful wife, the. holy
word and the holy Church of God pities him, «spe«
cially.if in other respects he be pious, and bdiaves
himself according to the law of God". In this rule
adultery is expressly added to fornication, either ex*
egeticaUy or cumulatively ; and the term of any evil
plea (xoxi); curuiij multiplies the causes of diyoroe,
without any corresponding sanction of divine au-
thority. A second marriage after death is a privilege
grounded in the Scripture ; but in respect of the
marriage after divorce, of which it has been said that
the liberty is given to both"" the husband and the
wife ; it was under the most partial quotation of the
words merely not condemned, it was tolerated as an
infirmity : and is not the privilege of second marriage
" Adv. Hseres. 59. n. 4. Bingham, Beza. ** Chr. Remembr.
vol. ii. p. 745. Bingham, b. xxii. c. 2. s. 12.
193
restricted by the context exclusively to a state .of
widowhood, prohibiting tf second marriage while the
former partner, separated by divorce, was living;
allowing and tolerating with compassion the infirmity
of a second marriage, contracted after the decease of
the first consort ? It was the offence of the Ebionites,
on the testimony of the same Epiphanius, that they
indulged in second, third, and even seventh mar-
riages ; and it was, an age in which some relaxation
was made from the rigour of the ecclesiastical disci-
pline, in accommodation to the civil lawP.
Basil the Great, before the Theodosian law, niain-
tained the equal rights of men and women in respect
of divorce, which he restricted to adultery, complain-
ing at the same time of the opposite practice, and
pronouncing such as married after divorce to be
guilty of adultery**.
Gr^bry of Nazianzum, in the spirit of a monastic,
calls a wife an acquired evil ; but he does not allow
that acquired evil to be put away (ouS* earowiiMmv.)
He complains also that divorce is contrary to the
Christian laws, however the Romans might think
otherwise^.
Chrysostom holds that adultery is the only cause
of divorce, and that all other crimes are to be
borne".
Asterius Amasenus says, What God hath joined
together let no man put asunder. Hear this, ye
hucksters, who change your wives as you do your
clothes ; who build new bride^hambers as often
" Coteler. Not. ad Herm. Pastor. "i Ux. Ebr. 1. iii. c. 32.
' Ibid. * Bingham, b* xxii. c. 5. s. 10.
VOL. II. O
194
and w easily as ye build riiops at feiiB ; who many
the portion and the goon[ aixl make wives a mete
gain and merdiandize; who for aoy iittk oifenoe
presently write a bill of divorce ; who leave many
widows alive at once : know of a surely, that mar-
riage cannot be dissolved by any other cause but
death only or adultery^. He uses the word pno-
periy denoting adultery : the original word had pro-
bably fallen into disuse.
The Apostolical Canons^ whether they are referred,
as by Selden, to the age before Constantine, or taken
as evidence, according to Mosheim, of the state and
discipline of the Greek and Oriental Churches in
the second and third centuries, contain no distinct
allusion to divorce for adultery. Canon XL. If a
layman divorces his wife, and marries another, or
marries a wife divorced by another, let him be sepa-
rated (from the Church.) This is no more than the
sentence of our Lord, without the clause of except
tioh, enforced by a sentence of exclusion : and ft is
a gratuitous comment of the Jurists, that the woman
ttiust be supposed to be divorced without cawe,
reason, or law. Canon XIV. He that taketh a
widow, or a divorced woman, or a concubine, or a
servant, cannot be a bishop. The rule is evidently
taken from the Mosaic law; and applied to the
clergy as models of Christian purity, it prohibits the
marriage of women divorced ; but nothing is said of
the grounds upon whidi the woman is divorced {
and it would be gratuitous to restrict the genend
comprehensiveness of the interdict. Canon XLIL
' Bing^ham, b. xxii. c. 5. s. 1.
li>5
If any bishop, pre8byte||«pr deacon abstain from
marriage, not through temperaBce, but from abhor--
lence, he calanmiates the divine institution, forgetting
that all things are very good, and that God made
nan oiaie and female^ Canon III. Let no bishop,
presbyter, or deacon, put away his wife under pre-
tence of piety: if he shall put her nway, let him be
separated ; and if he persist, let him be deposed.
Canon LIII. If there be any charge against a be-*
Uever, of fornication, adultery, or any other forbidden
act, and he be convicted, let him not be received
among Ihe clergy. Canon LIX. If any man vio-
lates a vii^in not betrothed, and keeps her, let him
be separated : but it is not lawful for him to take
another, but let him keep her whom he has chosen,
even if she be poor. Another Canon, according to
Selden, asserts the nullity of servile marriages (in
compliance with the Roman law,) artd ordains, that
if a man or woman marry in a state of slavery,
they shidl be excommunicated, or repudiate each
other.
The Apostolical Constitutions, anotlier forgei?y of
the diird century, asserts with Jerome the necessity
of divorce for adultery, to which it restricts the
divOTce, without adding any licence of remarriage.
It is not lawful, after marriage, to put away a wife
uncondemned : for he saith. Thou shalt take heed to
thy spirit, and shalt not put away the wife of thy
youth, for she is the companion of thy life, and the
residue of thy spirit, and not another. For the
Lord saith, What God hath joined together, let not
man put asunder. For a wife is the companion of
life, united by God into one body out of two : and
o2
196
he that again divides l|^ unity into two, is the
enemy of the word of God, and the adversary of bis
providence. In the same manner, he that retaineth
an adulteress, is a fool and an impious person : fi>r
he saitb. Cut her off from thy flesh ; for she is not
a helpmate, but a traitor, whose mind is turned to
another". If any young woman, having lived a
short time with her husband, loses him by death, or
by any other occasion, and remains by herself,
having the gift of widowhood, she shall be found
happy^. Monogamy is just, being according to the
law and to the will of God ; but a second marriage,
after taking up the Christian profession, is unlawftil,
being not for conjunction, but in falsehood : a third
marriage is a proof of incontinence ; and whatever is
beyond a third marriage is manifest fornication and
indisputable lasciviousness ; for in the creation God
gave one man to one woman ^.
The evidence of the dissolubility of marriage rests
chiefly on the arbitrary edicts of the emperors ; and
in the four general councils, which were held in this
period, nothing was decreed upon the subject of
divorce', nor any opposition offered to the rescripts
" Lib. T. c. 14. * Lib. iii. c. 1. ' Lib. iii. c. 2.
* Selden (Ux. Ebr. L liL c. 31.) notices in the Arabic copy an
addition not known to the Greek and Latin copies of the Canons
of the Nicene Council : If a priest or a deacon divorce his wife, ht
fornication or any other catise, or eject her from his house, that he
may change her for one fairer, richer, or better, or for his lust, whidi
is displeasing to God ; if she be dismissed for these causes, and
he marries another woman, he shall be deposed : if he be a laic,
he shall be excommunicated. Selden attaches no authority to
the Canon ; but it is not unimportant in ascertaining the disci-
pline of the Eastern Churches.
197
of the sovereigns under wkom they were held, and
who were now possessed of the pontifical power.
In the compilation of the Theodosian code nothing
was inserted, except from the synodal rules of the
councils of Grangres and Neoceesarea,.to the exclu-
sion of those of Aries and lUiberis. The question
was not however decided : the fethers of both the
£astern and the Western Churches avouched their
opinions, which they asserted without -scruple in the
provincial councils. In the council of Carthage
(A. D. 398.) it was ordained, that a bishop should
be punished for ordaining any person whose wife
was a widow or a divorced woman, or who had
a;iarried a second wife. In the council of Mileve,
(A. D. 40S.) attended by Augustin and several
African bishops, it was ruled, that according to the
doctrine of the evangelists and apostles, no person
divorced, whether man or woman, should marry
another ; but remain in the state of separation, or be
reconciled to each other ; and that in the event of
their contumacy they should be brought to penance.
This rule was admitted into the Canons of the
African Church, in the council held (A. D. 415.) and
confirmed by two hundred and seventeen Afiican
fathers. On both occasions it was proposed to peu
tition for an imperial law to this efiect: but nothing
was done in furtherance of the proposition, which
alone is sufficient to prove the opposition of the
fathers to the rule and the practice which now pre-
vailed*.
In the council of Ireland, held (A. D. 450.) under
* Ux. Ebr. 1. iii. c. 31. Fergusson, p. 444.
0*3
198
Saint Patrick, Aureliu8,.aml laeniinua, was this
Canon: Hear the Lord speakings He in^o is joined
to an harlot is one body: also, Liet the adulteress be
stoned ; i. e. let her die unto sin, that she may
cease to grow, who does not cease to commit adut
tery. Also, if a woman has committed adultery^
does she at all return to her former husband r and it
is not lawful for a man to divorce his wife, except
for the cause of fornication ; as if it had been said,
for that cause. Therefore, if a man shall marry, as
after the death of a former wife, it is not forbidden^.
But there is another Canon ascribed to the same Saint
Patrick : If a man's wife shall commit fornication with
another man, he shall not marry another as long as
his first wife shall live. If she repent, he shall re-
ceive her, and she shaH serve him in the capacity of
a servant, and repent on bread and water for a year,
and they shall not sleep together*^.
A Canon of the council of Angiers (A. D. 453.)
contains this general interdiction : They who under
the plea of marriage make use of other men's wives,
while their consorts are alive, shall be excluded from
the communion of the faithful.
The council at Vannes (A. D. 465.) excepts the
cause of fornication thus : They, who leaving their
own wives, as is said in the Gospel, except for the
cause of fornication, and, without proof of adultery,
marry others, shall be excluded from the communion
' of the faithful ; lest faults, overlooked by our in-
dulgence, may entice others into a licence of error.
The council at Agde (A. D. 506.) authorizes
** Fergtuton, p. 444. ^ Cotder. in Herm. Pastor.
109
divorce after judgment ^ tbe bishop of the dio-
There i$ al^Q extant a letter of the Pope Syricius,
in which it is maintained that a nian cannot marry a
wcHmfin that is betrothed to another, because any
yidfition of the sacerdotal benediction on a woman
%bom to marry is a crime eqqfd to ssicrilege : and if
tbe espouaals are thus indissoluble, the marriage is
also indissoluble. There is also extant a letter of
the Pope Innocqnt (A. D. 405.) concerning such
as marry after a divorce, whom he pronounces to be
guilty of adultery ; arguing, that whosoever hastens
to another marriage during the life of his wife can-
not be otherwise than an adulterer, inasmuch as the
woman with whom he is united appears to be guilty
of adultery, as we read in the Gospel ; Whosoever
shall put away his wife and marry another commits
adultery ; and he who marries a woman divorced
commits adultery. All such should be separated
from the communion of the faithful'. In another
letter the same pope requires of persons ordained
after marriage not to divorce their wives, but to live
with them in continence. The permission was as
just as the restriction was arbitrary : but such was
the progress of the celibacy of the clergy.
The prohibition of marriage with unbelievers was
during this period enlarged and enforced by civil
and ecclesiastical penalties. The councils of Lao-
dicea (A. D. 36h) and of Agde (A. D. 506.) for-
bade the marriage of the faithful with heretics, except
iqx>n the condition that the heretics should forsake
^ FerguMODy p. 444. ' Ux. £br. 1. iii. c. 31.
O 4
200
their error: the third councU of Carthage (A. D. 397-)
interdicted the marriage of the sons and daughters of
the clergy with Gentiles, heretics, and schismatics :
and the council of Chalcedon (A. D. 451.) prohi-
bited the marriag:e of the readers and singers among
the inferior clergy with Jews, Gentiles, or heretics,
who would not be converted : and, lastly, the second
council of Orleans (A. D. 533.) not only forbade the
marriage of Christians with Jews, but pronounced
such marriages unlawful, and ordered, that if the
parties did not separate upon admonition, they
should be deprived of all benefit of the communion.
The imperial laws sanctioned these interdicts and
censures of the Church. Constantine made it a
capital offence in a Jew to marry a Christian : and
Valentinian and Theodosius, by an edict retained in
the Justinian code, made the offence capital in both
parties, pronouncing it to be a kind of adultery, and
liable to the penalties of adultery, and conveying to
any one the office and power of the prosecutor^
In this second period of the history of the Chris-
tian law and doctrine of divorce, the causes of divorce
were multiplied, and the entire dissolution of mar-
riage was introduced. The spirit of Christian obe-
dience was relaxed, and the fathers protested in vain
against the licence of the people, supported by the
sanctions of the imperial law. They were under
obligations to the prince, and in accommodating
themselves to his will, or in feebly opposing it, they
might plead the more excuse, because they had now
lost sight of the original and peculiar idiom of the
^ Bingham, b. xxii. c. 12. s. 1. See above, vol. i. p. 249.
201
Scriptures, and were falling into new expositions of
sacred truth. They hesitated in their own jddgment,
and were divided among themselves, hardly agreeing,
except in understanding adultery to be the one cause
of divorce, in supporting, as far as it was in their
power to support, the doctrine of the indissolubility
of marriage, and in interdicting marriage with the
unbelieving. The difference between the civil and
ecclesiastical laws now began silently to introduce
the distinction between divorces a vinculo and di-
vorces a mensdj not in the sense of the English law,
but to denote the entire dissolubility of marriage
under the law of the state, in contrast with the mere
separation of the adulterer from the innocent consort,
without liberty of new marriage to either during the
life of the other, under the law of the Church.
The third period in the history of the law of
divorce extends from the time of Justinian until the
dissolution of the Empire in the East, and the Re-
formation of the Church in the West.
Justinian (A. D. 598.) confirmed all the provi-
sions of the law of Theodosius, and added new
causes and occasions of divorce. He permitted the
woman to divorce her husband for imbecility, and to
marry after the expiration of two, or as it was after-
wards determined of three, years. He permitted the
woman to be divorced, if she used means to procure
abortion ; if she was so lewd and luxurious as to go
into a common bath with men ; and if she endea^
voured to be married to another man while she was
already married. At the same time he repealed the
laws which allowed divorce by mutual consent and
for light or trivial causes, but he was the first to
202
/
I
pamitiilifofce oo tbe praime? of a dawe tp Mter
upoQ die moMtlic life. He alto gmnted divoioe.ta
any penon whose consort should be for a long time
in captivity; a privily which was also conceded
by the Popes Innocent and I^eo tbe Great <•
In this interval a body of Canons was cqllfiGtod
for tbe government of tbe Eastern Church, including
the several constitutions and laws which bed hithertu
been passed on the subject of divorce. To these
constitutions were added, about the year 1090, tbe
fdlowing Canons of Alexius, the Patriarch of Con«
stantinople: 1. The priest is blameless who pn>-
nounoes the matrimonial benediction on a w<»naa
divorced from ber husband by reason of her bus*
band's adultery : 3. A woman divorced from her
husband by reason of her husband's adultery is
blameless if she desires to marry; the priest is
blameless who blesses her marriage ; the husband is
blameless in manying again when he is divorced by
reason of his wife's adultery : S. The man who mar-
ries a woman divorced for adultery, although he be
himself single, is an adulterer, and liable to the
punishment of adultery: 4>. The priest shall be
degraded who pronounces a benediction upon a
second marriage when the first marriage is difi»olved
by mutual consent, which is unlawful \ These
Canons exhibit manifest signs of a more relaxed
and unrestricted doctrine of divorce. They plainly
contemplate a dissolution of marriage, and convey a
licence of marrying after divorce for adultery to the
> Ux. Ebr. 1. iii. c. 2S. Bingham, b. xjiii. ad fin. ^ Vu.
Ebr. 1. iu. c 32.
ads
iojufed and innooent por^ ; .and at the dame time
lay a restraint upon the adulteress in tbe nature of a
penalty or stigma upon her c^nce. The laws of
tbe empire had allowed marriage .to be dissolved for
other causes besides adultery, and the decisions of
synods and the opinions of theologians weie equally
feeble in counteracting Ihese laws and their natural
consequences* After the subversion of that empire
and its laws, the divines, under the tyranny of
Mahometan masters, became the principal judges of
divorce, and they not only conceded second mar^*
riages after divorce, but, while they understood for-
nication in our Lord's clause of exception to signify
adultery, they interpreted it not of the only cause of
divorce, but as a specific cause, under which oth^
causes were included ^
In the Roman Church the traces of the .primitive
doctrine had not entirely disappeared* In the fourth
' Ux. Ebr. 1. iii. c. 32. The Mahometan is permitted by the
Koran to repudiate his wife twice^ with a reserved right of claim-
ing her again, which is forfeited by a third repudiation, and ean
only be recorered upon the woman's divorce from a second husband.
This precaution is supposed to restrict the practice of divorce.
The woman is not permitted to separate herself after the first or
second divorce, except under certain circumstances; and she is
placed under various restrictions in availing herself even of the ^
third repudiation. Mod. Univ. Hist. vol. L p. 367. Among the
Druses the woman is divorced not only fer adultery, but under
tbe slightest pretext : and it is a custom among them, that if a
wife asks her husband permission to go out, and he says '' Go ;"
without adding, ** and come back;^' she is thereby divorced; nor
can her husband recover her, even though it should be their
mutual wish, till she is married again according to the Turkish
ferms and divorced from her second husband. Burckhardt's
Travis in Syria.
council of Toledo (A. D. 633.) religious apostacy
was made a ground of divorce ; and it was ordained,
that if any Jews should marry Christian women,
they should be admonished by the bishop of the
place, that if they wished to continue in marriage
they should become Christians. But if upon such
admonition they reftised, they should be separated,
because an infidel cannot continue in matrimonial
union with a Christian* The venerable Bede also,
in a commentary upon Matthew v. 33, evidently
borrows the sentiments of Augustin, and remarks,
that fornication is not to be understood only of
whoredom committed with the husbands or wives of
other persons, but of all concupiscence, or avarice,
or idolatry, which makes a man to err fix>m the law
of God. When therefore a wife commits any thing
of this kind, her husband, in divorcing her, divorces
her on the ground of fornication not only in her, but
in himself: in her because she has fornicated ; in
himself that he may not fornicate^. In the Noble
Lessofij written in the language of the Yaudois,
about the year 1 100, divorce is discountenanced in
terms the most unlimited : *^ The old law had power
to make null (or divide di partir) marriage, and that
bills of divorce might be given : but the new saith.
Thou shalt not marry her that is put away; and
what Grod hath joined, let no man separate ^'^
The compilation of a new body of canonical law
did not however decide the question of second mar-
riages after divorce for adultery, which appear to
^ Ux. Ebr. ]. iii. c. 27. ■ Gilly*8 Excurdoo among the
Vaudois. Appendix 11.
205
have been favoured by the councils of Soissons,
(A. D. T**.) of Verberies, (A. D. 752.) of Rome,
(A. D. 826.) of Tibur, (A. D. 895.) and of Bourges,
(A.D. 1031.) The council of Rheims (A.P. 1049.)
prohibits the husband to marry another wife legitimd
uxore derelicid: and the council of Dalmatia ex-
communicates such as divorce their wives without
judgment of the Church. Pope Alexander III.
answered to the consultation of the French prelates,
that although the Church of Rome was not wont
to separate persons lawfully united on account of
crimes, nevertheless, if the general custom of. the
Gallican Church allowed the dissolution of such
marriages, he would not refuse. The council of
Compiegne (A.D. 757.) allowed divorce for leprosy.
If a leprous husband had a wife in sound health,
he might if he pleased give her permission to take
another husband, and she was free at her pleasure to
avail herself of the privilege. The man had the
same liberty. The council of Florence (A. D. 1439.)
decided, that the subsistence of the law of divorce,
and the difference in other points of discipline be-
tween it and the Latin Church, could be no obstacle
to their reunion". In the council of Wermeria
(A. D. 870.) it was ordained, as the text is cor-
rected by Selden, that if a wife conspired against
her husband he might divorce her : but Selden
throws a doubt on the lawfulness of his marrying
again, from the increasing prevalence of the dis-
tinction between divorces a vinculo and divorces a
tnensd^.
"* FergussoDy p. 445. ■ Ux. Ebr. 1. iii. c. 33.
206
When the question of divorce was at length
agitated in the council of Trent, it was argued, thijt
the Church was competent to separate the married
parties iix>m cohabitation, for all causes deemed
expedient, without dissolution of the bond, which
being bound by God could not be dissolved by
man. The apostolical case of the separation of the
believer from the unbeliever was maintained not oo
the ground of the dissolubility of heathen marriages,
which were affirmed to be indissoluble by the law of
nature, the words of the pnrnary institution, and the
practice of the Churdi in sustaining them : and it
was therefore proposed to confirm the exposition of
Cajetan, that the separation of 1^ believer firom the
unbeliever did not imply the dissolution of the ma-
trimonial bond. Fornication was conceived to be
the ground of separation from cohabitation only:
and hence arose a difficulty of reconciling the one
only cause of divorce, which the Gospel sanctioned,
with the many causes of divorce which the Church
allowed, if in both cases the same kind of divorce
was intended : and in the midst of conflicting expo-
sitions, which under such circumstances it lyas not-
possible to approve or reject, it was agreed that the
article of divorce should be condemned, because tbe
contrary doctrine had been made an article of fkilh
by apostolical tradition.
Considerable debates afterwards arose, when it
was proposed, at the instance of the cardinal of
Lorraine, and with the view of opposing the doctrine
of the Reformers, to annex an anathema to tbe
Canon, condemning the divorces allowed in the
code of Justinian. The anathema was supported
'i07
beoaine it was agreeible to die doctrine of tke
wdiools and the decrees of the pope: but scruples
were, nevertheless entertainedi firom its oppo6iti<»i to
the opinion of Ambrose, and Sbme of the Gpeek
Others. But as it was an article of feitb, and met
with the general concurrence of the assembled di-
vines, the Canon was reformed, and the anathema
added, condemning such as say that the bond is dis-
solved by adultery, and that either of the parties is
free to marry during the life of the other. The
Canon was again revised, on the petition of the
Vei^ian ambassadors, aU^ng that Corfu, Cyprus,
and other islands subject to the Venetian state, were
iriMBibited by Greeks, who were accustomed to di-
vorce their wives for foraication, and to marry others^
for which tbey should not be condemned in Iheir
absence and without having been summoned to the
council. The plea of their not having been sum-
moned was repelled, but in respect to their proposi-
tion, and to the opinion of Ambrose, it was resolved
to disuse the anathema, and instead of condemning
such as say that marriage may be dissolved for
adultery, in conformity with the opiniom of Am-
brose and the Greek fathers, and the practice ot* the
Eastern Church to anathematize those only who say
rtiat the Church may err in leaching, that the matri-
monial bond is not broken by adultery, and that it
is not lawful to contract another marriage, as. the
Lutherans affirm.
This moderate but equivocal course was geoetBlly
approved, and the canon was ultimately settled in
this form : If any one shall say that the Church errs
in teaching according to the doctrines of the apostles
208
and erangdists, that the bood of marriage cannot
be dissolved on account of the adultery of either
party ; and that neither, not even the innocent, .who
has. not given cause for the separation, can, while the
other party lives, contract another marriage; and
that adultery is committed by the husband .who
divorces his wife and marries another, and, by, the
wife who divorces her husband and marries another,;
be he accursed.
Other matrimonial questions were determined in
this council, having especial reference to the impedi^
ments and the dissolution of marriage ; asserting the
power of the Church to add to and to dispense with
the Levitical interdictions, and to constitute other
impediments of marriage ; denying the dissolution
of marriage for heresy, troublesome conversation,. or
voluntary absence; authorizing the dissolution of
marriage by a religious vow ; and maintaining the
power, of the Church to separate parties from coha-
bitation for various causes, for a limited or unlimited
period**.
These doctrines were all confirmed with ana^
themas, and were evidently designed to censure the
opinions of the Reformers ; among whom it was
generally agreed, that the bond of marrjage wai
dissolved by adultery, and by wilful desertion. The
former opinion was collected from the words of our
Lord, and the latter from those of his apostle : but
it is not necessary again to enter upon the objections
to the dissolution of the bond upon either of these
® History of the Council of Trent, b. vii. and Sess. xxiv. caiK
3, 4, 5, 6, 7, 8.
209
grounds* It will be more useful to specify the
causes which have been argued to be sufficient to
preclude the contract of matrimony, and to nullify
jt, if it is contracted : viz. 1. misapprehension of the
person ; 9. servile condition ; 3. reiigibus vows ;
4. consanguinity ; 6. crime (of adultery, or of homi-
cide in furtherance of the adultery ;) 6. religious
difference; 7. violence; 8. orders; 9. the bond of
marriage ; 10, 1 1. affinity by espousals or marriage ;
, 13. impotence. The causes of divorce, besides
adultery and desertion, are, 1. infidelity; S. heresy;
3. vows of chastity; 4. danger to the person; 5.
crime; 6, 7* barrenness and impotence; 8. incur-
able, loathsome, and contagious,- disease ; 9- mad-
ness ; 10. affinity by fornication ; 11. transportatipn
for crimeP. To these multiplied causes are added
in the Prussian code, 13. incompatibility of temper,
or quarrelsome disposition; 13. opprobrious crimes;
14. false imputation of such crimes; 15. unlawful
actions, injurious to the life, honour, office, or trade,
of the other; 16. ignominious employment; 17.
drunkenness, extravagance, and imprudent manage-
ment; 18. inadequate maintenance; 19* mutual
consent, if there are no children *>.
It is in vain to suppose that there is any process
of human reasoning, by which these various cauaes
of divorce can be deduced from the single word
which forms the principal feature in the clause of
exception, and on the application of which the
whole scheme of divorce in the Christian Church is
constructed. There can be little doubt that there
' Gerhard de ConjogiOy s. 641 — 691. i Fergusson, 448.
VOL. H, P
210
was a peculiar idiom in the use of the original word,
and although its proper sense was retained for a
ifhile, it gradually fell into disuse. The doctrine
of divorce will be cleared of many of its difficulties^
if this term be interpreted, according to its original
appropriation, of the invalidity rather than of the
dissolubility of marriage ; and be recovered from the
sense of adultery, which it was probably made to
bear in the Latin Church, from the ambiguity of the
words under which it is represented by Tertulliad,
and in the Greek Church, from the natural prefer^*
ence of the classical to the Hellenistic signification ;
which nevertheless implied the validity of the mar-^
riage; and being interpreted in connexion with other
texts liable to the same misapprehension, was made^
in the language of Lactantius, to signify the dissolu-
tion of the marriage. The misapplication of the
clause of exception to the texts from which it was
excluded, was the final confirmation and consummap'
tion of the error. The connexion of the Church
with the empire, at the critical period in which the
word was misunderstood ; the indiscriminate admis-
sion of new disciples ; the degenerate practice of
professed believers; the publication of successive
edicts, accommodated to the old and prevailing licen-
tiousness in respect of divorce ; the feeble hesitations
of a complying hierarchy, undecided on a doctrine,
of which the genuine exposition was lost, prone to
the vain preference of monastic life, and entering
upon an age of darkness and superstition, of scho-
lastic subtlety and scriptural ignorance — all suc-
ceeded in throwing an impenetrable veil over the
purity and simplicity of the primitive doctrine, of
211
wbicb no vestiges were left, except a general persua-
sion (confined latterly to the Western Church) of
the indissolubility of marriage, with a consequent
prohibition of marriage after divorce, and the uni-»
v^^ renuncijition of marriages with the unbelieving.
These points were not abandoned: and on these
traditions, not only because they were for a time
universal and uninterrupted, but because they corre-*
spond with, and are authorized by, the clearest and
most consistent exposition of the Scriptures, it is
proposed to renew the original and primitive sense
of the clause of exception, to restrict the application
of that clause, and to affirm, that if marriage be not
invalid by reason of incest and previous disqualifica-
tion, it is indissoluble: and that where it is not
originally invalid, the husband may not separate
from the wife, nor the wife from the husband, with-
out dangerous temptation to adultery, nor marry
again, without actual commission of the ofience.
Comber, who interprets the clause of exception in
the sense of adultery, nevertheless maintains the in-^
dissolubility of marriage, in terms which may form
an appropriate recapitulation of the present argu-
ment: '^ Though the Jews allowed to marry again
after divorce, .... Jesus, correcting this custom,
saith. Whosoever shall put away his wife, saving for
the cause of fornication, causeth her to commit adul-
tery ; and whosoever shall marry her that is divorced
committeth adultery: so that he allows divorce in no
case but that of fornication .... but in no case at
all doth Christ allow marriage after divorce, calling
it plainly adultery ; and in Saint Mark, whose Gospel
we must grant to be true and perfect ^^ ^^^ neces-
p 2
212
saries, Jesus saitb. Whosoever shall put away
Wife, and many another, committeth adultery against
her. And though in Saint Matthew we read. Who-
soever shall put away his wife, except it be for for-
nication, and shall marry another, committeth adul-
tery: we must expound that by the preceding,
Matt. V. 39 ; viz. that no man may put away his
wife, except for fornication^ and even then he may
not marry again ; which is confirmed by the words
of Saint Paul, affirming, that she who is married to
another man, while her husband liveth, is an adul-
teress ; viz. because the woman is bound by the law
to her husband, so long as he liveth. And speaking-
of a woman parted from her husband, he saith in
Christ^s name, i. e. according to his sense declared
in the Gospel ; If she depart, let her remain unmar-
ried, or be reconciled to her husband. And although
the vile custom of marrying after divorce, used
among the heathen Romans, could not suddenly be
retrenched on their conversion to Christianity, which
makes some of the imperial laws to favour such
conjunctions ; yet the primitive fethers and councils,
the best interpreters of Scripture, and the surest
witnesses of the sense of the catholic Church, do
generally condemn such marriages as adulterous. So
Saint Hierome, Saint Chrysostom; so Saint Am-
brose and Saint Augustine do determine this matter;
and long before them Clemens Alexandrinus and
Origen do utterly condemn such as marry again
after divorce. To all these we may add the Canons
of the apostles, and many authentic canons of the
primitive councils abroad ; viz. that of Aries and
Eiliberis: and the first council of Milevi plainly
213
affirms, that it is the doctrine of Christ and his apo-
stles, that the divorced shall remain unmarried ; and
the same is decreed by the famous council of Car-
thage : to all which much more might be added, but
I will only note, that fix)m the first conversion of
bur Saxon ancestors, these marriages after divorce
have been prohibited, as may be seen in those an-
cient canons of this nation, which have condemned
them as adultery. So that we do, on just authority,
conclude, it hath been the constant doctrine of the
catholic Church, that the bond of matrimony, once
rightly tied, can never be dissolved but by death :
and although some contentious persons have dis-
puted against this eminent truth, to me it seems very
rational to 'maintain this principle, as well to prevent
the frequency of divorces, as to make it necessary to
choose warily, since we can never choose again, till
God, in whose presence we promised to live together
till death, do set us at liberty, by the taking away of
one party '/^
' Off. of Matrimony, Sect ii. ad ^b.
P 3
SECTION V.
The English Law ofDiooTce.
INHERE is nothing in the doctrine which has been
proposed, which is not in perfect agreement with
the received rules and principles of the law of Eng-
land, which holds the indissolubility of marriage,
with the only exception of such marriages as are
originally void, on the ground of some impediment,
by which the contract is not superseded or dissolved,
but precluded and annulled.
The difficulties, which are inseparable from the
principle and practice of divorce for adultery, are
not however abated by any provisions of the Engli^
law : and if in other countries there is reason to
object, that the right of divorce has been arbitrarily
assumed, and that in its operation it has been unfa-
vourable to social happiness and moral virtue, it may
be difficult to vindicate the peculiarities of the Eng-
lish practice from the same exceptions, and to esta-
blish the justice of the principle, the wisdom of the
administration, or the virtue of the effect.
The indissolubility of marriage is a main principle
of English law, asserted without any exception or
reserve in the formularies of the Church, in which
the parties pledge themselves, either to other, that
they will live together so long as they both shall
live, and until death shall part them. The unequi-
vocal intention of these expressions is ascertained by
the circumstance of their derivation from the Romish
215
ritual, in which the doctrine is undisputed; and it is
confinned by the contemporary statute, 39 Henry
VIIL c. 38. declaring all marriages, celebrated in
the face of the Church, and consummate, to be
indissoluble; by the l^al definition that no marriage
is voidable which is not void ab initio; by the
practice of the ecclesiastical courts, in laying the
husband under a necessity of providing alimony for
a wife divorced a mensd, and of maintaining her as
if the marriage continued, in contemplating the pos-
sibility of their reunion, by granting the separation
only until they shall be reconciled, and in requiring
a cautionary bond, that they shall not contract ma-
trimony with any other person during the life of
each other ; and by the provisions of the common
law, under which the husband and wife are but one
person, and the legal existence of the woman is
suspended during the marriage, and incorporated in
that of the husband ; under which the marriage of
either, during the life of the other, is a nullity, and
the dower is not forfeited in the case of a divorce a
mensdj even though adultery be the cause, except in
the particular case of the woman's eloping from her
husband, and living with the adulterer, when it is
forfeited, but recoverable on the reconciliation of the
husband, by the statute of Westminster. It is
argued by the civilians^ that the bond of marriage
cannot be forfeited but by natural death : the parties
may be separated, but they nevertheless remain hus-
band and wife. Thus the indissolubility of marriage
rests not on the terms of the agreement between the
parties, but " on the law of the country. One proof
of this is, that marriage was held indissoluble in
p 4
216
England before the I^arriage Act/^ and that Act
asserted not the voidability but the niiHity qf the
marriages which it proscribed. ^^ Another is, that
the English apply the doctrine of indissolubility to
all marriages wherever celebrated, by whatever fcnrns,
and in whatever words*. ^' But ** the best practical
evidence of the general indissolubility of the contract
of marriage is perhaps to be found in the occasional
permissions granted for the dissolution of the mar-
riages of particular individuals, which permissions
can only be obtained under special circumstances,
and by the concurrent vote and consent of the three
branches of the legislature^" and are in fact suspen^
sions of the ordinary law of the land.
It is too plain to be disputed, that the present
law of marriage and divorce in England is derived
through that which prevailed during the ascendancy
of the Church of Rome. In the remote period in
which Britain was held under the dominion of the
Romans, it is not improbable that the imperial law
of divorce was admitted, and when they left the
country, it was not entirely superseded by the better
influence of Christian truth. Relics of the Roman
practice may be traced in the laws of the Cambrian
Prince Howel Dhti, which contain various r^ula*
tions of divorce, permitting, with the forfeiture of all
her goods, the divorce of a wife who should hold
any familiarity with any other man than her hus-
band; and prescribing the form in which the woman
might recover her goods from a husband by whom
she had been unlawfully divorced, and who was
* Fergusson's Reports^ p. 401. ^ Poynter*8 Eccl. Ccurta, p. 70.
217
married to another woman ; and in. which a man
having divorced his wife, and afterwards repented of
the act, might, resume the possession of her, even
after her marriage to another man. The wife also
had her privil^e of divorcing herself from her hus-
band who laboured under certain specified infirmi-
ties. This was the British law, and, as it was
published with the concurrence of the priests and
nobles, it may be considered authentic evidence of
the British rule and practice of divorce, as it was
held in the tenth century, by remote tradition fix>m
imperial Rome. The Anglo-Saxons followed a rule
more conformable with the manners of their proge-
nitors the ancient Germaiis, with whom divorce was
unknown, or was very unusual, and submitted to
the law of the Church of Rome, fix)m the first intro-
duction of Christianity amongst them, as appears
fiom the Canons of councils ; from the letters of
Pope Gregory to Augustin the first missionary fi-on^
Rome to England ; from the silence of the Saxon
laws concerning divorce ; and fi'om the immemorial
reservation of the cognizance of matrimonial causes
to. the ecclesiastical courts^ In the council of
Hertford, held under the Heptarchy, so early as
A. D. 683, it was decreed, that no man should
leave his own wife, but as the holy Gospel teaches
for the cause of fornication ; and if any man shall
divorce his own wife, to whom he is joined in lawful
matrimony, he shall not, if he wishes to be indeed a
Christian, marry any other woman, but shall remain
as he is, or be reconciled to his wife^. In the reign
' Ux. Ebr. 1. iii. c. 30. \ Spelman Concil. Herudlbrd,
Art. X. quoted by Tebbs. -
218
of Henry HI. Simon de Montford obtained a dis-
pensation from the pope for the ratification of his
second marriage in opposition to the laws and canons
of the Church % which were of course ordinarily
T)pposed to such marriages. By the common law,
until the reign of Edward IIL the indissolubility of
marriage was so unreservedly maintained, that the
woman did not lose her right of dower under a sen-
tence of divorce a mensd in consequence of adul-
tery ; and the statute of Westminsi^ put no furthar
restriction upon this right than to take it from the
woman who should elope from her husband and live
with the adulterer, implying at the same time the
continuance of the marriage, by allowing the claim to
be renewed on the voluntary reconciliation of the bus-
band. A curious question arose on the construction
of this statute after a very short interval in the
extraordinary conduct of one John de Cameys, in
making an entire and voluntary surrender of his wife
and all her goods and chattels to Sir William Pay net.
This is called by Selden a prodigy, and by Coke
a marvellous and unheard of conveyance. On the
death of Cameys, and her marriage to Paynel, the
woman claimed her dower of Cameys, to which was
objected, on the part of the king^ that her right was
forfeited, because she had eloped from her husband,
« Tebbs's Essay, p. 204. The faciUty with which such diiK
pensations were obtained is strikingly illustrated in the case of
King John, who being divorced from the Duke of Gloucester's
daughter was in the same year remarried to Isabel, the heiress
of a noble family. And indeed King John's first wife had been
previously to her marriage with him divorced from Henry de
Leon, Duke of Saxony. Ibid.
219
and had been living with an adulterer. The woman
replied, that she had done this by the act of her hus-
band. The matter was debated for two vears before
Parliament, and the petition was eventually refused,
notwithstanding the purgation of adultery in the
spiritual court, of which it was held that no notice
could be taken, except in reply to a reference from
the king. In this case the question was not con-
cerning the adultery, or the dissolution of the mar-
riage in consequence of the adultery, which was not
brought into dispute, but whether a wife voluntarily
leaving her husband with his consent was in the
same condition, and liable to the same penalties, as
the woman who left her husband without his con-
sent. The question was righdy decided in the
affirmative: a contrary decision would have given
countenance to the alienation of vnves^ of which
there is no other instance in England, although the
practice was not uncommon in Ireland, where wives
were divorced, sold, given away, and exchanged.
These chaises were brought against Ireland in the
epistles of contemporary popes, which only require
the prevention and restraint of similar oflfences in
England, without asserting the fact of their com-
mission, or insinuating that England did not act in
conformity with the ecclesiastical authorities ^
The sum of the English doctrine of divorce is
brought up to a period nearly coeval with the Re-
formation by the first institutional writer of Britain,
who distinctly states, that ^^ there be two kinds of
divorce; the one that dissolves the marriage a vinculo
' Ux. Ebr. 1. iii. c. 30.
220
matrimonii, as for consanguioity, &c. and the other
a mensd ei ihoroy as for adulteiy ; because that
divorce, by reason of adultery, cannot dissolve the
marriage a vinculo matrimonii^ for that the offence
is after the just and lawful marriage ^.^^
By the statutes 24 Henry VIII. c. 12. 25 Henry
VIIL c. 19f 21. it was enacted, that no appeal
should be made to Rome in cases of divorce, as had
been the usual practice before the Reformation,
which principally originated in the circumstances of
the appeal made by the king to the pope in respect
of his divorce from the Queen Catherine. But there
is nevertheless sufficient evidence of the continuance
of the ancient doctrine in upholding the divine in-
stitution of marriage, and in subordination to that
in9titution, the permanence and indissolubility of
marriage ; the religious celebration of marriage ; the
reservation of matrimonial questions to the courts
nominally ecclesiastical; the principle and rule of
interpretation upon which those questions are de-
cided; and the continued distinction between di-
vorces a vinculo matrimonii and divorces a mensd
et thoro.
In the use of the English law the divorce a vinculo
and the divorce a mensd are merely technical terfns,
indicating a certain judicial process; but in ordinary
apprehension involving an evident contradiction. The
divorce a vinculo is in fact no divorce, for the bond
which it professes to dissolve never had 1^1 exist-
ence, it was a nullity' from the beginning : the
^ <' LitUetoD, 1 Inst. 32, 33, 235. 3 Inst. 88." Fergm»oii,
280. Burn's Eccl. Law.
221
divorce a mensd is also no divorce, for it does not
disunite the parties, or render them free to marry
again : it is but a conditional suspension of the
duties of marriage, a temporary separation which
contemplates the possibility of reconciliation and
renewed cohabitation. " In all those cases, where
the divorce is a vinculo matrimonii^ the marriage
was not de jure^ according to the canonists, because
it was void ab inifio: for when the incapacity arises
from any matter precedent to the marriage, then the
marriage is only de facio^ and a sentence of divorce
in such case is only declaratory that the marriage
was dissolved, for it is absolutely void before, and
either of the parties might marry again though the
other was living. But it is otherwise when the
divorce is occasioned ex causa subsequenti^ as in
cases of adultery, cruelty, and the like. For there
the marriage being once good it never can be dis-
solved a vinculo^ because such subsequent cause
cannot affect the bond of matrimony, though it is
sufficient to separate the parties a mensd et ihoro^
which is in the nature of a temporal and. not a
perpetual divorce : and if either of the parties shall
marry again in the life time of the other, such mar-
riage is void, and so it was adjudged in the case of
Rye and Falcomb. And, as a further confirmation
of the law in this matter, it was afterwards adjudged,
that a divorce causa adulierii is no bar of dower,
which shews that the marriage is not dissolved**/*
On the contrary, if the woman be divorced a vinculo
•» AyliflFe's Parergon, p. 229.
222
matrimonii^ she shall not be endowed, on the ground^
ubi nullum mairimonium^ ibi nulla dosK
The only cases in which a dissolution of the bond
of marriage is allowed, are those in which the con*
tract is void ab initio: and in which it is precluded
by some circumstances which render the parties
incapable of marriage, and in respect of which the
sentence of divorce is rather a public and official
declaration of the original nullity of the marriage,
than a proper divorce or dissolution of the bond
which never had legal existence.
Precontract, consanguinity, or relation by blood,
affinity, or relation by marriage, and some par-
ticular corporal infirmities, are the canonical disabi-
lities which render a marriage voidable, and require
the parties to be separated pro salute animarum:
but after the death of either party the courts of
common law will not suffer the spiritual courts to
declare such marriage to have been void.
The civil disabilities which make the contract
void ab imtio are, a former marriage, the want of
age, the want of reason, and the want of proper cel^
bration. These disabilities do not dissolve a contract
already formed, but they render the parties incapable
of forming any contract at all : they do not put
asunder those who are joined together, but they
previously hinder the junction : and if any person
under these legal incapacities come together, it is a
meretricious, not a matrimonial, union ^. This no-
tion of the divorce a vinculo so far coincides with
* 2 Bl. Com. c. 8. M Bl. Com. c. 15.
223
the interpretation which has been put • upon bur
Lord's clause of exception, as it is restricted to
some cause not dissolving but precluding the mar-
riage.
The only causes of divorce a mensd et thoro^ or
of the suspension of the conjugal intercourse, are
cruelty and adultery.
The very nature and law of marriage render cruelty
a just ground of the penalty or the privilege, which
is implied in a sentence of separation ; for if mar-
riage be ordained for the help and comfort of the
parties, its end is frustrated by an unkind and cruel
treatment, and the protection of the innocent and
the restraint of the offender, demand a judicial inter-
ruption of the relation. The cruelty, however, which
calls for this measured divorce, and justifies the
teniporary separation of the parties, is restricted to
such conduct as endangers the health or life of the
complaining party, and renders cohabitation unsafe :
it is only when a series of unkind treatment is fol-
lowed by words of menace ; when blows have been
struck; or when there has been a continuance of
violent passion, frequent abuse, opprobrious accusa-
tion, and the excitement of such terror as produces
illness, although no blows have been struck, that
there is occasion for the prompt interference of the
ecclesiastical jurisdiction, and that the injured party
is entitled to the remedy provided in a sentence of
separation. It is natural that these suits should be
most frequently promoted by the wife ; but there
are nevertheless instances in which the husband has
had occasion of complaint, and has obtained the in-
terposition of the court. It may not however be
224
supposed that the court will interfere in orduiary
cases of domestic litigation, in which there is iio
personal danger; or that it will grant a sentence of
separation where the conduct of the complaining
party has been unguarded and improper, where it
has given occasion to the complaint, which may be
removed by an improved behaviour, or where it has
not been resented with an inordinate and dangerous
severity. If the conduct of the wife has been in-
compatible with her duty ; if it has been violent and
outrageous ; if it has justly provoked the indignation
of the husband, or exposed his person to danger,
and obliged him to resort to the means necessary for
his personal security ; the wife must seek, in ■ the
amendment of her own manners and disposition,
that redress which the court will not afford ^
In seeking a divorce in the ecclesiastical courts^
on the ground of adultery, it is so difficult to obtain
direct evidence of the fact, that it is held sufficient
to exhibit presumptive proof, and a chain of colla-;
teral and probable circumstances, to establish judicial
inference of guilt. The mere confession oi, the
party, by which marriage was formerly dissolved for
pretended causes,' by the collusion of the parties,
cannot now be received as proof of the criminal act.
It is only when the confession is supported by col-
lateral evidence, that it is allowed to confirm the
presumption of guilt, and to constitute substantial
proof of the adultery.
When the suit is brought by the wife, no preju-
dice arises from delay in bringing the action, because
' Poynter, c. 12. Ayliffe, p. 229.
225
forbearance upon her part is commended, until all
hope of reclaiming her husband has ceased : but if tlie
husband shall suffer any considerable interval to elapse
between the knowledge of the fact and the date of
the complaint, it gives occasion to an inference to
his prejudice, that he has slumbered over the wrong
of which he complains; to a suspicion of indiffer-
ence and insincerity in his prayer for a separation ;
and to a presumption, that by acquiescence in the
injury, the penalty has been remitted by an imphed
condonation™.
In every suit of divorce it is competent to the
wife to apply for alimony, which is the allowance
made to the woman out of the husband's estate, at
the discretion of the ecclesiastical judge, on consi-
deration of all the circumstances of the case, for her
support during the pendency of the suit ; or after a
sentence of divorce, as a permanent allowance io be
paid by the husband to the wife during the period of
their separation. It is generally proportioned to the
rank and quality of the parties, and may vary with
the variation of the husband^s means ; but in case
of elopement, and living with the adulterer, the ec-
clesiastical law allows no alimony", and an ancient
statute takes away the right of dower, which is only
restored by the voluntary reconciliation of the hus-
band.
There are five cases in which no sentence of di-
vorce will be granted upon the account of adultery :
1. if there be a condonation ; i.e. if the husband is
reconciled to his wife, and continues to cohabit with
" Poynter, c. 10. " Poynter, c. 14. 1 Bl. Com. c. 15.
VOL. II. Q
226
her, after he knows that she has been guilty of adul-
tery ; 3. if the husband directly or indirectly con-
sents or connives in the adultery of his wife : S, 4.
if the adultery be involuntary, either by mistake or
force : S, if the offence is taken away by mutual
compensation, and each party can prove the other to
be guilty of adultery at any time before the conclu-
sion of the suit, even during a separation founded in
the adultery of the defendant. In this case the
party cited is entitled to be dismissed from all ob-
servance of justice, as respects the particular griev-
ance complained of, and consequently stands, in
point of the relative rights of matrimony, as though
no offence had been committed. A husband cannot
obtain a divorce in the ecclesiastical courts for the
adultery of his wife, if she recriminates, and can
prove that he also has been unfaithful to the marriage
vow: this seems to be founded on the following
rational precept of the civil law : Judex aduUerii
ante ocuios habere debet et inguirere, an maritus
pudice vivens mulieri quoque bonos mores colemU
autor fuerii. Perimquum enim videiur esse^ ut
pudiciiiam vir ab uxore exigaty quam ipse mm ex^
hibear.
The doctrine of divorce may be called the cradle
of the English Reformation, of which the authors
and promoters were under a necessity of investigat-
ing its principles, with a strong bias and temptation
to accommodate their opinion to the capricious will
of the sovereign, and the circumstances of the 9ge :
• Poynter, c. 14. 1 Bl. Com. c. 15. with Christian's note 13.
The rule rests on the authority of Lactantius, Dir. Inst. 1. vi.
c. 23. from whence it is copied hy Isidore, Div. OflF. 1. iL €. 19.
227
but although they were constrained, in the exercise
of a manly judgment, and upon the fullest convic-
tion, to reject some positions of the existing doctrine
and law, as the sacramental character of marriage,
and the dispensations of the pope ; and there were
other points upon which a difference of opinion was
allowed for a time to prevail, nothing was decided in
prejudice of the main doctrine of the indissolubility
of marriage, which was eventually sustained ; and
it is only upon particular occasions, and by ex-
traordinary enactments, that it has ever been super-
seded.
In the projected Reformatio Legum^ it was pro-
posed to grant divorce, with liberty of marrying
again, to the unoffending party, in cases of desertion,
of protracted absence, of hatred which threatened
the life, and of cruel treatment. In respect of the
partial divorce a mensd et thoroj under which the
force of the matrimonial bond was sustained, while
the parties were discharged from the relation, the
intercourse, and the duties of marriage, it was pro-
nounced to be contrary to the Scripture, marked by
great perversity, and the source of many evils in
respect of marriage ; and its abolition was therefore
proposed. A strong desire was at the same time
expressed for the reconciliation of the parties, not
by force of law, but on the principle of Christian
charity ; in failure of which, the innocent party was
to receive licence from the court, to proceed, at his
discretion, to a new marriage, on the principle that
P De Adult, et Divort. c. 5, 6, 8, 9, 10, 11, 16, 17, 19.
Q 2
228
the innocent party should not be punished for the
crime of the guilty, or subjected to the necessity of
an involuntary celibacy ; and it was contended, that
the innocent party might contract a second marriage
without imputation of adultery, since Christ had
made an express exception of the case of adultery.
But if the party convicted of adultery should be able
to recriminate, and prove the same offence in the
other party, before that other party had contracted a
new marriage, the equal ftults of both should be
followed by equal penalties, and the original mar-
riage subsisting between them should not be re-
scinded but confirmed. The same rule was to be
observed, if the husband had proposed adultery to
the wife, or the wife to the husband. This may be
thought an equitable construction of reciprocal of-
fences, but it is not free firom the strongest and most
weighty objections. If the bond of marriage is
broken at all, it must be broken to one as well as to
the other; the bond of union must hold both or
neither. A cannot be parted from B, while B is
bound to A ; and to permit A to marry C, while B
is restricted from marrying, on the ground of the
subsisting marriage with A, is indeed ^^ to place a
man in the situation of having a wife and an half;
maintaining with the whole wife all the reciprocal
duties and mutual claims of affection and support
which belong to matrimony, and receiving at the
same time from the half wife ^ the solitary duty, not
of personal fidelity, but of matrimonial restriction,
without owing her any return of protection, or main-
taining with her any common ties of intercourse,
229
interest, or affection ^.^^ In any sense, in which
adultery can be conceived to dissolve the bond of
marriage, it must disengage the guilty by the fact,
before it can disengage the innocent by the conse-
quence. It would be tedious to insist again upon
the inconsistencies of this popular doctrine, and it is
obvious to remark, that the theory suggested in the
Reformatio Legum is possessed of no public au-
thority; that it is at variance with itself in contem-
plating the reconciliation of the parties in one case,
their continued Connexion in other cases, and the
entire separation of one, with a restriction upon the
other in a third case ; and that the whole doctrine
proceeds on the assumption of two very questionable
propositions: 1. that adultery is a dissolution of the
bond of marriage ; and, 2. that adultery is meant in
our Lord^s clause of exception from the general in-
dissolubility of marriage.
In the unsettled period of the Reformation, there
was a practical illustration of the argument of the
dissolution of marriage by adultery, in the celebrated
case of the Marquis of Northampton, whose wife
had been convicted of adultery, and who had there-
fore obtained a sentence of divorce a mensd et thoro.
Hence arose a question, whether that divorce was
such a dissolution of the bond of marriage as per-
mitted the husband to marry again, and the question
wias referred to a commission, consisting of Cranmer
and nine other divines. Without waiting for the
decision of the commissioners, the Marquis married
1 Substance of the Speeches of Lord Mulgrave on the Divorce
BiU, p. 44.
Q3
230
again, alleging in his defence the common argument
of the age, that marriage was not indissoluble, but
under the Romish doctrine of its sacramental cha«
racter ; and that if it were not dissolved, it would
be very inconvenient, as the innocent party would
then be under a necessity of living with the guilty,
or falling into the same offence. The council were
offended at the precipitancy of the Marquis, whose
first marriage was not yet annulled ; and he was
ordered to be separated from his wife, until the de*
cision of the commissioners should* be known, which
was certainly not facilitated by the fact of the second
marriage. Cranmer made an elaborate and volu*
mi nous collection of the chief authorities and ai^u-
ments on either side, and referred the matter in dis*
tinct queries to certain learned men, and a decision
was eventually pronounced in favour of the second
marriage, chiefly on the ground that Christ allows
divorce for adultery, and that if marriage consists of
the union of the two into one flesh, adultery, being
a division of the union, is in fact a dissolution of the
marriage, and that the parties cannot be separated
and the bond remain in force. The referees, in
answer to the questions proposed to them, resolved,
that there could be no separation a mensdj without a
dissolution of the bond, because the duties must be
discharged as long as the bond continues ; that the
woman divorced for adultery, ceasing to be the wife
of him that divorced her, was as free to marry as if
her husband was dead ; and that she could not be
allowed to return to her husband, as if she was bound
to him by the bond of marriage.
It is a circumstance which throws considerable
231
doubt on the validity of this decision, that the
Marquis was advised after a short interval to have
a special Act of Parliament for confirming the sen-*
tence of the delegates, to which only two peers and
two bishops objected, and by which the marriage
was ^' declared lawful, as by the law of God indeed
it was, any decretal, canon, ecclesiastical law or
usage, to the contrary notwithstanding/^ In the
very next year, however, on the accession of Mary,
and the restoration of the popish doctrine, the Act
confirming the divorce and the second marriage was
repealed on the plea, that it *' was procured more
upon untrue surmises and private respects, than for
any public good and increase of virtue ; that it was
an encouragement for sensual persons to practise,
that by false accusation they might be separated
from their wives, rather than a precedent to induce
people to live with their wives in a godly sort.^^
The matter underwent considerable discussion in
the House of Commons, in which it is said, that
the style of the Bill was so moderated ^^ that it was
not repealed as an Act sinful in itself, but it was
only declared, that in that particular case the divorce
was unlawfully made ; for it is reasonable to believe,
that the bishops had put into the first draught of the
Bill a simple repeal of it, and of all such divorces,
founded on the indissolubility of the marriage bond^'*
In the Reformatio Legum it was proposed, that
any man putting away his wife, even for adultery, at
his own discretion, and without sentence of the
court, should be deprived of the right of proceeding
' Burnet's Hist, of the Reformation.
Q 4
aga'mst her. It is natural to suppose, that in this
rule there was an indistinct and distant reference to
the case of the Marquis of Northampton, in which
the. vacillation of discountenancing, of investigating,
of approving, the divorce and second marriage, and
of after^vards recommending a parliamentary con*
formation of the measure, throws a strong doubt
upon the validity of the principles upon which the
measure was approved, and which were positively
asserted in the Reformatio Legum. These doubts
were confirmed by the circumstances under which it
was proposed to enact, that no man should put away
his wife and marry another, unless he were formerly
divorced: to which the Bishop of Norwich objected,
that divorce did not break the bond of marriage.
The Bill fell in the House of Commons, being
thought not necessary, for the laws were already
severe enough against such double marriages'.
Whatever was the private disposition of the chief
Reformers in favour of a new theory of divorce, and
however their disposition might be influenced by the
conduct of the king, there was not in the reigns of
Henry VHI. of Edward VI. or of Mary, any
effectual or decided opposition to the doctrine of
the indissolubility of marriage, or any permanent or
general abolition of the restricted nature of the di-
vorce which was granted upon proof of adultery.
" Burnet's Hist, of Reformation, pt. i. b. 1. A. D. 1552. '' In
1554 we find a petition of the clergy in convocation addressed to
the Parliament, requesting that the innocent woman when di-
vorced should enjoy the goods and lands that were her own be-
fore marriage. What became of the petition does not appear***
Tebbs,p. 211.
233
The Reformers themselves, in the revised ritual of
marriage, continued to affirm the ancient doctrine,
that the parties should live together till death should
depart them. In the reign of Elizabeth, when theo-
logical opinions assumed a more settled character,
the evidence of the dissolubility of marriage ceases
to be negative, and possesses a positive authority.
In the tables of marriage published by Archbishop
Parker in 1563, not only are the causes letting and
dissolving matrimony restricted to consanguinity and
affinity, but it is expressly ordered, that persons
marrying contract not anew with any other upon
divorce and separation made by the judge for a time,
the laws yet standing to the contrary : and the doc-
trine is sustained by the citation of the apostolical
authority, forbidding the wife to depart from her
husband, and requiring her if she be separated to
remain unmarried. In the case of Foljambe, di.
vorced from his wife by reason of her adultery and
married to another woman, the validity of the second
marriage was tried in the Star-chamber, where the
temporal judges. declared the second marriage null,
because the divorce was only a mensd et thoro^ and
Archbishop Whitgift affirmed, that several grave
divines and civilians, whom he had assembled at
Lambeth to consider the point, did all agree that the
marriage was void^-. The same doctrine was main-
tained in the Canons of 15979 in which it was
ordered, that the parties mutually separated should
live in chastity, and not enter into other marriages
during the life of each other, and that no sentence
* Lord Mulgrave's Speech, p. 33.
234
of separation should be pronounced before sufficient
caution was taken^ that the parties should do nothing
contrary to the inhibition.
This caution was repeated in the Canons of 1603,
in which it is provided, that divorces a mensd et
ihoro shall not be granted but upon the foliowirig
conditions.
1. ^< That in all proceedings to divorce and nullity
of matrimony good circumspection and advice be
used, and that the truth may as iar as is possible be
sifted out by the deposition of witnesses and other
lawful proofs and evictions, and that credit be not
given to the sole confession of the parties themselves,
however taken upon oath, either within or without
the court.'' Canon 105.
9. <^ No sentence shall be given either for separa-
tion a thoro et mensd, or for annulling of pretended
matrimony, but in open court and in the seat of
justice/' Canon 106.
3. ^< In all sentences pronounced only for divorce
and separation a mensA et thoro^ there shall be a
caution and restraint inserted in the act of the said
sentence, that the parties so separated shall live
separately, chastely, and continently, neither shall
they during each other's life contract matrimony
with any other person : and for the better observa>
tion of this last clause the said sentence of divorce
shall not be pronounced until the party or parties
requiring the same have given good and sufficient
caution and security into the court, that they will not
any way break or transgress the said restraint or
prohibition." Canon 107.
It has been objected, on a very partial view of the
235
history of divorce in England, tbat this canonical
caution was a weak attempt of the ecclesiastics to
alter the law of the land to their own purposes ; that
the Canon has received no sanction of Parliament,
and can be pleaded in no court ; and that the bond
is peremptorily null, and only furnishes an inference
that the divorce a mensd anciently and without the
bond gave authority to a second marriage °. The an-
cient indissolubility of marriage has been asserted on
the authority of Littleton, and traged almost without
interruption to the period in question. The eccle-
siastical not less than the civil courts, if they infringe
not the law of the land, are free to prescribe the
course of their own proceedings ; and the person
who seeks a divorce in the ecclesiastical courts is
required to conform with the rules of the court, the
justice of which, especially in the requisition of the
bond, is established by undisputed usage, and tacitly
recognized by the practice of Parliament, in de-
manding the sentence of divorce a mensd^ which is
not granted without the bond.
It was the complaint of this period, ^^ that divers
evil disposed persons being married run out of one
county into another, or into places where they are
not known, and there become to be married, having
another husband or wife living, to the great dis-
honour of God, and utter undoing of honest men's
children and others :'' and an Act was passed,
1 Jac. 1. c. 11. to restrain all persons from mar-
riage until their former wives and former husbands
be dead, by making the offence a capital felony,
" WoodM'i Pari Rep. vol. zxxiu. p. 317.
236
\vhich has however been mitigated by later statutes/
This Act makes exception of five cases; 1, S. of
persons whose consorts shall have been absent for
seven years ; 3. of persons divorced by any sentence
in the ecclesiastical court, and separated a mensd ei
thoro; 4. of persons whose former marriage is de-
clared void in the ecclesiastical court, and who are
therefore loosed a vinculo; 5. of persons married
within the age of consent, whose marriage is voided
by their disagreement, implied in their second mar-
riage^. In the two last cases there is in fact do
second marriage, because the previous marriage is in
one case void in itself, and in the other it wants the
competent ratification. In the three first cases the
penalty only is avoided ; under the old law die
subsequent marriage is null, and the offenders are
liable to the censures and penalties of the eccle-
siastical courts, to which the cognizance of the plea
of bigamy, as well as of bastardy, was appropriated
by the statute 18 Edw. IIL st. 3. c. 9. In respect
of the third exception, it is settled, " that if either of
the parties shall marry again in the life-time of the
other, such marriage is void, and so it was adjudged
in the case of Rye and Fulcomb. And as a further'
confirmation of the law in this matter it was after-
wards adjudged, that a divorce causd adutterii is no
bar of dower, which shews that the marriage is not
dissolved y.^*
Under the Commonwealth the consideration of
the doctrine of divorce was superseded by the Act
which made adultery a capital offence : the fanciful
» 4 Bl. Com. c. 13. y « Noy's Rep. 100, 108." Ayliffe, 229.
237
speculations of Milton received no countenance pub-
lic or private.
Od the Restoration the old doctrine was renevired,
but an extraordinary innovation was at the same
time made in the general law of the land, and the
customary practice of the courts, and the omnipo-
tence of Parliament was exerted to pass a Bill of
divorce, dissolving marriage and enabling the parties
to marry again. Private Acts of Parliament are at
all times rather exceptions than rules of law, and the
jealousy with which they are viewed is not abated
by the circumstances in which the " Act for John
Manners, called Lord Roos, to marry again '^ ori-
ginated. It was in an age of relaxed and libertine
sentiments in respect of marriage and similar obliga-
tions ; for the furtherance of a political intrigue ; in
the subserviency of a licentious court ; and in com- ^
pliance with the bad passions and designs of the
most unprincipled of sovereigns, that the Bill was
proposed and supported. The necessity of this
private enactment proves the state of the law at the
time. The amiable Evelyn has left an unexception-
able record of this iniquitous transaction. " When
there was a project in 1669 for getting a divorce for
the king, to facilitate it there was brought into the
House of Lords a Bill for dissolving the marriage of
Lord Rosse, and to give him leave to marry again.
This Bill after great debates passed by the plurality
of two votes, and that by the great industry of the
Lord's friends, as well as the Duke's enemies, who
carried it on chiefly in hopes it might be a precedent
and inducement for the king to enter more easily
into their late proposals; nor Wepe ^^^y ^ ^^^^^
238
encouraged therein when they saw tlie king counte-
nance and drive on the Bill in Lord Rosse's fevour.
Of eighteen bishops that were in the House only
two voted for the Bill, of which one voted throogh
age, and one was reputed a Socinian'.'^
In the reign of William and Mary the question
of divorce was again agitated in the case of the
Duke of Norfolk, who, having proved his wife
guilty of adultery, moved for an Act of Parliament
for dissolving his marriage and enabling him to
marry again. The Duchess was a papist, and a
strong party was made for her, but the proofs were
too full to admit of a doubt of her guilt. But the
main question was on the subject of the Duke^s
second marriage, on which the bishops were desiied
to deliver their opinions, with their reasons, and
were divided in sentiment*. The Bill was not
pressed, but after a short interval the Countess of
Macclesfield made a public confession of adultery,
which she thought to be the most obvious and
expeditious method of releasing herself from the
uneasy terms upon which she lived with her hus-
band, who Was, as may be imagined, no less de-
sirous of separation than herself, and prosecuted his
design in the most effectual manner ; for he applied
not to the ecclesiastical courts for a divorce, but to
the Parliament for an Act, by which his marrii^
might be dissolved, the nuptial contract totally an-
nulled, and the children of his wife illegitimated.
> Evelyn's Memoirs, vol. i. p. 425. 1670, April 22. The
bishops are said in a note to be Cosins, Bbhop of Durham, and
Wilkins, of Chester.
* Burnet's Hist, of his Own Times.
239
This Act after the usual deliberation he obtained,
though without the approbation of some, who con-
sidered marriage as an afiair only cognizable by
ecclesiastical judges, and the following protest is
registered in the books of the House of Lords :
'^ Dissentient ; Because we conceive that this is
the first Bill of that nature that hath passed, where
there was not a divorce first obtained in the eccle-
siastical courts, which we look upon as an ill pre-
cedent, and may be of dangerous consequence in the
future, Halifax. Rochester^/'
Thus the year 1697 was made remarkable by the
dissolution of a marriage solemnized in the ikce of
the Church: but the precedent which was thus
established, like the precedent of ancient Rome, was
but very slowly adopted into practice. The method
of obtaining the object necessarily confined its ope-
rations to a narrow circle ; and the object itself was
so contrary to the feelings and principles of English-
men, that they required that its effects should be
familiarized by custom, before they resorted to so
novel a method of redress. In the interval of more
than one hundred and twenty years, which elapsed
between the Reformation and the date of the BiU to
enable Lord Roos to marry again, the act in favour
of the Marquis of Northampton stood alone^ and
tbat Bill was repealed, and no subsequent measures
were taken for amending the repeal, or reestablishing
the principle of the divorce. The Bill in favour of
Lord Roos was carried, in an ^ge of libertinism, by
^ Johnson's Life of Savage, (the issue of the adultery.) Works,
vol X. p. 282.
240
I
a political intrigue, by a majority of two, after a
strenuous opposition. In the one hundred and
thirty years which followed this assumed method of
divorce, there were one hundred and thirty-two Bilb
of divorce granted by Parliament ; namely, eight in
the first forty-five years; fifty in the succeeding
sixty years ; and seventy-four in the last twenty-five
years, terminating in the year 1799* In the four
years immediately preceding the session of 1800,
there had been twenty-nine divorce Bills, besides
five which had been rejected: in the session of 1799)
ten were passed and two rejected : and it is a proof
of the care and jealousy with which the progress oi
these Bills was watched, that the House of Lords
was summoned forty times upon the twelve Bills®.
This statement of the progress of these Bills, and of
the accelerated ratio of their increase, may shew th«
strength of the prejudices, which were originally en-
tertained against the total dissolution of marriage, and
the pernicious facility with which these parliamentary
divorces were sought and obtained, when these pre-
judices were relaxed and overcome.
It has been justly argued, that the precedent in
favour of divorce is so recent, as to admit of any
new regulation, without exposing that regulation to
the imputation of novelty. In these Bills there was,
for a very long period, an implied restriction in
favour of the injured husband : he was permitted tp
marry, but the same indulgence was not conceded
to the guilty wife. It is not here intended to weaken
the force of the position, that the bond of marriage
^ Lord Auckland. WoodfoH's Pari. Rep. vol. xxiii. p. 43.
241
must be resolved in respect of both or neither, but
to shew the gradual and assumed abuse of these ,
petitions of divorce, by a simple statement of the
original practice, under which these parliamentary
divorces were merely remedial and in favour of the
injured party. It was an hypothesis of the law, that
as all divorce Bills were passed with a view to dis-
charge the injured husband from his matrimonial
bonds, and enable him to marry again : it was also
implied and understood, that the divorced wife was
not possessed of the same liberty; that however
these parliamentary Bills might profess generally to
diissolve the marriage, the general rule was followed
by a particular restriction, confirming the licence to
the husband, and making it lawful for him to marry
again, and affirming the legitimacy of the issue of
such marriage, without containing any similar pro-
vision for the marriage of the wife ; and it is pro-
bable, that the Bills in question did not originally
contemplate the freedom of the adulteress to enter
upon a second marriage. It is by a very recent in-
novation on a practice in itself of modern date, that
the adulteress has assumed a licence to marry ; and
although a certain acquiescence has been given to
her claim, doubts have been thrown upon the le-
gality of her marriage, which it has been deemed of
importance to render legal for the past, by making
illegal for the future^. It is clear, therefore, that
there was no innovation in proposing to restrict the-
intermarriage of the adulterer with the adulteress,
who had been placed, by the original spirit of the
•
' See Debates on Adultery Bill : WoodfaU's Pari. Rep. v. xxjii.
VOL. II. R
. 242
law, under a genecal, if not a particular, restriction.
There are nevertheless difficulties on either side of
the question. If the bond is indeed dissolved, it is
hard to conceive that the one is bound by obliga-
tions, from which the other is released ; that the
husband is at liberty to marry, and the wife restricted
from marrying. If equal freedom is conceded, the
adulterer is placed in a condition to offer a promise
o[ marriages which the adulteress is free to accept*
taking advantage of her delinquency to disengage
herself from the obligations of a marriage which has
ceased to please, and obtaining new facilities of asso-
ciation with the convicted partner of her crime.
Hence also arises a complicated system of coIlusicHi
and connivance. The wife conceals the faults of the
husband, that he may not be debarred of his Bill of
divorce, in the benefits of which she is to participate*
The husband needs not to exercise a marital jealousy
over tlie wife, of whom he may so easily disengage
himself; and the husband, the adulterer, and tbe^
adulteress, may concert their arrangements for the
marriage before the Bill of divorce is obtained. Thus:
these Acts of the legislature are rendered auxiliary
to a criminal purpose; and instead of inspiring
terror, or inflicting punishment and disgrace, they;
give immunity, reward, and honour to the guilty.
The whole scheme of divorce is embarrassed witb
difficulties, which, however a precipitate pr^ctio?
may cut the Gordian knot, it is more easy to balance
• " Octavius Sagitta, plebei tribunus, Pontiae> mulieris nupte,
amore vecors, ingentibus donis adulterium, et mox ut omitteret
maritum, emercatur, suum matrimonium promittens ac nuptias
cgas pactus." Tac. Ann. L xiv. s. 44.
243 *
than to remove. For a very long period Bills of
divorce were passed exclusively at the suit of the
husband : and it was not before the nineteenth cen-
tury, and only in some very aggravated cases, that
the claims of the wife for redress were entertained.
The reciprocal nature of the conjugal relation, and
the parity of injury sustained by the husband, who
fears, from an adulterous wife, the possible succes-
sion of heirs not his own ; and by the wife, reduced
to the lowest indigence by the ruinous profligacy of
an adulterous husband ; would seem to justify the
same right of redress for the same wrongs inflicted
on either sex, and to claim divorce alike to the hus-
band, who trembles for his posterity, and to the wife
who is stripped of all her temporal comforts ^ At
the same time, the interdiction of marriage with a
divoTced woman, feminine delicacy and maternal ten-
derness require more forbearance from the wife, and
preclude her from seeking such redress as implies
the solicitation of a privilege to marry again : and it
is certainly expedient to impose every possible re-
striction upon the licence of divorce.
It may not however be supposed that a parlia-
mentary divorce can be obtained, without condition,
or without investigation, by any one who is prepared
to seek the special interposition of the legislature.
The Earl of Macclesfield obtained his Bill of divorce
without a previous application to the ecclesiastical
courts ; but when> the aid of Parliament was more
frequently solicited, it became the practice of the two
Houses, in order to prevent fraud and collusion, in
f Earl of Carnarvon: Woodfall*s Pari. Rep. v. xxxiii. p. 317.
R 9
. 244
passing these Bills, not only to examine witnesses,
to be convinced of the adultery of the wife, but to
require, also, that the husband should have obtained
a sentence of divorce in the spiritual courts, and a
verdict with damages in a court of law, from some
one who has had criminal intercourse with his wife.
The restrictions which were thus thrown in the
way of obtaining a divorce were found inadequate,
and other measures were devised for restraining the
progress of the practice. It was the object of the
proposition of the Duke of Athol, in I77i» and of
Bishop Barrington, in 1779) to prohibit the marriage
of the woman for a definite period. Both BiUs
passed the House of Lords, but were rejected in the
Commons; the latter by a very small majority. The
abuse therefore proceeded, without further control,
until the year 1798, when the following resokitions
were adopted as a standing order of the House of
Lords, and justified on the broad principle, that as
a Bill of divorce was an act of the special favour of
the legislature, it was competent to the House to
prescribe the terms upon which the fevour should be
granted.
<^ L Resolved, That for the future no petition for
any Bill of divorce shall be presented, unless an
oflScial copy of the proceedings, and of a definitive
sentence of divorce a mensd et thoro^ in the ecclesi-
astical court, at the suit of the party desirous to
present such petition, shall- be delivered upon oath
at the bar of the House at the same time.
^ML Resolved, That, for the future, upon the
second readitig of any Bill of divorce, the petitioner
praying for the same do attend this House in order
245
to his being examined at the bar, if the House shall
think fit, whether there has or has not been any
collusion directly between him and his wife or any
other person or persons touching the said Bill of
divorce, or touching any proceedings or sentence of
divorce had in the ecclesiastical courts at his suit, or
touching any action of law which may have been
brought by such petitioner against any person for
criminal conversation with the petitioner's wife ; and
also whether at the time of the adultery, of which
such petitioner complains, his wife was by deed or
otherwise by his consent Uving separately and apart
from him, and released by him, as far as in him lies,
from her conjugal duty, or whether she was at the
time of such adultery cohabiting with him, and
under the protection and authority of him as her
husband!^/'
The resolutions thus proposed in the form of a
standing order, which might be suspended at the
discretion of the House, at once recognized, and
were designed to prevent, the collusion of the par-
ties and the concession of divorce to persons who
might be privately separated from their wives ; and,
without adverting to the recrimination allowed in
die ecclesiastical courts, they required evidence of
the domestic character of the husband, as the con-
dition without which he could not succeed in his
suit and petition of divorce.
It was in the course of a debate for rescinding
these resolutions that Lord Auckland suggested the
expedience of further provisions for preventing the
> WoodfaU'8 Pari. Rep. vol. oktu. p. 198.
R 3
246
intermarriage of the adulterer with the aduIteresH
and the manner in which the suggestion was re-
ceived by the House fixed his mind upon the sub-
ject, and eventually led to the introduction of the
Bill for the prevention of adultery, of which the
principal provision in respect of divorce enacted that
the adulteress should not intermarry with the adul-
terer. The chief opposition to the Bill turned upon
this point, and it was held, that it would operate
with extreme and partial severity upon the womaD,
exposing her to a necessity of prostitution, prevent-
ing her return to virtue, and placing her in a con-
dition of perpetual infamy, in the apprehension of
which she would resort to every expedient to con*
ceal her guilt, and would attempt to ruin her hus-
band by the expence of prosecuting the suit in every
court*'. There were many instances of exemplary
conduct in adulteresses, who had been restored to
reputation by marriage with the adulterer, although
this was not the chief motive or object of the adul*
teress, nor would the removal of it lay any restraint
upon her passions'. The adulterer was now wiUii^
and bound by the laws of gallantry to marry the
adulteress, and the only efiect of the meditated
prohibition would be to relieve him fiom this pe-
nalty, to prevent him from fulfilling his intentiooy
and to furnish him with the plea that he was re-
strained by the law^. It was further maintained*
that at the time of the Reformation the effect of
^ Duke of Clarence; Lord Mulgrave ; Duke of Bedford ; Earl
of Westmoreland. ' Lord Mulgrave. ^ Lord Mulgrave;
Earl of Carlisle; Lord Guildford ; Earl of Coventry ; Sir George
Dallas.
247
divorce had beeu an entire dissolution of the bond
of ' marriage, rather than that partial release which
was common to the divorce a mensA^ and to the
proposed Bill': and that the Bill could not be carried
into effect without limiting the powers of Parlia-
ment".
It was argued in defence of the proposition, that
the appeals to compassion were irrelevant ; that the
alleged alternative of marriage or prostitution was a
threat in favour of crime, that it was a plea which
could not always be urged, since the adulterer might
die, might be already married, or might refuse to
marry the adulteress, and that she was free to marry
any other man". The cause of moral virtue was of
more importance than the condition of the adul*
teress, whom the law would place in no other state
than she had placed herself, a state of fitting retire*
ment, in which the excitements of passion were not
inflamed by any promise of elevation ; and indeed
the favour which had been lately shewn to the
adulteress was a fatal proof of the necessity of the
measure". The renovated reputation of the aduU
teress was the very circumstance which demanded
the most rigid precaution, as it tended to remove
iix>m the contemplation of women the danger of
deviating from virtue, to offer encouragement to
crime, and to exhibit a fatal example to the unmar*
ried woman, whom the certainty of an irreparable
injury preserved from the attempts of the seducerP.
' Lord Mulgrave. " Sir Gilbert Heathcote. * Lord
Greoville; Lord Auckland; Bishop (Barriogton) of Durham.
''Lord GreDYille; Bishop (Horsley) of Rochester; Bishop (Por-
teUs) of London. ^ Lord Auckland ; Lord Eldon.
R 4
248
It was necessary to throw the protection of the same
certainty over .the married woman, to whom .the
adulterer might now make, the same offer as to a
single woman 4; and to announce that the effects of
adultery were irretrievable ; that the character of the
adulteress could not be redeemed; and that the
injury which the adulterer inflicted could not be
redressed; It had degraded and disgraced the l^is-
lature ; it had been contrary to morals, virtue, and
religion; it had been the encouragement of vice
that the House had interfered in favour of adultery,
and had. given law and licence to women to change
their husbands at their discretion, with a marked
partiality to the most profligate and .such as had the
least excuse, since the same interposition was not
afforded to those who could palliate their offence by
insisting on the misconduct of their husbands'. The
ordinary law of the country was suspended, that a
woman might be in a condition to complete a am-
duct founded in turpitude ; or, in other words, timt
a woman who had violated her vow, confirmed by a
solemn appeal to the Creator, should have licence to
exhibit a mockery of heaven, by a new profimation
of the same ceremony with the convicted partnv of
her guilt*. There were other arguments in favour
of the measure. The increase of divorces and the
accelerated ratio of their increase called for restraint^:
nor was the measure subject to the charge of ifmo-
vatipn. The Julian law had pronounced the doubui
<) Master of the Rolls, (Sir W. Grant.) ' Lord Auckland ;
Mr. Wilberforce. * Lord Auckland. * liord Auckland ;
Bishops of London and Durham.
249
infamous who should mdrry an adulterers ; and the
proposed restriction of the intermarriage of the adul-
terer with the adulteress was established in the
Canons of 1 603, and by the law of Scotland, and
was agreeable to the statute 1 Jac. I. c. 11.° More
modem than the modern practice of parliamentary
divorces was the allowance of the intermarriage of
the offending parties, which had been assumed with-
out authority, was still of questionable legality, and
had been gradually acquiesced in against the real
intention of these Bills, which had been desigped
for the relief of the injured party, and contained
special clauses, allowing him to marry, and asserting
the legitimacy of the issue of his marriage, without
any similar provision in favour of the wife. The
construction which had of late been put upon these
Bilk had been favourable to the designs of. the
seducer, and different measures, which had received
the fullest concurrence of the House of Lords, had
been suggested for the correction of the abuse. Bills
of divorce and actions for criminal conversation no-
toriously originated in the grossest and most in-
famous collusion, in the practice of which the wife
concealed the offences of the husband, that she
might obtain lenity for the adulterer, and success to
her own nefarious designs ; and thus divorces were
granted where they ought to be refused. The ex-
pence of these suits confined them to a particular
class of society, whose vices they at once cherished
and invidiously exposed. If the evils of the present
administration of the law were not reformed, how-
^ Bishop of Rocbeater; Loid Auckland.
250
ever the injury to the iDdividual might be felt, h
were better that the practice of divorce should be
superseded altogether*.
The argument against the intermarriage of the
adulterer with the adulteress prevailed in the House
of Lords, where the question was fully debated, but
was rejected in the House of Commons at the end
of the session, on the motion for the second reading;
and with so much precipitance that the opposition
was meditated even to the first reading of the Bill.
Lord Auckland afterwards in a certain degree efiected
his purpose, by an order of the House of Lords to
the following effect :
" Ordered : That no Bill grounded on a petition ,
to this House to dissolve a marriage for the cause of
adultery, and to enable the petitioner to marry again,'
shall be received by this House, unless a provision
be inserted in such Bill, that it shall not be lawful
for the person whose marriage with the petitioner
shall be dissolved to intermarry with any offending
party, on account of whose adultery with such per-
son, it shall be therein enacted, that such marriage
shall be dissolved : provided, that if at the time of
exhibiting the said Bill such offending party or par*
ties shall be dead, such provision as aforesaid shall
not be inserted in the said BilU/^
The interest which these debates excited was
strong, but evanescent, and followed by no practical
effects. The attempt of Bishop Horsley to infer
from the Scripture a direct prohibition of the marriage
* Lord Eldon; Lord Auckland; The Master of the RoUi;
Hon. T. Erskine. ' Wood&U'« ParL Rep. vol. U. p. 231.
oi the adulterer with the adulteress, gave an advan«
tage, of which the learned author of the Nuptias
Sacros did not fail to avail himself. Nothing ap-
proaching to the theory suggested in these pages was
^rtated in this temporary controversy, and no sub-
sequent attempts have been made to improve or
amend the law of divorce, which, although the ques-
tion has been again and again before the legislature,
remains without reform, and liable to the very strong-
est objections..
The divorce a mensdy which suspends the inter-
course without annulling the obligations of marriage,
is one of the conditions, without which a parlia^
mentary divorce cannot be obtained : and it is not
the least inconsistency of the system, that this par-
tial separation in the ecclesiastical courts is not
granted, but in contemplation of the reconciliation
of the parties, and upon the express condition that
they shall not marry during the life of each other :
but in the application for a pariiamentary divorce,
the husband is required to produce, this conditional
and Umited divorce, as one of the grounds upon
which he seeks permission to marry ; in other words,
be is required to acknowledge himself a married
man, bound by a bond not to marry ; and in this
state he seeks a liberty of marriage, in direct contra^
vention of his acknowledged relation, and of the bond
which he is required to produce. The inconsistency
of this practice is the natural result of the different
principles upon which the ecclesiastical courts and
the legislature proceed. The ecclesiastical courts,
in conformity with the ancient practice, and with
the strict interpretation of the scriptiiT^l '^^ « He
262
that marrieth a woman divorced committeth adul*
tery ; and, Those whom God hath joined together;
let no man put asunder ; hold the contract of mar-
riage to be indissoluble, and therefore only grant a
conditional separation and suspension of the obliga-
tions of marriage until the parties shall be reconciled:
but the legislature, following the bad precedent of
the Bill to enable Lord Roos to marry again, and
biassed, it may be, by the arguments alleged in
favour of the second marriage of the Marquis of
Northampton, and recognizing the actual dissolution
of the marriage by the adultery of one party, bold
that marriage is not indissoluble, and conclude with
declaring its dissolution in respect of the other party;
Inveterate difference of opinion may have induced a
fatal apathy to the true sense of Scripture on this
doctrine ; but it is obvious, that one or the other ei^
position is erroneous in principle, and unjust in the
application. If the indissolubility of marriage is a
precipitate inference from the Scriptures, the prac-
tice of the ecclesiastical courts should be enlarged,
and the right of perfect divorce should be conceded
to every man who has occasion to demand it : die
bond of matrimony should be dissolved, not of
favour but of right ; the general principle should be
avowed, and brought into general action. If diere
are doubts of the authority for this liberal princiide,
and dangers are apprehended from extending die
dissolubility of marriage ; the practice of Parliament
calls for restraint; and no advantages should be
given to individuals, which may not be claimed by
the community. The legislature of a Chriatian
country should not be disgraced by the palpaUe
253
oQDtradiction of giving licence to marry, to a man,
who presents himself in no other character than that
of a married man, bound by his acknowledgment
and by his bond not to marry; and of declaring
marriage in a particular instance to be dissoluble and
dissolved, which the language of an existing statute,
and the whole tenor of the law, declare to be indis-
soluble. It is the boldest presumption to oppose a
private act to the doctrine of the Church, from the
very time of the apostles, and even from the first in-
stitution of marriage in paradise ; and to give an
effect to the law of man, which can claim no sanction
from the law of God.
The act of the legislature in granting is tiot how-
ever more anomalous than the conduct of the indi-
vidual who solicits the divorce. The terms of the
contract of marriage endure as long as the parties
both shall live, and until death shall part them ; and
the inconsistency of seeking the dissolution of such
an engagement has been powerfully stated in refer-
ence to an application to the courts of Scotland.
'^ It is impossible to overtook the' anomalous situa-
tion in which the pursuer is apparently placed, with
a reference to the action in which she now insists.
The right of divorce, to whatever extent it may go,
originates in the marriage contract/ It forms a con-
stituent part of that contract, and therefore, in every
case of divorce the proceedings must necessarily be
grounded on the previous fact of marriage. The
pursuer founds her action upon a marriage contract,
celebrated according to the forms prescribed by the
English law, which, by the operation of that law,
and by her own express agreement signified in the
264
very terms of the contract, is acknowledged to be
indissoluble. Nevertheless, with a visible inconsist-
ency, she calls upon this court to allow her a proof
of alleged acts of adultery, to the effect that this
English contract may be dissolved. Here it is ob-
vious, that the conclusions of the pursuer's action
are at complete variance with the premises on which
it is laid. In drawing them, the pursuer plainly
reprobates the very contract which she approbates ;
and it ought therefore to be considered, how far she
can be permitted to act thus inconsistently; and
whether, upon such premises, she is not barred per^
sonali exceptione ftom insisting in the present action
to the extent of those conclusions *.''
Doubts, which it would be disingenuous to con-
ceal, but which do not demand a particular refuta-*
tion, have been thrown on the doctrine of the indis-
solubility of marriage in England ; and it has been
said, that << whether marriage is by the English law
indissoluble, according to the just sense and spirit of
that term, is matter of great doubt. Perhaps the
sole amount of what is expressed by the Canon is,
that the power of dissolving that tie is not vested in
the ordinary courts within England, nor is any prcv
cedure known to them, by which that object, even
supposing it not forbidden by any more general
maxim of the law, could be accomplished. That it
was otherwise at a period not of the rentotest an-*
tiquity, there is authority for believing. At all-
events it is certain that even now an English mar-
riage may be dissolved by interposition of the legis-
* FergUMOD, 319.
255
ive power, and that a proceeding for this purpose,
ginating in the application of private parties, is
11 known in that kingdom, which proves suffici-
dy that divorce, though it may not be demanded
England as an absolute right, is not held to be
moral in its purpose, or contrary to the principles
knowledged in the law of the land. When it is
d) that the conditions of the marriage contract,
piessed or legally implied, are inherent and un-
emgeable, and that this principle determines the
3sent point, two mistakes are committed. It is
got, in the first place, that the question is not as
a condition or right arising out of the contract^
t as to a remedy for the breach and violation of
In the second place it is forgot that the divorce
Dot an act of the parties, or either of them, but an
t of the law. Parties make no provision as to the
jbt of divorce, nor is the Scotch ritual difierent
m the English in this respect : and even if they
se inclined to forego a right like this, which is
0vided for the public benefit, they could not ac-
mplish their purpose ; they can neither create such
privilege in their &vour, nor renounce it to their
lad vantage^/' In this statement, in which there
an obvious bias in favour of the Scotch law of
irriage, and an attempt to reconcile the English
Kf to that of the sister kingdom, it is admitted, that
e indissolubility of marriage is the general law of
agland, and that its dissolubility is ejQTected only
' particular and private enactments, suspending
d interrupting the general law. These acts are
» Quarterly Review, No. xlix. p. 258.
256
of no public interest or benefit, and can be obtained
only on the petition of individuals, as matters of
favour, not of right, which as they do not possess,
and have no title to possess, it is true that they
can neither for^;o nor renounce, but in the very
solicitation of virhich they counteract their own ma*
trimonial stipulations.
It has been clearly and concisely ai^ued^, that
^^ the general law of the land, as administered in
the eorlesiastical courts, is either conformable to
Scripture, or it is not. If not, it should be altered :
and then, as the courts would be authorized to
dissolve marriage, there would be no occasion to go
to Parliament for that purpose. If, on the other
hand, the ecclesiastical law be conformable to Scrip-
ture, then the practice of Parliament is plainly
wrong, and should be put an end to on that ao^'
count. As things now stand the judicial and 1^8*
lative authorities proceed on opposite principles, and
the legislature assumes judicial functions for the
express purpose of doing what according to the
general law of the land, and according to Scripture,
as expounded by that law, ought not be done at all.**
The proceedings of the ecclesiastical courts are-
notoriously dilatory, and perplexed with forms, and
libels, and interrogatories, and a technical phraseo-
logy, not very intelligible, nor very agreeable to the
open and manly administration of the English law.
There are no less than three ecclesiastical courts in
which the question of divorce a mensd may be
^ Essay '' On Divorce Bills/' copied from '< the New
into the St. James's Chronicle, Sept 29, 1824.
267
mA the cause cannot even then be brought before
the three branches of the legislature, unless a verdict
has been obtained in the court of King^s Bench.
If justice require that the wrongs of the husband
should be redressed by a divorce, the redress should
be more expeditious, more within the reach of every
man ; there should be no occasion for the intervention
of seven different tribunals. It is no libel upon the
two Houses of Parliament to affirm that they are
ill-adapted to the decision of these matters, claiming
in their very constitution the rights of independent
but concurrent jurisdiction ; and in the numbers of
either House, of more than six hundred commoners,
and nearly tour hundred peers, open to the influence
of parties, passions, resentment, affection, interest,
and connexions, and almost precluded from the tem-
perate, dispassionate, and disinterested deliberation,
the matured wisdom and experience, with which it
18 the pride of England that every judicial investiga-
tion is conducted before the competent tribunals.
Whether Bills of divorce be designed to confer a
privilege or inflict a penalty, they fall under the
offensive and unreasonable character of e^-/70^/^c/o
laws, laws which nothing but the extreme necessity
of the case can be thought to justify. They place
the man and the woman in a condition in which
they could not be placed without this interposition,
or without reference to their previous conduct and
condition; the relief always proceeds. on the state-
ment, that the woman has by her adulterous be-
haviour dissolved the bond of marriage on her part";:
^ FergussoD, p. 413.
VOL. II. S
258
and however the ostensible object of these Bills may
be to obtain to the innocent party a privil^e of
marrying again, they do in idieir very nature set the
guilty party at liberty, permitting without a special
restriction the intermarriage of even the adulterar
and the adulteress, and giving unlimited licence in
all otlier cases.
These Bills are also private Bitls^, acts of special
interference and iavour, suspending the ordinary
operations of the law on motives not of public but
of private good, effecting in the particular instance
an entire revolution in the matrimonial law of the
country, superseding the received distinction be^
tween divorces a mensd and divorces a vinculo^ and
making marriage both voidable and void for causes
succeeding the contract. It is vjtin to suppose that
the English law does not deny the dissolubility of
marriage, but restrict the court in which the dis-
solution shall be pronounced. The proceedings in
Parliament relative to a divorce Bill are not to be
viewed as of a judicial nature, or as if the l^slature
acted as a court of law, as the relief it affords cannot
be obtained by judicial process in England. A law
is in fact made for each particular case*. If the
general law of the country is such as interferes with
* Whether as ex-pest-facto laws, or as private Acts, BiUs of
divorce fall under the words in which Cicero (as qvoled bj
Blackstone) describes the Roman privilegia: ^ Vetant leges
sacratse ; vetant duodecim tabulae leges privatis hominibus irro-
gart : id enim est privilegium. Nemo enim unquam tulit ; nihil
est crudelius; nihil pemiciosius, nihil quod mitius hsec civitas
ferre potest.*'
* Fergusson, p. 413, 66.
259
the interests of individuals, and requires upon their
account to be frequently suspended, reason demands
a revision of the law, under which the benefit re-
quired may be placed within the reach of every man
who desires and has occasion to possess it. That
the marriage of private individuals should be dis-
solved by an Act of the legislature, and by no other
means, ^' is a strange solecism in our institutions,
and is the more remarkable because the rule does
not apply to Scotch marriages, but only to English
or Irish, The proper function of the legislative
power is to frame general rules, and that of the
judicial power to apply those rules to particular
cases. The British Parliament indeed in the exer-
cise of its sovereign authority does occasionally sus-
pend a general rule by enacting an exception to it,
which sort of enactments we call private Acts of
Parliament : but these Acts should in all cases pro-
ceed upon grounds of public interest, and, except in
respect to the Royal Family, it can rarely be said,
that the public has any special interest in the disso-
lution of a particular marriage. If it be right that
ihaf marriage should be dissolved, it is right that all
marriages under the same circumstances should be
dissolved, and, if so, then the enactment should be
general, and the application to the particular case
should be made by the competent courts of law '.^^
The expence incurred in the several stages of
obtaining a Bill of divorce, which has been known
to amount to the sum of ^10,000^ and which sub-
jects the law of England to the degrading imputation
' On Divorce Bills.
s 3
260
of ^* confining divorce to those who can pay for tlie
expence of an Act of Parliament,'' necessarily re-
stricts tlie relief which it affords to the wealthier
classes of the community, and cannot be reduced to
the accommodation of men in the ordinary circumr-
stances of life, and, while it exposes the conduct of
the rich and the noble to public discussion, it is felt
to be a very invidious distinction. It was argued
with respect to the special privilege of intermarriage,
and the argument is applicable to the whole law of
divorce, that if it be proper, moral, and religious, it
should be a general law ; that parliamentary interfer-
ence should not exclusively favour the vices of high
life, but be extended without reserve to the whole
community. The result would be to create such
anarchy of marriage as is recorded in the history of
revolutionary France, where, within six or seven
years, twenty thousand persons were divorced. The
danger of such concession would be justly appre-
hended : and yet under the present system there is
one law for the poor and one for the rich. The poor
woman has an easy and summary remedy from the
severities of a cruel husband, who is bound under
penalties to keep the peace towards her : in another
class of life the same remedy is obtained by the
more expensive method of a divorce in the eccle-
siastical courts. But the poor man, whose wife is
an adulteress, must remain bound to her for life,
because he cannot afford the expence of a divorce.
Bill ; while there is nothing which restrains the rich
man from applying to Parliament again and again,
as often as his matrimonial engagements are unhappy,
and as long as his fortune enables him to seek so
261
expensive a remedy. Thus there is a partiality in
the law, in giving to the rich man a means of redress
which the poor cannot obtain ; and which, if it were
dispensed at all, should be dispensed equally and
fairly before the legal tribunals.
The manifest inconveniences and inequalities of
the prevailing law of divorce have been acknow-
ledged by great and good men; and four principal
methods have been suggested for its amendment.
1. It was the intention of Cranmer to abolish the
divorce a mensdj and to make adultery and some
other causes a ground of dissolving the marriage
under certain restrictions.
2. It was the purport of the Bills of the Duke of
Athol and the Bishop Barrington, to restrain the
adulteress from contracting any marriage for a de-
finite period.
3. It was the attempt of Lord Auckland, and of
the valuable men who cooperated with him, to pro-
hibit altogether the intermarriage of the adulterer and
the adulteress.
4. It was proposed, with very general concur-
rence, and upon very high authority, to give new
power to the ecclesiastical courts, or to establish a
new tribunal, with competent powers for the decision
of all questions relating to divorce, whether of sus-
pending the intercourse or dissolving the bond of
marriage.
All these suggestions are liable to the common
objections founded on the doctrine of the indissolu-
bility of marriage, and on the practical inexpedience
of any such equalization of the law^ ^ niay increase
the facilities of divorce. It has l^n^^^ purpose of
s 3
these pages to point out the difficulties which em*
barrass the principle and practice of divorce ; and it
is now not premature to assert, that it is at least
very doubtful, whether under any modification the
practice of divorce can be reconciled with the au-
thority of the Scriptures, or be restrained fix>m pro-
ducing the most fatal and pernicious effects. It has
been attempted to shew that divorce is opposed to
the necessary perpetuity implied in the'divine insti-
tution of marriage ; that it is not the intrinsic effect
or proper consequence of adultery ; that it was as*
sumed at an unknown period, arbitrarily and without
authority ; that the practice of it among the Jews
was placed under regulation and restraint, and was
strongly condemned and discountenanced by the
prophets. It has been shewn, that the practice of it
for a long period was unknown to the Romans ; that
it was very slowly introduced, until in its unbridled
licence it demonstrated, after the most perfect expe-
riment, ^^ that the liberty of divorce does not contri*
bute to happiness and virtue/' The Christian doc-
trine has also been examined, and shewn under any
interpretation to be liable to restrictions; and rea-
sons have been suggested for strong doubt and
hesitation, whether Christ allowed divorce for adul-
tery, or for any cause subsequent to a lawful and
valid contract of marriage. These reasons have been
compared with the history of the Christian doctrine
of divorce at different periods, in which it appears,
that nothing approaching to the dissolution of the
bond of marriage was j^nown before the subjection of
the Church to the imperial law, and that that law
gave rise to new causes and pretexts of divorce,
263
which underwent various modifications, without su^
perseding the grand and constant tradition of the
indissolubility of marriage. This principle has beea
e£feetually sustained in England both before and
since the Refornaation, in the distractions of whick
it was only partially disturbed ; find it is approved
by its occasional s^ispension under circumstances of
the most striking inconsistency, and the most perni-
cious abuse. If this argument fails in proving the
duty and expediency of superseding the whole lav
of divorce, k recommends the necessity of the most
exact and scrupulous care and circumspection in its
practical application, and adds new interest to the
enquiry, whether there is not a better and a safer
course than is prescribed by the existing law, a
course which violates no principle, and opposes no
authority; which holds no collusion or connivance
with vice, and opens no path to meretricious union,
to marriages originating in crime and consummated
in equivocal and doubtful legality.
If, in an age of ease and luxury, the question of
adultery and divorce should again be agitated, it will
be of the first importance to fix the attention on the
true doctrines of the indissolubility of marriage, and
the criminal character of adultery. Let adultery be
punished as a crime, and let its adequate punishment
be the only redress which the injured party may
expect, and which it shall be in the power of every
man. to obtain. The partial divorce a mensd may
then be superseded, except by the penal separation
in cases of adultery, and in such cases of cruelty as
may justify the interference of the courts, and the
suspension of the ordinary intercourse of matrimony :
s4
264
and the divorce a vinculo^ or sentence of nullity of
marriage, may be limited exclusively to those cases
in which there was originally an impediment, suffi-
cient to nullify and preclude the contract. Wheo
the criminal character of adultery is recognized, and
followed by an appropriate severity of punishment,
the difficulties, which embarrass the law and licence,
the principle and practice of divorce, will be re-
moved; and the true doctrine, that marriage, pro-
perly contracted, cannot be dissolved, will be re-
stored to its primitive vigour and simplicity.
SECTION VI.
Private Ads of Separation.
The primary end of marriage is the mutual cod-
solation of the parties under the several cares and
anxieties of life; and the subordinate end proposed
in their mutual cohabitation, is the religious edu-
cation of the offspring. The most effectual provision
was made for the accomplishment of these important
purposes, when it seemed good to the divine wisdom
to ordain, that the man should cleave unto bis wife,
and they two should be one flesh, incorporated by an
unity, which nothing in this world should be worthy
to dissolve.
Founded in the divine institution of marriage, and
on a correct view of the real condition of human
nature, is the benevolent and considerate precept
delivered by the apostle, in reference to the discipline
which prevailed in the apostolic age: Defraud not
one the other, except if be with consent for a time,
that ye may give yourselves to fasting and prayer,
and come together again, that Satan tempt you not
for your incontinency^. In the earliest comment
which is extant upon this text, it is justly remarked,
that the apostle adds, By consent ^ that it may not
be in the power of either party to dissolve the mar-
riage ; and that he limits the separation ^br a timcy
that the parties, in imposing a restraint upon them-
• 1 Cor. vii. 5.
266
selves, may be free from the temptation to adultery.
.... Marriage has its proper offices and duties ex-
celling in the Lord, the care of the children and the
wife: and every man who would be perfect in re-
spect of marriage, will make it his first object to
fulfil the proper duties of the conjugal union, ih
maintaining a prudent care of the common house-
hold''. It is obvious to the most ordinary readefi
that the apostle allows no separation, except on the
conditions that it be with consent ; that it be for a
time only ; that it be for the performance of specu
fied duties; and that it be with the intention of
coming together again, when those duties shall be
fulfilled. Such a suspension of the matrimonial iiw
tercourse was, at a very early period, held to be
not a dissolution of marriage, but a furtherance of
piety ^: but separation upon other conditions was
pronounced by the apostle, a privation of the duties
which the one owes to the other, and a strong tempt-
ation to unlawful indulgence.
There are but too many effects which this m^tri-
moniai privation may be shewn to produce. There
will be the want of mutual conversation, advice,
instruction, exhortation to duty, confirmation in
faith, and the mutual elevation of heavenly hope,
which becomes those who are heirs together of the
grace of life : there will be the want of consolation io
sorrow, and of protection in danger ; and there wiM
be the want of mutual assistance in the goveroment
of the family, and especially in the necessary disci^
b Clem. Alex. Strom. 1. ii. s. 12, * Orig. Com. in Matth.
tom. xiv. 8. 2.
36ir
pline and instruction of the children, whose minds
are not to be formed to Christian virtue, but by the
authority of a father's fear, and the affectionate assi-
duity of a mother's love. When the mutual coha-
bitation, w^hich the Deity has ordained, is super-
seded, the wisdom of the provision will receive a
&tal illustration from the temptation which follows
its n^lect. The parties, formed for a state of mutual
dependence, are prone to entertain a false sense of
independence : they turn for consolation, not to each
other, but to themselves; there is no more con-
formity in their wills ; their views are directed to
different pursuits; they seek for other helps than
those which nature has provided, in the government
of their children; their hearts are open* to every
emotion of distrust, of jealousy, of suspicion, and
resentment ; the love which is cherished by atten-
tion, and the passion which is soothed by forbear-
ance, is in absence hardened to indifference, or exas-
perated to aversion : the whole order of marriage is
inverted, and the conjugal union, which was de-
signed by the divine benevolence for the alleviation
of domestic care, is loaded by human folly with the
heaviest of troubles and the worst of sins.
If the blessing of marriage is thus destroyed by
occasional separation, it is not unreasonable to sup-
pose that judicial and penal consequences may follow
that which is designed to be permanent ; when the
husband and the wife, who are appointed to cleave
unto each other, and to be one, presume by a private
act of their own to separate from each other, and to
be two. The state of celibacy, the state of marriage,
and the state of widowhood, are all natural states.
268
easily understood, and easily reconciled with the
law and appointment of God, and with the hope of
his blessing: but in the state of a man and wife
living separately from each other, there is something
unnatural ; there is a contravention of the divine
appointment; there is a resistance of the divine
means of conveying good to man. In the very act
of separation, the parties presume on possessing a
better knowledge of their nature and condition in the
world than the divine Author of their being, who
saw that it was not good that the man should be
alone, and therefore made an help meet for him, and
ordained that he should cleave unto his wife^: th^
affect other help than he hath provided for the relief
of their infirmity ; they throw themselves upon re-
sources which cannot avail them ; they rush into a
state of delicacy, of difficulty, of danger, and tempt-
ation, from which it is hard to escape ; they abandon'
at once the duties which they owe to God and to
each other ; and, whatever be the terms or motives
of separation, they betray the most hardened indif-
ference to their common children, whom, as married
parents, they are bound by every consideration of
law, of reason, and religion, to train for a godly seed
in the nurture and admonition of the Lord. It is
indeed hardly possible to conceive an act of more
unfeeling 6r more unprincipled depravity, than that
which is displayed by a parent, who, in a deed of
separation, defines the terms upon which the childreo
shall be separated from one or other of their comnKm
parents, and disposes of them with the same heartless
^ Gen. iL 18, 21, 24.
269
unconcern as he disposes of any part of his property
or bis furniture. What is the mother who consents,
or what is the father who proposes, to alienate a
natural right in the instruction of his own offspring?
The duties which the parent owes to his child, the
natural affection which he feels, and the natural hope
which he cherishes in his behalf, the compunctious
visitings of nature, should prevail over every differ-
ence which can possibly arise in the trials of domestic
life, and restrain the heart from conceiving, and the
hand from executing, the deed which not only sepa-
rates the husband from the wife, but deprives the
child of the common protection which by nature he
is entitled to possess.
But it will be asked. Have not voluntary separa-
tions received the sanction not only of heathen
practice, but of a divine institution and law ? The
fact is not denied ; and let all the weight be given
to the precedents which they are worthy to claim.
It is not necessary to repeat the frivolous causes,
for which a permanent divorce was allowed in the
heathen world : but be it remembered, that these
divorces, however vicious in principle, were defini-
tive in effect ; there was no anomalous state in which
at the same time there was and was not a marriage ;
the man and the woman once separated were free to
marry whom they woijld ; and the education of the
children was no very anxious care of the heathen, it.
never depended on the mutual cooperation of both
the parents. Nor was thei*e more anomaly in the
divorces permitted under the Jewish law, of which
the very distinguishing character was, that they were
irrevocable. When the man had written the bill of
270
divorcement, and given it to the woman, she might
be another man's wife : but if her second htu^Mmd,
or any other succeeding husband, should divorce
her, or should die, a former husband, who had
divorced her, might not take her again to be his
wife after that she is defiled, for that is abomination
to the Lord. But under the Christian scheme all
this permissive law of divorcement is abdished.
With the exception of the single case of fornication,
whether that term means adultery, or incestuous and
prohibited marriage, he that putteth away his wife
causeth her to commit adultery, and he that putteth
her away and marrieth another committeth adultery.
In virtue of the indissoluble nature of n^arriage,
which Christ has restored to a conformity with the
primitive institution, the parties separating them-
selves are in this anomalous state : they are di-
vorced, as far as they can be divorced by the act
of their own will, but they are nevertheless married
by the force of the divine institution, and of a corre-
sponding state of national law, which does not allow
divorce. Under these circumstances they cannot
attain the perfect and permanent privilege of the
ancient divorce. They may give to each other, as
far as their power extends, a bill of divorcement, but
that bill is in its very nature invalid, and may be
revoked ; and thus having as they presume a dis-
cretional power of renouncing and recalling each
other, they exceed the licence of any law of divorce
which was ever known to the heathen or the Jew.
The mind of one of the most eminent of the
primitive fathers was in doubt, why our Lord had
not said, Let no man divorce his wife except for
271
fornication: but bad rather said, If a man shall
diiM^rce bis wife, except it be for fornication, be
causes ber to commit adultery. He assumes that
it will not be denied, that a man in divorcing his
wife who is not guilty of adultery, does, as for as
lies in bis power, give ber occasion to commit aduU
tery; for if, while her husband lives, she shall be
called an adulteress, if she live w4th another man,
the husband who divorces her, in giving her privilege
of marrying again, causes her to commit adultery.
He proceeds to affirm that there are many other
pretexts besides divorce, by which the husband
may cause the wife to commit adulteiy, and he
attributes tiiis effect especially to the man who
exercises, no control over the conduct and company
of his wife, and to him, vi^o, without divorcing his
wife, separates himself from her, and neglects her ;
and he expresses a doubt, whether the man who is
thus negligent of his wife, whatever may be his pre-
tence, is not more reprehensible than even the man
who divorces his wife for other causes than forni-
cation*.
Hilary also, in his comment on the text, main-
tains, that our Lord, in promoting equity among all
parties, commanded the wife to remain ki conjugal
peace, and that the faith of the Gospel had not only
.imposed upon the husband a love of peace, but
imputed to him the guilt of constraining his wife to
commit adultery, if, from the necessity of leaving
him, she is placed in a condition to marry another ;
and that he' allows no cause of dissolving the mar*
* Orig. Comni. in Matt torn. xiv. 8. 24.
riage but that which would contaminate the hus-
bandy through the society of an abandoned woman^
These ancient commentaries afford no sanction to
private acts of separation, under the Christian law
of marriage and divorce, and they are calculated to
counteract the opinion, that the law of divorce, deli«
vered by our Lord, can only be interpreted widi
reference to the law of divorce previously existing
among the Jews, and that the offence of the bus-
band in causing the wife to commit adultery was
especially restricted to a state of law which per-
mitted the divorced woman to be married again.
In accordance with this opinion it has been espe-
cially urged, that the husband caused the woman
<< to commit adultery by enabling her to nuayy;"
that *^ there is no mention, no hint, no intimation,
that the sin of the husband would consist in drivings
his wife to incontinence ;^^ that '* the adultery, and.
the only adultery, which this bill of divorcement
would lead her to commit, consisted in her marrying
another man under the sanction of this Bill ;^^ that
'* there is no mention made of private separations
independent of this liberty'^ of second marriage,
**no mention of incontinence as the effect of such:
separations.^'
In respect of the law of marriage, and of several
other provisions, our Lord adverts to the practice,
which at the time prevailed among the Jews for the:
purpose of condemning and superseding it: and
then introduces his own law, which be means to
' Hilar. Comm. in Matt v. 32. ' See Chr. Remembr.
4
▼ol. iiL p. 18y 19.
273
establish universally and for -ever. The old law in
respect of marriage was ; Whosoever shall put away
kis wife, let him give her a writing of divorcement.
This divorce, both in the spirit and in the form, our
Lord abolishes, by adding; But I say unto you,
WlK)soever shall put away his wife causes her to
commit adultery. The clause of exception is omitted,
as not required in the present argument, which re-
lates to the extent of the general law, independent
of the particular exception. Now the law which
Christ repealed was particularly that of the Jews ;
the law which he recommended was to be the law
of all Christians to tlie end of time : and as lawful
divorce was restricted to the single case of fornica-
tion, the prohibition of divorce in other cas^ was un-
necessary, or contemplated some divorce in its cause
more venial, and in its operation more restricted.
The prohibition of divorce is also so far from being
limited to the Jewish bill of divorcement, which was
given by the husband only, that the terms under
which the divorce is expressed, and which signify^
I* « In considering tiie text of St. Matt. v. 32, we may fairly
leave out the subject of Jewish divorce, as well as the article of
the wife's marrying again : we may assert, that, according to the
tenour of the Gospel, a private separation is virtually a divorce.
That the verb mifXvm, which literally signifies to release or let
loosCf is not necessarily synonymous with giving a bill of divorce-
ment, even in this verse of St. Matthew, appears from the Greek
of St. Mark x. 12, where the wife is made the subject and the
husband the object of the same verb. I do npt however deny,
that it may be of kindred signification with f(Mrtm^A«, in the
LXX version of Deut. xxiv. 1. or with mfiiiXXm in the Apostolical
Canons, and other writings in the early ages of Christia4iity.
Vide Bevereg. Annot. apud Coteler. Pat. Apostd. torn. i. 459.
VOL. II. T
274
no more than a discharge or release from engage-
mentSy are appropriated to the wife as well as to« the
husband, and the privilege which is equally deoied
to both is a privilege which must have been po»-
sessed by both.
The doctrine of our Lord is founded on tiie revived
doctrine of the indissoluble nature of marriage, in
virtue of which the woman during the life of he§
husband, although she be nominally separated fitXD
him, and assume a licence of marrying again, cannot
connect herself with any other man than her hus*
band during his life, without incurring the guilt of
adultery ; and it is the doctrine not only of the laW
of England, but of the primitive Church, that mtfr»
riage under such circumstances is mere pretence^;
and if she be living apart from her husband the guilt
of the adultery which she commits is on the samd
But though it may he taken as an adjoact or as a coDseqi
of divorce, we may still he allowed to consider its force in asf
other application. If I understand rightly the doctrine of our
Saviour on the subject of marriage, his intention, notwithstand-
ing any practices as to divorce among Christians in after ages,
was to restore the institution to its original purity in the nmxm of
two persons as one flesh, and to assert accordingly the equaBijf
of husband and wife in the conjugal character y without prejndies
to the husband*8 authority as the head of the famUy. Henee, in
Mark x. the m? «ir«Avri| predicated of the husband is also {Medi-
cated of the wife, as is pi «f ftr«, 1 Cor. vii. 12, 13. The ponvw
over each other's bodies is in both places tacitly acknowledged is
be mutual, without reference either to Jewish or heathen- uaagss
as to the party who might legally sue for a divorce. The riglrt
of divorce is reeognized in the wife as well as in the husband;
or, to speak more consistently with the temper of our holy reli-
gion, it is equally denied to both.** Letter.of " Rnstieus,^ {«!►-
lished in the True Briton, Nov. 30, 1820.
275
autlK>rily imputed to the husband, on the ground of
bis foiling in those attenti6ns which were necessKry
to prevent it. In the cases alleged by Origen, the
same charge is brought against the negligent hu84>
band of a guilty wife, who is not separated from
him, foid has therefore no pretence for a second
marriage. There are many cases also in which the
woman who is separated irom her husband not only
resorts to no second marriage, but lives in virtue
and chastity : but is her virtue and forbearance
the acquittal of her husband^s guilt in putting ber
away ? Is the divorcing husband innocent, because
the divorced wife is not guilty ? Whether the woman
does or does not abuse the occasion which is offered,
the man, by the deed of divorcement, by the act of
separation, has done all which lies in his power to
involve her in shanie and sin, and may be charged
with all the evil which she meditates or commits;
and his conduct is so independent of the conduct of
the woman, that it can only be interpreted of the
temptation or occasion which is offered, and may be
imputed without any hypothesis of the marriage of
tiie woman.
It is commonly supposed, that the woman does
marry. The man who shall put away his wife, '^ in
caus& est, ut ahi nubendo, adulterium committat^'''
as Schleusner translates the words with the usual
interpolation : but is there any necessity, any au-
thority, for the supposition of the marriage of the
^woman ? If the hypothesis were necessary, might it
not have been expressed, as it is expressed in the
supposed parallel case of the woman who puts away
lier husband ? And is not the clause under this'
T 2
276
iDterpretation of the same import with that whioh
follows, that the man who marries her that is dB*
voroed committeth adultery ? There is danger id ad*
mitting any interpolations which are not required to
complete the sense of the sacred records : and in the
four several cases which are put by our Lord, there is
a nicety of distinction which precludes the necessity
of any interpolation. There are the several cases ;
1. of the man who divorces bis wife, and thus causes
her to commit adultery ; 9. of the man who actually
marries a divorced woman and committeth adultery
with her, (and she with him, because she is another
man's wife :) 3. that of the man who puts away his
wife and marries another and commits adultery,
being the husband of another woman ; 4. that of
the woman who shall put away her husband and
marry another and commits adultery, because she is
another man's wife. In this enumeration of the
cases, the first is distinguished from the others by
the omission of all mention of marriage, and the
interpolation which is contended for cannot be ad-
mitted, without destroying the distinguishing pecu-
liarity of the case. The criminal act of the husband
in putting away his wife, (and the woman who
deserts her husband is reciprocally liable to the
same charge,) is, that he causes his wife to commit
adultery by throwing a strong temptation in her
way, or, in the language of the apostle, by sufiering
Satan to tempt them through their incontinence.
The Christian law admits no separation of the par**
ties; it supposes them to be joined together hj'
God, and, in virtue of this divinely instituted union,
suffers neither themselves nor any other parties to
277
pot them asunder. A voluntary separation is vir-
tually a divorce, a discharge from conjugal rights
md duties, in opposition to the law of Christ and of
his apostle, who again and again insist that the man
shall not put away his wife, nor the wife her hus-
band. The only case of exception is that of a be-
liever married to an unbeliever ; in which the right
of divorce is dependent on the invaUdity of the
original marriage, and the force of the Christian rule
is therefore not abated. If the unbeliever consented
to continue the union, the believer was not suffered
to make objections, or to dissolve it, under pretence
of religion : if the unbeliever desired to break the
connexion, the Christian law had no power to re-
strain him, and the believer was suffered to separate
from him, and released from her conjugal engage-
ments. In every other case there was an absolute
prohibition of permanent, separation : occasional se-
paration was permitted only upon condition of con-
sent, for a time, and with the intention of returning
to the conjugal duties.
These voluntary and private separations are not
only subversive of the true end and purpose of mar-
riage, an anomsdous state, unsanctioned by any pre-
cedent, and immediately opposed to the Christian
law of marriage ; but they are violations of the parti-
cular engagements contracted by every man who
marries in England. The question is not what
laight be, but what actually are, the terms and con-
ditions of the matrimonial stipulation ; in which it
will not be pretended that there is any ambiguity,
any want of distinctness, any room for mental re-
serve or equivocation. In the Office for the So-
T 3
lemnizatioii of Matrimony, the parties respectively
give their troth either to other, that the husband ^bM
love and cherish the wife ; that >the^wonian -shell love,
honour, and obey her husband ; and 4hat forsakii^
all other, they shall keep theni the husband to Uie
wife, and the wife to the husband, so long as they
both shall live, and until death shall part -them. It
is obvious, that this is an engagement which cannot
be kept in a statjs of separation ; that the man cannot
redeem his promise of cherishing his wife, while he
thrusts her from his society ; that -the woman canndt
fulfil her duty of love, honour, and obedience, to H
man from whom she consents, or is constrained, to
live at a distance, and with whom she is not per-
mitted to hold the ordinary intercourse of domestic
life. They will not pretend to assume to themselfes'
or to convey to each other a licence not to fonmlie
all other : but does not the same engagement vrtiidl
binds them to forsake all other, pledge them also td
keep each to the other ? And is it not as reasonable
and as consistent with their conjugal promise, thai
husbands and wives should not forsake the company
of others, as that they should not keep to each otherf
If married persons would reflect upon the engi^e-
ments of their marriage, and regard those engage-
ments in the character of a solemn oath and cove-
nant, they would be ashamed of incurring the guHt
of perjury by the neglect of their reciprocal duties.
If they would consider that the pledge is extended
to their lives' end, so long as they both shall live,
and until death shall part them, they would have a
prudeiit care of disturbing the peace of an indis-
soluble union, which involves a perpetuity of mutual
279
forbearance or of mutual strife : nor if they bad the
fear of God in their hearts, if they thought of him
who 18 the present witness of the covenant which a
man flsiakes with the wife of his youth, would they
venture to violate their religious duties, or to COD-
temjJate the terms of that putting away, of which
the Lord hath declared bis abhorrence. It is with
great propriety that the Scripture says that woman
was given to man for an help by God. It is evident,
therefore, that she should make it her choice to
mitigate with reason and persuasion all the incon^
veniences which she sustains from her husband; and
if he is perverse and uncomplying, she will endea-
vour, as far as is in human nature, to prove hersdf
blameless ; conceiving the Deity to be her help, her
guide, her governor, and saviour; making righted
ousness and moderation her work, and the love of
God the end of all her actions ^ The same fc»rbear«
ance is due from both parties ; and if it is regulated
by the same principle, will induce a patience of any
sorrow, in preference to the very thought of sepa*
ration. Forsaking all other, I will keep me only
unto thee, is the promise of marriage : I will forsake
thee, and not keep me unto thee, are the terms of
separation between a man and his wife. Are these
diings consistent in the judgment of the man of sense ?
Will the man of honour approve the falsehood which
they involve? Will the religious man not fear the
judgment which they challenge? The Lord hath
been witness between thee and the wife of thy youth,
against whom thou hast dealt treacherously: yet she
■ Cl. Alex. Strom. 1. iv. s. 20.
T 4
280
is thy companion and tbe^wife of thy covenant. • • •
Therefore take heed to your spirit, and let none de£l
treacherously against the wife. of his youth : for tht
Lord, the God of Israel, saith that he hateth putting
away**.
The separations, which are thus contrary to all
religious considerations, are ill^I, and happily de^
stitute of all sanction of human law. Upon what-
ever ground th^se deeds of separation proceed, or io
whatever terms they are drawn up, they are liable to
be superseded by an action for the restitution of con^
jugol rights.
'^ The indissolubility of marriage rendering it im-
possible for parties lawfully to release each othflr
from their reciprocal duties, the spiritual courts are
authorized, at the instance of either, ta, compci
mutual cohabitation, to which no deed of separatioD
can be pleaded in bar, any more than it can in suits
for adultery, such an instrument being an ill^jsl
contract, directly contrary to the obligations already
entered into by the parties, to live together until
death shall part them ; an obligation on which th9
solemnities of religion and civil society have stamped
a binding authority, and from which parties may not
release themselves, by any private act of their owo»
for causes which the law has not pronounced suflk
cient, or sufficiently proved ^^^
There is no doubt, that these suits for the restitu-
tion of conjugal rights are liable to abuse ; but the
very abuse may be alleged in proof of the ill^alityr
^ Mai. iL 15, 16. * Poynter'8 Doctr. and Prac. of the
Eccl^ Courts, p. 88.
381
and inefficiency of tbe deeds which they are designed
to rescind. Deeds of separation commonly originate
in offences comparatively trivial ; in difference of
temper ; in frequent strife ; in mutual aversion ; but
even in the strongest case which can be conceived,
that of a husband separating from a wife, on a well-
fbunded suspicion of her criminality, what is the
result ? The woman for a time consents to the sepa-
ration, but under the desire of an increased stipend,
or any other improper motive, she is entitled to
demand a restitution of her rights ; and if the hus*
band cannot prove her adultery, he must either
assent to her demand, or comply with the terms
which she proposes, as an equivalent for cohabita-
tion. The deed of separation is ill^al; and although
the woman has consented to it, her consent is void,
and may be recalled. The suit for restitution can
only be counteracted by proof of adultery, or by
proof of cruelty™. The principle upon which the
civil courts allow the woman to retract her consent,
and upon which it has been argued that the contract
of a married woipan is not only voidable but void,
IS, that she ought not to contract to bind her hus-
band, on account of his superiority over her ; qor
herself, because she has not the administration of
any property °. The converse of this principle would
seem to bind the husband to the full measure of hi^
bond : and it has been argued against him, that
having entered into articles of separation with his
wife, he has no more control over her, no more
*^ Poynter's Doctr. and Prac. of the Eccl. Courts^ p. 89.
" 1 Term ReporU, 5. Corbett v. Poelnitz.
S88
power to reclaim her without her coDsent. In the
case of the king against Mary Mead, ( 1 Burr. 54S.)
^ where the wife was brought up on a return to a
habeas corpus^ sued out at the instance of the hu^
bandy the court held such an agreement as t!ris * to
be a formal renunciation, by the husband, of his
marital right to seize her or force her back to live
with himi' and the husband was ordered not to
molest her on her return home to her friends**.**
It is certain that the ancient law was so far from
entertaining the doctrine of a separate maintenance^
which has been introduced by the corrupt fashion of
modem times, that it held, that in marriage there
was so perfect an incorporation and union of the
parties, as to render them incapable of acting sepa*
rately, or of entering into contract with each oCher^
In reverting to the principles of the older law, and
in overturning some recent decisions tending to
establish the position, that a married woman, living
apart from her husband, and having a separate main**
tenance, may contract and be sued as a single
woman ; Lord Kenyon reconciled the soundest prin*
ciples of the law with the plainest rules of social
virtue, in a judgment not hastily formed, but after
the case had been argued twice before all the judges t
who after a very full consideration were agreed that
the position could not be supported.
** The ground on which the plaintiff in this case
rests his claim, is an agreement between the de-
fendant and her husband to live separate and apart
from each other ; that is, a contract supposed to be
"" 1 Term RepoHs, 90. See also p. 358.
£88
made between two parties, who, according to the
text of Littleton, s. 168. bemg in law but one
person, are on that account unable to contract With
each other ; and if the foundation fail, the conse-
quence is, that the whole superstructure must also
fail. This difficulty meets the plaintiff in limine.
If it did not, and the parties were competent to
contract at all, it would then become material 'to
consider how fur a compact would be -valid, which
has for its object the contravention of the general
policy of the law in settling the relations of domestic
Hfe, which the public is interested to preserve ; and
which, withdrdt dissolving the bond of marriage,
would place the parties in some respects in the
condition of being single, and leave them in others
subject to the consequences of being married ; and
which would introduce all the confusion and incon-
venience which must necessarily result from so ano-
malous and mixed a character. In the course of the
argument some of these difficulties were pointed
out, and it was asked, Whether, after such an agree-
ment as this, the temporal courts could prohibit, if
either party were to sue in the ecclesiastical courts
for the restitution of conjugal rights ? Whether the
wife, if she committed a felony in the presence of
her husband, would be liable to conviction ? Whether
they could be witnesses for and against each other ?
Whether they could sue and take each other in exe-
cution ? — And many other cases will occur to every
one, to which it will be impossible to give a satis-
factory answer. For instance, it may be ^^sked,
How it can be in the power of any persons, by their
private agreement, to alter the character and con-
284
ditioD, which by law results from the state of mar-
riage, while it subsists, and from thence to infer
rights of action and legal responsibilities, as conse-
quences following from such alteration of character
and condition ? Or how anj power short of that of
the legislature can change that which by the common
law of the land is established as the course of judicial
proceedings.
'^ The argument in fiaivour of the plaintiff rested
on this position only as a principle, viz. that where
the husband ceases to be the protector of his wife,
and is not liable to have any claim made on him for
her support and maintenance, it neceasarily follows,
that she herself must be her own protectress, make
contracts for herself, and be responsible for them.
But if this were a necessary consequence it would
hold in all cases ; but that is not so : for if a woman
should elope from her husband, withdraw herself
from his protection, and live in adultery, he is not
by law liable to answer for her necessaries, and no
case has decided that a woman is. A wife, living
apart irom her husband, who has property secured
to her own separate use, must apply that property
to her support as her occasions may call for it : and
if those who know her condition, instead of requiring
immediate payment, give credit to her, they have no
greater reason to complain of not being able to sue
her, than others, who have nothing to confide in but
the honour of those whom they trust. From the
incapacity of a married woman to contract or to
possess personal property, which may be the subject
of contract, men and their wives desirous of living
separate have foiind it necessary to have recourse to
285
the iDtervention of trustees, to whom the property,
of which it is intended that she shall have the dis-
position, may vest, uncontrolled by the rights of the
husband, and with whom he may contract for her
benefit: but in such property the woman herself
acquires no legal interest whatever. Of such trusts
courts of equity alone can take notice : they can
cause the fund to be brought before them to be
applied as in justice it ought to be, and in those
courts the creditor must prefer his claim.
^* The earliest cases on this subject proceed on
the ground of the husband being considered^ as dead,
and the woman as being in a state of widowhood, or
as being divorced a vifkculo mairimonii • • . • and,
until the cases of Ringstead v. Lady Lanesboraugh;
Barwell v. Brooks; and some subsequent cases,
which we wished to have reconsidered, we find no
authority in the books to shew that a man and his
wife can by agreement between theniselyes change
their legal capacities^ and characters ; or that a
woman may be sued as a J^me sole, while the
relation of marriage subsists, and she and her hus-
band are living in this kingdom.
*^ For these reasons our opinion, in conformity
with that of all the judges who heard the last argu-
ment, is, that there must be judgment for the de-
fendant.
^' His Lordship afterwards desired that it might
be understood, that the late Lord Chief Justice
Eyre, who heard the first argument entirely con-
curred in this opinion P/^
>' 8 Term Reports, 545. Marshall against Rutton.
38JS
, If is of the highest importance to'thekiterasts <yf
trade, and in a commeft^ial coitntfy, thdt thilt' de^
otaioii should be maintained, as it is naturar fet^ tile
tradesman to assume,, that a married woman is living
with her husband, and not in his power tt> ascertiiitl
upon what terms she is separated from her busbMd.
At the same time, when the l«w, fomaking its usual
equity, becomes partial, and manifestly' adverse tb
the interests of the husband in the constructidri' of
these articles of separation, it is not unreasonable to
conclude, that it entertains a steret abhorrence of
these deeds, and shrinks from the responsibility of
affirming their validity. There are two other cases,
besides those which have been alleged, of the same
disposition of the courts to nsabe a distinction be*
tween these deeds, and to remove them from the
ordinary course of the law. When the husband and
wife have been divorced a mensd et ihoroj by seA^
tence of the ecclesiastical court, chitdren bom during
the separation are bastards, because the law will
presume the husband and wife conformable to the
sentence of separation, unless access be proved : but
if the husband and wife consent by their own act tb
live separate, the children are pr^umed legitimiate,
till non«access be shewn, for the law will suppose
access unless the negative be proved, and the buf^
then of the proof is cast upon the husband of ' the
mother, or his representatives *>. The law, in thus
supposing the cohabitation of parties not l^liy
divorced, with the legitimacy of their issue, and
1 1 Bl. Comm. c. 16. 1 Burn's Justice, 242. 5 Term Reports,
368.
087
their oonsequent right to> maintenance, and Iheir
capacity of inheriting the estate of the presumed
fiitber, actually overlooks, and virtually reftises to
recognize, the voluntary separation by agreements -
Again ; it is an old principle and rule of law, that
a woman eloping from her husband and living with
the adulterer forfeits her dower : but an act of adul-
tery, committed while the parties are living apart
under a deed of separation, does not forfeit tbi
aomiity settled by that deed, and accepted in lieu
of jointure, thirds^ and dower. The plea of adultery
is not sufficient to invalidate the deed^ '* upon th^
ground, that if the husband, when executing such a
deed as this, thinks proper to* enter into an unqua-^
lified covenant, he must be bound by it. If hie
wished to make the commission of adultery a cod^
dition of paying the annuity to his wife, he should
have covenanted to pay it, quamdiu casta vixerit'l^*
But would the woman under any circumstafiees;
whether in assenting to the deed' she was conscious
of a virtuous or a criminal intention, have been
persuaded to subscribe to such a condition ? Would
the courts have lent their sanction to such a deed,
and have deprived the woman of all right> to main^
tenance for the violation of so partial a rule? Or
what would have been the proof of adultery, con<^
ditionally required to vitiate a dtedj of which the
very existence has been fatal to actions for damages
for criminal conversation ?
This is another objection to the validity of deeds
of separation, and another proof of the partiality of
* 2 Barnewall and Cressweirs Reports. Je^ ▼» Thuriow«
♦ t
288
the law in the construction of them, for which the
public is principally indebted to the unsophisticated
learning of Lord Kenyon. In the case of Wjeeden
V. Timbrell he had directed the plaintiff to be non-
suited, on a conviction that the gist of the action
lay in the loss of the wife's society, and not in the
criminal act or assault upon the person of the wife,
which was the argument of the plaintiff, and to
which it was replied, that if it were so the husband
could not maintain the action in his own name only,
but must also have joined his wife. In a former
case, Warrington v. Brown, the jury, in opposition
to the direction of Lord Mansfield, bad drawn the
contrary conclusion, and Lord Kenyon,. in delivering
his judgment, naturally adverted to that case. It is
so important to establish the position, that *'no
action for criminal conversation can be brought for
any act of adultery after a separation between bus*
band and wife,'' that no apology will be required for
reciting at length the opinions of Lord Kenyon and
Mr. Justice Ashhurst, with whom Justice Buller
coincided.
*' Lord Kenyon, Ch. J. On the trial of this
case I understood that there was no decision. on the
subject ; on the principle, I thought that the action
would not lie, and nonsuited the plaintiff. If the
case before Lord Mansfield had been decided in the
manner now supposed, it would have bad very con*
siderable weight with me : but, according to a note
of that case with which I have been furnished, it
appears, that his Lordship's opinion was against the
action, for he said, that it was a new experiment ;
that permitting such an action to be maintained
289
would be attended with very mischievous conse*-
quences ; and that the gist of the action was the
loss of the comfort and society of the plaintilTs
trife. It is true that the jury gave a verdict for the
plaintiff, with <£90 damages; but that was certainly
against the opinion of the judge : perhaps the smalt
ness of the damages and the improper conduct of
the defendant in that case were the reasons why no
motion was made for a new trial. It is material to
consider what is the gist of this action : the plaintiff
contends that it is a criminal act ; but that I deny.
I think it is a civil action brought to recover satis*
fiiction for a civil injury done to the husband, and
not to punish the defendant for having broken the
laws of morality and decency. But. what injury is
done to the plaintiff, who has voluntary relinquished
bis wife ? It cannot be said, that he is deprived of
the' comfort and society of his wife. I can see the
immorality of the defendant's conduct in as strong a
light as any person ; but still this action must be
confined within legal limits. This is like the case
of an action by the father for the loss of service of
his child : in which, however the parent may feel for
the violation of his daughter's chastity, it is clear
that no action can be maintained, unless some evi-
dence be given that the daughter performed some
acts of service for the father. This is not like the
instance put' of temporary separation from the wife;
* It had been argued by the plaintiff's counsel ; " Suppose a
•eparation by the husband's being in a different country : could
it be contended that no action was maintainable, because he
could not sustain any present loss of comfort? Or if the separa-
VOL. II. U
290
in such case the wife still continues within the' pfc^
tection of the husband, which she does not here.
Before I saw the opinion of Lord Mansfidd in the
case before him I thought that this action could not
be supported ; and I am now confirmed by what his
Lordship there said, because that which is the gist
of the action fails.
'' Ashhurst J. The gist of this action is the loss
of the comfort and society of the plaintiff's wife :
that is always inserted in declarations of this kind,
as a material and substantial allegatioti, and the
forms of pleading^ are evidence of the law. Then,
taking that as the principle, it follows, that if tbe
husband separate himself from his wife, he cannot
be said to be deprived of that comfort and society
which he has before renounced. Under the circum*
stances of this case it cannot be said, that the plaintiff
has sustained the injury which he has imputed to
the defendant. And the opinion of Lord Manafidd
in the case cited coincides with ours. The principle
of this case is like that mentioned of debauching the
plaintiff's daughter, in which the plaintiff must give
some proofs of acts of service done by her, in order
to support the allegation in the declaration: veiy
slight evidence indeed is sufficient, but still it is
necessary to give some.
*^ Buller J. of the same opinion.
*' Grose J. This is considered as an action- oo
the case^ and not of trespass, and the plaintiff is
tion were premeditated only for a certain time, at the end of
which the parties propoeed to live together again, woiiM diat
defeat the action ?"
291
entitled to full costs, though he recover less than
4KISa
< 5 Term Reports, 3d7« The case of Chambers v. Caulfield
was argued, at the desire of Lord EUenborough, on the general
pointy whether the mere fact of the separation betvi^een husband
and wife by deed were such an absolute renunciation of his
marital rights as precluded the husband from maintaining an
action for the seduction of his wife ; saying, that he did not
consider that case as concluded by the decision in Weeden v.
TimbrelL In this case there was a deed Cbntaining clauses,
requiring the consent of trustees to the separation, and providing
that in the event of such allowed separation, certain of the chil-
dren should live with, and be educated by, the mother, who
shonld also have access to the other children in the event of
iUons requiring the attention of a mother. But it did not appear
ik^% the wife had the consent of trustees to the separation^ and
therefore she was living apart from her husband without his
consent: and if the trustees had consented to the separation,
stin the husband had not by the terms of the deed given up all
daim to be derived from her comfort, society, and assistance.
*^ The consequence of which is," as was affirmed by Lord Ellen-
bosough, '* that the case of Weeden v. Timbrell, allowing it the
fbUest effect according to the terms, cannot be considered as
authority against the plaintiff in the present action." 6 £ast^
256. In the case of Barker v. Potts, the Chief Justice Dallas
admitted that the judgment of Lord Kenyon in Weeden v. Tim-
brell bad been sanctioned by the three most learned judges, who
then sat with him in the court of King's Bench ; that although
the propriety of that decision had been doubted, it had not been
reversed ; that, without saying what might be his decision upon
more mature deliberation, his present opinion was, that the deed
of separation did not in all cases bar the husband's right of
action for adultery ; that the legality of deeds of separation had
been disputed among the highest characters of the law, and he
wished that a more full decision should be given to the question ;
that he could not understand upon what principle of law or
reason a civil contract solemnized by a religious ceremony could
be set aside by the parties without the intervention of the courts ;
u 2
292
The weight of these opinions was duly appreciated
in the House of Lords, where the most distinguished
lawyers were unanimous in asserting the vicious na-
ture of deeds of separation, and in pronouncing the
existence of those Bills incompatible with the attain-
ment of Bills of divorce, both by themselves and by
the consequent want of the requisite verdict in the
court of King^s Bench. In the proceedings on
Esten's divorce Bill, it was shewn that the husband
had placed himself in a condition not to be entided
to the special interposition of the l^islature to re-
lieve him firom consequences which his own conduct
seemed to have facilitated, by leaving his wife under
equivocal protection, and under articles of separa-
tion. Mr. Esten had been nonsuited under the
direction of Lord Kenyon on proof of the articles
of separation between the parties : and it was ob-
served by the Lord Chancellor of the day, in answer
to the arguments of counsel ; '^ With regard to courts
of law taking cognizance of deeds of separation, we
know not of any such cognizance being in their
power, as no law can make deeds of separation
legal, or enable persons once married to get rid of
the solemn stipulations they incurred by that act;
short of a regular Bill of divorce under the sanction
of the legislature.^* After evidence had been heard,
he observed again, that the articles of separation
formed an insuperable bar to any divorce, and ren-
that as a separation had been once held a bar to an action of this
kind, it should undoubtedly weigh in considering the amount of
damages ; and that he was willing to reserve the point raisiid on
the deed of separation. Times, Dec. 19, 1822.
293
dered it the duty of the House to reject the applica-
tion, which was instantly rejected".
In the orders afterwards prepared by the Lord
Chancellor for the regulation of the House in re-
spect of Bills of divorce, it was provided, that the
husband should be subject to an examination, as
upon other points, so especially ^'whether at the
time of the adultery his wife was by deed or other-
^vise by his consent living separate and apart from
him, and released by him, as far as in him lay, from
her conjugal duty ; or whether she was at the time
of such adultery cohabiting with him, and under the
protection and authority of him as her husband'.^^
It is necessary to produce some instances of the
practice of the House under this standing order:
the exceptions^are such as confirm the force of the
rule.
In Bertelot^s divorce Bill : the petitioner had
failed of a verdict in consequence of a deed of
separation: but there was proof of a criminal inter-
course before the execution of the deed, for which d
verdict had been obtained, and the Bill was pro-
ceeding when it appeared, that by a deed of sepa-
ration the petitioner had covenanted to bring no
action, and commence no process, &c. against those
who might be implicated in the conduct of his wife.
" Woodfall's Pari. Rep. vol. xvii. p. 66.
' In the committee on the Bill for prevention of adultery Lord
Eldon proposed, that a man should not be liable to a criminal
prosecution for adultery unless the woman with whom the adul-
tery was committed was at the time living under the protection
of her husband. Ibid. vol. xxiii. p. 76.
U 3
294
Wheo this transpired, the Lords without ftirther pro-
ceeding rejected the Bill^.
In Woodcock's divorce Bill: there had been a
deed of separation, and the husband had not pro*
secuted the adulterer in the court of King's Beocb.
Lord Auckland therefore thought that tbe grounds
of this Bill were very unsatisfactory, as under the
circumstances '^ the law acknowledged no injury^
and would afford no redress. The deed of sepsra^
tion deprived the husband of the means of obtaining
any compensation for his wife's dishonour. . • . •
When by such a deed the husband had withdrswn
all protection from the wife, and had left her a pr^
to the temptation of every seducer, it was too ndudi
for him to intreat the special interposition of tbe
legislature in his favour. The consequences of such
proceeding would be most mischievous. If once
deeds of separation and pretended subsequent acts
of adultery were held a sufficient ground of divorce,
the collusion of the parties would be facilitated ; tbe
husband would turn his wife over to a friend ; and a
plea of adultery would be followed by a petition fot
divorce." .The Lord Chancellor (Eldon) would not
admit the validity of what was styled a legal sepa-
ration, without a decision of the House of Lbnds ;
and, adverting to the opinion of Lord Kenyon, that
a deed of separation " derelicted from the right of
the party to complain, as a ^voluntary abandonment
of the right and duty of matrimony," declared diat
he could not conceive how a person under such
circumstances could claim the interposition of tbe
y Woodfairs Pari. Rep. vol. xix. p. 114, 288,
295
l^islature. The grounds of separation 'm this case
were difierence of habits, expence, kc. "tbe Bill
was r^ected*. .
In Hoare^s divorce Bill: a verdict faad been
given in two actions in the King^s Bench for the
defendant, on the ground that the plaintiff had re*
ceived no injury, having voluntarily abandoned his
wife. In this case the first petition was withdrawn,
and an amended petition was presented, which was
rejected, because the House would not undertake
to revise the judgments of the courts below, and
would not depart fix>m its own usage when it might
be obtained*.
In Crowe's divorce Bill : there had been a sepa«
ration, a negligence in' the husband^ which did not
become the head of a family ; a desertion of the
wife, and a want of that good and perfectly pure
domestic character, which such claimants should
possess. The petition, after being again and again
considered, was rejected without a division^.
In Hayes's divorce Bill: although there bad been
a verdict in the King's Bench, and a divorce in the
ecclesiastical courts, yet as a deed of separation had
been signed before the institntion of proceedings, the
further consideration of the measure was suspended,
until the petitioner, who was absent on foreign
service, should be able to attend. On this occasion.
Bishop Horsley expressed his repugnance to these
private separations, holding them to be illegal and
» WoodfaU'8 Pari. Rep. vol. xxvu. p. 393, 554. • Ibid, p,
473, 492, 515. ^ Ibid. vol. xxvL p. 726, 751, 769. vol. xxviii.
p. 27, 124.
u 4
296
contrary to the general law and spirit of the marriage
institution. The Lord Chancellor also thought it
proper to inform the public, that a sentence of
divorce not bondjide obtained in the ecclesiastical
courts, was not that kind of proceeding which would
sustain the subsequent measures in that House^.
In these several instances, the existence of the
deed of separation was fatal to the petition for
divorce ; and the judgment of the House of Lords
confirmed the judgment of the court of King's
Bench. These cases were argued at a time, when
the unhappy frequency of petitions for Bills of
divorce, and the debates on the standing orders of
the House and on the Bill for the prevention of ikIuU
tery, had induoed a familiar acquaintance with the
whole doctrine of divorce ; and the decisions of the
House were conducted by the arguments and au-
thority of Lord Auckland, Bishop Horsley, and the
Chancellors Thurlow, Loughborough, and. Eldon,
sustaining the known opinions of Lord Kenyon, If
other argument were wanting, it might be found in
the cases of exception, in which the verdict in the
court of King^s Bench was dispensed with, because
it could not be obtained: 1. in Mrs. Addison's
divorce Bill, the petitioner was a woman incapable
of impleading her husband^: 9. in Woodinason's
divorce Bill, the wife of the petitioner, a French
woman, had obtained a divorce by the law of France*:
3. in Twisleton's divorce Bill, the reasons assigned
for the separation were satisfactory to the House,
« Woodfall's Pari. Rep, vol. xxri. p. 530. * Ibid. p. 1 16.
* Ibid. vol. xvii. p. 432.
297
although the fact of the separation had precluded the
remedy in the courts below ^: 4. in the case of a
naval officer whose wife had committed adultery
promiscuously, during the absence of her husband
on foreign service^: 6. a case was put by Lord
Kenyon, that the adulterer might die before the
action could be brought^.
While Bills of separation are thus fatal to the in*
terests of the husband, in precluding him from the
redress which he is tempted to seek, under the worst
of injuries, either in the court of King's Bench or in
the Houses of Parliament; the highest authority^
has been found to concur in the opinion, that these
deeds are illegal, although it may be too late to say
that the courts of Westminster ought not to entertain
them as the grounds of any proceeding, since it is
the known practice of those courts to give them a
certain degree of weight and consideration. Words
cannot more clearly express the state of legal prac-
tice. The doctrine of a separate maintenance of
man and wife was unknown to the ancient law, and it
was in the progress of a corrupt and unworthy fashion
that the innovation was admitted; that a married
woman was allowed to assume the appearance of a
single woman, and to act to all intents and purposes
in that capacity; and that it was held by the courts,
that the husband was not liable even for neces-
saries, upon a supposed principle of convenience and
justice^. The necessity of a permanent maintenance
' Woodfairs Pari Rep. vol. xvii. p. 348, 510. * Ibid. .vol.
xxvi. p. 1 16. ^5 Term Reports, 357. ^ Lord Eldon.
Pari. Rep. vol. xxvi. p. 530. •* 1 Term Reports, 5.
298
was made the condition of these decisions, and the
interposition of trustees was introduced for the sup*
port of the permanence which was required. The
case of Corbett v. Poelnitz was decided upon this
ground ; but the decision was disputed upon high
authorities, and was eventually overruled. la Lewis
V. Lee^ which was an action for goods sold, the
defendant pleaded that she was a married woman ;
to which the plaintiff replied, that before the cause
of action she was divorced by sentence of the eoole*
siastical court, was allowed a sufficient sum for her
support, and obtained credit as ^ftme sole. It was
argued for the defendant, that the sentence of the
spiritual court did not dissolve the marriage, but
merely suspended it for certain purposes, until such
time as the parties should be reconciled, and put an
end to its operation. Before the case of Marshall v«
Rutton, the old law had been sometimes broken in
upon, and efifect had been given to the contracta of
married women living apart from their husbands;
but by that case the old law was restored, and it was
solemnly decided, that ^fhne covert cannot contract
or be sued as a /(6me sole^ even though she be living
apart from her husband, with a separate maintenanoe
secured by deed. The court admitted the plea^ and
judgment was given for the defendant. In the case
of EUah V. Leigh, which was the case of a married
woman living apart from her husband during a suit
in the ecclesiastical court, with alimony allowed, and
sued as ^f&me sole. Lord Kenyon adverted to some
recent decisions, which he hesitated to confirm^ and
' In the King's Bench. Times^ Oct 39, 1824.
299
leAised to enlarge : ^« I confess that I do not think
that the courts ought to change the law, so as to
adapt It to the fashion of the times : if an alteration
in the law be necessary, recourse must be had to die
legislature for it. The case of Corbett v. Foelnitz
was indeed decided by gi^eat authority; and when «
similar question arises, perhaps it may influence my
judgment : but until such a case does arise I shall
suspend my opinion upon it. I remember a case
many years ago in Chancery, when Lord Bathurst
presided in that court, where a Bill was filed against
a woman, who was separated from her husband, and
bad separate property, to have part of this property
given up, in satisfaction of a debt contracted by her;
but the Lord Chancellor thought that this property
cimld not be touched, without having the trustees,
in whom the legal estate was vested, befofe the
court ; and the case stood over to make the trustees
parties to the suit. In Corbett v. Foelnitz, Lady
P^rcy^s property was vested in trustees ; but as
those trustees were not before the court, I do not
know how that property could be got at. But
without touching that authority, it is sufficient to
say, that this case is very different from that ; for
here the defendant had no permanent fuiid : and as
this is an attempt to extend the doctrine of that
case, I am clearly of opinion, that the present action
cannot be maintained ".^^ The more decided opinion
of Lord Kenyon was demanded in the case of Mar-
shall V. Button, which was twice argued before the
judges ; and this judgment, which has been already
in
5 Term Reports, 682.
300
recited, was delivered by him, reversing the former
decisions, and establishing, that a married woman
cannot be sued as a single woman. Cases have
also occurred, in which the court has discharged
*'a married woman, on filing common bail, who
was sued for goods sold and delivered to her by
the plaintiff, knowing at the time that she was a
married woman, though living apart from her hus-
band, with a separate maintenance:'^ and Lord
Ellenborough ^^ saw no objection to relieving her in
this summary way, the plaintiff having dealt with
her, knowing her to be a married woman '^Z'
There are nevertheless many cases, in which the
authority of these deeds has been recognized and
approved. Thus in Lister's case, ^^ where a husband
and wife had agreed to live separate, and she was to
be allowed a separate maintenance; and the hus-
band pretending, as it is said, a desire to be recon*
ciled to her, which she refused, forcibly took her
into his custody: the court so far recognized this
species of contract, that they set her at liberty,
saying, that the agreement should bind them both,
till both agreed to cohabit together again. This was
again recognized in Mary Mead's case, where the
court held such an agreement to be a formal renunci-
ation by the husband of his marital right to force his
wife to live with him. So in Seeling v. Crawley,
an agreement for separation, upon certain terms to be
performed by the husband and the father of the wife,
was decreed by the court of Chancery to be exe*
cuted on a Bill by the father against the husband.
' 7 East, 582.
301
The like was done in Afigier v. Angier, and Guth v.
Guth, upon Bills respectively filed against the hiis*
blind by the wife, ifbr a performance of articles of
separation**." So in Lord Rodney v. Chambers, it
wiais settled, that ^' a covenant by a husband, to pay
to trustees a certain annual sum by way of separate
maintenance for his wife, in case of their future se*
paration, with the consent of such trustees or their
executors, was valid in law?." The same doctrine,
with some immaterial distinctions, was held in Jee v.
Thurlow, in the pleadings upon which it was also
argued, that " in Worrall v. Jacob, Sir W. Grant,
then Master of the Rolls, treated it as settled law
that such deeds were valid : and in Stuart v. Kirk-
wall, effect was given to such an arrangement ; for it
was there held, that a married woman, separated
from her husband and having a separate maintenance,
might render that liable by accepting a bill of ex-
change^."
These various decisions of the courts have left
room for the pleader to argue that some of these
cases proceeded on very dubious grounds ; that many
of them were decided in the court of Chancery,
which on many occasions exercises an equitable
jurisdiction in family arrangements ; that no action
of law could have been maintained on the agree-
ments for want of a legal consideration ; that in all
probability, if the question were now to arise for the
first time, it would undergo a very different con-
sideration ; that it is contrary to the policy of the
"" 2 East, 288. p Ibid. ' <> 2 Barnewall and Cresswell,
R. 549.
302
law and to good manners to enter into m cootnict
which hat a direct tendency to loosen the bond of
union between husband and wife, and to facilitaM
their separation ; and that the public evil of such
separation is greater or less in proportion to the
illegality or immorality of the cause which produces
it, upon which the ecclesiastical courts alone are
competent to decided This is the argument of the
Bar ; and it coincides with the hypothetical insinu*
ations delivered from the Bench : by Lord Eldon ;
^^ If this were res integra^ untouched by dictum or
decision, I would not have permitted such a cove-
nant to be the foundation of an action or a suit in
this court. But if dicta have followed dicta, or
decision has followed decision, to the extent of
settling the law, I cannot, upon any doubt of mine
as to what ought originally to have been the dedsion,
shake what is the settled law upon the subject'/'-—
By Lord Ellenborough : '^ The question which has
been agitated appears to have been laid at rest for a
long period by repeated decisions and the uniform
practice of the courts. If it were now a new ques*
tion, whether any contract could by law be made
which tended to facilitate the separation of husband
and wife, I should have thought that it would have
fallen in better with the general policy of the law to
have prohibited any such contract: but th^ are
now become inveterate in the law^^'— By Mr.
Justice Grose : ^' However we may lament the
practice which is established, it is impossible for us
' 2 East, 291. • St. Jc^n v. St. John, cited 2 Barnewall,
and Cresswell, 55 1 . * 2 East, 293.
303
at this day to say, that agreemeAts for sepamte
maiotenance are not considered valid both in law
and equity. The case of Grawden v. Draper was a
decision in a court of law which establishes the
general proposition for which it was cited ; for
unless the agreement there declared on were valid^
the plaintiff could not have had judgment. And it
is too much for us to say, that the court were in-
attentive, and did not know what they were decid-
ing. Such agreements having been acted upon both
in courts of law and equity, we cannot now disturb
those decisions ".•• — By Chief Justice Abbot : " For
a long series of years all the judges, Mrhen called
upon to pronounce judgment in such cases, have
felt themselves bound by former decisions, although
each of them in his turn has said, that his (pinion
would probably have been different, had the ques*
tion been res Integra. . • . That opinion (the opinion
of Lord Eldon before recited) is a fit guide for us.
Ought not we to say, that if a new decision is to
overturn alt the former cases on this question, it
must be the decision of that high tribunal which is
competent to give the law to all other tribunals, and
rectify their errors, when called upon to review
them''.'* — By Justice Bayley: "As to the general
question, I am of opinion, that as it has for so long
a period of time been the system of jurisprudence to
hold such deeds valid, it is not for this court to
entertain the question which has been proposed.
If any alteration is to be made in the law as now
understood, it must be by a decision of the House
" 2 East, 295. "^ 2 Barnewall and CresBwell, 551.
304
of Lords, or an Act of the legislature^.** — By Justice
Best : '* Whatever opinions judges may have enter-
tained as to the policy or impolicy of such contracts
as this, it would be a strong measure for us on the
mere ground of policy to overthrow former decisioDS,
when Lord Eldon, sitting in the House of Lords,
did not feel himself strong enough to do so'/'— -
Chief Justice Dallas is also reported to have said,
that ^' the legality of deeds of separation had for the
last fifty years been the subject of doubt and dispute
among the highest characters in the law, without;
until very lately, receiving any regular decision. He
himself would wish that a more full and final dectsioii'
should be given to the question ; for he could not
see upon what principle of law or reason a civil
contract of marriage, solemnized by a religious c^^
mony, was to be set aside by the parties, each
barring the other of the right acquired by the first
contract, without the intervention of any court, and
in fact, so taking, by their own act as it were, the
jurisdiction of interfering in their case out of all the
courtsV
The doubts acknowledged from the Bench, tbe
arguments delivered at the Bar, and the variable and
conflicting decisions of the Courts, are sufficient to
justify the conclusion, that deeds of separation are
illegal, notwithstanding the weight and consideratioo
which they have received : their validity rests on tbe
mere practice, not on any settled principle, of law*
The courts are at present bound by a certain success
y Barnewall and Cresswell, 552. > Ibid. 554. * Timei,
Dec. 19, 1824.
305
ston of precedent which it wilt require Hiq moral
energy of another Lord Kenyon'to overthrow^ but
which may not be able to withstand the dear and
solid arguments which in a case of high interest and
importance may be produced before a competent
tribunal*
. It is an opinion which derives its chief weight
(rom the high character of the judge^ to whom it
has been (it may be very unjustly) ascribed, that
there are. cases in which it may be desirable . td
induce a mother to leave the house and accept a
separate maintenance to prevent her example from
injuring her children ; and unhappy circumstances
may arise, in which it will be better for all parties
that a-separation should be effected. Cases unhap^
pily arise in the experience of every day which sug«
gest the hypothesis, but will they justify the conr
elusion? To what extent is the doctrine to be
carried ? Is it with the usual partiality of the law
to be restricted in its application to the wife, and is
the husband to be exempted ? Is it to be another of
the evil and unhappy privileges in respect of matri*
mony which the rich and great are to possess, but
to which the poor^ are justly and wisely, but not
without the excitement of invidious feelings, for*
bidden to aspire ? Or is it to be offered indiscri*
minately to all ranks of the community, so that
every man who takes offence at his matrimonial
^ Mr. Justice Bayley : Times, Jan. 28, 1 824.
^ The Lord Chancellor mentioned a case, which had fallen
tinder his own cognizance, of a servant, who, in a deed of sepa-
ration, had made a settlement upon his wife, increasing according
to his wages. Woodfall's ParU Rep. yoI. xxvii. p. 654.
VOL. II. X
306
oooditioD, who tfiinks fit to auspect the purity of
his wife, and to be apprdieosiw of ^ eBBtot of her
doBiestio example, abaU be flee to lix tiie tema
upon which he may revoke the contract which he
has formed }
It is a fearftil question, but let it be proposed ill
its largest and most unlimited extent : Is there any
moml or political necessity which can justify the
separation of a husband and a wife ? Are there any
benefits which the individual may hope to obtain
which can preponderate over the mischief fixHn
which the public cannot escape ? ^* If a married
pair in actual and irreconcileable discord complain
that their happiness would be better consulted by
pennitting them to determine a connexion which is
become odious to both, it may be told them, tbieU
the same permission, as a general rule, would prcv
duce libertinism, dissension, and misery aincMigsl
thousands who are now virtuous, and quiet, and
happy in their condition ; and it ought to satisfy
them to reflect, diat when their happiness is sacri*
ficed to the authority of an unrelenting rule, it k
sacrificed to the happiness of the community'^.^'
The law of the land, operating in the ecclesiastical
courts, has limited the grounds of separation- to
cruelty and adultery: even these may be abusedj
and a husband who wishes to be separated fiom his
wife may provoke her by ill-treatment and infiddity
to seek the redress of which he desires to avail him-
self. The great security of matrimonial happiness
is founded in the conviction that the condition oC
^ Paley'g Mor. Philos. b. iii. pt. 3. t. 7.
307
imrrMge is indiesotuble ; and in Ibis condrtion the
|INNli€» will for their o>trn peace gfadnaUy conform
their iocliiiatioiis, and the coalition of minda and
tempers will be confirmed br the mtoral mfluence
of common ebiidren*, and the feeling of a common
interest in them and in each other. If marriao[e
shall ever be reduced from the high groiHid of a
divine institution to the condition of a merely civil
contract, which the parties shall have power to dis^
solve at their own pleasure and discretion, the ma*
tiial forbearance and submission which are the great
means of conjugal repose are at an end : when the
object which ted to the union of hands is disap-
pointed or attained, tkieve will be no more motive for
die union of hearts ; there will be no more fear of
the first offence or its aggravations ; there will be no
more disposition to reciprocal and perpetoal con-^
ciliation ; the momentary passion will be succeeded
by unrestrained indiflfi^rence ; indiflference will termi-
nate in aversion ; and each will hurry to the remedy
of separation, in which each anticipates the recovery
of peace. Under the law of revohitionary France,
which permitted an arbitrary right of divorce, there
were twenty thousand divorces in six r>r seven years.
Even under the existing law, the occasional listless-
ness of wedded life, the want of even marked and
studied attention, is but too often made a ground of
irritation and ofibnce : and the progress of domestic
discontent and of its several aggravations, until it is
concluded in a private act of separation, has been
drawn by the hand of a master^, and with a faithful-
* Sir William Scott : judgement in Evans v. Evans. Gent
Mag. vol. xcv. pt. 1. p. 518.
X 2
308
ne9s whidi will be but too generally and too deeply
felt : '^ Two persons marry together with something
of warmth and sensibility in each of their tempers.
The husband is occasionally inattentive; the wife
has a vivacity which sometimes displeases, some-
times offends, and sometimes is offended. Some-
thing like unkindness is produced and is then easily
inflamed. The lady broods over petty resentments,
which are anxiously fed by the busy whispers of
humble confidants. Her complaints, aggravated by
their reports, are carried to her relations, and me^
with something like facility of reception from their,
honest but well-intentioned minds— a state of mutual,
irritation increases — somewhat like incivility is con-^
tinually practising, and, where it is not practised, it
is continually suspected— every word, every act,-
every look, has a meaning attached to it— it be-^
comes a contest of spirit in form between two per-
sons eager to take, and not absolutely backward to
give, mutual offence. At last the husband breaks,
up the family connexion, and breaks it up with cir«
cumstances sufficiently expressive of disgust: treaties,
are attempted, and they miscarry, as they might be
expected to do in the hands of persons strongly
disaffected to each other. A libel is given in, black
with criminating matter. Recrimination comes from>
the other side. Accusations rain heavy on all sides,
till all is involved in gloom, and the parties lose,
sight of each other's real characters, and the truth of
every one fact is involved in the cause.''
The principal causes alleged for private separations
are bad example, which it is expedient to remove, a
habit of* ruinous expence, and difference of temper.
309
The inadequacy of these motives will appear on the
most cursory review of their extent and application. >
. The danger of a bad example may be found on
either side : but is the wife to have the privilege of
putting away her husband, that his example may
not corrupt her children, or is this discretionary
licence to be conferred only upon the husband,
although his example may be equally immoral with
that of the woman ? In the lowest class of life, and
in the degraded and dependent condition of the
poor, the licence will not be granted at all : in the
higher classes there are many remedial measures
by which the evil influence may be prevented, and
the children may in a certain degree be removed
from its dangerous effects. It is said, in a ceriaim
degree, because, if the bad example is exhibited at
all, it will have, and cannot be prevented from hav-
ing, a pernicious operation. The possibility how-
ever that the example may contaminate the children^
will of itself impose a powerful restraint upon any
mind not bereft of feeling : and the knowledge that
the contagion of the examplp may be removed will
only Weaken the emotions of sensibility and shame.
But there is^a plea of extravagance, and of a
ruinous want of economy, which the fortune of the
husband cannot sustain : and is there no profusion
in the man ? Is the wife upon this plea to separate
herself from an extravagant husband ? And is it not
in the power of the husband to regulate the expences
of his own household ? The plea defeats itself by
proving too little, and admitting too much ; it pro*
ceeds on the incompetence of the husband to manage
his own affairs, and gives to the c^^^) ^^^ -cannot
X 3
310
coDtrol the housekeeper, a power to judge and duk
charge the wife.
But it 18 said) that the parties cannot agree ; and
it is asked, Is not separation better than strife ? The
parties should have consulted their tempers before
iheir marriage, and after their marriage they shoukl
study to acquiesce in the wills of each other ; and
that acquiescence will be effected by necessity, and
be counteracted by the possibility of relief: there
are no circumstances, under which the most irrecoiw
cileable difference of temper can supersede the law
and institution of God, or dispense with a solemn
oath and engagement, in which there is no reserv*
ation concerniog the temper* It was a wise and
just judgment in a case, in which much stress was
laid on the wretched state of disaffection, in which
tlie parties were living, and in which they would
probably continue to live, unless they were relieved
by a sentence of divorce. To this the learned judge'
replied : '^ The humanity of the court has been loudly
and repeatedly invoked. Humanity is the second
virtue of courts: but undoubtedly the first is justice.
If the present were a question of humanity simply,
and confined its views to the present parties, it
would be easily decided on 6r8t impressions. Eveipy
body must feei a wish to sever those who wish to
live separate from each other, and who cannot live
together with any harmony: but the law has said
that married persons shall not be separated upon the
mere disinclination of one or both to cohabit toge-
ther. The disinclination must be founded upon
' Sir W. Scott : Tebbs, p. 23 1 .
311
reasoDfi which the law approves. To vindicate the
policy of the ktw is no necessary part of the duty of
a judge : but it would not be difficult to shew that
the law in this ^^spect has acted with its usual
wisdom and humanity ; with that true wisdom and
real humanity whid) regard the general interests of
mankind. For thou]^ in particular cases the re*»
pugnance of the law to dissolve the obligations of
matrimonial cohabitation may operate with great
severity upon individuals, yet it must be remem*-
bered, that the general happiness of the married life
is secured by its indissolubility. When people un*
derstand that they must live together, except for
a very few reasons known to the law, they learn to
soften^ by mutual accommodation, that yoke which
they know they cannot shake off; they become
good husbands and good wives from the necessity of
remaining husbands and wives; for necessity is a
powerful master in teaching the duties it imposes.
If it were once itnderstood that upon mutual disgust
persons might be legally separated, many persons,
who now pass through the world with mutual com-
fort, with attention to their common offspring, and
to the moral order of society, might at this moment
have been living in a state of mutual unkindness, of
estrangement from their children, and of unrestrained
and licentious immorality. The happiness of some
must then be sacrificed to the general good.^^
The English Church has affirmed the perpetuity
6f marriage : the English law has shewn np favour or
countenance to private acts of separation ; and the
sound feelings of the great body of the people have
concurred in approving the wisdom of their public
;}i
.>
institutioDS. It is Dot easy to conceive the effectfli
which would follow any alteration of the law, or the
temptations to licentiousness which would ensue»
and of which not the shadow of the shade has trans-
pired in the judged cases of adultery committed in a
state of separation. While the native eneigy of bi».
character is such as cannot degenerate into uxorious*
ncss, the love of hotne, which is peculiar to the
Englishman, will lead him to restrict the occasions
of separations^ by a rule of duty and necessity, to
obey the calls of civil office, military enterprize, and
commercial speculation, with his thoughts and desires
directed homewards, and with an anxiety to return
to the bosom of his family with renovated pleasure
and delight. The criminal desertion is that whicb
leads a man to seek his pleasures apart from his
family, and gradually introduces that malicious*' d^
sertion, as it has been called, in which a man, with*
out any just or honourable motive, unfaithful, ca-^
pricious, or impatient of the yoke of marriage, quits
his wife and family, and unmindful of public and
private admonition abandons all care of her, and as
far as in him lies dissolves the bond of matrimony.
* Doctores juris civilis distinguunt inter absentiam oecesaariaBi
seu probabilem et yoluntariam* Priorem subdividunt in qnatnar
species. Alia enim est necessaria, simul et probabilis, ut quands
quis reipublicsB caus^ abest ; alia [urobabilis tantum sed non ne*
cessaria, at quando quis studiorum grati& abit ; alia necestaiia
sed non probabilis, ut quando in exsilio et vago metu aberrat;
alia quidem voluntaria sed sine contumaciam ut quando mercatune
excrcendse aut nogotii expediendi causa peregre quis proficiicitor.
(ierhord de Conjug. s. 626.
^ Gerhard, s. 025, 626.
313
Such malicious desertion is made in the Lutheran
Church (and in Scotland, and was proposed in the
Reformatio Legum to be made in England also) a
ground of divorce^ with licence to marry again, prin-
cipally on the authority of one of those perversions
of Scripture which are but too comtnon in the
modern laws of marriage and divorce. The unbe-
liever, whose case is specifically argued by the apo-
stle, is interpreted' generally of any person unfaithful
to his vows: and because the apostle did not insist
CD the cohabitation of the faithful or Christian with
the unfeithful or alien, the modern doctrine has per-
mitted the separation of those who are faithful firom
tjiose who are not feithfiil, in a totally different sense,
adding what ^e apostle did not add, the licence of a
second marriage. Such is the danger of overlooking
the scope and purpose of the apostle's aigument,
and such the facility of enlarging the occasions of
divorce, and of eluding the restrictions imposed by
our Lord and his apostle.
What aiguments maybe alleged in fovour of deeds
of separation it is not necessary to enquire: it is no
common reasoning which will disprove the 1^1,
moral, and religious objections to their validity : they
are justified by no necessity ; they are sustained by
no principle of law; they preclude the redress of
injuries ; they are contrary to the solemn covenant
of marriage ; they are proscribed by the law of Christ
and liis apostle ; and subversive of the great end
proposed by the wisdom of God in the institution of
marriage, the help and comfort of the parties, and
the religious instruction of the children.
■ Gorbard, >. 624.
CHAPTER VIL
PRACTICAL RESULTS OF THE ADMISSION OF
MARRIAGE TO BE A MERELY CIVIL CON-
TRACT,
The principle, which it has been attempted to
establish, that marriage is not merely a civil contract,
and the views which have been exhibited of the
practical expedience of adhering to this principlei
may be confirmed by a brief review of the disonder
and instability which are found to prevail in marriage^
wherever that relation is held to be a civil contract
and nothing more^
In this review there is no occasion to take advan-
tage of extreme cases ; and it is not therefore desir-
able to insist on the authority of Beza% who was
amazed at the wonderful artifice of the great deceiver
of mankind, in suggesting, that whatever is bound
by the mutual consent of parties, may like other
contracts be dissolved by their mutual consent. The
facilities of divorce under the merely civil contract
are admitted by Paley.
It was a similar principle which possessed the
mind of Milton. He denied that there was ''any
shadow of reason'^ or <' even the feeble semblance of
presumption derived from the Levitical law, for
assigning to the ministers of the Church the cele-
bration of marriages;'^ and maintaining that conjugal
* De Repudiis et Dirortijs.
315
love was the prime end and form of the institution
of marxiage, he inferred, that '* the perpetual intor-
ruption of peace and affection by mutual difierences
and unkindness, must be a sufficient reason for
granting the liberty of divorce ^.^^ He held also that
'V indisposition, un6tnesse, or contrariety of mind
arising from a cause in nature unchangeable, hindring
and ever likely to binder the main benefits of con*
jugal society, which are solace and peace, are a gr^t
neason of divorce^/^ Some of the grounds on which
be supported these opinions are at least worthy of
the superstructure. Christ hath said that ^^ the
sabbath was made for man ; and I ask what was
more made foreman than marriage: and as he dis-
pensed with the law of the one, so would i with the
law of the other : I want not pall or mitre^ yet in
the firm feith of a knowing Christian, which is the
best and truest endowment of the keys, I pronounce
the man who so binds the ordinance of marriage not
to have the Spirit of Christ^/' Thus, without deny*
ing the divine institution of marriage, he would have
superseded its religious solemnization, and have ex-
tended the licence of divorce. His practical exposi-
tion of these principles is well known. His wife
left him, and neglected his invitations to return ; and
he resolved to repudiate her for disobedience, and
justified his inclination by argument in various pub-
lications, and proceeded to offer his addresses to
another woman, but was eventually reconciled to
his wife*.
^ Treatise on the Chrktian Doctrine. * Doctrine and
Discipline of Divorce. * Tetrachordon. * Johnson's
Life of Milton.
316
It does not appear that much was written against
him, or any thing by any writer of eminence. His
doctrine was indeed denounced as one of '* many
horrid and prodigious opinions/^ one of those ^^ stu-
pendous errors/^ which Satan had been ^^ the grand
agent in propagating with all his power and policie/^
and which the ministers of Christ in that day were
confident that they might, '^ without the least breach
of charity to any the authors, fautours, or abettours.
of them, utterly loath, execrate, and abhorre'/' But
whether the strange doctrine was otherwise treated
with contempt, and thought more worthy of derision
than confutation ; whether, when he was summoned
before the Lords, his doctrine was approved, or his
accusers not favouied, and he was therefore dis-
missed % the silence of his advocates and his adver-
saries is the more remarkable, in the prevailing
unsettledness of religious opinion, and especially as
the Commonwealth were about to supersede tlie
religious celebration of marriage, and to degrade it
to a civil contract, attested before a civil magistrate.
It would seem that republics have been prone to
degrade the sacred character of marriage. The Na-
tional Assembly of France, in the Constitution of
1 79 1 > decreed, that the law considered marriage only
as a civil contract ; and it appears from the Moni-
teurs of 17979 ^at in the interval of the six or seven
following years there were twenty thousand divorces.
' Testimony to the Truth of Jesus Christ against the einmn,
heresies, and blasphemies of these times, subscribed by the
Ministers of Christ within the Province of London, Dec. 14, Sec*
1647.
^ Johnson's Life of Milton.
317
^^ Before the Revolution the form of marriage in
that country was of a mixed nature^ so that it was
doubted whether the essence of mairriage consisted
in the civil contract, or in the sacrament or religious
solemnization ; for the marriage law of France was
derived from the ancient dmon law, and agreeably to
the independence of the Gallican Church, from the
provincial councils of the kingdom, subject to the
civil regulation of the monarch. The substitution of
the civil magistrate for the ecclesiastic constitutes the
principal difference between the rules laid down by
the Ancien Regime and the Code Civil. • • •
" According to the civil code of France, it seems
that a domicil of six months is a necessary qualifi-
cation for marriage, after which the municipal officer
of the commune of the domicil, at the door of the
hall of the commune, publishes the names, domicile
and age of the parties intending to marry, and the
name and domicil of their parents. After the pub*
lication a public act is drawn up, setting forth the
description of the parties, and the day, tinde, and
place, of the publication, a copy of which remains
affixed on the door of the hall of the commune, until
the end of eight successive days, when the publica-
tion is to be repeated with the same formalitito.
^< After the lapse of three complete days from the
last publication, the marriage is celebrated on .a day
appointed by the parties, at the hall of the com-
mune, by the municipal officer of the domicil of one
of the parties, in the presence of four witnesses.
The officer, after having addressed the parties on the
subject of their relative duties, receives theijr separate
declaration, that they take each other for husband
318
aad ¥nfe^ and then '^ in the name of the Law'^ prc^
Doanoes tbem to be united m laarrrage, umd an act
is immerKateiy drawn up and recorded^
*^ According to the law of France it is only M
virtue of iMs act that the rights belonging to mar'^
riage can be maintained in that country: so tbat,
like the Marriage Act of England, the r^y[htions at
France, as to the form of marriage, are not merely
directory, but prohibitory also ; admitting no mar-
riage to be valid which has been contracted within
the territory according to any other form than thai
prescribed by the civil code of the kingdom''/'
The law, which substitutes the civil for the eccle-
siastical officer in the contract of marriage, has alsd
made provision for divorce and the dissotution- of
marriage before the civil tribunals, and authorized
the forms for the revocation as it were of the civil
enf^^gement. By the Code Civile marriage is dis^
solved by death ; for adultery by the wife, and by
the husband also, if he retains the adulteress in hii^
bouse; for txces^ cruelty, or grievous injury of
cither to the other; upon sentence of either to an
iniamous punishment, or a punishment implying
civil death ; and upon the mutual consent of the
parties in the manner prescribed by law ; and upoo
exhibition of proof of the incompatibility of their
tempers, which renders them incapable of living
together, and forms a peremptory ground of di-*
vorce^ Preliminary to the divorce is required evi^
dence of the age of the parties ; of a certain interval
** Pointer's Doctrine and Practice of the Eccl. Courts^ c. xri.
^ Code Ciwl, art. 217.233.
319
After the marriage ; of the age of the ^voman at the
time^ which the natiooal gallantry very fNroperlj
requires to be less than fortjr^-five years ; and df th«
eonaent of the parents as in the contract of marriage^
and a statement in writing of the residence of the
issue and of the wife during the proceedings, and of
the sum proposed by the husband for the main^
lenance of the wife during the trial'; together with
an inventory and valuation of their respective rights
and propertiies. Upon compliance with these con^
ditions the parties may present themselves in person^
and in presence of two notaries declare their will
before the civil tribunsd of the department, and the
judge shall address them separately and together,
and offer to them such exhortations and tepfesenta-^
tions a& he shali judge convenient, and as may com
tribute to their reconciliation, and shall read: in their
presence the law of divorce, and apprize them of
all the consequences of their proceeding. If thejr
nevertheless persist in tiieir intention, tile re^on^ for
which they desire to be divorced and their nnituat
consent shall be regiistered, and they shall be required
to deposit with the notaries, in addition to the pre-
liminary certificates, registers of their own- birth and
BMirriage, and of the birth and decease of dieir issue,
together with an authenticated declaration of the
consent of their parents. A minute of these pro-
ceedings shall be drawn up^ to which shall be an-
nexed a notice to the woman to retire, and of the
place appointed for her retirement, till the divorce
shall be concluded. The declaration shall be re-
newed at certain intervals, with proof of the adher-
ence of the parties to their first agreement. At the
320
expiration of a year and fifteen days from the.fiiA
declaration, the parties, accompanied by their fmnds
and the principal persons of the district, shall appear
before the judge, and require of him in the presence
of each other a sentence of divorce. On the registry
of this requisition the registrar shall draw up a
minute, which shall be signed by the several parties,
at the foot of which the judge shall notify that a
report shall be made to him from the chamber of
council on the matters communicated by the re-
gistrar. If the public minister shall find that the
preliminaries required by law have been fully proved,
he shall conclude the proceedings with the words
La loi permet; and shall admit the divorce, and
send the parties before the officer de Petat civile
that it may be published. If the preliminaries shall
not be proved, he shall pronounce La loi empeche;
declaring that he has no power to admit the divorce,
and assigning the reasons of his decision. The
decree awarding the divorce shall be in force for
twenty days, within which the parties shall present
themselves before the proper officer, and cause it to
be published. In case of delay, the judgment is
void^. It is necessary to observe, that this law of
divorce was abolished, and the law of separation' sub-
stituted, on the restoration of the l^itimate dynasty
in 1816.
The Batavian republic, which regulated the pro-
ceedings of the Calvinistic Church at the Cape of
Good Hope, held marriage to be a civil contract.
^ Code Civil, art. 275—294. Compare Code de Procedure,
art. 875—881.
321
wliich nothing was required to legalize beside the
forms of the matrimonial court, before which the
parties were required to appear, and to answer cer-
tain interrogatories, without which there could be
neither publication of banns, nor licence, issuing
from the secretary's office, dispensing with the pub-
lication. In this office all marriages contracted at
the Capfe are registered, and from this office only
can be obtained a legal copy of the registry. There
is no difficulty in dissolving a marriage which is
thus easily contracted. If the parties after an in-
terval shall plead before the court of justice that
their tempers and dispositions are so opposite as to
imbitter their lives, and that continued cohabitation
must be attended by the most serious consequences,
and therefore they intreat to be separated from bed
and board and the community of property, the court,
on the report of the commissioner, to whom the
memorial is referred, whether for amicable arrange-
ment or for investigation, shall, on the consideration
of the premises, decree the separation required ; af-
firming the private arrangement made between the
parties for the maintenance of the issue of the mar-
riage; rendering each person responsible for the
debts which he or she may contract ; and refusing
the cognizance of the court to any transaction upon
account of the joint estate'.
"In Connecticut and Rhode Island, by the law
of these states of civilized North America, six weeks*
absence is a sufficient ground of divorce. Instances
too are not unfrequent of husbands going from the
' State of the Cape of Good Hope in 1822, c. ii. s. 6. '
VOL. II. Y
322
Deigbbouring state of New York into one or other
of these, and after a residence of six weeks inUmatiog
to their wives by public advertisement that they
require their presence and society ; and on the non-
appearance of the wife obtaining a divorce, and
returning to New York, loosed of their matrimonial
engagements™,^'
This must be the climax of the facility of divorce,
and of the dissolution of the matrimonial engage-
ments, founded on a merely civil contract. But it
is not necessary to cross the ocean in proof of the
uncertainty of this principle. Scotland, in which
marriage is generally supposed to be a civil contract
and nothing more, may exhibit all the proof which
is required, in respect both of the conti^t and the
dissolution of marriage.
^' The law of Scotland admits the validity of
marriage contracted according to any form between
any persons of marriageable age, and in any pliice,
and without witnesses, provided there is sufficient
evidence to substantiate the fact, that the parties
have taken each other for husband and wife; and
even a mutual promise of future marriage, followed
by cohabitation, is there held to be a contract com-
plete and valid"/'
^^ In the law of Scotland marriage is considered
as an ordinary civil contract, which is completed by
the interposition of the consent of parties, provided
this take place unequivocally, seriously, and deli-
berately, and with a genuine purpose immediately
to establish the relation of husband and wife, and
" Fergu88on*8 Reports, p. 284. " Poynter, c. xvi.
323
not to engage only or betroth themselves to marry
at some future time. A marriage may thus be
efiectually made in Scotland without the form of
celebration by a clergyman, and without the use of
any precise ceremony or solemnity even of a civil
nature, and in any way wherein the explicit and
mature consent of parties is gravely exchanged.
With respect to the evidence of the proper matri-
monial consent having passed between the parties,
the practice of the law of Scotland is not limited by
strict or scrupulous rules, but allows the fact to be
vouched or inferred in sundry modes of evidence ;
by public cohabitation under the character, or, as it
is termed, the habit and repute of man and wife ; by
writings of mutual acceptance, as spouses de proe^
senii; by mutual written declarations or acknow-
ledgments of marriage ; by a series of letters, such
as in their contents and mode of address and sub-
scription either express or virtually imply an ac-»
knowledgment of marriage; by verbal declaration
also before a magistrate, or made on some suitable
and serious occasion before creditable witnesses called
by the parties for that purpose'. Whether the writ-
ings executed by the parties are in the form of
"* In the case of M*Adam against Walker : Elizabeth Walker
had cohabited with Mr. M'Adam, and borae him two children.
In the presence of several of his servants^ whom he called into
the room for the purpose of witnessing the transaction, he desired
Elizabeth Walker to stand up, and give him her hand, and she
having done so, he said, This is my lawful wife, and these are
my lawful children. On the same day he committed suicide.
The court held the children to be legitimate.
Y 2
324
iDHtual and present acceptance of each other as
spouses, or in that of a declaration of marriage as
already made, is no wise material; for still such
writings are evidence under the hand of parties, and
to each against the other, that the just matrimonial
consent has passed between them in substance,
though not in form ; the voluntary execution of
such declarations is a virtual consent, as at that
date, to stand in the relation of married persons.
More especially, r^rd is paid to declarations or
acknowledgments of marriage, oral or written, when
it appears that they have been followed with, or
accompanied by, the parties' carnal knowledge of
each other ; not that such intercourse is regarded as
the seal or accomplishment of the contract, or in-
dispensable to its validity, but as a material ingre-
dient of evidence to shew that it was meant and
understood between the parties that they were ac-
tually man and wife from that time, and not engaged
or under promise only. It is however carefully to
be observed, with respect to all these several modes
of evidence, whether oral or written, that they are
liable to be controlled and expounded by other writ-
ings, if such there be, of a contrary import, which
have passed between the parties, or by facts and
circumstances of a different tendency in the after
conduct and proceedings of parties; whereby it be-
comes necessary for the judge to take a complex
view of the whole case, and to determine on the
whole series of evidence and circumstances, whether
by the writings and acknowledgments which passed
between the parties they did or did not truly intend
325
to become man and wife, and did or did not consider
themselves as being in that relation to each other^/'
The validity of the consent per verba de fuiuro
appears to depend entirely upon the topula, which
may either follow or precede the marriage, and by
which it obtains the force of consent per verba de
prceseniif and without which the parties are at liberty
to resile or forfeit their engagement, with liability
however to an action for damages, for expences in-
curred in consequence of the previous stipulation^.
The chief difference between the promise per verba
de prcesenti and the promise j9er verba de fuiuro is
the necessity in the latter case of establishing the
marriage by legal evidence, if either of the parties
denies its existence. The state of the woman in the
interval between the promise and the consummation,
and the address to which she must submit for the
accomplishment of her purpose, especially if the man
is desirous of evading the promise which it is her
wish and interest to fulfil, is not very consistent with
the modesty and delicacy of the sex. It is an inver-
sion of the principle, consensus non concubiius flacit
matrimoniumy and is a renewal of the most degraded
and degrading form of Roman marriage.
Marriage by the law of Scotland is considered
merely a civil contract, requiring only the deliberate
consent of both parties for its completion ; so that
it is sufficient for obtaining a decree in the courts of
that country, that the parties have at any time and
any place expressed their deliberate consent per
p Dodson's Report of Sir W. Scott's judgment in Dalrymple ▼.
Dalrymple, Appendix, p. Ixxvii. Dep. of David Hume, Esq.
'I Dodson, p. xxiXf xxxii.
Y 3
326
verba de prassenii to be married. It is not iiece»^
sary that the coosent should be delivered before
witnesses either public or private: it may be suffi*
ciently attested by writings which are not and need
not to be of public record ; and of which the exist«
ence may be proved upon the oath of either of the
parties, on the principle that it shall nol be in the
power of the one to rescind the engagement, by 8up«
pressing or destroying the evidence. It is only
necessary that the consent be made reciprocally, by
both parties, with a mutual understanding and in-
tention of contracting matrimony. When the con-
sent is thus mutually made, it cannot be vitiated by
the conduct of either party; and it is of no avail, if
the writings containing the consent are suppressed
or destroyed. So far is this principle of mutual
consent carried, that though the marriage which it
affirms cannot be dissolved, proof may nevertheless
be exhibited of a secret understanding between the
parties, that they did not mean to contract marriage;
and ^' their mutual declarations may be counteracted
by other writings of a contrary tendency, or by acts
and deeds of the parties, affording real evidence to
the contrary, and in all these cases the declarations
of the parties must be taken, with all the attendant
circumstances ; and if there is reason to conclude,
from the expressions used by them, that both or
either of the parties did not understand that they
were truly man and wife, or that the declarations
were intended for a particular purpose, and not with
a view of constituting the irrevocable union of mar-
riage ; all this will enter into the question, whether
the parties are married, or only under an obligation
327
to marry. But it is almost impossible to say a
priori^ in what manner and to what extent in all
circumstances these qualifications or limitations are
to operate^:" and it must be admitted that Scottish
marriages ^*are often of so loose and singular a
nature, as to render it frequently a matter of diffi-
culty for the courts to determine whether there has
been a marriage or not'/^ The law may presume
that the parties, having formed a connexion of which
tiie object was marriage, would not proceed to con-
summate unless with the same view ; but this pre*
sumption cannot be said to he prcesumpiio Juris et de
jnre^ because it may under certain circumstances be
obviated by contrary evidence : e. g. if the man and
woman were, previously to the copula, to inter-
change written declarations of their having deter-
mined not to marry each other*/^ Even if % man
should attempt a second marriage, to which the wife
should make no objection, although her taciturnity
and apparent acquiescence in his designs, her negli-
' Dodson, p. xliii. Dep. of Rob. Craigie, Esq.
* FergasBon, p. 345. In a case of declarator of marriage,
McGregor v. Blach M*Neil or Jolly, before the Court of Session,
Jan. 25, 1823. Pursuer had inveigled defender, then receiving
the addresses of Jolly, to the house of a Mr. Robertson, at a late
hour of the evening, and intimidated her by threats to be present
at a ceremony of marriage. Pursuer laid no further claim to
defender as his wife, acquiesced in her subsequent marriage to
Mr. Jolly^ and made no objections, till he raised the action of
declarator of marriage, on the defender's coming into possession
of considerable property. The commissariss repudiated the second
marriage: the Court of Session were divided in opinion, and
required further evidence. Times.
< Dodson, p. xlix.
Y,4
328
gence to urge her proper claims, ivould . not give
validity to the second marriage, or dissolve the cod-
jugal relation already subsisting ; it might throw
suspicion on the intention with which the original
marriage was contracted ; and in any case where the
first marriage was doubtful, and could only be in*
ferred from collateral circumstances, it would be
admitted in proof that she had never intended or
understood herself to be the man's wife". The
concealment of the marriage, being held to imply
that there had been no intention of contracting mar-
riage, would justify a third person contracting mar-
riage in good faith, and without knowledge of the
subsisting engagement; but it is a disputed point
whether it would legitimate the offspring*.^'
It would be vain to offer objections to such a
scheme of matrimonial law, and invidious to compare
it with the clear and definite system which r^ulatea
the marriages of England ; but it is impossible to
overlook the animadversions which the lawyers of
Scotland have pronounced on the merely civil con-
tract of marriage. ^^ There are learned and ingenious
persons in that country, who appear to think the rule
* Dodflon, p* Ixxxiv.
* Ibid. p. Hi, Ixii. '' The putative regular marriage indeed en-
titles the offspring of that marriage to hold the status of legiti-
macy, and it is understood that this has always been the rule.
As to patrimonial rights of succession, would they not however
necessarily be excluded by a decree sustaining the previous irre-
gular marriage by promise, subsequente coptt/a, of their £Eitlier ?
Or ought such decree only to have effect from the date at which
it is pronounced ? No decision, it is believed, has yet gone this
length in favour of tho issue of the regular marriage/' Fergusson,
p. 461,
329
of the law of Scotland, that the contract de prcesenti
does ipso facto ei ipso jure constitute the relation
of man and wife, too lax, and to wish^ to bring it
somewhat nearer to the rule which England has
adopted y." They are divided in opinion whether
the mutual declarations are the evidence or the con-
stituents of marriage, and they deny that they have
the solemnity of formal deeds. It is affirmed on
high authority that ^'private consent is not the con-
sensus the law looks to. It must be before a priest
or something equivalent : they must take the oath of
God to each other ; a present consent not followed
by any thing may be given up ; and if so, it cannot
be a marriage '.^^ It is thought again, that declara-
tions of marriage, interchanged privately and without
the intervention of witnesses, are not sufficient rebus
integris to constitute a valid marriage ; and that
there is no authenticated case of the validity of such
consent even when expressed verbally before wit-
nesses^. It is not therefore unreasonably contended,
that marriages celebrated in facie ecclesice have at
least superior advantages, in respect of validity and
confirmation, to those which originate in promise
followed by copula; that however the promise and
subsequent copula may constitute an obligation to
marry, from which the party is not free to resile, the
fact of a second marriage, duly proclaimed and regu-
larly celebrated in facie ecclesice ^ before the com-
mencement of a suit of declarator of marriage,
would be a legal impediment, sufficient to prevent a
y Dodson, p« 58. * Erskine^: quoted by DodsoD, p. clxxv.
* DodsoD^ p. ccxiii. Dep. of Adam Gillies, Esq.
330
decree affirming the former marriage, and would
defeat the power and obligation of fulfilling the prior
engagement^. The sacerdotal benediction ia by no
means indispensable in Scotland ; but it nevertfaeleaa
constitutes the most regular, the most unexceptioo*
able, and the most valid form of contracting marriage
in that country^: but such is at the same time the
obscurity and uncertainty which hangs over the
whole law of marriage, that there is an increasing
facility in the courts to admit evidence in contrcd or
explanation of the written declarations of parties';
and cases may occur, in which, as marriage in facie
ecclesice is not necessary to constitute the matri*
menial union, the administration of a clergyman
may be superseded by the exhibition of proof, that
before the celebration there had been an interchange
of mutual declarations, that the ceremony was to be
effected for a totally different purpose, and should
not be binding upon either of them ^.
The mental reservation, which can vitiate the
^ Dodson, p. ccvii, ccviii. * Ibid, pi liv. ' IbkL p. IxxxiL
* Ibid. p. xxxi. In the case of M^^lnnei against Moore^ whicli
came before the House of Lords upon appeal , in the year 1782,
the facts were, that the man at the woman's desire had signed the
acknowledgpnent, not for the purpose of making a marriage, bat
merely as a cover to serve another and a different pnrpote mu-
tually concerted between them; namely, that of preventiiig the
disgrace arising from the pregnancy of the woman. The eoB-
missaries and the Court of Session had found the &cts relevant
to infer a marriage, but the House of Lords considering the
transaction as a mere blind upon the world, and that no altera-
tion of the status personarum was ever intended by the partiea
themselves, reversed the sentence and pronounced against thk
marriage.
public and ostensible act by the secret understand*
ing, is equally offensive to the maxims of civil
policy, which is deeply interested in ascertaining the
validity of marriage, and to the purity of the Chris-
tian religion, which is abhorrent of every kind of
equivocation and reserve. It adds another objection
to the licence of a merely civil contract, which
admits such collusion and abuse, and of which the
claims should not l>e advanced in opposition to the
sacred sanctions of marriage, without the most mature
consideration of the difficulty of ascertaining the va-
lidity and of the actual uncertainty of marriages in
Scotland, and of the objections which her own law^
yers have alleged to the prevailing system, and the
readiness with which they have fallen into the doc-
trines of the English Church) and insisted upon the
divine institution of marriage, its religious ratifica-
tion, and the circumstances, especially its perma-
nency, by which it is distinguished from other con-
tracts. These are however points, to which it is not
necessary again to turn the attention of the reader,
to the neglect of the more immediate consideration
of the practical insecurity of marriage considered
merely as a civil contract. The instability of the
contract of marriage in Scotland may be compared
with the facilities afforded by the Scotch law for the
dissolution of marriage upon the ground of desertion
or non-adherence, and of adultery.
*^ But neither adultery nor wilful desertion are
grounds which must necessarily dissolve marriage ;
they are only handles which the injured party may
take hold of to be free .... and no divorce can pro-
ceed which is carried on by collusion between the
332
parties, lest, contrary to* the first. institution of mar-
riage, they might disengage themselves by their own
consent/' The difficulties of preventing collusion
appear however to have exceeded all the regulations
bf the courts.
" Where either party has deserted from the
other for four years together, that other may sue
for adherence. If this has no effect, the Church
is to proceed first by admonition, then by excom-
munication ; all which previous steps are declared to
be a sufficient ground for pursuing a divorce. De
praxij the commissaries pronounce sentence in the
adherence after one year's desertion ; but four years
must intervene between the first desertion and the
decree of divorce. The legal effects of divorce on
the head of desertion are, that the offending husband
shall restore the tocher^ and forfeit to the wife all her
provisions legal and conventional ; and on the other
hand, the offending wife shall forfeit her tocher^ and
all the rights that would have belonged to her in the
case of her siirvivance '.
The marriage is dissolved by sentence of divorce
for non-adherence, and the parties are fi'ee to many
whom they will. Upon this point the law of Scot-
land dififers from that of England, in making non-
adherence a ground of separation, and in extending
the sentence of separation to a dissolution of the
marriage. The statute against bigamy, 1 Jac. l.c.ll.
exempts any person, whose husband or wife shall be
continually remaining beyond the seas for the space
of seven years together, or shall absent himself or her*
' Enc. Brit. Art. Law (of Scotland,) part iii. c. 1. s. 6.
333
self for the same period, in any place within his
Majesty^s dominions, the one of them not knowing
the other to be living within that time, from criminal
prosecution, if he or she shall marry during the life
of the other : but nevertheless, if the absent party
shall be alive, not only will the offending party be
liable to punishment in the spiritual courts, but the
second marriage is undoubtedly void in law, and
must be so declared by that court, notwithstanding
the consequences which would thus attach to the
party, with whom a second engagement had been
made, though altogether innocent, and to the issue
of that connexion K.
In cases of cruelty, the sentence of the Scotch
courts, as under the English law, imports only sepa-
ration from bed and board.
It is doubtful how far the principle of the indisso-
lubility of marriage was received into the* ancient
law of Scotland, which was gradually relaxed, first
to favour the party injured by the adultery, and
afterwards with no other reservation than the inter*
diction under pain of nullity of the marriage of the
adulterer with the adulteress^. However the capital
punishment in cases of flagrant guilt may have fallen
' Quarterly Review, No. xlix. p. 268.
^ In the court of Session in Scotland, it was an inherent part
of the practice in cases of divorce, to inhibit the criminal parties
from intermarrying. That practice had been evaded by libelling
that the adultery had been commiUed by an unknown person ;
but the court of Session corrected the evasion and restored the
practice, by obliging the suitors to libel the adulterer by name.
WoodfalFs Pari. Rep. vol. xxii. p. 233.
334
into desuetude, adultery is in Scotland held to be a
criminal offence, cognizable by the criminal courts,
and liable to various penalties at the discretion of the
judge ; nor is the criminal process precluded by the
civil action for divorce. The ordinary courts are
open to these actions, and the authority of their
sentence extends, not only as in England to separate
the parties a mensd^ but to dissolve the marriage and
discharge the parties a vinculo.
^' Ever since the date of the Reformation, divorce
a vinculo by judicial sentence has been a very im^
portant part of the Scottish consistorial law. Pre-
vious to that date, there was some evidence to shew
that it had not been unknown in the practice of the
consistorial judicatures of the Catholic Church in
that country ; and in the authentic statutes and pre-
cedents of the common law, no reference appeared
to the existence of an opposite rule in more ancient
times. That remedy for adultery therefore was re-
garded by the whole people of Scotland as their
undeniable right .... the substitution of the inferior
redress by separation a mensd et thoroy for the
greatest of conjugal injuries, would, according to the
national habit of thinking, and to the principles of
honour, morality, and religion/ which prevail in
Scotland, be most unsatisfactory. In every rank the
injured parties usually conceive it a duty to expel
the pollution of adultery from their families and
bosoms. It is the universal opinion of the Scottish
people, that the innocent party could not without
injustice be compelled afterwards to submit, under
any modification, to the bond of marriage, whidi in
335
that situation could ouly subsist as aa intolerable
burden and grievance*.^^
The force of this popular prepossession is abated
by cases of remission of the injury, contemplated by
the law: and' it is of importance to observe its ope-
ration and effects.
'' The conjugal relation has stood not less, but
infinitely more, secure and sacred, since the religion
of the kingdom became protestant, and since sepa-
rations a mensd et thoro for adultery, which were
extremely common under the popish jurisdiction,
fell into total disuse. While it h^d been competent
and open to persons so injured, in whatever rank of
society, to obtain divorce a vinculo^ the number of
actions, in proportion to that of thcv population,
seemed to have remained nearly the same at all
periods, since the commissaries were first appointee]
m 1563, down to the present time. The procedure
' FerguBSon, p. 196. In the appeal cause, Anderson ▼. Marshall,
the Loni Chancellor said^ that it was the coarse of practice in
tlie commissary court of Scotland^ to admit the evidence of
persons who had committed adulterous practices with the party
charged in the libel, in support of the charge ; but to repel the
evidence of those persons when called to give their evidence in
defence of the defender. His Lordship described the extreme
laxity of the practice of Scotland, in cases of adultery ; it being
deemed sufficient to charge, the party libelled with having com-
mitted divers adulterous acts, in any given three years, with
divers persons, in divers places ; and upon that loose charge to
proceed to adduce proof and examine witnesses: but within a
few years back this practice had been corrected, and the charge
was obliged to contain iqpecific and distinct allegations of the
flEtcts, time, and place, charged by the accuser. Woodfall's Pari.
Rep. vol. xix. p. 515.
336
loo had been always so conducted, as not to ofiend
against decency, or lead to corruption of manners by
the infectious exhibition of profligacy in the higher
ranks of society. Hence the estimation of the pri-
vilege of judicial divorce for adultery was so high in
this kingdom, that a few examples of forfeiture,
incurred by the innocent act of contracting marriage
under the law of England, could not fail to operate
as a discouragement to intermarriage between citizens
of Scotland and their fellow-subjects of the British
empire, and as a temptation to the former to prefer
illicit connexions to lawful union, when residing out
of their own country. For the peculiar and novel
hardship of being thus obliged without feult to re*
main united to an adulterous partner for life, would
undoubtedly be deemed both galling and d^^rading
in the extreme \''
In this partial view the effect of the national
prejudice is entirely negative: it has not promoted
matrimonial virtue; it has not abated matrimonial
sin ; it has thrown the faults of all ranks into one
indiscriminate mass ; and it has been the occasion
of a singular infatuation of mind and depravity of
affection in suggesting the preference of a conneson
of positive guilt and lawlessness to an honourable
union, of which the perpetuity may by a remote
contingency, a contingency not to be anticipated,
become offensive. The preference however, if it
exist, may be ascribed not more to the prejudice in
favour of divorce for adultery, than to the practical
effect of the received opinion of the dissolubility of
^ Fergusson, p. 198.
337
Scottish marriages. A very diffeieut view of Ih^
whole case is taken by Mr. Commissary Ross:
^^ While the prospect of obtaioiDg a divorce may io
many cases have beeo the very inducement to the
crime, I am fully persuaded we are by no means
indebted for the degree of parity still maintained
amongst us^ in regard to the marriage relation, to
the privilege competent to the ii\jured party of ob-
taining a divorce. If we are indebted to any thing
beyond the fer more to be relied on security arising
from the moral and religious principles of our people,
it is to the terrors of the criminal code^^^
The popular prejudice in favour of divorce are
opposed by the most eminent authorities in the
Scottish law; and although the ^^ idea of a sacrament
in marriage and its quality of indissolubility are in
their municipal institutions alike disr^arded, never-
theless, in strict conformity to the decretals and
other books of the more ancient canon law,^' and
upon the basis of scriptural authority, " they re-
verence marriage as being of divine institution, and
regard it on that account as a sacred, irrevocable
obligation. • . . Lord Stair, in particular, the great
institutional writer of Scottish law^ in treating the
subject of marriage constantly speaks of its per-
petuity, and of its being a contract as well of
natural law as of divine origin.'^ Lord Bankton
and Mr. Brskine maintain the same doctrine.
^^ The genius and tendency of the law of Scotland
is therefore clearly in iavour of the perpetuity of
marriage. It encourages the duration of the mar-
■ Ferguason, 349.
VOL. II. Z
338
riag^e. uniofh and discourages the dissohition of
It a^rds erety facility towards entering inta the
ttmrriage state, and views with suspicion and alarm
every attempt to dissolve it. ... A jealous anxiety
to disregard every admission marks eveiy « step.
Hence no judgment passes by defeult without prooi^
and if the defender declines to appear^ die court are
nevertheless bound to proceed with the same forma*
lity as if he were present and had maintained the
keenest opposition. In the same spirit every o\h
stacle that presents itself is eagerly laid hold of to
support the marriage and prevent its dissolution.
** It is true indeed that in certain circumstances
the dissolution of the marriage contract is pamitted ;
but it will be particularly observed, that the law of
divorce in Scotland is barely permissive^ not m-
perative : and nothing can aflford a better illustration
of what law sometimeis does, when, as in the case
of divorce, it tolerates what it neither commands nor
approves"".*'
When therefore it is said, that ** in Scotland Ih^
marriage contract of the parties is, quamdiu se bens
gesserint,^^ the expression is very kiaccurate, and
can be interpreted only in accommodation to the
popular prejudice and to the general dissolubility of
marriage. Divorce is in reality a deviation from the
original institution of marriage, which was intended
to be perpetual. << The duration of marriage,'^ si^
Lord Stair, ** is perpetual, and the dissolution of it
is only natural by death/* Some writers indeed
maintain, that the act of adultery operates ipso jure
in
FergugMm, p. 316, 317.
3»d
a dissolution of the marriage, but it is certainly not
sd in Scotland. '* Adultery and d^ertion do not
annul the marriage, but are just occasions upoD
whicb the persons injured may annul it) and be free:
otherwise, if they please to continue, the marriage
remains valid/^ Parties may not only exercise the
right of claiming a divorce or not as they please, but
they may renounce it at any time subsequent to the
act of adultery, and, without any renunciation of it,
diey may even be deprived of it by the law itself, in(
the event of grounds arising for presuming a r^mtWo
infurias. The action of divorce itself is of the nature
of a pure personal cause of complaint, which nei*
ther the public nor any third party upon even the
strongest ground of patrimonial interest will be
allowed to plead. Divorce is no public vindication*
of the law, but a private remedy merely, and for
private purposes. It is a remedy which the injured
party alone can seek, and if that party is wUling to
abstain from demanding it, the marriage will still
subsist ; and collusion between the parties, remissio
injuricB^ and other personal bars, are received as
proper exceptions to the act of divorce".
These are points of which the investigation belongs
not of personal right to individuals, but is reserved
for the deliberation of the courts, before which the
action is brought, and which will use their utmost
endeavours to prevent the collusion of the parties in
a suit in which there is more temptation to collusion
than in any other case, and such extraordinary feci''
lities of concealment as almost to preclude detection.
" Fergussoo, 2S8, 353, 317, 318.
Z 9
340
The office of the Procurator Fiscal was of old con-
cerned in all cases of divorce, and be is now en-
gaged under the direction of the courts in the in-
vestigation of reasonable grounds of suspicion, the
detection of collusive agreements entered into not
only by the parties themselves, but by the means of
their agents or parties in their confidence, and the
administration to them of the oath of calumny.
^' Collusion, it is evident, is more likely to take
place often in actions of divorce, than in causes of
any other description. But the parties who commit
this offence against the course of justice have such
&cility of concealment, and the enquiry is of so
difficult and unpleasant a nature, that the records of
the cousistorial courts of Scotland do not perhaps
exhibit a single attempt to detect this mal-practice,
which has been successful in the result. The com-
missaries however have extended the enquiries as to
collusion under the oath of calumny, which weie
regulated by no statute, and rested upon the autho-
rity merely of their own practice. Thus the formula
of that oath now in use has been made to embrace
all the following points : Compeared A. B. pursuer,
who deposes ; That there has been no concert or
collusion between him and the said defender in rais*
ing this action in cfder to obtain a divorce against
her; nor does he know, believe, or suspect, that
there, has been any concert or agreement between
any other person on his behalf and the said defender
or any other person on her behalf, with a view or for
the purpose of obtaining such divorce. All which
is truth, as the deponent shall answer to God.
'' Still however there was reason to think, that by
previous arrangement of their conduct parties pur-
suers, who were aware that this oath must be taken,
found no great difficulty in preparing for that test.
Occasionally indications appeared in the course of
the procedure of opportunities to discov^, whether a
concert had really taken place between parties in
this situation to obtain a divorce, as an object both
of mutual desire and mutual endeavour. But the
judges of the court could not themselves prosecute
any extrajudicial investigation, or do more than de->
cide upon such matter as might be laid before them^"
There can be little doubt, that in very many in«
stances the mutual desire of separation has succeeded .
in overcoming the moderation of the law, and de*
feating the circumspection of the courts. It has
been strongly argued in respect of foreign cbnsorts
prosecuting a suit of divorce in the courts of Scot-
land : ^^ Unhappily for the settlement of the law and
the satisfaction of the public mind, that tenaciousness
of ri^t and privilege which invigorates the suitor
in almost every other judicial contest is in many
cases of the present description altogether wanting.
Here alone the litigious spirit is weak, and the inge-
nuity, if roused at all, is usually exercised in extenu-
ating some relevant plea, or perhaps in the still more
reprehensible endeavour by mutual, if not concerted,
efforts to obscure the facts and mislead the judge.*
Should the object of the suit be agreeable to the '
secret wishes of both parties, although no collusive
acts may be discovered, and perhaps none have taken
place^ all that is done or thought of on either side is*
« FergassoD, 363.
23
342
to go through the necessary forms and cereoKmial
of ItiWj so thai the decree of the judge may proeeed
with somewhat of the wonted sdemnity. So far
from being a real adversary, the defendant is at best
but a willing victim of the law. Whatever cbsitt^
cles may occur, are usually interposed not by the
suitors, but the court, who will, as far as depends
upon them, guard against abuses of thdr authority,
by leceiving no concession at the expenoe of the
law, and by thwarting all attempts to defraud it.
But even ^ though wisdom wake,^ the means which
it can thus employ fall far short of that ample se-
curity which is afforded on other occasions. No
sooner is a judgment obtained, which suits the views
of the parties, than all procedure suddenly stops ; no
desire is. shewn to have the case reviewed ; no redress
sought by the losing side ; no complaint to superior
courts; all is silent and acquiescing p.'^
Writers, who would advance die claims of die
merely civil contract of marriage, or who would in-
crease the facilities of divorce by conveying to die on
dinary courts the power of dissolving marriage, cannot
reflect too often or too deeply on the state of matrix
monial law in Scotland. Whatever may be thought
of the moderation of that law, it does not appear to
give any satisfaction to the persons who are most^
fiuniliar with its administration. While the lawyer,
in conformity with his own pure and refined con-
ceptions, would elevate the civil contract, and invest
it with the virtue of a divine institution, and would
at the same time restrict the licence of divorce by
' Quart. Rev. No. zlix. p. 230.
as
iodistiDg on the perpetuity of marri^e, the.Qour(B
^te compelled to throw equal Buspicioo on tbe.mo^
wregukr aqd the. moet formal celd)ration» and tacitly
to connive in polkisive agreements for divorce whicfi
no circumspection can penetrate, and qp power can
resist. The natural result is ^treme uncertainty in
the contract of marriage, and extreme faciUty in tb?
pjractice of divorce, Such flexibility of the la^ is
unknown in England, where every man 13 assured of
the validity of his own marriage, and few m^n ven*
tore to speculate oq the possibility pf ite dissolution.
In these respects England may derive a lesson of
useful admonition from the sister kingdom : but the
Scotch principle of the dissolubility pf marriage de-
mands not the feint contemplation of the theorist,
but the immediate interest and interposition of the
legislator, from the jurisdiction which has been
claimed to the Scottish courts for the dissolution of
marriages not contracted under the Scottish law.
Persons married in England ot Ireland, and pledged
under, the law and ritual of those countries to an
indissoluble engagement, or at least not entertaining
at the time of the contract the remotest views of its
dissolution, have by an accidental or intentional
residence in Scotland placed themselves under the
jurisdiction of her courts, and laid claim to the
redress which those courts are competent to affords
Hence arises an important question, whether respect
is due to the law of the place of contract, which
holds the indissolubility of marriage, or to that of
the place of actual residence, in which the offence i^
committed, the redress is claimed, and the dissolu-
z 4
344
tioD of marriage is approved^. On lim p(»nt the
courts are di\id6d, and the question is agitated with
all the acuteness of legal erudition. The question
has been submitted to the House of Liords^ but not
in such a form as to obtain a decision. An 0]»nioD
only of high authority has been delivered^ that no-
thing short of an Act of the l^slatuie can dissolve
an English marriage, and the opinion has been con-
firmed by the sentence of the twelve judges oh a
point reserved fiom the court of Assize at Lancaster^
in which a man divorced by the sentence of Che
Scotch court for adultery and married to another
woman was indicted for bigamy and convicted. If
the same man, having been divorced in Scotland^
had been again married, and continued to reside in
Scotland, the law of that country would have recog-
nized the marriage, and protected its civil efiects,
which the English court was so far from respecting
as to admit the proof of bigamy \
It is less necessary to enter into the princifdeof
the legal question, than to state its practical opent-
tion and effects.
'^ It must be evident, that the claims to mutual
*! The Scotch courts alio entertain the suit of the woman,
which has been very seldom admitted In the pariiamentuy
divorces of the English law, and thus entitle her to « rssisdj
to which she has no right in her own country, on which she cooM
not have calculated, and in the refusal of which she is depdve4
of no privilege, but is merely debarred £rom taking an •^^^fn^rf
advantage which must have been always foreign to her thoog^ta.
Quart Rev. No. xlix. p. 263.
' Fergusson, p. 108, 390. Quart. Rev. No. xlix. p. 967.
34S
forbearance and respect, which the jus geniium sup-
ports between independent nations, were infinitely
strengthened and augmented in this case by the
peculiar nature of the connexion between the king-
doms of Great Britain. It is equally evident, that
there is no subject upon which it is so essential that
these claims should receive due attention, as the
municipal laws of marriage and divorce: for wihile
the three nsftions of England, Scotland, and Ireland,
politically form one people, their several municipal
rules are so discordant as to afford great temptatioii
to married parties of the other countries to seek the
dissolution of their conjugal relation in Scotland,
and thus to defraud the law of England. It has
been seen in the case of Lolly, that a divosce a
vinculo of an English marriage would not protect
an English party from the pains ^ of bigamy for
marrying again in England. But a second mar-
riage of such a party in Scotland is valid by the
law of this country. . Hence the most distressing
collision must frequendy arise, and endless contests
of the most painful and injurious description are to
be apprehended upon the rights of legitimacy and
succession among the descendants of such parties**
The spouses might still be held as bound to each
other in England, although declared free in Scotland :
subsequent marriages might thus be considered valid
in one country and null in the other, to the great
danger of the parties, and with the most fatal effects
to their offspring and to the good order of society*/^
* Fergusflon, p. 154.
* Fergusson, p. 38. Compare p. 41. Thus '< persoDS may at
the same time be married in one fJace and unmarried at another ;
346
'^ b 10 at the same time but too plain». that the
dnaolution of English, marriages by» the. Scottish
dimroe fcnr adultery: must operate as a public and
general invitation to all the married of the sister
kingdoms^ who are tired of their union and . profl*^
gate in their manners, to come into Scotland and
pollute the country with their crimes for the «eiy
purpose of raining freedom. The reooids;of the
consistorial courts within the. last ten years afford
too much reason for believing that the danger is not
ideal, and it is easy to foresee, that, if the practice of
granting such divorce in these cases shall be once
fully established, the evil must increase to a degree
infinitely .prejudicial to the purity of morals among
the people of Scotland °. . There is no iiyuiy that
can result from; the denial of divorce to persons in
this situation which can in any degree ^ual the
shock which the public decency and the moral fcA
logs of the country must infallibly sustain, by accus-
toming its inhabitants to the spectacle of crime under
a new and unheard of aggravation. Among the
cases, which have of late years occurred, of divorces
sued for in this court, it is much to be feared, that
they have witnessed this crime, the commission of
which they had hitherto been led to consider as
originating m the impulse of guilty passion, rise a
step higher in the scale of moral depravity, and ac-
tually perpetrated with wilful, deliberate, and darii^
be entitled by this law to important privileges, be obnoxious by
that to degradation and punishment^a sitnation productive of
unspeakable distress and disorder inextricable. Quart. Rev.
No. zlix. p. 256.
° Fergussoui p. 110.
347
profligacy, for the express purpose of obtaiilitig an
object denied to the parties by the laws of their oivn
country. This is to exhibit a speoifnen of depravity
so shameless and so utterly abandoned, as to ^dmit
of no adequate terms of reprobation ; and were ttie
case at issue oh this point almie, I tbinfk a Icoort
would do well to pause' before it prohouiiced a de^
cision that could lead even indirectly to such aform*
ing and revolting consequertce%*/^
The strong predilection for the dissolubility df
marriage, which prevails in Scotland, would render
it highly impoljtic to interfere witii that firinciple
under the proper jurisdiction of the Scottish courts,
6t to accelerate its ^raoendment, except on the sug-
gestion of her native writers, and in accortlance with
the improved apprehension of the people on the true
state lind law and doctrine of' marriage and divorce.
But on the question of English marriages, the un^
seemly division of court against court and judge
against judge ; the official execution of sentences of
divorce, rather dictated by the higher than approved
in the inferior courts ; the jealousy with which such
suits are entertained ; the collusion with which they
are conducted ; and the fetal effects which they are
reported to produce ;— all agree in recommending the
necessity of revision and reform : and without balanc-
ing or compromising the principles of dissolubility
or indissolubility, respectively maintained by the
Scotch and English laws ; without waiting the con-
tingency of a decision in the House of Lords, and
the accumulation of disputed and doubtful cases in
' FergussoDy p. 356.
348
the interval, it could hardly be c^ensive to the
courts of Scotland, if a legislative enactment should
retrospectively affirm the validity of all marriages
which have been celebrated in consequence of sen-
tence of divorce, awarded in the courts of Scotland,
and prospectively restrain the jurisdiction of those
courts, in respect of foreign marriages, either alto*
gether, or in cases where the parties have not been
resident in Scotland for a period of years to be
defined. Such a measure would at once sustain
the great principle of the indissolubility of marriage
held by the English law, and obviate the just
objections of Scottish lawyers to their dissolution^.
The same Act might take away from the English
law the anomaly of the marriages at Gretna Green, .
and make a definite residence of one of the parties in
Scotland a preliminary condition of the ^^alidity of
the civil contract.
y See Quarterly Review, No. xlix. 271, 272. where it is ad-
mitted with some hesitation ; ** Perhaps it is one of those emer-
gencies which call for a direct and declaratory provision by the
legislature : for the courts of justice may be altogether incom-
petent to reconcile these contradictions; they are merdy inter-
preters; their hands are tied by the subsisting law."
CHAPTER VIIL
THE LAW OF RAPE, SEDUCTION, AMD
BASTARDY.
1?H£ law of Moses was, in the strictest aod most
proper and original sense of the term, a penal law ;
providing for every offence an appropriate punish-
ment, and for every injury a suitable redress, com-
pensation, or equivalent. This character of the
Jewish law is distinctly seen in the various judg-
ments which it pronounces on the several violations
of the law which regulates the intercourse of the
sexes* The adulterer and the adulteress, upon con-
viction, are condemned to death ; and the waters of
jealousy are appointed for the trial of the woman
that is suspected of adultery, and their operation is
suspended when the husband himself is guilty of the
crime. If a woman betrothed is violated, she and
the ravisher are capitally punished, if the crime is
committed in the city, where the woman might
obtain assistance; otherwise the man only is pu-
nished, and the woman is discharged, because she
had no means of defence. If a woman not betrothed
is seduced by persuasion, the seducer is bound to
endow and marry her, unless her father should refuse
his consent, when he is required to^pay the amount
of her dower : if he violated her without her consent,
he was bound to pay a stipulated sum to her father,
and to marry her without possessing the common
352
ft
her, although they admit it to be best .ti}at he should
marry her, but only that he is required to make
satisfaction for the injury which the woman has
received, by paying so much in the nature of a
dower, as would render her fit to be his wife if th^
should agree : but if either the man or the woman,
or the woman's father, should refuse the marriage,
and the Jews allege that it was in the power of any
of them to refuse it, they suppose that the o£fender
paid, in the nature of a mulct or fine to her father,
the amount of a virgin's dowry, which was fifty
shekels^. According to the more ancient trans-
lations, however, the seducer was required, in the
redundant and strongest form of Jewish expression,
to endow the woman with a dower% and take her to
be his wife : and the assumed right of the man to
refuse her, appears to have been a mere invention of
the Rabbins. The law gives the right of refusal to
none but the father ; and if he shall exercise that
right, the man shall in that case pay money accord-
ing to the dower of virgins. This interpretation is
the most obvious and literal, and is supported by the
authority of Josephus; who, in adverting to this
law, unless he be supposed to have combined the
two laws of seduction and rape, says, LfCt the
seducer of a virgin marry her : but if her father shall
refuse to give her, let him pay fifty shekels the price
^ Patrick and Ainsworth in loc. Uz. Ebr. 1. i. c. 16.
^ LXX. f f^ni ^ftu tivmf mvTf yvmuut. Bishop's BibU: He tliall
endow her and take her to his wife. Ainnvorth: Endowing he
shall endowe her to himselfe to wife : TremelL et Junii. Omnino
constituens ei dotem accipiat earn in uxorem: cMing in ike
margin, Heb. dotando dotans.
353
of the injury ^ If the father consented, and the mar-
riage was Concluded, the dower was paid, but the
fine was not demanded.
These equitable provisions of the Mosaic law for
the punishment of seduction and rape have not been
always neglected in the laws of human enactment.
By the law of Solon, rape was punished with a fine
of one hundred drachmae, afterwards increased to
one thousand ; and the ravisher was compelled to
marry the woman <• By the Julian laW| with the
accustomed rigour of Roman legislation, it was pro-
nounced a capital offence : and under the civil law,
which comprehended in this name the forcible ab-
duction of women, and the forcible violation of their
persons, it incurred a penalty of death and confiscation
of goods ^. The law of Constantine condemned the
ravisher to the flames ; and although Constant! us
mitigated the severity of that law, he only substi-
tuted another mode of death, and made no alteration
of the law in the case of a slave. Jovian also made
it a capital offence to ravish a consecrated virgin, or
even to solicit her in marriage against the rules of
her profession. The Church, which could not in-
flict the temporal punishment, renewed the more
lenient judgments of the Jewish law, which she
enforced with a sentence of excommunication. It
is one of the Apostolical Canons, as they are called ;
If any man offers violence to a virgin not betrothed,
let him be excommunicated.; and he shall not be
permitted to take any other wife, but shall keep pos-
'Ant. Jud. 1. iv. c. 8. s. 23. « Ux. Ebr. 1. i. c. 16.
»» 4 Bl. Com. c. 15.
VOL. n. A a
354
session of her whom he has chosen, akhough she be
poor^ Basil also condemns to a penance of fiMnr
years the man who should steal a virgin espoused to
another man, and detain her against her father's
consent ; anci pronounces a sentence of excommuni-
cation, not only upon the ravisher, but upon his
family, and the place where he dwells, if they should
assist him in the usurped possession of the woman.
It is the just inference of Bingham, that when de-
tention with consent was thus punished, the forcible
violation of women was a more heinous crime, and
censured with greater severity in the discipline of the
Church ^
The law of England declares the forcible abduc-
tion of women to be felony, and condemns to impri-
sonment the man who shall take away an- unmarried
woman under the age of sixteen years, without con-
sent of parents, with forfeiture of her property during
the life of her husband. The law of rape has under-
gone various modifications. By the Saxon law, in
conformity with the Gothic or Scandinavian consti-
tution, it was punished with death. William the
Conqueror abolished the capital punishment, for
which he substituted castration and loss of eyes ; a
sentence from which the woman might redeem the
man by taking him for her husband, if he would
consent to the exchange. By the statute of West-
minster in the third year of Edward I. ravishment
was reduced to a trespass, if not prosecuted by air
appeal within forty days; and the offender was
subjected to imprisonment for two years, and a fine
* Canon. Apostol. lix. ^ Eccl. Antiq. b. xvi. c. 1 1.
355
at the pleasure of the king. This lenity produced
the worst effects, and the offence was within ten
years afterwards made felony, and the benefit of
clergy was taken away by statute 18 Eliz. c. 7*^
This is indeed a wide deviation from the moderation
of the Jewish law ; and yet, no man, however he
may regret the extension of capital punishments, can
contemplate the crime of rape in all its aggravations,
and the necessity <^ preventing it by evciry'|K>ssible
means, without approving the judgment of Sir Mat-
thew Hale, that '^ rape is a most detestable crime,
and therefore ought severely and impartially to be
punished with death °',^^ upon clear and sufficient
proof and evidence of the fact.
It is remarkable, that while the provisions of the
Jewish law are exceeded in the punishment of rape,
they are entirely disregarded in the English law of
seduction, of which the legal consequences bear no
proportion to the nature of the offence, and cannot
be compared with the laws of other countries. The
alternative of marrying the woman seduced, or of
providing a dowry, was introduced into the papal
laws, and especially prevailed in the courts of Spain
and Italy; but the offence was more heavily pu-
nished by the civil law, by forfeiture of a moiety of
the goods, by imprisonment and banishment, and in
some extraordinary cases by capital punishment.
The law of Constantine included the seducer not
less than the ravisher in its atrocious judgments,
under which the woman's confession of consent was
fatal to herself, without exculpating the partner of
•
* 4 Bl. Com. c. 15. ™ lbi4.
A a 9
356
ber crime ; the attempt of her family to diaaemble
the injury, or remove the shame by a subsequent
marriage, subjected them to exile and confiscation ;
and the consequences of the sentence were extended
to the innocent offspring of such an irregular union.
But whenever the offence inspires less horror than
the punishment, the rigour of penal law is obliged to
give way to the common feelings' of mankind, and
the most odious parts of this edict were softened or
repealed in the subsequent reigns". The law of
Solon, whose wise legislation was often drawn from
the fountains of Siloam, punished the seducer as wdl
as the ravisher by a fine, permitting also the fath^
to sell the daughter, and the brother the sister, who
should be convicted of the offence. The apparent
inconsistency of this law, in suffering the same
offence to be punished by fine in the one sex and by
slavery in the other, is noticed by Plutarch, and
defended on the ground of the scarcity and conse-
quent value of money at Athens^.
" Gibbon's Rom. Emp. c. xiv. The writer, wboee humani^
18 said to hare never slumbered, bat when women wete rariihetf
or the Christians persecuted, obsenres, that ^* the laws of Con-
stantine against rapes were dictated with yery little indulgence
for the most amiable weaknesses of human nature: since the
description of that crime was applied not only to the bmtal
riolence which compelled, but even to the gentle seduction which
might persuade, an unmarried woman under the age of twenty-
fire to leave the house of her parents." Will any man, with the
feelings of a man, subscribe to this sentiment, or class the
violence or the gentleness which debauches a woman among the
most -amiable weaknesses of human nature ?
® Ux. Ebr. I. i. c. 16. " In such tpecimens of the new comedy
of the Greeks as have reached us through the medium of fjatin
357
In attaching a common penalty to the two of-
fences, the Athenian legislator has justified an infer-
ence of their equal guilt : and however rape may
exceed seduction in atrocity, it does not exceed it
in the complicated villainy which designs, or the
pernicious results which follow, the offence. The
exacerbated passion of the ravisher accomplishes his
cruel purpose at a blow, without protracting the
sufferings of his victim ; the more designing and
persevering seducer offers a honeyed draught, which
poisons the springs of life, and of which no woman
can drink without being reduced to a necessity of
dragging out the remnant of life in shame and
sorrow, in morbid apathy or reckless desperation.
The seduction of a woman cannot be effected with-
out the entire depravation of the moral virtue of the
sex, which is founded in chastity ; without offering
a strong temptation to a life of prostitution, in which
the seduced will herself become the seducer of
translations, it is by no means uncommon to find the denouement
of the play turning upon the circumstance of an unmarried
woman who had become a mother during some of those licentious
festivals which ocpasionally withdrew both married and unmarried
persons from the shade of domestic retirement, without being able
to specify on whom the rights of paternity were to be conferred.
A heavy fine seems originally to have been the penalty for' these
ofifences. The injured party had afterwards, according to Her-
mogenes, the option of becoming the wife of the criminal, without
bringing him a dowry, or of demanding his life as a compen-
sation. As the compassionate feelings of the sex very rarely
enforced the last clause of the edict, Syrianus assures us, that
the right of commutation was rescinded, and only the severer
sentence allowed to remain in force." Quarterly Rev. No. xliii.
p. 189.
A a3
358
others ; or without ruin to her character and reputa-
tion in the world,- and to her own aense of self re-
spect, of which a woman is so jealous, that in the
agonized effort to conceal her shame, she is oft^n
known to deny the strongest instinct of her Dature»
the love of her child. The woman that is seduced
is deprived of the means of honest maintenance;
she is scorned by the virtuous and courted by the
vicious ; all her prospects in life are overcast ; and
she is debarred from the great object of female
ambition, a happy and an honourable marriage* The
work of the seducer proceeds by the means of ficti-
tious promises, which it is never meant to fulfil ; by
declarations of passion, which is the cloke for selfish
gratification ; by exciting a delusive hope of conjugal
bliss ; by taking the basest advantage of cherished
and confiding affection ; by acts of fraud the more
criminal, as the object is worthless, and the injury
irretrievable, both as the woman herself and fa^
family are concerned. The villainy of the seducer
hardly admits of comparison, and the most nervous
language is incapable of expressing the just sense of
virtuous indignation. '^ All this complication of
evil is produced at first by arts, which, if employed
to deprive a man of his property, would subject the
offender to the execration of his fellow subjects, and
to an ignominious death : but while the forger oi a
bill is pursued with relentless rigour by the ministers
of justice, and the swindler loaded with universal
reproach, the man who by fraud and forgery has
enticed an innocent girl to gratify his desires at the
expence of her virtue,, and thus introduced her into
a path, which must infallibly lead to her own ruin>
369
as weJI as repeated injuries to the public at large, is
not despised by his own sex, and is too often
caressed by the virtuous part of the other. Yet the
loss of property may be easily repaired : the loss of
honour is irrepamble'/^ ^
^' The injury to the family may be understood by
the application of that^'infallible rule of doing to
others what we would that others should do unto us.
Let a father or a brother say, for what consideration
he would suffer this injury to a daughter or a sister,
and whether any or even a total loss of fortune could
create equal affliction and distress. And, when they
reflect upon this, let them distinguish, if they can,
between a robbery committed upon their property
by fraud and forgeiy, and the ruin of their happiness
by the treachery of a seducer.
'^ Upon the whole, if we pursue the effects of
seduction through the complicated misery which it
occasions, and if it be right to estimate crimes by
the mischief which they knowingly produce, it will
appear something more than mere invective to as-
sert, that not one half of the crimes for which men
suffer death by the laws of England are so flagitious
as this. Yet the law has provided no punishment
for this offence beyond a pecuniary satisfaction to
the injured family, and this can only be come at by
one of the quaintest fictions in the world, by the
father's bringing his action agamst the seducer for
the loss of his daughter's service during her preg-
nancy and nurturing"!.'
yy
^ Enc. Brit. Art. SeducUon. "> Palej's Moral. Philos. b. iii.
pt. 3. c. 3.
A a 4
360
*^ It appears to be a remarkable omiflBion in the
law of England, which with such scrupulous sdici-'
tude guards the rights of individuals, and secures the
morals and good order of the community, that it
should have afforded so little protection to female
chastity. It is true, that it has defended it by the
punishment of death from force and violence, but
has left it exposed to perhaps greater danger from
the artifices and solicitations of seduction. In no
case whatever, unless she has had a promise of
marriage, can a woman herself obtain any reparation
for the injury she has sustained from the seducer of
her virtue. And even where her weakness and cre-
dulity have been imposed upon by the most solemn
promises of marriage, unless they have been over-
heard or made in writing, she cannot recover any
compensation, being incapable of giving evidence in
her own cause. Nor can a parent maintain any
action in the temporal courts against the person who
has done this wrong to his family, and to his honour
and happiness, but by stating and proving that from
the consequences of the seduction his daughter is
less able to assist him as a servant ; or that the
seducer in the pursuit of his daughter was a tres-
passer upon his premises. Hence no action can be
maintained for the seduction of a daughter, which is
not attended with a loss of service or an injury to
property. Therefore in that action for seduction
which is in most general use, viz. a per quod servu
tium amisiij the father must prove that the daughter,
when seduced, actually assisted in some degree,
however inconsiderable, in the housewifery of his
family, and that she has been rendered less service^
361
able to him by her pregnancy : or the action would
probably be sustained upon the evidence of a con-
sumption, or any other disorder, contracted by the
daughter in consequence of her seduction, or of her
shame and sorrow, for the violation of her honour.
It is immaterial what is the age of the daughter ;
but it is necessary that at the time of the seduction
she should be living in, or considered part o^ her
fether^s family. ...
^^ Another action for seduction is a common action
for trespass, which may be brought when the seducer
has illegally entered the father's house; in which
action the debauching his daughter may be stated
and proved as an aggravation of the trespass. In
this action the seduction may be proved, though it
may not have been followed by the consequences
of pregnancy or the loss of service. But these are
the only actions which have been extended by the
modern ingenuity of the courts to enable an unhappy
parent to recover a recompence under certain cxv--
cumstances for the injury he has sustained by the
seduction of his daughter'.^^
It is obvious that the remedy afforded by this
action is one which the necessities of many will
prevent them fi-om seeking, and which the virtuous
sensibility of others will render them ashamed to
obtain, and in the prosecution of which it is only
doubtful, whether there is more subtlety in the pleas
upon which the charge is pressed, or in those .by
which it is evaded*. Thus the law, which should
' Christian's note 13. 3 Bl. Com. c 8.
* Thus '' Mr. J. Wilson, in a case upon the northern circuit,
was of opinion, that a young woman, who was upon a visit at a
362
sutkv no injury to reomin without redraM, suflEeis
the greatest to be inflicted without compenaatioii,
and leaves the seducer ^' unwhipt of justice/^ The
Mosaic law, in obliging the seducer to marry the
woman whom he had debauched, or, if that should
not be agreed to, requiring him to provide a dowert
satisfies, as far as compensation can be made,, the
justice of the case, and establishes a precedent which
human legislators may follow with advantage.
The law of bastardy naturally follows the law of
seduction, and the offence of the parents results in
the shame and dishonour of the children. The
Mosaic law takes but little notice of bastardy, ac-
cept of that peculiar kind of children, bom of wonoeo
whom the Jews were forbidden to many, whose
issue was deprived of the privileges of the chosen
family, and partook of the condition of the mothcTf
according to the received maxim of Jewish polity:
Partus sequitur venirem. In this respect the law
of the Athenian legislator again corresponds with
the Jewish law, restricting legitimacy and the right
of inheritance to children bom of free citizens. This
law, af\er being again and again rescinded and re-
relation's house, and was there seduced, might be considered, in
support of this action, as in the service of the father, or as part
of his family." Christian's note. In another case, at Carlisle,
Aug. 25, 1824, the plaintiffs daughter was seduced by her
master, having been hired for a half year, with reserved leave H
go where she pleased for one week, during which she went to her
father's house, and performed the service, on which it was
attempted to ground the action. If plaintiff's daughter being in
sen'ice is seduced ^ and returns to her father's house in conse-
quence of the seduction^ it has been ruled that the action cannot
be maintained. *' Dean v. Paul : 5 East, 45."
363
Stored, was eventually established so far that a bas-
tard is defined by the grammarians to be one born
of a stranger or an harlot ; and a legitimate son one
born of a citizen, a wife, and in lawful matrimony^
^' Whatever temporary glare the histories of an
Aspasia, a Pythionice, or a Neaera, might throw
over their condition, the great law of nature, which
determines chastity to be the first virtue in a woman,
could not be superseded by the conventional agree-
raents of society ; and Athenian law, to a certain
extent, went in accordance Mfith the dictates of na-
ture. To wear a dress of a particular description ;
to be debarred the use of certain ornaments ; to be
denied the use of all servile assistance, except from
persons of the same class as herself; to be excluded
from the services and sacrifices of the temples ; and,
what to a female mind was perhaps a yet more
trying privation, to be excluded from the splendid
processions which often preceded those sacrifices,
were among the privations to which, if the law was
strictiy obeyed, every offender against modesty was
subjected in Attica* The great objects of Athenian
ambition were, strictly speaking, shut against a
young man who owed his birth to such a con-
nexion: for he could not exercise the talents of
oratory in the senate, or the ecclesia, or the various
courts of law. The wit of a Timotheus might turn
to the brighter side of the picture, and feel grateful
to a mother who had made him the son of Conon :
but the tongue, which found itself tied in the public
assemblies, no doubt broke out sometimes into pri^
' Potter's Greek Antiq. b. i. c. 9.
364
vate invective against the cause of a privation ^ich
to an ambitious and loquacious Athenian must have
been peculiarly galling. The firee-bom Athenian
woman, who embraced this profession, immediately
lost all her rights and privileges; she ranked in
future merely with the wife of a metic or sojourns
in Athens ; and a consciousness of the degradation
thus incurred generally led them, it appears, to
change their names, and to annihilate, as much as in
them lay, their previous existence'/^
The Roman law allowed no claim in the spurii to
kindred or inheritance on the father's side.
In ordinary apprehension the English word bos*
tard denotes a person born out of lawful matrimony,
and is compounded of the Saxon words bfise and
start or steort, signifying a base or vile original'.
The chief incapacity of bastards in consequence of
this base original is, that they are in themselves
incapable of inheritance, except by particular Act
of Parliament, and that, as they have no collateral
kindred, they have no heirs but of their own body,
and any property which they may acquire, if they
die intestate and without issue, devolves if in land
to the lord, if in personals to the king. The rule,
that bastards should not be admitted into holy or-
ders, and might be refused by the bishop, if pre-
sented to a church, a canonical rule derived remotely
from a misapprehension of the Jewish law, seems
now to be obsolete, and indeed any other regulation
than that which civil policy renders necessary, would.
° Quarterly Review^ No. xliii. p. 198. ' Bums Juitioe:
Art. Bastards, s. 1.
365
ID the innocent ofispring of the parents' crimes, be
in the last degree cruel, odious, and unjust ^
By the civil and canon law the bastardy of chil-
dren was removed by the subsequent intermarriage
of the parents. This is still the law of Scotland,
and it was proposed by the bishops in the Parlia- '
ment of Merton, A.D. 133^, that this rule of the
Church, derived from the constitution of the Pope
Alexander III. A. D. l\59i should be incorporated
into the English law, and the proposal was unani-
mously -rejected by all the earls and barons, who
were not willing that the laws of England should
be changed, which had been hitherto in use and
approved. In thus defining the legitimacy of chil-
dren, and circumscribing the rights of inheritance,
by a descent from married parents, the English law
in its very rigour consults for the firailty of human
nature, offers a motive to quick repentance, protects
the dignity of marriage, secures the maintenance and
protection of children, and prevents the occurrence
of various frauds and partialities which might other-
wise be expected to arise*.
The punishment for having bastard children^ is
under the English law chiefly inflicted upon the
woman. ^^ By the statute 18 Eliz. c. 3. two justices
y 1 Bl. Com. c. 16. Bum's Eccl. Law : Art. Bastards.
* Ibid.
* << He that gets a bastard in the Hundred of Middleton in
Kent forfeits all his goods and chattels to the king. If a bastard
be got under the umbrage of a certain oak in Knolwood in
Staffordshire, belonging to the man<Mr of Teriey Castle, no punish-
ment can be inflicted, nor can the lord or the bishop take cogni-
zance of it." Enc. Brit. Art. Bastard.
366
may take order for the puDiBbment ot the mother
and reputed father ; but what that puoishment shall
be is Dot therein ascertained, though the cootempo-
rary exposition was, that a corporal punishment was
intended^. By statute 7 Jac. L c. 4. a specific
punishment, viz. commitment to the house of cor-
rection, is inflicted on the woman only. But, in
both cases, it seems, that the penalty can only be
inflicted if the bastard becomes chargeable to the
parish ; for otherwise the very maintenance of the
child is considered a degree of punishment. By the
last mentioned statute the justices may commit the
mother to the house of correction, there to be pu-
nished and set on work for one year ; and in case of
a second ofience, till she find securities never to
ofiend again *^/^
This state of the law is exposed to many objec-
tions. Why the woman shoukl be liable to im-
prisonment, and the man be suffered to sin with
impunity; why the punishment, and not only the
punishment, but the enquiry, should be limited to
cases in which the child becomes chargeable, and do
penalty be exacted of ^^ lewd women having bastard
chiidren,^^ but able to niaintain them for the present,
however they may afterwards become chargeable;
why security should be required for the good be-
haviour of the woman, and the man be free to repeat
the offence; or what is the benefit of statutory
^ Is it posaiUt that aa ecdeaiastical puniihiiieiit was iBilaiidBdT
The Canon 109 of 1603 includas under aolorioiia erimes aad
ecandala, to be certified into the eccleiiaetical coarti by preeent*
ment, adultery, whoredom, incest, drunkennen*
* 4 Blackstonc, c. 4.
367
enactments which are seldom carried into execu-
tion ; are questions which it is more easy to ask
than to resolve and to reconcile with reason and
with justice. The ecclesiastical law and the spi-
ritual courts have been blamed for their tenderness
and lenity to offences of incontinence, which have
been imputed to the constrained ceUbacy of the first
compilers of these laws. It is not intended to deny
the imputation ; but it n^y be asked, whether the
statutory law has improved upon the forbearance of
the canonical law ; whether it has maintained a less
^' feeble coejrcion^^ of vice, or exhibited a more exact
spirit of impartial justice ; whether it can be said to
prosecute " incontinence, and even adultery itself,'*
as a crime, or to treat them only as civil ii\]uries,
requiring and admitting pecuniary compensation.
In the law of bastardy the moral offence is made
entirely subservient to the civil ii\jury which it may
involve ; if the parish suffers no immediate wrong,
and needs no indemnity, no inquiry is made, no
penalty is demanded. To constitute the offence the
child must be actually chargeable, and if the mother
will discharge the parish of keeping the bastard, it
appears questionable whether she can be legally
committed^. The crime may thus be said to de-
pend on the circumstances of the criminal ; and it is
the condition of wealth to avoid, and of poverty to
sustain, what has been called ^^ the temporal punish-
ment for having bastard children, considered in a
criminal light,*' distinct from ^^ the maintenance of
such illegitimate offspring, which is a civil con-
cern*/'
^ Burn s Justice : Bastards^ 8. 6. * 4 Bl. Com. c 4. .
368
It is of importance to observe the progress of these
partial laws, and the unworthy anomalies which diey
eventually involve. The Act 18 Eliz. c. 3. speaks
the moral language which is common to the statutes
of the age : ^* Concerning bastards begotten and bora
out of lawful matrimony, (an offence against Grod's
law or man's law,) the said bastards being now left
to be kept at the charges of the parish where they
be bom, to the great burthen of the same parish, and
in defrauding of the relief of the impotent and aged,
true poor of the same parish, and to the evil example
and encouragement of lewd life, it is ordered, that
two justices of the peace upon the examination of
the cause and circumstance shall take order as welt
for the punishment of the mother and reputed father
of such bastard child, as for the better relief of everv
such parish, by charging such mother or reputed
fether with the payment of money weekly,* or other
sustentation, for the relief of such child : and if the
mother or reputed father shall not for their part
observe and perform the said order, that then every
such party so making de&ult in not performing the
said order to be committed to ward to the common
gaol,'' &c. The merit of this statute is, that it is
plain ; that it contemplates the perfect offence ; that
it avows the offence^ and imputes it equally to the
father and the mother; and that it inflicts Xhit punish'
ment and the necessity of maintaining the issue upon
both parties.
The Act 7 James I. c. 4. is far more partial in
its operation, professing in its very title to be *' for
punishing of lewd women who have bastards ;" it is
limited to the case of such children as " may be
369
chargeable to the parish/^ whose mother may be
committed ^^ to the house of correction to be pu-
nished and set on work during the time of one whole
year ; and if she eftsoon offends again^ then to be
committed to the said house of correction as afore-
said, and there to remain until she can put in good
sureties for her good behaviour not to offend again/'
This Act is repealed, or rather renewed with miti-
gated penalties, by 50 Geo. III. c. 51. which au-
thorizes the commitment of the woman *' for any
lime not exceeding twelve calendar months, nor less
than six weeks,'' and making it lawful for any two
justices of the peace^Vupon their own knowledge, or
a certificate duly^authenticated from the governor of
such house of correction in which such woman shall
have been confihed for any space not less than six
weeks, of the good behaviour of such woman during
such her confinement, and of the reasonable expecta-
tion of her reformation, by warrant to order such
woman to be immediately, or at the time appoint^
in such warrant, discharged and released from fur-
ther confinement."
The statute 13 and 14 Charles 11. c 19* takes no
notice of the offence or the punishment, but it has
the justice to include in its provisions both the father
and the mother: ^^ Whereas the putative fethers and
lewd mothers of bastard children run away and leave
the bastard children upon the charge of the parish,
although such putative father and mother have
estates sufficient to discharge such parish, it shall
and may be lawful for the churchwardens and over-
seers of such parish to take and seize so much of
the goods and chattels and receive so much of the
VOL. II. B b
370
annual rents and profits of such putative father or
lewd mother as shall be ordered by any two justices
of the peace for the discharge of the parish.'^
From this period it has been the relief, discharge,
or indemnity of the parish, and not the punishment
or prevention of the crime, which has been the
object of the law, of the decisions of the courts,
and of the various orders and instruments drawn in
conformity with the law. Thus the object of 6 Geo.
II. c. 31. was confessedly " not the punishment of
the father, but the indemnity of the parish;'' and for
the same purpose the Act 49 Geo. III. c. 68. after
reciting that the Act 18 Eliz. c. 3. is inadequate for
the indemnifying of parishes, charges the reputed
fathers of bastard children with the costs of appre-
hending them and of the order of filiation, as well as
with the maintenance of the children ; and so the
order of filiation is made for the relief and indeni-
niiying of the parish and for the sustenance of the
child for so long a time as the child shall be cbaifpe-
able to the parish^
In the absence of other penalties, it has been said,
that the maintenance of the child is in itself con-
sidered ^^ a degree of punishment/' In Scotland
this penalty falls upon the mother, who is respon*
sible for the maintenance of her bastard child, and
this responsibility is faithfully discharged, and the
burthen is found to operate as a wholesome example
in preventing the offence. In England, where the
parish^ is liable to the maintenance, and requires to
be indemnified, the relief, in conformity with the
^ Burn's Justice.
371
statutes which have been recited, is thus obtained :
** When a woman is delivered, or declares herself
with child, of a bastardy and will by oath before a
justice of peace charge any person as having got her
with child, the justice shall cause such person to be
apprehended, and comntiit him till he gives security
either to maintain the child, or appear at the next
quarter sessions to dispute ft)d try the feet. But if
the woman dies or is married before delivery, or
miscarries, or proves not to have beeii with child,
the person shall be discharged; otherwise the ses-
sions, or two justices out of the sessions, may take
order for the keeping of the bastard, by charging the
mother or the reputed father with the payment of
money or other sustentation for that purpose. And
if such putative father or lewd mother run away
from the parish, the overseers, by the direction of
two justices, may seize their rents, goods, and chat-
tels in order to bring up the said bastard child. Yet
such is the humanity of our laws, that no' woman
can be compulsively queistioned concerning the father
of her child till one month after her delivery, which
indulgence js however very frequently a hardship
upon parishes by giving the parents opportunity to
escape 8."
The hardship sustained by parishes by their in-
capacity to compel, is not greater than the injury
done to morals and to justice by permitting, the
woman to declare h§r pregnancy before the magi-
strate, and to cause the apprehension of the man
whom she may have occasion to accuse. All the
' 1 B1. Com. c. 16.
B b3
37ii
statutes which have been recited speak an intelli-
gible language of a definite wrong; of bastards
begotten and bom out of lawful matrimoDy ; of
the mothers and reputed fathers of bastard children ;
and of the injury from which parishes require to
be indemnified from the birth of bastard children
chargeable to the parish. It was no conunon sa-
gacity which led the authors of 6 Geo. II. c. 31. to
introduce the preposterous provision of redressing a
grievance before it is sustained. Not only '* if any
single wotnan shall be delivered of a bastard child,
which is likely to be chargeable to the parish,'^ but
also if she ^' shall declare herself to be with child,
and that the same is likely to be bom a bastard and
to be chargeable as aforesaid^ and shall before a justice
of the peace charge any person with having gotten
her with child, such justice, on application of the
overseers, may cause him to be apprehended and
imprisoned, unless he give security to indemniiy the
parish .^^ If the woman complained of the assault,
the complaint might be justly heard ; the offence of
the ravisher would be complete ; and if the law took
criminal cognizance of seduction, it might be time
to commit the seducer to prison: but, while tlie
essence of bastardy as a crime consists in the wrong
to the parish, the permissive power conveyed by this
statute authorizes the arrest of a debtor before the
debt is incurred,- the apprehension of a criminal
before the crime is consummated. If the woman
dies before the child is born, the parish sustains no
injury, the man is in custody for tio offence which
the law can reach. When the bastard is bom, the
matter assumes an intelligible form ; but what is
373
bastardy by anticipation ? or what is an unborn
bastard, but a something, which may or may not
be; which under the darkest view of the case is
only likely to be; which, under the various contin-
gencies contemplated by the learned commentators,
may never be ; which by the marriage of the mother
may be born legitimate, or by her acquisition of
property may not be chargeable to the parish, a#d
of which the birth in either case is uo civil offence?
It is not meant to palliate the offence of the father,
which calls for punishment; but to condemn the
injustice of the existing law, as the law contemplates
the offence of bastardy. In this cognizance of of-
fences which are likely to he^ the law blushes at its
own folly, and in shame of its arbitrary enactment
annexes a clause, preventing the compulsory exa-
mination of the woman : ^^ No justice of the peace
shall have power to send for any woman, before she
be delivered and one month after, to be examined
concerning her pregnancy, nor shall compel her to
answer any questions relating thereto/^ It has been
remarked, that this statute insists chiefly upon the
civil offence of bastardy, the criminal character of
which is more distinctly recognized in 18 Eliz. c. 3.
7 Jac. I. c. 4. and the legal apology for the altera-
tions contained in it is, that one of the purposes of
its enactment ^^ was to prevent the justices th)m pro-
ceeding on the application of every lewd woman pre-
tending to be with child, till complaint by the church-
wardens'.^^ But the objection here insisted upon
is, that it admits the evidence of the woman before
^ Bum's Jastice.
Bb 3
374
the injury is oomplete (or in the eye of the law has
even commenced) by the birth of the child ; and it
is an ^gravation of the offencet if it sanctions, under
any circumstances, the appHcation . of lewd ^womeo
pretending to be with child.
It is doubtful whether such statutes are intended
to quench the blushes of ingenuous shame, or founded
in the apprehension that such shamed is already
extinct. It is certainly a fact, which nothing but
common experience would render cnedible, that a
woman . can be brought so entirely to forget the
modesty of her sex, as voluntarily and without ooo^
pulsion to declare upon oath ^' that she is now with
child, and that such child is likely to be bom a
bastard, and to be chargeable, and that such a man
did get her with child/' It is hardly conceivable,
that any man, with the feelings of a man, should have
devised such a formulary, under the name of an
oath, to be dictated to a woman. The most pro*
fligate debauchee has never entertained so calum*
nious an opinion of the sex, as is founded in the
fact that this oath is voluntarily taken. The dignity
of justice has never been so degraded, as when it is
required to administer an oath 30 di^ustingly r&>
volting ; and the solemn adjuration. So help me
God ! delivered with the right hand and the lip upon
the Gospel of truth and holiness, so profanely proati*
tuted, as when it is uttered in such a ihanner and
for such an end. It is true, that the woman cannot
be compelled : what then must that woQiap be, who
comes forward voluntarily to attest her own shame ;
to acknowledge a condition which a virtuous woman
will not reveal, and which the repentant sinner
375
would perish to conceal? Or what must be the
teeliogs of a man of honourable principle, when his
official. duty goads him to tamper with the woman,
to make enquiry into the fact, and to induce her to
make the requisite confession ? Practice and exj3e-
rience may blunt the feelings, and reconcile men to
the most offensive offices : and the first rumour of
the village gossip is made to justify the preliminary
question, if it is not anticipated in a moment of irri-
tation by a voluntary confession.
The privilege of attesting her pregnancy affords to
a profligate woman a temptation to perjury, of which
she does not fear, and a means of successful intrigue,
of which she does not neglect, to avail herself. The
very forms of law imply that she may not be in the
condition which she avows upon oath, and that the
event may convict her of the qualified peijury* The
magistrate cannot however refuse to act upon her
declaration, and to prevent the *^ hardship upon pa^
rishes'^ by the escape of the man, he is immediately
apprehended upon the information of the woman,
and required to find securities to answer the charge.
If he cannot find the requisite security, he is liable
to be committed to prison, where he may lie for
several months, awaiting the several contingencies of
the birth of the child, or the woman's marriage, or
miscarriage, or death ; or the accession of fortune,
which enables her to maintain the child ; or the
proof which time affords, that she was not pregnant,
and that she was guilty of perjury in respect of the
fact. To prevent the imprisonment, a treaty* of
marriage is sometimes concerted between the parties,
to which, as it completes the indemnity of the parish
B b 4
376
likely to be aggrieved, the overseers assent, (aod
contribute secretly and as far as the law will allow,)
and thus all further proceedings are suspended. The-
child is not likely to be bom a bastard, and that he
is likely to be chargeable is a contingency remote
from immediate consideration. But what is the
marriage which is thus concerted? All ideas of
sanctity are excluded by the circumstances of the
case, and the absence is compensated by the advaiK
tage of making the best reparation to the woman,
and healing the wound which public and private
virtue has received. But can it be called a voluntary
contract, into which a man enters while he is in
custody of the constable of the parish or the keeper
of the bridewell, and knows that on his taking the
woman to wife depends his restoration to liberty or
his return to prison ? The unseemly answers, and
the unseemly conduct, common to such constrained
unions, have excited the indignation and disgust of
many a clergyman, upon whom the chief penalty is
imposed, by the indirect operation of these laws of
bastardy, and who alone is sensible of the sorrow, and
the shame, and the profanation, which they inflict.
It is perfectly just and right, that the man seduc-
ing or seduced should be required, if the circum-
stances will permit, to marry the woman whom he
has debauched. It is a law of the Scriptures, which
has been adopted both by Christian and by headien
legislators, and which is recommended jon the au-
thority both of reason and religion ; but it is a result
which the present state of the English law is more
calculated to prevent than to promote, or at least to
force than to conciliate. It is worthy of the most
377
serious consideration, whether the law might not be
so nKxlified, as to admit the appearance in all cases,
and in some to accomplish the reality, of a voluntary
contract, which it is known that the parties will
frequently concert between themselves, if they are
ui^ed by the certain terrors of the law, but not pre-
cipitated by the indiscretion of the woman, or the
premature interference of th6 overseer. In Scotland,
the good effects of making the woman answerable
for the maintenance of the child have been seen to
produce increased circumspection on the part of un-
married women. The man also might be rendered
more cautious, if he was assured that he could not
debauch the virtue or take advantage of the com-
pliance of a woman, without incurring penalties only
to be avoided by marriage before the birth of issue ;
and the general effect of improved energy and sim-
plicity in the law, cooperating with the progress of
religious education, and the proper consequence of
that education, the renovated virtue of the people,
would be the decrease of bastardy, and more pru-
dence and deliberation in the marriages of the poor;
The improvements most immediately required in
the law of bastardy are, to abolish the permissive
power of examining the woman before the birth of
the child ; to leave her without enquiry and without
redress to the consequence of her offence; to compel
the lewd mothers of bastard children^ whether
chargeable or not chargeable, to declare the father
within a limited period \ after the birth ; and to
subject them in all cases to a solitary imprison-
ment, under the regulations prescribed by the statute
50 Geo. Ill . c. 51 . This would prevent the possibility
378
of the womaiifs perjuiy id respect of the ftct; it
would supersede the admiDistratioD of the obnoauous
oath and the unseemly enquiries which are at pieKnt
allowed ; and it would make the woman more caif-
tious of prostituting her virtue in the first instanoe,
and more anxious in using her best influence to
consummate the marriage before the birth of the
child, which would otherwise be bom in bastardy,
and of which the birth would be a criminal ofifenoe,
to be followed by a penal prosecution. The revived
doctrine of the crime and the penalty might produce
new apprehensions of the nature of an act, which,
because it is found to be venial, is too often con-
ceived to be innocent and inoffensive.
The circumspection of the man might also be ex-
cited, by making him also liable not only to his proper
share in the maintenance of the child, but to a certain
penalty, whether of fine or imprisonment, or both,
which should be increased by any difficulty in ap-
prehending him, or in procuring die necessary order
of filiation in conformity with the Ace 49 Geo. IIL
c. 68. and which should only be obviated by the
marriage of the woman before the birth of the child.
It is a common practice to commute the maintenance
settled in the order of filiation for the payment of a
certain sum indemnifying the parish : but it is here
proposed to levy a fine in addition to the fixed
weekly maintenance, and to regulate the amount of
that fine by the circumstances of the individual, so
that it should operate with equal force upon men in
different conditions of life. A variable fine, paid to
the parish as a penalty for the moral offence, and as
a compensation for the civil injury, would remove
37»
from the woman the temptatioD of taking advantage
of a wealthy reducer, a[nd from tbe man of gratifying
bis passions at the small expence which is incurred
in the maintenance of the child.
While bastardy would thus return to its criminal
character^ the proposed arrangement;s would not be
liable to the objection of reqioving the ni^cessary
indemnity required for the civil injury sustained by
parishes, which could hardly fail to be relieved by
any revision of the law of bastardy. It is common
to complain, and there is but too much reason to
complain, of the increase of bastardy, and of the
heavy burthen which it imposes upon parishes. The
present expences of apprehending the man, and of
the subsequent order of filiation ; the possibility that
the man may fix>m various causes be incapable of
making the stipulated payments ; the;popr ccmipen*
sation which arises from his commitipent in dischai^ge
of the debt ; the frequent loss of the orders of filia-
tion ; and the manijbld evils which arise fix)m in-
voluntary marriages; are such as, compared with
the chances' of the infant's life, leave so little for the
remuneration of the parish, as to render it very
doubtful, whether on the average of cases entire for-
bearance might not in a pecuniary view be the ntiore
profitable course. The parochial injury, however, is
the lowest point of consideration ; the permanent
and perpetuated mischief and misery of forced and
imprudent marriages exceed the casual evils of bas-
tardy : and it is apprehended, that if the burden of
parochial rates, which in the same degree that it
oppresses the rich degrades the poor, shall ever be
lightened, the efifect must be produced by enact*
380
ments devised in a very difierent spirit from the laws
of bastardy, and calculated to renovate the moral
energies of the people, and to restore them to a state
of self respect, and to a proud independence of all
resources but the just reward of virtue, honesty, in-
dustry, temperance, and frugality.
Entire forbearance might however be neither mo-
rally just nor politically expedient; and if any doubt
should be thrown on the* expedience of the penal
fine, it is obvious to answer, without insisting on the
sin or the crime of incontinence, which includes the
offence of bastardy even before the birth of the child,
that bastardy is already and under the existing law
of a criminal character, an offence in the too olraolete
language of the Statute, contrary to God's law or
man's law ; and that, as a crime recognized by the
older laws, it calls for punishment, and is liable to
punishment's although the offence is chiefly sus-
pended on the civil injury. The wrong done to the
parish is not however to be compared with the in-
jury to the mother, who suffers all the accumulated
evils of seduction ; or to the child, who is born
' << Rex V. Bowen. 5 T. R. 167. W. Bowen, being a private
eoldier in actual service, was committed on a charge of bastardj,
for refusing to give security to indemnify the parish. • . • . The
Quarter Sessions ordered him to be committed to custody, and
they stated a case upon the preceding circumstances for the opi-
nion of the court of K. B. . . • The court decided that a private
soldier might be committed upon such a charge, and that the
charge itself was of a criminal nature." Bum's Justice. See also
the Term Reports: the substance of the case may be thus stated:
Bastardy not merely a civil offence, but a criminal, and before
the birth of the child, for it is incontinence. This was the groond
of Lord Kenyon*s judgment.
381
either chargeable or not chargeable : in the one case
he is incapable of inheritance, the child of no one,
born to suspicion and dishonour which he has not
deserved, and often through life excluded from con-
nexions which he has the merit to adorn ; in the
other case he is born a degraded pauper^, sustained
from his very birth at the expence of the parish,
educated in a workhouse or an hospital, disowned
and rejected from his natural family, often abandoned
by his mother, destitute of a ft'iend in whom he may
confide, or from whom he may expect to receive
control, protection, and advice, and born like the
half-castes of India, to the inheritance of '^ anguish
and ignominy, for which the gift of life is no recom-
pence/^ There is an offence in giving birth to such
a child, which should not be followed with impunity,
of which humanity and justice demand the penalty,
and which every motive of hope and of fear should
be employed to restrain.
The evils of bastardy are hardly seen in the busy
scenes of the metropolis ; in the manufacturing dis-
^ " St. Nicholas Leicester, appellants, and All Saints*, Derby,
respondents. This was a case of appeal at the Sessions for
Derbyshire : when the court confirmed the order subject to the
opinion of the King's Bench upon a special case. The court
quashed the order. The question arose upon the removal of an
illegitimate child, born in the Black Friars, Leicester, an extra-
parochial place, to the settlement of the mother: and the effect of
the decision is to establish, that illegitimate children, bom in
extra-parochial places, are irremovable to the settlement of their
mothers, and consequently having no settlement of their own,
must be maintained as casual poor by the parishes in which they
may happen to be from time to time resident." Public Prints,
June, 1824.
382
tricts the burthen is oppressively felt ; but it is in
the supposed simplicity of rural life, that there is
leisure to contemplate the moral wrong and the I^al
abuse, and to point out the relief which is required.
Magistrates and clergymen in the country have too
frequent proof of the offence, and of the necessity of
an improved system of control. It is hoped that
there is already an improved disposition to make the
best reparation for the offence by a voluntary mar-
riage, without the interference of the overseer, and
that there is less frequent occasion for the significant
presence of the constable, as the witness of a mar-
riage by licence, which is restricted by the Canon to
the use of " such persons only as be of good estate
and quality,'' and the fraudulent purchase of which
may subject the parties to an action. If there be a
progress to improvement, it is desirable that it should
be accelerated and confirmed by the introduction of
a more efficient and more simple system. The
system which has been recommended is grounded in
the Scriptural law of seduction, that a man should
marry the woman whom he has debauched, or pay a
penalty for the offence. When it is known that the
only alternative is marriage or punishment, there
will be a strong motive to avoid the offence or pre-
vent the penalty ; and thus the dignity of marriage
may be restored from the degradation of a forked and
involuntary contract ; and the crime and mischief of
bastardy will be restrained.
CONCLUSION.
lO the discussion of the principal and most ini'
portant questions relating to the doctrine and law
of marriage, adultery, and divorce, it is only neces-
sary to annex a very brief recapitulation of the
course of argument which has been pursued ; and
It is hoped, that if the investigation shall result in
the exhibition of a clear, consistent, and harmonious
doctrine, it must be founded in principles that are
true, and certain, and worthy to be maintained.
The principle on which the whole theory is con-
structed, is, that marriage is a divine institution, and
this principle is maintained not only on the common
assertion of the primitive writers, and the constant
tradition of the Church, but on the combined autho-
rity of the Old and the New Testaments, and it is
proved by the providential care which has watched
over the preservation of marriage, and made pro-
vision for its perpetual use in the conveyance of
good to mankind. This doctrine, is not' liable to
any imputation of superstition, nor does it involVie
the inference of a sacramental character. The merely
civil contract of marriage, for which some writers
have contended in preference to the divine institu-
tion, has been shewn not to be held without ^limita-
tions in the law of England ; to be inconsistent with
the circumstances under which marriage originated
and became the parent not the child of civil society ;
to place the rights of marriage in subjection to cer-
tain restrictions ; to weaken its obligations ; to make
384
its permanence to rest on rules of policy and expe^
dience, to the prejudice of that indefeasible perpe-
tuity which constitutes the essence of the lelatioo ;
and to render adultery a civil injury. The opposite
doctrine of the divine institution results in ascertain-
ing and enforcing the practical virtue of marriage,
and in elevating the dignity and the holiness of the
state.
The terms of the divine institution in fixing the
permanence of marriage justify the necessity of a
public ratification, of which the origin is as ancient
as the practice is universal, and corresponds widi
the honour of marriage without infringing its sim-
plicity. The holy character and divine origination
of marriage also suggest the inference that this pul^
lie ratification should be marked by religious rites,
which are appropriate to the solemn nature of the
engagement, and useful in attestation of the cove-
nant, and which, however they may appear to have
been neglected in countries whose manners are bar-"
barous, or imperfectly known, have uniformly pre-
vailed in the most civilized nations of antiquity.
The New Testament certainly offers no objection
to the religious ratification of marriage, and the
practice of sacerdotal benediction may be traced in
the Eastern and the Western Churches from the
earliest ages to the period of the Reformation ; and
the most ancient and continuous evidence of all
men, all ages, and all places, is agreed in upholding
those religious forms of solemnization, which are at
once the testimony and the consequence of the
divine institution. The necessity of the sacerdotal
benediction has been familiarized by iinmemorial
385
practice to the habits of Englishmen, and been
enforced in ,the most ancient provisions of the law,
distinguishing the contract firom the ratification, and
allowiBg an efficacy to the one, which it withholds
from the other. The public celebration in the
Church and t^e invalidity of the private contract
out of the Church were maintained from the Re-
formation to the passing of the Marriage Act in
17^4*, which makes no exemption but in fevour of
Jews and Quakers, and was not designed to con-
tract any privilege previously possessed by noncon-
formists. The impolicy of acceding to any of the
propositions for abating the necessity of conformity
in respect of marriage has been examined, and it has
been suggested, that all the objections to the use of
the ritual may be removed by a judicious revision,
without any compromise of the ancient and universal
practice of the religious ratification of marriage.
The terms of the divine institution imply the
existence of certain impediments precluding and
vitiating the contract of marriage, impediments cor-
responding with the natural sense of propriety, spe-
cified in the law of Moses, and recognized in the
universal practice of all nations, which have for-
bidden marriage to be contracted within certain de-
grees of consanguinity and affinity. There is not
the same authority for proscribing the marriages
which minors may contract without consent of their
parents, and in violation of filial duty, but of which
the nullity rests on no better principle than the
arbitrary despotism of the Roman economy, and is
foreign to the constant tenor of the English law.
The nullity of the marriages of the Royal Family
VOL. II. c c
386
rests on the ground of a very questionable ex-
pedience.
The divine institution and religious TatificMioo of
marriage give new force to the duties of the rdatioDy
v^hich is contracted in terms of the most exact feci*
procity, corresponding with the personal unity of
the parties maintained in the Scriptures and in the
English law ; with their community of interest both
m temporal and spiritual concerns ; with their mu-
tual society, division of domestic cares, and constant
cooperation, especially in the instruction of their chil-
dren ; and with the indissoluble perpetuity of the
relation, of which the reciprocal duties cannot be
neglected without opening a way to recrimination.
The doctrine that marriage is not a merely civil
contract, but a divine institution, establishes * the
sinful character of adultery, which is proved in the
prohibitions and the penalties delivered in the Scrip*
tures to be a sin of a very aggravated kind, a sin
only less heinous than murder and idolatry. In its
practical effects it includes a complication of the
basest fraud and perjury, and inflicts an injury upon
the woman, the husband, and the children, whicb^
cannot be repaired, which cannot be compromisedt
and which no man who consults his own heart does
not deprecate as the worst of sorrow and the worst
of shame. The Christian religion appreciates the
equal guilt of both parties ; it offers no palliation of
the offence of either, and pronounces on both the
sentence of eternal doom. By the Jewish law the
offence was capitally punished in both parties, and
the law^ of the bitter waters afforded a redress in
cases of secret guilt, which could not be obtained by
387
marital infidelity. The criminal character and penal
consequence of adultery are approved by the com-
jnon sense of mankind, and there are but few nations
in which it is not punished as a crime. In the
earlier stages of the English law, and at the time
of the Reformation, its criminal character was also
recognized, and the offence was made, or proposed
to be made, liable to penal prosecution. With the
only exception of a certain justification of homicide
committed in retribution of adultery, and of the
aggravation of the offence in a clergyman, adultery,
in correspondence with the received view of mar-
riage as a civil contract, is made a matter of civil
injury, which may be satisfied by an action for
trespass, and by the recovery of damages, of which
the amount is estimated upon various considerations
of the conduct and of the circumstances of the par-
ties. The partiality and inadequacy of this state of
the law are too plain to be denied, and various
measures have been proposed for restoring it to a
more just and equal operation, for recognizing the
criminal character of the act, and rendering it liable
to a public prosecution and to an appropriate severity
of punishment.
The terms of the divine institution assert the
indissoluble unity of marriage, of which the per-
petuity is established upon reasons worthy of the
divine wisdom and benevolence, in making the
most effectual provision for the protection of the
infirmity of the woman, for the continuance of the
necessary solace through the whole period of human
infirmity, and for the religious education of the
offspring. This /essential individuality of marrii^
c c 9
388
is not destroyed even by the act of adultery, of
which >divorce is neither the proper penalty nor the
necessary consequence, and which, however common
in the practice of men, was not in the beginning, is
an acknowledged deviation from the law of marriage,
and originated in circumstances of remote and im-
penetrable obscurity. The first authentic law of
divorce is a law remedial and restrictive of a pre-
vailing abuse; a reluctant concession to the hardness
of the Jewish heart ; a permission granted without
any approbation for the (prevention of greater evils.
The fluctuating and uncertain rules which betray the
human origin of divorce are especially manifest lo
the laws of Greece ; and however introduced into
those of Rome, it was not for a long period adopted
into practice, and in the profligacy of the declining
empire its facility and extension were made to de-
monstrate by the most perfect experiment, that ^^ the
liberty of divorce does not contribute to happiness
and virtue.^^ Under any interpretation the Chris-
tian scheme restricts the licence of divorce to one
single cause, throwing all the blame of the conse-
quences upon the man who divorces his wife for
any other cause ; authorizing the practice only by
vitiating the effects ; requiring clear proof of the
adultery, if that be the meaning of the clause of
exception ; insisting upon the innocence of the ac-
cuser, and permitting the man only to marry after
the divorce without incurring the guilt of adultery.
There are however difficulties in the ordinary inter-
pretation which it is hardly possible to overcome;
and it has been argued upon primitive authorities,
that adultery is not meant in the clause of exception;
389
that it is not necessary to understand that clause in
the texts in which it is not expressly inserted, or to
limit by the interpolation the general indissolubihty
of marriage ; and that it is more agreeable to the
Hellenistic and primitive use of the word ; to the
occasion, scope, and context of our Lord^s discourse
with the Pharisees ; to the other texts which contain
the rule without the exception ; and to the doctrine
of Saint Paul, and his reference to the authority of
our Lord ; to understand the permissive principle of
separation, particularly of the prohibited marriage
with aliens, and generally not of a fault subsequent
to the marriage, but of an impediment precluding
the marriage, and to allow* the dissolution of no con-
tract which is not originally invalid. In tracing the
Christian doctrine of divorce through several pe-
riods, it appears, that before the time of Constan-
tine alien marriages were prohibited and null ; the
general indissolubility of marriage was maintained ;
the clause of exception was applied with the most
scrupulous moderation, and was gradually perplexed
by inadequate versions ; and that if the separation
of the parties was allowed, they were required to
remain in singleness and a condition for reunion ;
and that adultery was held to be the consequence of
marriage after separation, or, in the judgment of the
monogamists, of any marriage succeeding the first.
In the second period the prohibition of divorce was
relaxed under the authority of the emperors and the
accommodating compliances of the Church, which
nevertheless did not abandon the indissolubility of
marriage ; and even in the third period that doctrine
was retained in the Latin Church. The causes of
c c 3
MH)
divorce, wbicli had been originally multiplied by
the em(>erors, were eventually aiade to comprehend
offences which had not the faintest or i€motest le*
ference to matrimonial sin, and which no human
ingenuity can deduce from the clause of excep*
tion.
The indissolubility of marriage is and ever has
been a main principle of the English law, which
permits the separation of the parties only for cruelty
and adultery, and places the latter cause under va-
rious restrictions. The troubled period of the Re-
formation offers an equivocal argument and example
of a more relaxed rule, which was not however
brought into full operation before the reign of
Charies II. when Pariiament first assumed the right
of dissolving marriage, and created the bad pre-
cedent, which, ^with the dangerous facility of all laws
of divorce, has been carried beyond the original
intention, and under which the general law of the
country is suspended in favour of individuals, and a
practice is introduced, embarrassed with inextricable
difficulties, marked by the grossest contradictions
and anomalies in its rules and principles, and liable
to all the objections of private, partial, and ex-post'-
facto law.
Private acts of separation are in fact privations of
conjugal and parental duty, are distinct anomalies in
the ordinary practice of divorce, and are contrary to
the rule of marriage delivered by our Lord, and to
the engagements contracted by the individual. 1" hese
acts are opposed by the law of England, which in
its ancient principles acknowledges no separate main-
tenance, and in practice allows them to be super-
391
seded by a suit for the restitution of conjugal rights,
and puts on them a construction unfavourable to the
husband, binding him to the full measure of his
bond, and barring liim of the remedy which he seeks
under the worst of injimes. The validity which
they are occasionally allowed to possess, confessedly
rests on precedents, not principles, of law, and they
are justified by no necessity, and rejected by the
general policy of the law.
The doctrine of marriage, contemplated as a divine
institution, has been also contrasted with the prac-
tical effects of admitting the merely civil contract of
marriage, which has been shewn to produce uncer-
tainty in the obligation, and to facilitate the practice
of divorce.
The main principle which it has been attempted
to sustain, and the whole argument which has been
constructed upon that principle, have been made to
rest on the authority of the Scriptures interpreted in
conformity with themselves by the collation of text
with text, and in correspondence with primitive
comments and expositions : and the constant object
of the discussion has been to exhibit, in deference to
the divine authority, a simple and harmonious doc-
trine of marriage, adultery, and divorce, and by the
removal of exceptions founded in inveterate misap-
prehension to rescue marriage from the character of
a civil contract to the dignity of a divine institution ;
and, in subservience to the terms of that institution,
to irphold its religious ratification, to restrain the im-
pediments which preclude the contract, to enforce
the reciprocal obligations which belong to the re.
lation, to insist upon the sinful and criminal character
c c 4
392
of adultery, and to suslaiiLthe indissduUe perpetuity
of the /matrimonial union.
In this attempt there are no doubt many erron
and deficiencies, which wisdom may correct and
candour will excuse; there may have been more
boldness in encountering objections than address in
removing them ; more presumption in exposing the
defects of the law than skill in su^esting the proper
remedies. But it is hoped, that nothing is asserted
in prejudice of moral virtue or religious truth ; that
the temerity of private opinion, and the revival of
obsolete interpretations, have not been pressed be-
yond the occasion ; that no offence has been gra^
. tuitously given to individuals ; and that in the op-
position which has been occasionally offered to great
names, there has been no neglect of the deference
which is due to the authority of argument. The
question which has been debated is a question of
vital importance, intimately associated with private
happiness and with public virtue ; and however the
indiscretion or incapacity of the writer may fail to
establish the theory which has been proposed, there
is a hope that new attention may be drawn to the
doctrine and law of marriage, adultery, and divorce,
and that better abilities may be engaged in illustra-
tion and defence of the holiness, the duty, and the
permanence of that relation, which, originating in
the divine institution, and ever supported by the
divine benediction, has been made, at all times and
in all nations, in every age and condition of life, the
great means of promoting the knowledge and virtue
of individuals, the peace of families, the social aflec-
tion of kindred, and the civil order of nations, ajid
393
which has wonderfully and mysteriously comb]nec(^
the vast and incomprehensible design of the progres-
sive population of the world, with the minutest
attention to the consolation of individual infirmity
and decrepitude. The mind which can comprehend
the good which marriage has effected, and is de-
signed to effect, will acknowledge such beneficence
of design as implies a divine Author; and every
man who desires to appropriate the blessing to him-
self, will prove his gratitude by a practical submis-
sion to the rules of the divine institution, and ever
declare the praise of His goodness, who, when he
saw that it was not good that man should be alone,
made an help meet for him ; ordaining that the man
should cleave unto his wife, and seeking in the per-
petuity of the union the most efficient method of
continuing a godly seed.
APPENDIX
No. I.
ON THE HELLENISTIC AND ECCLESIASTICAL MEANING OF
THE WORD XOptUi.
The various, the confused, and the unsatisfactory expo-
sitions of the word xo^eia, as it occurs Matt. v. 32. xix. 9.
Acts XV. 20, 29. seem to demand and to justify a more
exact investigation of its meamng and import. It is not
probable, that any discovery will be made which has
escaped the penetration and research of former comment-
ators; but it is possible, that by comparing the several
texts in which the word and some similar expressions arc
found, and by bringing into one point of view the versions
and the commentaries by which those texts have at dif-
ferent times been illustrated and explained, a clear and
strong light may be thrown upon the sense in which the
Jews understood the term, a sense which it is of the
highest importance to ascertain, because, in the texts in
question, the word was used with reference to controversies
which were agitated at the time among the Jews.
The principal design of the following dissertation is to
shew, 1. that there is a word, 6r class of words, appro-
priated to describe adultery ordinarily and properly so
called : 2. that the words so appropriated are distinguished
from those which denote sim^de whoredom: 3. that if
either of the words be a generic term, including the other,
iro^uct is- not that generfc term : 4. that it is not necessary
to admit, that mgvuoL is in any text confounded or syno-
nymous with fi/n^ita: 5. that the Hellenistic writers do
not adhere to the classical sense or etymology of the wordg,
but use voqviiKOy fxvo^ffuco, ^ro^, and mgnui^ to denote
39()
generally the apastacy of idolatry, and specifically acts of
consecration to the service of idols, and also the incestuous
and forbidden marriages of the Jew with the Gentile, of
the faithful with the unbelieving. In the establishment of
these propositions more or less attention will be paid to
every text in which the words in question occur, and,
without pretending to deny that irogveia bears the sense of
simple fornication, it is meant to shew, that there is no
authority for interpreting the word in the sense of aduU
tery, and that, whenever it is restricted by the context to
a state of marriage, it is necessary to resort to some more
authorized, although less ordinary and familiar, meaning
of the word. It will confirm the argument to collect such
evidence of the primitive import of the word as is scattered
in the relics of the Hellenistic and Christian writers, who
flourished before the expiration of the third century.
1. There is a copious class of words appropriated to
describe adultery in all its circumstances. The word
/t4oi;^sia denotes the state or act of adultery*. The wcnrd
fM<X^^ denotes the person of the adulterer^*, and yu^mXti
the person of the adulteress^ The adjective fMip^oAi;
denotes the character of a generation practised in adultery,
whether real or figurative, actual or spiritual"*. The verbs
IMi^otofucUj fjL0i)^ev(Oy and |xoi;^ffuo|xai, signify the commission
of adultery*. There arc not less than fifty texts in which
the word iMi^ps and its derivatives are used to denote
adultery properly so called, in all of which the sense is
undisputed, and a clear notion is conveyed to the mind of
the reader, and many of whicIT arc defined and explained
• Matt. XV. 19. Mark vii. 21. John viii. 3. Gal. v. 19. Jer. ziii. 27. Hot. ii.
2. iv. 2. b Job xxiv. 15. Psalm zlix. 18. Prov. vi. 32. Ita. Ivii. 3. Luke
jnriii. 11. 1 Cor. vi. 9. Heb. xiii. 4. James iv. 4. e Esek. zvi. 38. zxiu.
45. Hos. iii. 1. Mai. iiL 5. Bom. vii. 3. James iv. 4. (2 Pet ii. 14. the ccm-
Crete is used for the abstract.) d MatU xii. 39. xvi. 4. Mark viii. 38.
« Ex. XX. 13. Deut. v. 18. MWt v. 27. xix. 18. Mark x. 19. Luke xviii. 20.
Rom. ii. 22. xiii. 9. Levit. xx. 10. Matt. v. 28, 32. xix. 9. Mark x. 11, 13.
Luke xvi. 18. John viii. 4. Jer. iii. 8, 9. v. 7. ix. 2. xxiii. 12. Ezek. xiiii. 43.
Hos. vii. 4. Apoc. ii. 22.
397
by some circumstance more or less distinct in the context*
In some of the figurative applications of the prophets, the
meaning may be thought equivocal, and it may be difficult
to trace the analogy of the metaphor ; but in the ordinary
us^ of the word there is no ambiguity ; and it is no gra-
tuitous hypothesis, that, if adultery had been intended in
our Lord'^s clause of exception concerning the justifjring
cause of divorce, Matt. v. 32. xix. 9. the commtm word
fjioi^eia would have been used in preference to xogveta^ espe-
cially as the verb fMixaofiai is actually used to designate
the effect and consequence of an unjust divorce.
2. The ordinary meaning of ftofx^'^ is unequivocal and
undisputed : it is also in various texts distinguished from
itoqyuoL in such manner, that if the two words be indeed
equivalent and S3monymous, and do not relate to distinct
and separate ofiences, either term would have been suffi-
cient to express the author^s meaning, and the other would
have been altogether and most unnecessarily redundant.
The evidence of the restriction of rogveia to simple whore-
dom, and of its distinction from other ofiences, is very
clear and explicit. Thus irugdivov /tij xotroLfiaviave • . /tij &p;
frogvous ^v 4^^^ <^^^ • • f>^^^ VJroLi^got) yweuKOs fiyj xotfot/. Syr.
ix. 5, 6, 9. Cf. xli. SO, 21. auro ogourtn^ yvvaixo; hougasj earo
xaravoY^O'eooi yvvcuxos tnretvlgov. Again : dvo €i!8fi irkridwouciv
dfjLagricis xai to rgiroy nra^n ^^y^V ^t^yj itgfiyj • • av6ga)w$s
frogvo$ • . avtgooiros iragoifiouvoov earo rris xXivtis oojtov, xxiii. 16,
18. Tifj^Yj yoLq ifoqw^ij ^ xa< ^o; o^ou, ywi] Ib oa^goov rifjuag
4^^015 ayqwii, Prov. vi. 26. The same distinction is made
in the New Testament, in which the apostle declares that
God will judge fornicators and adulterers, to^ou^ 8e xai
fjLoiX<iv$, Heb. xiii. 4. and that fornicators, idolaters, and
adulterers shall be excluded from the kingdom of heaven,
1 Cor. vi. 10. on which Schleusner remarks, that " ttojvoi a
f/^oixoi . . diserte distinguuntur.*" The same apostle enu-
meratcs adultery, fornication, uncleanness, lasciviousness,
among the works of the flesh, Gral. v. 19. and it is admitted
by Parkhurst, that in this passage mgvtM^ or simple fomi-
398
catkm, is " disdnguubed both from iM^tm^ adultetyy and
MtKymety laad^oumefls of other kinds, and also firam «•-
fa^M, undeanness.^ Our Loid makes the aaase distino-
tion, affirming, that murders, adulteries, fomicatioQB, {ho-
ceed from the heart. Matt. xv. 19. Mark vii. 21. and in
this text as is rosiarked by Schleusner, <^ w^prnm a p^rnxfun
ita distinguitur, ut illud de soortatione et fonacatiooe
tantum, et aliis impudidtiae generibus, aduUerio tantimi
excepto, acdpiendum sit.^ In the texts in question nur
Lord, in describing the consequences of an unkwful di-
vorce, speaks of adultery, pMi^^flerai, but in the dauae of
exception he uses the word rnqnuu Is it probable that
there should be this variation of the exjNression, without a
corresponding distinction of the sense ?
3. If it is admitted that there is a distinction between
the words /uMi;^ffia and iro^ia, the nature of the distinctkm
seems to be obvious, that the fonner denotes the offence cf
married persons, and the latter that of unmanied personsi
But with allusion more or less distinct to the texts in
question, commentators andent and modem, firom Qrigen
to Grotius, have contended for a large and almost inde-
finite signification of the word iro^io, and suggested thai
it stands for a class of crimes including /xoip^tia as a distinct
offence. Thus the author of the Clementina asserts that
there are many kinds of wopfua, irXijy wfomi iMixpia tsriy, but
the earlier and better authority of Clemens Alexandrinus
allows rofvuof rgiig roig Sia^o^, f lAsf&yiay, f iXtfjyvjiaiv uIhh
AoAtfr^iov, Strom. 1. vii. s. 12. without any spedfic mentioa
of adultery. The large sense has nev^thdess been a^
mittcd into the Lexicons ; and Parkhurst, who admits the
distinction between wognuij and /xotp^io, and cotaietfO'M^ saya^
that the former <^may include all kinda of lewdmmB:
Rom. i. S9. according to Theophylact on the place : wwrm
dwXeos Tijy eatctSafa-iav rep tiis wo^etas oyo/Kori ««}itAaj3fv. The
apostle comprehends absolutely all kind of uncleanness
under the name of ro^ua. Compare 1 Cor. vi. 18, 1&
(where sec Eypke,) vii. 2. 1 Thess. iv. S, and foHowing
399
verses."" The words of Schleiisier» aldiough he idso ad*
mks the distmction, are equally oomprehenMve : ^< VoCa-
bulttm hoc latissiJtne patet^ el non solum scortatiooem,
fomicatioiieni, stuprum, piosdtudoBein corporis^ vel quao-
stus vel libidinis causll, sed etiam ooum generia impudi-
dtiam, quocunque modo se exserat, iiicestuiB, adlilteriuiii)
interdum adeo libidinem procreandi naturafem et (Muiiibus
iogeneratam, quatenus ad mcestam et illipitam consue*
tudinem sollicitare homines valet • . . Bom. i. 89. vo^mmt
impudicitia omnis generis, ubi in duobus oodicibus ante
«of >f la additum legitur mxaiaga'toif quod merum ^ossema
sapit, nisi wopaa h. 1. de adulterio, praeeunte Zonari^ in
Can. xix. Basil, cujus verba laudat Wetstenius, N. T. T.iL
p. 9,1. interpretari aliquis nuilit.'' Of this various reading
Griesbach takes no notice, and it is certainly not of suf-
ficient authority to justify the meaning imputed to wogmta
in this passage. The principal question is, whether TOfmta
is thus comprdiensive in its signification, and wheth^ it
includes fAoij(ita as the specific and subocdinate offence.
In the texts to which Purkhurst appeals in proof of the
large signification of «v^eia, 1 Cor. vi. IS, 18. vii. S. there
is certainly no reference to adultery : and in 1 Thess. iv. 8.
the precept is agfunst simple fornication; distinguished
from adultery, which is probably implied in the sixth
verse ; and comprehended together with fornication under
the general word eauiliaprM in the seventh verse. Where
this word axoBot^ia is a genuine reading, and not a memm
glessemaf it is the ^neric term, as in Gal. v. 19* fioipigiMty
irofvtiotj uHa6oif<na, where the three words have distinct and
separate meanings ; fMtxjuoi^ adultery commonly so called,
distinct from iro^eMc, fornication of whatever kind; and
both distinct from axadafO'w, impurity in general. See
also 2 Cor. xii. SI. where vofimia and eataSoffrui occur to-
gether, without impoinng on m^wta the sense of adultery,
which, if it be necessary, is implied under oxfiAofo-uu If
wogmu is a generic term, comprehending the specific offence
of /xoixsia, or if it denotes the more aggravated orime, and
400
therefore includes the simpler offenoe^ it would be
able to expect some general prohibition of foroicatiOD or
wog¥tiCL But the seventh commandment is not ov vogmarm^
but ov /xoixivcn^y ftnd this commandment either includes
fornication as the subordinate offence, forbidding not only-
adultery but whoredom also, Lact. Div. Inst. Epit. c. 64'
or there is no prohibition of fomicaticm. When this com-
mandment is repeated or alluded to in the New Tesuunent^
the prohibition of fornication is implied, not expreaied:.
and in adverting to the pollutions of the heart, in wbidi
our Saviour observes the order of the Decalogue, fMij^Mi
occurs in the first place as the sin fortiidden, and ivo^mmb as
a distinct offence occupies the second or subordinate plaoci
^^ murders, adulteries, fornications.'^ In the clause ct ex-
ception it was the undoubted purpose of our Saviour to
abridge the facilities of divorce, which the Jews had de-
rived from the<^word uncleanness in the law of Mosesi;
Dcut. xxiv. 1. But it is obvious, that if the word ««(piM«.
be of that general sense and signification in which it is
interpreted by Grotius and other expositors, the explicit
purpose of our Lord is defeated by the ambiguity ct hia
language. His clause of exception, thus largely expounded,
cannot be supposed to restrict the licence, which was?
collected from the Mosaic, law. This alone is an insupe^
rable objection to the argument of Selden, that wo^mmi in-
the use of the Pharisees is equivalent to any unclean- ;
ncss.
4. At the same time it would be disingenuous to iwnffeal
that there are texts, in which jxoi;^sia may be justly oot^
c»vcd to be almost if not altogether ccmfounded with
•xo^iou It is the received and undisputed opinion of the
commentators, that the prophets, in describing the cove-
nant which God had contracted with his Church under the
name of marriage, denote apostacy or idolatry, which is
the violation of that covenant, under the corresponding
name of adultery: and it is in some of these figurative
descriptions that the words irogvtta and fAotj^na may seem to
401
be used prqmiacucHisly and without discrimination ^ This
indiscriminate use is confined aUnost exclusively to the
highly poetical parts of the prophetical S^gnptures: both
terms, if the ordinary sense of %o^ia be innsted upon, are
confessedly used in a metaphorical sense; and it is very
possible that the true analogy of the figure may have been
overlooked and cannot be recovered. It would be worse
than tedious repetition to enter upon a minute examination
of these texts, before the ground upon which it is intended
to maintain the distinction of the terms has been opened.
It is admitted, that in the prophetical writings there is a
metaphorical appUcation of one or both of the words : but
in the clause of exception the words are used without a
figure in their plainest and most natural sense.
5. The argument has hitherto proceeded on the common
assumption, that the ordinary interpretation of xogvua is
indisputable, and that according to its classical etymology,
which suggests the notion of personal prostitution*, or
more properly a passing from one to anotherS (a transfer,
or transgression and trespass in the literal meaning of the
words,) it means simple fornication between unmarried
persons, any commerce of the sexes out of lawful marriage.
Without disputing that the words to^, ingvos^ xo^io,
xo^vffueo, and ixungviun bear this meaning in the use of such
Hellenistic writers as had studied in the schools of the
heathen S and in several passages of the Canonical Scrip-
tures^, some of which were addressed to converted Gen-
tiles, and would naturally be accommodated to their pre-
vious modes of thought and expression, and in which the
received exposition 9ffatds a very adequate sense and signi-
fication, and b not inconsistent with the context; it is
' See Ita. lyii. 3. Jer. m. 2*-8. EzeMw xti. xxiii. Hos. u. 2-^ Amos vu. 17.
Apoc. ii. 20—22. Ecclui. xxiiu 23. S tk? n ym^ 48f«» u» fuw nrtf in^ymgiy
trmXy rf finfXsfUff, itt^Ht m¥r§f •<flij»aX#iirif. Xen. Mem. Socr. L i. c. 6.
^ Th. wi^Mtf tranaeo, a m^, unde n^NMi or ^n^imfu teiido: p. m. ^mttpm,
uttde 9§^t &c. ^ Coropftre Eeclou six. 2. xxiii. 16, 17. xxvi. 9. Also
ProT. xxix. 3. k Compare Rom. L 29. Eph, v. 3, 5. Col. iii. 5.
VOL. II. D d
402
m
proposed in the prosecurion of the argument^ to dieir that
this is not the only or cren the principal rigntficatMm of
the words ; that mpuoL has no reference to adultery, and
that in the ordinary use of the Hellenistic writefs it beai^
a very different sense.
It will not be denied, that mfveia, is very frequently
used in the Scriptures to describe the great offence of
religious apostacy or idolatry; and it is commonly sup-
posed that the word in this sense is used fi*' ^ 'rively. It
is of importance to enquire whether it A^l^'ikot mgmfj
apostacy properly and not figuratively.
Parkhurst, with some diffuseness and prolixity, explains
TTogvuu of ^* the communication of Christians in idolatrous
worship, which was a violation of the marriage between
God or Christ and his Church, and was often accompanied
with bodily prostitution. Rev. li. 21. xiv. 8. xvii. 2, 4.
xviii. 3. xix. 2. In this sense it is generally used in the
LXX. for the Hebrew mt though sometimes for bodily
fornication or whoredom, as Gren. xxxviu. 24. Hos. i. 2.^
Uogvevco is ^* to commit spiritual whoredom against Crod or
Christ, by communication in idolatrous worship, which
was frequently accompanied, as 1 Cor. x. 8. (compare
Num. XXV. 1, 2. Rev. li. 14, 20.) with bodily whoredom,
occ. Rev. xvii, 2, 8, 9."* Hogvij is also explained of *^a
Christian Church, corrupted by idolatry, occ. Rev. xvii.
1, 5, 15, 16. xix. 2."
The interpretations of Schleusner differ but little from
those of Farkhurst. nogve$a is '* metaphorice, idololatria,
vel qusecunque falsa doctrina et religio, quft verus Dei
cultus deseritur:'' and having explained, or rather ap-
proved, the exposition of mgytia in Acts xv. as accubitus in
ffiScoXfieo et esus rwv EiSouXoivrcov,^ he refers in confirmation
of this exposition to " Apoc. ii. 21. coll. v. 20. ix. 21.
coll. V. 20. xiv. 8. xvii. 2, 4. xviii. 8. xix. 2.'*' Under the
same word he notices the customary practice of the sacred
writers, in using words expressive of whoredom and adul-
tery, to denote the cultivation and practice of idolatfy«
403
'' Judges iL 17. 1 Chnm. v. S6. Is^. 1. 81. Ivii. 3, 4. Jer.
iii. 1. Ezek. xxii. 3. Hos. i. 5L iv, 12. Nahum iii. 4.^ and he
assigns as the ground and reason of the metaphor, that the
faith in which the Jews stood pledged to God was voided
in the same manner by idolatry, as the conjugal oath by
adultery : and in the same manner the people of Israel, on
account of their intimate unicm with God^ are compared
with a wife beloved of Qod, In the Lexicon on the LXX.
he admit ' . exposition of Bretschneider, and asserts with
specific e..^ ^^les the common use of rofvna in the sense of
idolatry. He interprets mprnm << 2, metaphorice ; idolok-
triam sector, deastros colo, cum idololatris ago, et fami-
liaritatem contraho '^ (in LXX* after Biel ** ad idola de-
ficio:*") adding to the texts alleged by Parkhurst, Bev. xviii.
3, 9. 1 Chron. v. S6. Jer. iiL 6. Hos. ix. 1. Ecclus. xlvi. 11.
He also explains «o^, ^ metaphorice mulier, quae defecit a
veto cultu divino, et ad idoldatriam, non solum ipsa de-
flexit, sed etiam alios allicere eonatnr,^ adding to Park-
hurst's authorities for a similar exposition, Eeek. xvi. 34.
Isa. L SI. Schoettgen on the same word remarks, ^^ sub
formft meretricis describitur ecclesna falsa, quse idololatriam
et falsam doctrinam docet.^
In all these expositions, idolatry forms the principal
feature in to^vmo, metaphofimUy^ according to Schleusner ;
iwcompanied with bodily prostitution, accordii^ to Park-
hurst ; posUwety^ according to Biel and Bretschneider. It
confirms the force of the argument, that Suidas, adopting
the exposition of Theodoret and the etymology of Athan»-
sius, explains m^nuty without any qualification or reserve,
of id(datry. *^ IIo^sim i^ oSoiXsAftr^eia' xai wo^fof b tiS»XoAar^|*
icaqa TO nOPW2 NE2TEIN'. e^wXaigtDO'ois tcavrot tov irogvevovret
airo (Tou . . . omnem qui a te ad idola deficit.'^ The ety-
mology thus suggeaited by Athanasius and adopted by
Suidas, properly suggests the sense of religious apoatacy^
1 Alii volunt, quod w^nm dicitur lia nt ffw^mn n«nr«>«, quod urat juventutem;
vel 2f« r* nff«M « mt i»r^XMf vtr nm, quod depraTat' vel occccat mentem.
Outhov. in Bibl. Brem. CI. iii. p. 439.
D d S
404
the very sense whidi was expressed by the most aaeient
translatorB, which was inunuated by Josephus^ and was
not unknown to the primitive writers of the Christian
Church. It has been at least attempted to shew", that
the same notion of apasiacy is involved in the root of the
Hebrew word, of iibich to^im is the ordinary trauslatidii,
and of which sexual intercourse is but a very subordinate
and particular signification. ^^ Cf fornioiUion^* is the
common title of the Hebrew treatises of idokUry^: and it
is worthy of remark, that the word Tog¥tim bears this sense
in the plainest and most concise narratives of history, and
in the briefest rules of the law, where metaphors would
hardly be expected, and that it is explained in the parallel
passages by a^tarvifM and similar words, and may always
be translated, without the least injury to the sense, by the
word apoaioHzef as it is rendered in the Chaldee para-
phrase and the most ancient versions, by words signifying
error or dematian. It might be difficult to shew that the
word irogvmKo means in any text to poUuie or debauch^ a
sense which is expressed by other words, and especially by
the verb xoifiMOfiai^ while the verb wofvmjei is continually
recurring in the sense of idolatrous aposiacj/. Examples
of this meaning of the word may now be produced in the
order of the texts in which ingvmKo or txsrofnua occurs by
itself; in which irogt^ occurs either with or without vofMiNt;
and in which vo^eia occurs ^either accompanied or not ac-
companied with mpfwwy irojyq, and other words of the same
family.
Exodus xxxiv. 14, 15, 16. Thou shalt worship no other
God, for the Lord is a jealous Gkxl, lest thou make a
™ *' Jo. Frid. Flitch in Commentatione de muliere peregrioA apiid HcbnMt
minui honette habiU (Lips. 1744.) in radicem m? inqoirit et probari alloborat
earn senau generalisumo tignificare reeedert, digndi; ipeciaUori «iir«, tkin,
vagari, extravagari ; tpedalissimo, scortort." Hering. Dim. in Actt zv. 20, 29.
Bibl. Brem. Nov. CI. iv. p. 313.
B See Whitby on John viii. 40* and Buxtorf de Abbrer. Hebr. p. 191. " Is
Tractatu de Idololatrift scribitur HUtt Soorta.
405
covenant with the inhabitants of the land, and they go a
whoring (apostoHxey sxiro^MuaKriv,) after their gods, and do
sacrifice unto their gods, and one call thee, and thou eat of
his sacrifice; and thou take of their daughters unto thy
sons, and thou give thy daughters unto their sons, and thy
daughters go a whoring {apoatatixey exiro^fftifloo-iy,) after
their gods, and thy sons go a whoring (apoHoHxey ixwog-
veveociv) after their gods.
Targ. Onkelos. errabuni post idola sua . . . et errabunt
filiae suse . . . et evra/re facient filios tuos post idola sua.—
Targ. Jerusalem, et errent post idola corum . . . et cum
errabunt filise eorum . . . seducant etiam filium tuum post
idola sua. — ^Vers. Arab, et ^educantur in sectando adoranda
sua, et seduoaniur filiae ejus . . . ct seducant filios tuos
etiam.-— Vers. Sjrriac. ne cum aberraverint post simulachra
sua et aberrent filise tuse, . . . sedacantqne filiae eorum
filios tuos.— Vers. Persica* deim sint facti . . . et detyiiB sint
factae filiae ejus ... et detHoa facient filios tuos post idola
eorum. — From Walton's Polyglot Bible.
The covenant is explained by Patrick of a covenant of
marriage, which the Israelites were forbidden by a law
coeval with the law of circumcision, and prevailing in all
ages, (Biblioth. Biblica,) to contract with the Canaanites,
and of which the issue would be idolatrous apostacy.
When the text is recited 1 Kings xi. 2. the word exxAiyeo<ri
is substituted for txTrogviwoa-i^ to describe the influence of
Solomon'^s strange wives in tuniing him away from the
Lord to idolatry : and when in Deut. vii. 4. the marriage
of the Israelites with the Canaanites is forbidden, in the
apprehension of leading the Israelites into idolatry, the
word 0nro<m}(raMri is substituted: Neither shalt thou make
marriages with them . . . for they will turn away, avo<m}(rfi,
thy son from following me. In Josh, xxiii. IS. the same
effect is described under ojroarja^ijuf. The people arc
otherwise warned against these unlawful marriages in
Lev. xix. 29. lest the land fall to whoredom {apostatize^
exTTogvewru^) and the land become full of wickedness, avofuctg.
D d 3
406
Targ. Jer. ne erreni in acortalioae et rqdestnr item
soortatione.— Pen. neque dma fiei terra ut impleatoritemi
dsoia^jofMd— Vulg. ne ctmtaminehiT terra.
The apaatacy contemplated is equivalent to anyMf, fit&*
rally a state out of the law and covenant of 6od^.
Lev. xvii. 7. They shall no more offer their sacrificea unlo
devils, after whom they have gone a whoring, (apoala&mf
exvo^fuotKriv.)
Targ. Onkelos. post quos ipsi erran/.— Jems, poet qt»
errarunt. — Arab, aaduetifi/iir.— -Syr. aAarront.— Pen. dMi
fact! sunt.
They had been guilty of idolatrous practices, and wen
commanded to offer only at the tabernacle, that they nught
be less exposed to the seduction of demons. Patrick.
Numbers xv. 39* It shall be unto you for a fringe, that
ye may look upon it, and remember fdl the oommandmenta
of the Lord, and do them ; and that ye seek not after your
own heart and your own eyes, after which ye used to go a
whoring, {apostatixe, nai qu itoffrgaftfi't^i oiriffm rmt twmum
Targ. Onkelos. post quae vos erraHt sequentes ea^—
Jerus. neque declinabitis errando post cogitationem et visU
onem, post quae vos erroHa. — Arab, post quos vos Mdtiei-
ndnu — Syr. post quos vos a&erra/i«^— -Pers. post quae vot
dedoHa.
The design of these fringes was to promote and cuufirm
the sanctification of the people, and to prevent their wpck-
Stacy from the Lord. In the LXX the design of these
fringes w luurrqoi^^ffit is strongly contrasted with the
occasion of them fv oi^ ffXT«^vtt;fTff, the inhibition of |ier-
veraion with the actual apoatacy. Justin M. remarks, thai
® AttftH gentilis, non Judsrui, idoloUttrot . . qui non nibjectat ett rf wpiff
legi Mosticff, et adjnncta est notio adversarii hujus divina kgia et DeL • . •
Hcsych. Am^m?, r« /An v«v«ii^iM» fftnf* BreUchneider Lexicon.«-il Cor. ii.
21. ubi Theodorctus aitde Apostolo: muft4V$ X%yu rutt t3^ w^Kirw^utrnti nrm
x«yt». Sine lege cos vocat, qui extra legem Mosis, ejosque notitiam vitim
ducebant. Grabe Spicil. rol. ii. p. 248.
407
the Deity ordained these phylacteries, $ta rotrrm huaamm
ufjLotg asi fMnfifJoiv i^eiv rou 0mu: iiia n mm tkty^ov cv tolis
oCrrcos mKr6r]fr§ fu) c»Sa»AoAarjfiv. Dial, cum Trjrphone Jud.
s. 46.
Deut« xxiL SI. Thea shall they bring out the damsel
to (he door of her father^s house, and the men of her city
shall stone her with stones that she die, i)ecause she hath
wrought folly in Ii^rael^ to play the whore in her father^s
house, (to make her father^s bouse to apaaia&xef hi eiroi-
ij(rey a^focvv^y «y uioif IcgaiiK iXTogvmJO'ou rov oixQ¥ rou fFctr^s
Targ. Jems, quoniam fecit ignominiam in Israel, pro-
ferendo famam malam scortationis contra domum patris
sui. — Pers. dematumem faciendo domi patris sui.
This is not a case of simple fornication, nor of absolute
adultery, but of a woman corrupted between the time of
her espousals and her husband's completing the marriage.
See Patrick. Whatever was the precise oflTence of the
woman, it is said, not that she committed fornication, but
hn OTOiigcrey a<pgo(rtiy)]y, an expression frequently appropriated
to offences of this description. The consequence of her
ofience, according to the LXX, was exTro^fuo-ai roy oixoy rou
isajqoi aimi$f as the priest's daughter under similar circum-
stances b said, ^e^ijAdXTdu, to profane the house of her
fatlier, and in the active sense in which the word occurs in
other places.
Deut. xxxi. 16. This people will rise up and go a
whoring {apastatizey exwofveixrn) after the gods of the
strangers of the land, and will forsake me, and break my
covenant.
Targ. Onk. et errabit post idola. — Jerus. errabunt post
idola. — Arab, seducetur et sectabitur dcos incolarum re-
gionis. — Syr. errabU post deos alienos terrce.— Pers. de-
viabit post deos alienigense terrs&.
Nothing can be clearer than this apastacy after other
gods, forsaking the Lord and breaking his covenant. It is
D d 4
108
lid, with express leferenoe to this prevailing offienoe of the
people, in uanrrftl^aM mrt tmus cAkstfmvs* ¥er. 18.
Judges ii« 17.' They would not hearken to tiieb jodgesy
but went a whoring (apoftoli«ad, ittstfytsygy) after odier
gods, and bowed themselves unto them.
Targ. Jerus. erraveruni post enores populoninu- ■ Syr.
post deos per^grinos erraniee adoraverant eos . • • eo
quod aberraueni^ deos alienos adorassent a viA.
Tertullian c. Gnostioos, s. 3. alludes very diatiiictly to
this history : Instituit super illos Deus Critas • • • aed nee
istis obaudire perscveravenint : ut quu Critarum ofajerat^
illi ad deUnquendum supra quam patres eorum abetmdo
post deos aliorum.— Atque ita per omnes pene ami^^
Critarum, et deinceps rqrum, reservatis gentium circum-
colarum viribus, bello et captivitate ct jugo aUophyhmmi,
iram dispcnsavit Israel, quotiescunque ab illo maxime an
idololcttriam eoforbUaveruni.
Judges viii. S7. Gidaon made an ephod, and put it in
his city, even in Ophrah, and all Israel went thither a
whoring {apo8tati»edy ^twoptwri) after it.
Targ. Jerus. erravemnt omnis Israd post id.— Syr.
aberrarunt illic filii Israel post ipsum.— Arab, erruverumi
filii Israel post idolum ipsius.
^^ This, I suppose, was after his death, when the people
began to return to idolatry, and had this fimcy among
others, that Grod would answer them where this ephod
was, as well as at his tabernacle at Shiloh.^ Patrick.
Judges viii. S3. As soon as Gideon was dead, the chit
drcn of Israel turned again, and went a whoring (aposU^
tizedy ffi^flro^fuo-ay) after Baalim, and made Baal-berith their
god : and the children of Israel remembered not the Lord
their Gkxl.
i> In V. 15. some copies (see Hezapla in loe.) read lor twt^unf or
fiMvr*, some ijir^ffiivwir, others ivc^mty, " iibi Umen twwftuigmv mihi videtn
inepto loco positum esse, referendum nempc td HSt nisi quis statnere malit,
auctorcm hujus venionis ratione hMik, v. 12 et 13. HV de aetUmthus iUkUitp
ndcoque dcidolorum cultu explicandum csso putaiK.*' Sddeusner.Lex ad LXX«
409
Targ. Jerus. errmrunt poet Baghalaija.—* Syr. tAerrave-
runt post BaaL— Arab. secutiquK sunt Baal idolum.
^^ Mutati priore religioiie, oceperunt ease Idololatrse.'*'
Vatablus : see also Patrick. It is the very essence of apo^
Stacy to follow idols, and not remember the Lord Grod.
Ecdus. xlvi. 11. Cancermng the judges, every one by
name, who went not a whoring, (did not apasiaHze^ wx
^eirogvtva'etv,) nor departed (otix eanrrfofifrav) from the
Lord, let their memory be blessed.
Syr. quorum cor minime sedudum fuerit.— Arab, non
aberraverit.
In this text ^iw^pfwev and airwrga^(rMf are coupled
together, and the latter ascertains the meaning <tf the
former. The apostacies under the judges, and in other
periods of Jewish history, expressed by e^M^iuo-av, are in
Judith V. 18. described by ammfi-Mf : ^^ When they de-
parted, aTTWTjffi-avj from the way that he appointed them.**
It will contribute to illustrate and confirm the proposed
interpretation of the word, to throw together certain pas-
sages of different writers, who have spoken of the conduct
of the Israehtes under their judges. Josephus affirms,
that the Jews of this age were afflicted can this w§p to tnw
okiymgias* Ant. 1. v. c« 3. s. S. rep /mj ^m rifti}^ etytiv rov Afon^
f^fit Toig vofjLOig dirax.w§i9» c. 4« s. 1. vwo n rou fMjfn afimif rw iiw
ILT/jft uToxot/fiy TOi; yojxoi^ c. 5. s« 1* /uiifrff otiroi ^^vfiy dro m^i
Smttu^io^ oyrs; ayatoty nm rou @mw irXcioy ixfuurat dekorro^
wnwf T)}y v/3^iy, %eu n^y mqi wjtw ayveo/xoo-vyify, rtat furatifuyoi
rou AoiTOv axofgoim^ o^f&ep^fvrf; rof ^vft^o^ otiroi; ex mis
rtqifgwv^TWf rmv vofuov vwag^at, s. 2. irctvra Sf ra rcoy *Efigeua9v
eig oHoa-fi^iw xcu djS^iv rou 0ffou xoi reov yo/xcov ^m^tgrro. c. 7.
s. 7. Clemens Alexandrinus, in relating the transactions
of this period, uses the words diJMgrmv and s^aiAogrmf,
Strom. 1. i. s. 21. The author of the Apostolical Con-
stitutions, 1. i. c. 8. in recording the similar offences of a
later age, almost identifies wiropmm with etwoaretfria : do-oi i§
/Sao-iXei; ^eiroffffuo'eaf earo &§w, e» eafwrouna mnonf innrnfAw^
aTctfXo/ro. The unknown author of the Josephi Hypo*
410
mneflttoon, publMied by Fabridns, CSod. Pteiide|iigr. V. T.
adverts to the history of this period, and the fiililneiit of
Joshua's prophecy of the effects of the diadbediaee of the
Jews, and rm twwmw euroig Bf may palhfuf t§ omo vk/s mtnfimaf
xau flivoxX4(ni ri} fri Sciovi^Sfiay . . • mf ra rfnf wferifanifawtm
aunnf iva^ifimfi-cafrm . . • row ti-i Teu$ -x^Xkouf titoXsAaTysiaif
vmfogYi9'€PfTto¥ roy 0coy . • • roig Tctv Amp mimXot^ iryogrilyswnjMy
Utif xm oirroi WdfakH^tms vro 0tw ieufAOO%¥f olnrnj ffiJUBrr%
exSodijo-oKrai. So Grod raised up Siscra, xforountt tou Ams
8i« TO b«ia-f/3ffiy* The Madianites also prevailed^ But to tvi
TMg Zwra-tfiiious (rou; 'E/S^oiou;) ha 0eov ixjurratAfAfifAflu. B^
fere the time of Jephtha, ifiafnuTs rm Xam xai iiuw§fitmm
ewMgeenii al voAffuoi yivevrai . . . iroXiy it «nro ti|( mtnfimaf
oatoqaAi^iufl-eenri t» Aoip, Samson was raised up.
Judges xix. SL His concubine played the whore agvinsl
him, ((departed from him, mcoqwm ear* ovrou.) .
Targ. Jems, contcmpsit*— Syr. sco^tata.-— ^Arab. fbmi-
cata«— MS. Alex, nqyio^,
Patrick assumes, without hesitation, that she was fiutii-
less to his bed. Other commentators hare fimnd more
difficulty in the passage, and are divided in their opimoDSi
Some assert that the woman committed fornication befinne
the marriage was confirmed, to which others object the
peculiarity of the grammatical construction^ and the £vt
of her being his wife, although in an inferior degree.
Others interpret it of adultery committed by the wonuB
against him, and in violation of her conjugal duty; or
tmder him, and while she was residing in his house; or
from him, by desertion of him. See Bibl. Brem. CI. iii.
p. 438. Biel and Schlcusner Lex. in LXX. Others^ on the
authority of the LXX, translate, she departed firom Am
A doubt is at the same time suggested, whether the word
should not be emqvwij\, Grotius remarks, that the Hebrew
word which properly signifies tcartarij may also signify
metaphorically ahaltenatUmem animi^ in conformity with
the reading of the Alexandrian MS. Patrick adds, that
bomc ^* will have no more to be meant, but that ehe was
4n
forward andicoDtumaciousIy diactedient, flo^iinii abe could
Tkot endure jbis joomfMngr, but foraook lunu ' The Chaklee
plainly inclines ihis way, and ^ LXX ittandate iinfytvi^
oMTfo^ i. e. accQcding to some cofnes, ibut in the. raeeived
text, erogetidi] eeir ocurov. Josephus, aXXorg9»f ji;^ ' But, if
mof¥9oi^ is a reading for wUch ihere is no autlioriiy> has
the text any connexion with .the main purpose of thia
enquiry ? It is of the very highest importance in shewing
that the ori^nal word, which the XJLX ordinarily nmder by
To^ftMs or oanqvfvwy and which Josephus in this passage
interprets by oKXtrgu^ «i^«, may also be translated by
mgeuofAMi airo riyo;, whidi is therefore sjmonymous with
TfogvsvofjLUij and can bear no other sense than departure^
aUerustion, or apoHacy. In the tenor of the narrative there
is nothing which justifies the imputation of adultary, which
the commentators have brought against the woman; no
mention is made xif- the person with whom the adultery was
committed, or of any punishment following the adultery,
after which the man would hardly have gone after the
woman, and spoken to her in a friendly nmnner, without
reproach, and with a desire of bringing her again to his
house. The entertainment in the house of her father, and
the signal vengeance which followed her subsequent nida-
tion, are inconsistent with ihis supporition. The whole
difficulty arises from the restricted sense which the com-
mentators have affixed io the Hebrew word, and to the
Greek word by which it is commonly jrepresentedy.and iit
is removed by the proposed translation of both words, as
terms denoting separation or departure.
1 Chron. V. S{f. The chief men of the half tribe of
Manasseh transgressed against the (jkxl of their fathers,
and went a whoring iapoiiatixed, ornprnMnv) after the gods
of the people of the land.
Arab, negasieni Deum . . . et.eoluissept deos gentium
terrae. — Syr. et ernasagni post deos gentium terra.
They neglected the true God; they followed idols: .q..d«
they apostatized. See Joseph. Ant Jud. L tx. c. 19. su ^
412
where, in speaking probably of a different period, he aayi,
that many of the tribe of Manaaadi wHottnaf ol^ •! ■yy^mi
vapanreof ei; fwri/Sf Mty fMn/SoAoirro, oeaaed frmfomitjomns^ but
not wpw II TOif woXifMOts etvrwg ofunnfuims t%s mnfimm( i tmg
it Chron. xxi. 11, 18, IS. Jehoram made high places in
t)ie mountains of Judah, and caused the inhafaitaots of
Jerusalem to commit fornication, (to apostoHsmj ifisayiusi
Tou; xetToixowrras^) and compelled Judah thereta And there
came a writing to him from Elijah the prophet, saying.
Thus saith the Lord Gkxl of David thy father ; Because
thou hast not walked in the way of David thy fiithor, nor
in the ways of Asa king of Judah, but hast walked in the
way of the kings of Israel, and hast made Judah and the
inhabitants of Jerusalem to go a whoring, like to the
whoredoms of the house of Ahab, (to aposiattKe as the
house of Ahab has aposioHzed, c^rro^Mvo-o^ roir lovSoor df
Arab, vinum bibere compulisset electos in sede saaa-
sanct& ct domum Judse dissipaMei • . aeduaerU Judam • .
scortationibus domus Achabi.-^yr. vino pota^t Nasaraeos
lerosolymorum ct disperrii Judieos . • aeduaisH Judam . .
soortatione domus Achabi.
The house of Ahab was distinguished by its apostacj
and zeal for idolatry; the offence to which Jehoram led
the people after that example was idolatrous aposta^, in-
the commission of which he made high places in the moun-
tains of Judah ; and, instead of walking in the ways of
Jchosaphat and Asa, who were constant in the worship of
the true Grod, he followed the kings of Israel in their
apostacy from that worship. It is the record of Josephus
concerning him : raura dt aurm vgarrom xeu rekMs n^^ki^
xoTi Tfis Sidcyoia; ra iraTgut vofUfjLOj xof/ut^M wag HAiou tm
irgc^tjfrou ewurrokni, ^ roy 0eoy fSijXou iMyeik^ wa^ aurov Aif|f^
ju^voy $ixi}v, ^1 Tfloy ficy iStoov irangw fufufri); otix fyivfTO, toi; Si
Tcoy lo-^anjAiTcoy fiounksMV x«tn]xoXot;9i}0'ey eunfifiif/Lcurtf xai irwh
fivayxotfft Ti}v rou lou&t ^uXijy xat rov^ ToAirot; lejoo'oAvfunr,
413
a^tyroL^ ti}v (xriav rou fsrip^eo^iou 0eoti ift^tuiaVi aQgiv ret fiSiwAa
xodtt)^ xai A%a/3o^ roti^ lo-gdnjAira; ifi$oKraro, Ant. Jud. 1. ix.
c. 5. s. S. In the Josephi Hjrpomnesticon he is said not to
have been buried in the sepulchre of David, Sia ro dwra-t-
^<rai, and it is recorded that Jehoram married the daughter
of Ahab and Jezebel, ^i; reus n^ UfyifieK Suo-o-fjSffiai; r^gofi^
/xffvi} iccu Tov Icogafs, BTfiyayero Stio'O'cjSeiy. c. 17, 18.
Psalm Ixxiii. 27. They that forsake thee shall perish :
thou hast destroyed all them that go a whoring {apoaioHxey
rou; vogvevovra^) from thee*
Chald. qui abertarunt. — Syr. qui aberrafit.
On the authority of this text, Suidas, without any qua-
lification or reserve, explains xogvuot of idolatry, and to^o^
of an idolater. So Origen on the place : ourof irogviuu oein>
0ffou, 6 eiriSffScoxeo; hcvurov ri} rwf ZeuiiAvoov Aargfi^. The de-
struction roov TTogveuovreov earo Qeov corresponds with the ruin
of them that forsake him, and is strongly contrasted with
the benefit rou ^^xoAAoo-tai rep 0sa>, the apastacy with the
adherence.
Psalm cvi. 88. They were defiled with their own works,
and went a whoring {apostatixedj tfteogveuirav) with their own
inventions.
They ** committed spiritual whoredom, that is, idola-
try :" Ainsworth. In their defilement and their apostacy
they were equally alienated from the people of Grod.
Ezek. vi. 9. I am broken with their whorish heart,
which hath departed (t]} txTo^ffuot^, MS. Alex, rr^ o^o-
TTaxriij) from me, and with their eyes, which go a whoring
{apoaiatixe) after their idols ; and they shall loathe them-
selves for all the evils which they have committed (xoi
xoi|/oyrai TF^wwa avrm) in all their abominations.
Chald. cor eorum insipiens, quod dedinamt a cultu meo
et aspect um oculorum suorum, qui errartin/.— Syr. mere-
tricium cor eorum qui defkaerwrU a me, et oculos qui
o&errarun/— corda eorum quae abaUenata sunt a me. Vers.
Hieronym. apud Origen. Horn, in Ezek.
In the different editions of the LXX, txsro^yfvocKrp and
414
anro0Tar|i ^^ ^>^ ^ words of (he aanie rngMcaAm^ faoih
denoting aptmiacy from God and derotton to idoi& Tke
abominalions are clearly appropriated to idolatry, fioin
which the cutting or beating of the face is not wy
remote.
Esek. XX. 30. Are ye polluted after the manner of yonr
fathers, and commit ye whoredom (do ye apoUatixef nora^
fwm) after their abominations ?
Chald. crro/i*.— Syr. aberraniea.
They apaatatixed in offering sacrifice upon the hills, ia
polluting themselves with idols, and in senriiq; wood and
stone, (compare v. S8, SI, 32.) and therefore the Lord
threatened to purge out of them rwg a<r^ig xm rtMf ofevri-
XOTOtS* V. «70.
Hos. ix. 1. Thou hast gone a whoring {apoatatisfed^
twoqnotrai) from thy Grod.
Chald. aberrasHs, — Syr. quod a6errooeri9.«— Arab, ah^
emuti.
That idolatrous apostacy is meant is plain from the
context, especially v. 10. They went unto Baal*Peor,
and separated themselves unto that shame, xoi ij^w oS'
Judc 7. Even as Sodom and Gromorrha, and the cities
round about them, in like manner giving themselves over
unto fornication (aposf-oHtring, nar^gnwraa-auy) and gcxng
after strange flesh.
Of the ordinary whoredom of Sodom there is no record,
and their specific and characteristic vice is designated by
another expression. Under the word nanpfmHrewmt the
apostle may probably allude to the original character of
the Sodomites, who were the first that were charged with
being wtt^^ km ifkagmkni tvamov rou 0eou c^^fcu Gen.
xiii. 3. Ainsworth in loc. In their proper signification,
and as they arc frequently translated, dfAOfram and irofMMi
are almost synonymous.
Rev. xvii. 2. With whom the kings of the earth have
committed fornication, {apostafixed, rmgvwo'Mf,)
415
Rev. xviii. 3. The kings of the earth have committed
fornication {aposttUisned, w/ro^vrnMre^i) with her*
Rev. xviii. 9. Who have committed fomicsatioa (apo^
statized, Trogvwtrayng,)
It is generally admitted that these expressions are meant
to predict the great aposUwy or error of the Christian
Church. Saint John uses the phraseology of the ancient
prophets : Saint Paul, in reference to the same event, says,
Some shall depart^ aToo-i^a-oyroi, from the faith.
It is not meant that all these texts in which the words
irogvivot) or sxto^ucu occur are equally forcible, or equally
free from exception ; but let the reader determine whether
apostasy is not the chief and prominent character which
they bear ; and whether, if in the majority of the texts,
especially in those in which the words Jrom God or after
other gods are included, apoatacy was substituted iasfomU
cation^ the sense would not be more clearly and unequivo-
cally expressed. It is a separatum, not a oonnecBum, which
the words in their ordinary construction imply. The ecclc*
siastical exposition and etymology, nOP^Nf^EIN, are
most fitly expressed by the word apostacyj which is actu*
ally used in some of the parallel passages, and is repre-
sented in the old translations by aberration or demotion.
The word, with little or no exception, occurs in one
uniform sense y there is no change from the proper to the
figurative use 4 nor is there reason to suppose its meta-
phorical application, certainly not in the prophetical Scrip-
tures, where the figure is carried on by another wcHd, nor
in the strict precepts of the ritual, nor in the . concise
narratives of the history, which are all plain and un«
adorned. The received and ordinary interpretation can
hardly be discerned in the frequent and copious use of the
word, and it is expressed in the Jewidi Scriptures by very
different terms. . •
The argument in favour of the proposed interpretation
of the word ^ogyevco will be confiiiaied by shewing, that
in the use of the word ^^, as a derivative word of
4l<)
cognate mgnificatidn, the Helleniatic writcn recognise what
has been called the ecclesiastical etymology, *>jM* mvov,
and use it in the sense of an apo8iaie or align. Sdikuano*,
in explaining the metaphorical meaning of the woidy has
exactly described what as it is here contended is its proper
sense : tnulier qwB dcfccit a f>ero cuUu dim$M ei ad idoih
lairiam rum solum ipta deflexit, sed etiam dUoa alKeere ei
seducere conatur, Maimonides, according to Meuscben^
among other comments upon the original word, introduces
Caiianaea, seu rum origine EbriBa: and Danzius affirms,
that the Jews understood by mT^ non magis soortum quam
virginem non Israeliiidem. Jo.Trid. Frisch gives a similar
exposition, mulierem peregrinam, which he defends by an
investigation of the Hebrew root. Sec Hering IXss. in
Actt. XV. 20. This apastacy or oHenaiion was of that
kind which the apostle imputes generally to the Gentiles,
when he calls them aliens from the commonwealth of
Israel, and strangers from the covenant of promise. Some
few examples of this use of the word iro^ may now be
given, and other texts may be reserved in proof of a
similar but more refined and complicated meaning of the
word.
It is remarked by Hering, (Diss, in Actt. xv. see also
Poole's Synops. in Prov. ii. 16.) ** In Proverbiorum libro
nihil est frequentius, quam ut rnt, 17^3), im inter se
misceantur, atque unum pro altero ponatur.^ The best
proof of this assertion will be the exhibition of some of the
texts in different versions, in collation with the context.
Prov. V. 3. The lips of a strange woman drop as a
honey-comb.
Chald. Syr. extranetB, — Aquila, Symmachus, Theodo-
tion« oXXoT^io^.— >LXX. iro^;, q. d. an alien.
Prov. vi. 26. By means of a whorish woman, iro;n|^ a
man is brought to a piece of bread.
By comparison with v. 24. in the order of the parallelism,
the To^ is identified with the aXkorqia of the LXX. and
the ^evui of Sym. Theodot.
417
Prov. vii. 10. A woman with the attire of an harlot.
The versions are agreed in representing her meretricious
character; the Arabic only denoting Apeojem emeniUam:
but the same woman in v. 5. is called yuvi) oAXorjia xeu
Prov. xxiii. SI. The drunkard and the glutton^ to^vo-
xoTOf , shall come to poverty.
Chald. vorax.-— Syr. intemperans in came.— Arab, ad-
ha^rens sordibus luxurise. — Aq. Sym. The. o-u/x/SoXoxoro;.
Prov. xxiii. 27. A whore is a deep ditch.
Heb. Chald. Syr. meretrix.— Sym. vo^.— Arab, domus
o/iemi.— LXX. aXXorgios oixo;.
In the context the whore is compared with the strange
woman^ and the two are confounded in the versions.
Judges xvi. 1. Then went Samson to Gaza, and saw
there an harlot, (an <dien woman, yweuna iro^v,) and went
in unto her.
Chald. mulierem tabemariam.
The context, especially compared vrith the subsequent
history of Delilah, does not require the ordinary sense
of To^, which is sufficiently represented in the Chaldee.
Isaiah i. 21. How is the faithful city become an harlot,
an cUien, iro§vf^.)
Chaldee oberrans. See Outhov. in Bibl. Brem.
The word is translated an idolatress by Schleusner: and
in this sense the apoatacy of the city is strongly- contrasted
with its ancient fidelity. The language of paiisionate
exclamation hardly admits of metaphor and ornament.
Origen, alluding to the text, seems to recognize the Hel-
lenistic use of the words, remarking that our Lord, for-
saking the Jewish synagogue as an adulteress, «o^ /bioi;^aXiS0(,
departed from her, kou iXafie yuvcuKot irofvuag tou^ earo roov
e6vu)y' eff-ei cxeivoi jxev ovrsg iroKis titti} "Sionf, yfyoyoa*! irogvor
ovroi $6, tog ^ *Paa/3 ^ irogvf^ rou^ tou If^aou xareurKoiwovi uiroSf^
ioLiLewi h&rw6i\ Tovoixi* jttffra rotiro juujxfri wopnuovira. x. r. A.
Comm. in Matt. tom. xii. s. 4.
Isaiah xxiii. 15, 16, 17. Tyre shall be forgotten seventy
VOL. 11. E e
41«
years, according to the days of one king : after the end of
seventy years shall Tyre sing as an harlot, (as an aUienU
song, 00; afffiM iro^(.) Take a harp; go about the dty,
thou harlot, {alien^) that hast been forgotten, (iroXi^ ««{n|
ffiriXeXijajxfyij,) make sweet melody, sing many songs, that
thou mayest be remembered. And it shall come to pass
after the end of seventy years, that the Lord will visit
Tyre, and she shall turn to her hire, and commit fornica-
tion with all the kingdoms of the world upon the face of
the earth, (xai voXiv oaFdxarajmflrrrcu ug ro of^fcuw^ nm wrreu
ffjxTo^iov irctiorais reus jSatriXfiai^ rrig oixou/tuyi); mrt irgoo'eMroy ti|(
Heb. et fomicabitur cum omnibus regnis.*!— Chald. can-
ticum meretricis . . . quasi meretrix . . . et erit sufficiens
negotiatio ejus omnibus regnis.-^yr. cantilenam mere^
tricis . . . et fomicetur in omnibus regnis.— Arab, carmen
meretricis . . . urbs scortatrix . . . fiet emporium omnibus
regnis.
Ilogyi} woki; M'iXfXijo-f^yi} is a very proper description of an
alien city, destitute of aid in the time of her aiHiction, at
the expiration of which it was foretold that she should sing
the ourfAu fropw^s. If the aa-fMi m^; be equivalent to the
eo$i} mgvixvi of the Apostolical Constitutions, it is no more
than the coSi) rfvixi], or sacrificial hymn of the heathens. It
is in the following hymn, or ao-jxa irogwig, which is supposed
to be sung by Tyre, that she calls herself mXif wogni fin-
A£Ai}<r]xeyi], and it is certainly more natural that she should
triumph in the compassion shewn to her abject condition,
than in the remembrance of her debauchery. As the Greek
version as well as the Chaldee and Arabic passes over the
fornication expressed in the Hebrew and Syriac, all attempt
to explain its meaning might be omitted in this place ; it
may however be suggested, whether in a very general
sense of separation and departure it may not be meant that
Tyre, in her restored, converted, and renovated state, shall
be separated and depart from her former idolatry, and
deal in the truth in such a spirit, that her merchandise of
419
it shall be holiness to the Lord. This is at least the
purport of the prophecy. See Poole'*s Synops. in v. 17, 18.
Outhov. in Bibl. Brem. reconciles the LXX. with the
Hebrew, quia contextus docet hie respici ad mercaturam
spiritualem, seu roetaphoricam, quit Tyrus ut merejtrix
comta alliceret populos.
Isaiah Ivii. 3. Draw near hither, ye sons of the sor-
ceress, the seed of the adulterer and the whore, (of adul-
terers and an alien, iMt^^v k$u m^s.)
Chald. de plantatione enim sanctft est plantatio eorum,
sed ipsi sunt adulteri et fomicantes.— -Syr. semen adulterum
et fornicarium. — Arab, adulterorum et scortatricis.
In this text, /xoi^fiov, the adulterers, seems to represent
the members of the Jewish Church severally considered,
who, having as it were contracted themselves in marriage
to God, were guilty of adultery in holding communication
with idolaters. Uogw^ (as in i. SI.) represents the Jewish
Church collectively, the fornicaria et peccatrix Jerusalem,
as she is called by Origen ; and it is in her corporate ca-
pacity that she is addressed, v. &— 13. and reproved for
her " whorish idolatiy,^ with direct reference either to her
original state of alienation^ or to her actual apoatdey and
abandonment to all the excesses of idolatry. The issue of
this connexion are called children of transgression, a seed
of falsehood, vloi avojxoi, cnre^jxje avofjLOv, literally an issue not
of the law, which was the exact condition* of the children
of a Jewish father by .an alien woman, as the Jewish
Church is here called, and which was the declared effect of
idolatrous apostacy, now exhibited In calling upon idols,
iro^ofxaXouyre; eiScoXa, in the immolation of children, and in
offering libations and sacrifices to polished stones, in con-
travention of the ancient prescription of the law. It cannot
be denied that apostacy is signified under ftoi;(coy xou Togvvjs :
the only question is whether ^ogw^s is used in a figurative
or a proper sense. If adultery, properly so called, had
been intended, and that sense is reflected from yMiym upon
iro^;, no reason can be assigned why /xoip^oXiSo; is not used
E e 2
420
in oonnezioii with i^tx^* ^ ^^ Jamei It. 4. why both
nouns are not used in jhe same number, or why wyy,
which never occurs in the sense of an adulteress^ should be
coupled with iMv/m^ which always doMites adulterers.
There is no difficulty if vo^m)^ be understood of an aiien^
and yioix^ figuratively of adulterers, ncv any violatian of
the prophetical idiom, in which nothing is more common
than to couple figurative adultery with positive apoatacy.
Jeremiah v. 7, 8. Thy children have forsaken me, and
sworn by them that are no gods : when I had fed them to
the full, they then committed adultery, iyMipg«oifro, and
assembled themselves by troops in the harlots^ houses, (the
houses of attensy itogvw,) they were as fed horses, (Ssvei
AjAv/Mcvfi;,) every one neighed after his neighbour'^s wife.
If iJLoi^oioiJLou and iro^yoov are here used in their ordinary
sense, it will not be denied that /xoip^aofMu is distinct from
wopn^. Moi;^aofMu and xS'H^^f^^ describe the act and de>
sign of adultery, and the dwelling w oixoi; vojiow, and the
condition of hnroi Si^Au/xaysi;, the passion for women. If,
however, as is more agreeable to the context, wogvan is used
in the Hellenistic sense, and (mi^miuu is applied meta-
phorically, the course of ofience will be, the fwsaking of
Grod, and the adjuration by idols or no gods; spiritual
adultery, and the consequent connexion of whatever kind
with aUens ; difficulty of restraint, as of hrrot ftgAu/xoMi^, in
the contemplation of adultery, whether against man or
against God. Whatever be the exact meaning of the
several terms, the cause of reproof was, that the house
of Israel and the house of Judah had dealt very trea-
cherously against the Lord ; they had belied the Lord.
Matt. xxi. 31, SS. The publicans and harlots (the aiien
women, ol wofveu) go into the kingdom of heaven before
you : for John came unto you in the way of righteousness,
and ye believed him not; but the publicans and harlots
(the alien women, al iropfcu) believed him.
In depreciating the merit of the pubhcans, our Saviour
uses the popular phraseology of the Jews, which was ao-
421
commodated to the prevailing prejudice against their office,
their foreign extraction, and their reli^ous apostacy, in
respect of which they denominated them nnners, and
coupled them with sinners in that common sense of the
word in which it is synonymous with Grentiles. Hering
Diss, in Actt. xv. It would be vain to seek in the brief
history of the Baptist any particular exposition of this
allusion of our Lmxl : but there are two passages in the
Gospels, which in the expositions of primitive commen-
tators throw considerable light on the text. In speaking
of the love which looks for a secular requital, our Lord,
according to Saint Matthew v. 46, 47. adcs. Do not even
the publicans so? according to Sunt Luke vi. 38. he
affirms that sinners do the same : but when his words are
recited by Ji^tin M. (Apol. i. s. IS.) his reading or ex-
position is 04 irogvoi rovro frotownv* A more particular illus-
tration is found in the case of the woman whom Sunt Luke
(vii. 87, 890 ^^^ Simon the Pharisee agree in calling a
sinner: but Origen, in alluding to the passage, calls her
^ogvvjy and treats her as a representative of the call of the
aliens : iifMH 8f ol earo reoy ffiveov, oi iravrwy acifitrrtfoi yr/wv^
fuyoi, f^ 01^ xai Ke^treU ro nri rp ifo^ ixtivj} ri} /xcTAyoevo^.
Hom. in Jer. xv. s. 5.
Luke XV. 80. Thy son which hath devoured thy living
with harlots, {aUenSj mpfw.)
The younger son represented the Grentile world, living
before his repentance in all the abcnninations of the hea-
then, in a far country, wasting his substance in riotous
living, ftira irogyeoy, with persons who both locally and in
religious profession, as well as in moral habits, were aliens
and apostates. So TertuUian, De Pud. s. 9* describes him
as one longe evagatus a patrei ethmce vivens ; and he con-
tends against a misapplication of the parable, under which
jam non mcechi et fomicarii sed idololatrae et blasphemi et
negatores et omne aipostatarum genus, hftc parabolft patri
satisfacient : and he pronounces the prodigal son, and such
as rely upon his case, apoaiatea. Clemens Alexandrinus^
EeS
42'2
also, in an elegant allusion to this pathetic history, seems
to give the same turn to /xrr« vofiwy. 'Oro^ XPt'^ *^
weanr/vgtf n ougmnf yivfrai, ci rig ^gi9^ ywytm ntu fuyw; vif$ dn
rai ftotrqi iroXirfiAf, oyyooiy i^; ol lAoxfuyomg keumos oaf oanm^
amkowrar si rt^ iwrnf xai njv xTifi-iv xm njy xAijfoyofuay ti|v
Tor^av avi]Xa)0'fy* fi riyo; s^tXiirfy ^ itmti; xoi ^ eXiri; Mcarcan^
TM rots ftfyfO'iy avrrgtxfiirros us tj^v ovngy ti}; arfloriof oM^^vo'nr
lira AfijEMorretfy xai ore^v/iMyo;, x. r. A. Fragm. apud Macarii
Chrysoocph. Horn.
Rev. xvii. 1. The judgment of the great whore, {apo^
Vcr. 5. Babylon the great, the mother of harlots,
(apaatateSy iro^woy.)
Ver. 16. Where the whore (the apoataity ^fyq) sitteth.
Ver. 16. These shall hate the whore, (the apostaiey
It is admitted that these expressions are used of *'a
Christian Church corrupted by idolatry/' i. e. of an apo^
state Church.
If iro^ signifies an alien and apostate^ and iro^yftNv to
alienate or apostatize, mgveta signifies the act or state of
alienation or apostacy ; and the texts in which this word
occurs by itself, or in conjunction with iro^ or wofnumy
may complete the evidence and proof of the sense which it
is here attempted to establish.
Numbers xiv. 33. Your children shall wander in the
wilderness forty years, and shall bear your whoredoms,
{apostasy Togvuav.)
Targ. Onkelos. iniquitates.-^Targ. Jems, poenam pseeo-
torum vestrorum. — Samarit. fomicationes (in marg. turpi-
tudines.)-^Arab. errorcm.— Pers. demationes.
The ofience which provoked this judgment was the
offence not of debauchery, but of rebellion and apostaeg^
especially of desiring to return into Egypt, instead of pro-
ceeding to the promised land; and the reason for which
Caleb was especially exempted, was, that he had followed
the Lord fully. In the next verses these apostades are
423
called dfMi^ieuj and among them is reckoned the offence of
the molten calf, in respect of which Moses himself declares
in the name of the Lord, Thy people have corruipied them-
selves; they have quickly iwmed aside cut of the way
which I commanded them ; they have made themselves a
molten image : Deut. ix. IS. where iSansworth remarks, that
the *^ word corrupteth meaneth the corruption of God^s
service and religicm.^
2 Kings ix. 2S. The whoredoms {apoatadea^ ctl m^iai)
of thy mother Jezebel, and her witchcrafts.
Arab. Quae pax cum idolis Jezabelis matris tuae ?
Jezebel was distinguished by apostasy and a cruel zeal
for idolatry; but nothing is recorded which can justify
the inference of her being an harlot. Witchcraft is a
common accompaniment of idolatry. It is remarkable,
that the only occasion upon which Josephus uses the word
irofvii, is in reference to Jezebel : he ordinarily paraphrases
the TTogvewD of the LXX by words denoting defection^ and
describes whoredom by very different terms.
Isa. xlvii. 10. Thy wisdom and thy knowledge hath
perverted thee : ^ iro^vcia o-ou o-oi aio^p^tn^.
Schleusner (Lex. in LXX.) remarks: ^^rnn scientia.
Fallor, an T^yoia legendum sit.*" The alteration is unne-
cessary : the aversion or perversion implied in the original
is quite consistent with the ?rogygia or apostacy of Babylon.
Isa. Ivii. 7, 8, 9. Upon a lofty and high mountain thou
hast set thy bed ; even thither wentest thou up to offer
sacrifice ; behind the doors and the posts hast thou set up
thy remembrance; for thou hast discovered thyself to
another than me : thou hast enlarged thy bed, and made
thee a covenant with them ; thou lovedst their bed where
thou sawest it : (a>ov, ^i 9ot¥ oaf t/Mu AIIOSTHS, vAiov n
^ets; r^annfl-a^ rovs HoijjMfMvws fitra aov :) and thou wentest
to the king with ointment, (hast multiplied thy apostacy
with them, ewXatjiuvas njv irofvuaif <rou (uff avrtsvy) and didst
increase thy perfumes^ (hast multiplied them thai were
far from thee, iroXXwg eiron^as tou; fuuifav awo cw,) and
£ e 4
424
didst send thy meflsengers afar off, and didat ddbaae thy-
self even to hell.
Aquila. nrAiifaM^ to; onnAfOYK ff«u.«-*Syni. ra fnoft^m wm^^
Th. TOUS |XUff\pOV( ffW.
The lofty mountain was the temple in which idolatrous
sacrifice was offered; •the bed was part of the furniture
prepared for the guests at an idolatrous feast ; the remem-
brance which was set up was any object of idohtroua
worship. The rem^nbnuice was set up in secret that it
might not be seen, and the bed was enlarged for the
admission of strangers, with whom the Jews now entered
into covenant, expecting some new advantage from this
apostacy, (jmv etur c/aov AnOSTHS, irXfoy ri ^ug.) It is in
this sense that the Jewish Church, before denominated
iro^, i9 said to have loved them that lay with her, and to
have multiplied her apastacy^ or idolatry. Tlofma here
means apostacy properly : the metaphor is carried on by
the word xoifUD/Mvou^, here substituted for the more common
word |xoi;^tt)/uyoti^, unless it be judged preferable to interpret
that word also of lying down at the idolatrous feasts.
Jer. ii. 90, 21. For of old time I have broken thy yoke
and burst thy bonds; and thou saidst, I will not trans-
gress, when upon every high hill and under every green
tree thou wanderedst, playing the harlot [jin apoatacyf sxn
8ia%v4iI0'OfMu fy T]) wofvu^L /aov.) Yet I had planted thee a
noble vine, wholly a right seed : how then art thou turned
into the degenerate plant of a strange vine unto me ? wmg
trrget^g ng mxgiav ^ aiMnXog i^ etXAor^ia ;
Chald. tu colebas idola. — Syr. tu errabunda soortaris.
The circumstances of the high hill and the green tree,
the common scenes of idolatrous worship, apprqiriate the
sense of apostacy to vo^io, which corresponds with her
degeneracy from the condition of a noble vine, a wholly
right seed, into the state of a strange or foreign vine. . *H
aXXorjMc, the epithet of the vine, is a perfect synonyme of
h ^>^$yn9 the tUien or apostate^ who had been polluted and
gone after Baalim, v. 23.
425
Jer. iii. 1, 2, S. If a man put away his wife, and she
go from himy and become another man's, shall he (she)
return to her (him) again ? Shall not that land (wife, yorf^)
he greatly polluted? But thou hast played the harlot
with many lovers, (hast apostatixed under many shepherds,
e^eirogvw^ag sy mipM'i toA^oi;.)^ Yet return {xm cafgKafMm$)
to me, saith the Lord. Lift up thine eyes to the high
places, and see where thou hast not been lien with : (e^cf u^
tns:) thou hast set for them as an Arabian in the wilder^
ness, and hast polluted thy land with thy whoredoms {apaata^
cieSy iFOfvtung) and thy wickedness, and thou hast a whore's
forehead, (the face of an alien,) and thou refusedst to be
ashamed, (o\pi; to^; tywrro croi, eanivMffx^vTy^e^ irgoffreafrof.)
Chald. tu fomicata es et adjunxisti te populis multis • .
et ream fecisti terram in idolia tuis • • impudentiam quasi
mulieris meretrids.
The comparison is drawn between the wise provision of
the Jewish law, which, to prevent the debasement of l^e
woman, prohibited the husband from reassuming the wife
whom he had divorced, and the merdiful forbearance of the
Lord in accepting the frequent return and repentance of
the Jewish Church, after she had separated herself bj
apostacy. As aduhery was not an allowed occasion of
divorce, it is not necessary to suppose, that vo^cia was in
that sense the ground of the divorce. The contrast be-
tween e^eiro^ewragj interpreted of idolatrous (ipoatacy, and
avexoifji,'rmgy of the return or repentimce of the people, is
very strong ; and the fact of this apostacy under the judges
is recorded in history in the very word used by the pro-
phet. In the second verse, the word ^ifv^g is used
metaphorically, in Contrast with the plainer statement, that
the land was polluted with the mfwious, or apostadesj and
wickedness of the Jewish Church, which in this state of
alienation bore the o^^s ^o^;, an expression very similar
to the uloi To^yixov, appropriated by Solomon to the strange
ox foreign woman, the common emblem in the prophetic
Scriptures of an alien and apostate Church.
426
Jer. iii. 6, 7t 8, 9. The Lord said ako unto me in the
days of Jofiah the king. Hast thou not seen that whuh
backsliding Israel hath done ? She is gone qp upon emry
high mountain, and under every green tree, and there hath
played the harlot, {apostatized^ rrt^MuoY.) And I said,
after she had done (had apostaiuted t», fura to mfmurm^
mm^f) all these things. Turn thou unto me. But she
returned not: and her treacherous sister Judah saw it,
(ci8f T)}y aaviAiatav axmis ^ aavtSms (q. d. 1^ fU| niyifoiarci mf
ovyftjiME; Tou &BOV, Origeu.) Iou&e«) And I saw, when tat
all the causes whereby backsliding Israel had committed
adultery, I had put her away, and given h&c a bill of
divorce; yet her treacherous ^ter feared not, but went
and played the harlot also, (and she also apoataUxed^ tvo^
yfuo-f x«i ovn}.) And it came to pass through the lightness
of her whoredom, (apoatacy^ tywno «; ovtav ^ vo^ivmi cbitik,)
and she committed adultery with stones and with Blocks.—-
xoi ftu/uoa'ay rp BooA is added by Clem. Alex, in recitbg
the passage : Psed. 1. i. c. 9.
Chald. colunt lignea idola . . . fecerunt, (Vulg. Syr.
fecisset) . • • errafyerunt etiam ipsi . . . levia videbantur in
oculis ejus idola ejus.
The text contains no more than the common difference
between fLO^cia, which is figuratively, and «o;wia, which is
properly, apostacy; nor is it necessary to suppose, that
fiLOi^MfMu and iro^MtMo are equivalent and synonymoua terms.
This interpretation is not required by the allusion to the
bill of divorce, of which adultery was by connivance only
an occasion, and which is here intended to denote only the
effects of the figurative adultery. If irojvfVfio is to be
understood in its classical sense of whoredom^ in a reflected
sense of adultery^ and in a figurative sense of idolatry^ the
confusion will be such as it will require no ordinary subtlety
^ " SpohDius pro «'«|viMwi ex conjecturft iciibit irunfm, Mihi lentuni ex*
pressisae videntur. TWTf ncelus, flagitiumque committere quandoqne sped*
atim Dotit, ic v. 6. ei scortatio, h. c. idolorum cuUus tributor.'' Schleuner
in LXX.
427
to develope and explain. But the high mountain and the
green tree restrict the sense of Togyiia to the apoataoy of
the Church, which is afterwards blamed for not returning,
{ovx evsoT^o^,) is invited to return (fx-ior^ a^i]ti) with ac-
knowledgment of its iniquity (oSix^oy) because it had trans-
gressed (yia-e^a-eii) against the Lord, and scattered its ways
to the strangers under every green tree, and had not obeyed
the Lord, and is finally exhorted in unequivocal terms to
return from its apostdcj/j miffrqat/^i uloi A4>£STHK0T£2.
The evidence which the context thus collated affords to
the meaning of the word icoqvBio, is confirmed by the striking
parallel, 9, Kings xvii. in which it is recorded of the chil-
dren of Israel, that they had sinned agidnst the Lord, and
had served other gods ; had walked in the statutes of the
heathen, and had set them up images on every high hill
and under every green tree ; had wrought wicked things
to provoke the Lord to anger, and had served idols ; who
had been invited to return, rejected the commandments of
the Lord, and worshipped all the host of heaven, and
served Baal. Therefore the Lord was very angry with
Israel, and removed them out of his sight : there was none
left but the tribe of Judah only. Also Judah kept not the
commandments of the Lord, but walked in the statutes of
Israel. Origen, in introducing the .history of this pro*
phecy, describes the wpoatadea of the people as dfieifrteu,
irraKrfiaroif irageeirrtofion'a : and he conceives that under the
words fura ro iro^yevaai, which he retains from the LXX» is
implied an admonition to such Christians as are liable to
the imputation of being o! dfAagTavovT§$ xeu fu} rtj^vimg ras
ovviYixas Tou Oeou. Hom. iv. in Jer. s. 1, 5. In a comment
upon the same words, he remarks, that the prophet aggra-
vates the charge against Judah: m fivfit rai^ tou l^gat^
a-vfji^oqai^ ffTaiSsuA)}' to h rotiv nBooXoXargovvrtov avcuffiifrov ift^
^onvoov, ^vKoi xou Aitou; xoXfi ra mScoAo, frxom^as tou; ev outoi;
efji,(P(oXevoirrag iaifjLOvus. Select, in Jer. The continuation of
his comment in respect of the word vo^iia is ambiguou%
as he confuses the TopnM of the prophet with the Jewish*
428
or rather with the Christian^ law of diToroe^ for it had no
connexion with the former.
Jer. xiii. 87. I have seen thine adulteries and ifay
neighings, and the lewdness of thy whoredoms, (the aKeii-
ation of thy apostacy, 4 flnroAXorjMBO'if rq; woptuif 0*^5) >nd
thine abominations on the hiUs in the fields.
Chald. consilium peccatorum adolescentis tu«.
As in a parallel text the offence is more distinctly marked
by adulteries and neighings : mgwia and the abominatioiiB
on the hills are combined with the same design and eflect,
and bear the same relation to each other, as fMij^tMi and
XgtfMTio-jtio;. Abominations, jSSe^uy/Mcra, especially com-
mitted on the hills, are common acts and accompaniments
of the apostacy denoted by iro^f lot, of which the effect was,
according to the LXX, an flnroAXorjicDo-i;, an estrangement
or alienation^ otherwise called anfoiMoij or exclurion from the
law and covenant.
Ezek. xvi. 15—90, 83—96, 88--41, 4S. But thou
didst trust in thine own beauty, and didst play the harlot,
{apostatize^ wwopfeoa-ofj) because of thy renown, and pour-
edst out thy fornications {apostacy^ mgntaii) on every one
that passed by ; his it was : (Chald. formcata es ob nomen
tuum, atque adjunxisti te ut cderes idola cum omni
transeunte quod non decebat te ita facere:) and of thy
garments thou didst take and deckedst thy hi^ phux%
(didst make sown or spotted images to thyself, wirpnitmf
ctatrn^ fiSeoAa fearrcL Sym. ^carra. Th. i^x/3oXio-/burr«,) and
playedst the harlot (didst apostatize, ej^rvo^yfuo-a;) there-
upon : the like things shall not come, neither shall it be so
Thou hast also taken thy fair jewels of my gold and /my.
silver, which I had given thee, and madest thyself images
of men, {uxovas af<rmKei§,) and didst commit whoredom
(apostatize, ^fwogHv<ras) with them; and tookest thy
broidered garments and coveredst them ; and thou hast
set mine oil and mine incense before them. My meat also
which I gave thee, fine flour, and oil, and honey, where-
with I fed thee, thou hast set it before thee for a sweet
429
savour ; and thus it was, saith the Lord God. Moreover,
thou hast taken thy sons and thy daughters, whom thou
hast borne unto me, and these hast thou sacrificed unto
them. And in all thine abominations and thy whoredoms
{aposiaa/f irogmav. Chald. omnium peccatorum abomina-
tionum tuarum ct idolorttm tuorum) thou hast not remem-
bered the days of thy youth, and wast naked and bare,
and wast polluted in thy blood. And it came to pass
after all thy wickedness (woe, woe unto thee ! saith the
Lord God) that thou hast also built an eminent place, (an
idolatrous house, oixruia Togvixov. Aq. /Sotuvov. Chald. aras.
Syr. sedem amplissimam,) and hast made thee an high
place (ffxfiejxa) in every street; thou hast built thy high
place (idol temples, ra irogvBta crou, templa idolis in excelsis
extructa : Schleusner) at every head of the way, and hast
made thy beauty to be abhorred, and hast opened thy feet'
to every one that passed by, and multiplied thy whore-
doms, (apostactfy rqy iro^vsioy crov. Chald. omnia idola tua.)
Thou hast also committed fornication with the Eg}rptians,
(hast made to apostatize, or apostatized with, the sons of
Egypt, e^eFogveucag tou; viov$ Atyirxrotj,) . . . and hast in-
creased thy whoredoms, (apostacieSj iroXXaxo^ ^eKOfvtua-oLS,
Chald. multiplicasti idola tua.) . . . Thou hast played the
whore also with the Assyrians, (hast apostatized with the
daughters of Assur, i^nrogviUQ'ois ori ivyeertgas Aa-coug,) • . •
Thou doest all these things, the works of an imperious
whorish woman, (of an alien woman, and hast apostatized
in three ways among thy daughters, yweuxos Toqytig xou
e^eTTogvwo'af rqta-o'mg tv reus i^otrgcan crou.) In that thou
buildest thine eminent place (idol templey ro mgvuov. Chald.
aras. Syr. templa. Arab, cauponam) in the head of every
way, and hast not been as an harlot, (aliens) in that thou
scomest hire : (xai tyfyov ds mgvf^ awayouca fMC^tofuara :)
' Tffv nnn^tf tmt mv ipfl^f* Im T90 #mXmv, if ^ tmnnh ut irmftn wm^iU**
m^f }f Xf9^«vi r« fm Jkmt «•«« nr» mMhmr k ym^ «X«Iimi iirtf, Irt tyw
*»fM 4 Of mn Mw rt i| wmrnntu uMiyMftf wm^t lAywm, Oiig. Select in
Ezek.
430
but as a wife which taketh strangers instead c^ her hus-
band, {irafa rou ai^g /jLiatrnftara.) They giye gifts to all
whores: (thou hast given gifts to all that make her to
apostatize, irao'i roi; ixfmfveua-etrw eumnv T^tSiSov fMoiu^xdrra:)
but thou givest thy gifts to all thy lovers, and hirest them,
that they may come to thee on every side for thy whore-
dom : {ajx>sfaa/j irogvuav :) and the contrary (jhirrfaft^upw)
is in thee from other women in thy whoredom, {apasiaeg^
fro^usLVf) whereas none followeth thee to commit whore^
doms, {aposfaci/^ xai fjLtra o-ou w'siro^vfuxoo'iy. Sym. xeu fura
a-otj ovx errat To^eio,) and in that thou givest a reward, and
no reward is given unto thee; wherefore thou art oon-
trary, {sytnro fv <roi Sieorga/xfifya.) Wherefore, O hariot,
(alierij xo^yij. Chald. tu, cujus opera sunt sicut mere-
tricis,) hear the word of the Lord. Thus saith the Lord
God, Because thy filthiness was poured out, and thy nakedr
ness discovered through thy whoredom {apostaty^ infnua)
with thy lovers, and with all the idols of thine abominations,
(ei; wavra tol tvivfMifjLara roov avofneov crou,) and by the Uood ci
thy children which thou didst give unto them; Behold,
therefore, I will gather all thy lovers with whom thou hast
taken pleasure, (hast been mingled, trfftiyi};,) and all them
that thou hast loved, with all them that thou hast hated :
I will even gather them round about against thee, and will
discover thy nakedness (xaxiai) unto them, that they may
sec all thy nakedness, (aitrp^viiv.) And I will judge thee
as women that break wedlock (fixSmtjo-fi fMip^aXiSo;) and shed
blood are judged, and I will give thee blood in fury and
jealousy: and I will also give thee into their hand, and
they shall throw down thine eminent place, {idol iempkt
vogvim^) and shall break down thine high places, (j3aEtf*fy,)-
they shall strip thee also of thy fair jewels, and leave thee
naked and bare. They shall also bring up a company
against thee, and they shall stone thee with stones, and
thrust thee through with their swords: and they shall
burn thy houses with fire, and execute judgments upon
thee in the sight of many women : and I will cause thee to
431
cease from playing the harlot5 (will turn thee away from
thine apostaoy, earoargt^oi tre tx xo^eioc;. Chald. ut desinas
esse velut meretrix,) and thou also shalt give no hire any
more. Sd will I make my fury toward thee to rest, and
my jealousy shall depart from me, and I will be quiet, and
I will be no more angry ; because thou hast not remem^
bered the days of thy youth, but hast fretted me in all
these things. Behold, therefore, I also will recompence
thy way upon thy bead, saith the Lord God, and thou
shalt not commit .this lewdness above all thine abomina-
tions, (xai ovrcof ffToii}<ra( Ti)y eurefiiiav nri '^eureuf tou$ avojXMu;
This passage might be used as a praxis upon the several
senses which the Hellenistic writers attach to the word*
iro^yeia, and although it would be folly to deny that parts
of the general description may seem to justify the ordinary
interpretation, and to identify frogvfi with fuoiyahdSi it is
nevertheless contended, that a more minute examination of
the prophet^s language will rather confirm than invalidate
the proposed exposition of iro^ in the sense primarily <^
an alien or apaatafe. The declared purpose of this solemn
expostulation is to ^^ cause Jerusalem to know her abomi-
nations,'*^ (avojxiof,) and with this view she is cursorily and
at length reminded of her foreign ori^n and nativity ; she
is described as a foundling and a fbreignery whom the
Lord had cherished and contracted to himself; as one, who
having had occasion to boast that she was quasi proxima
Deo et civitas ejus, quia peccavit, a Spiritu sancto ar-
guitur, ut degener et extrwnea. Orig. Hom. vi. in Ezech.
It is agreeable to these allusions that she is called properly
a y\iTf\ TTogvri in the sense which has been repeatedly ex-
plained and insisted upon. A principal character of these
alien or foreign women was their idolatrous apostacy ; and
this idolatrous apostacy is strongly appropriated in the
peculiar translation of the eminent or high places of
idolatrous worship by iro^siot, (v. 16, 34, 28.) and of the
high places in which she committed idolatry, by fmnfl-ag
432
ttimkx pama km ^frofnuaas tw^ mna^ tranglationa whidi in-
volve the oonnBtency of the LXX with itself and with
the original, unless wofyiiov be understood of a temple or
altar of idolatrous apostacy, or of the dwellings of the cod-
secrated mfvaij in a sense which will hereafter be ex-
plained. In the process of the description, the circum-
stances of the ingveioL or apoatacy are very distinctly de-
tailed : it consisted of taking the jewels of the Lord, and
making images of men, and apoataHsring {narofnuccu) with
them ; in setting the oil and incense of the Lord, his meat
and fine flour, oil and honey, before them, atg arfupf mMtiuiff
and in offering their sons and daughters for a sacrifice unto
them. Such abominations were proper acts of iddatrous
apoaiacff: but it exceeds the boldness of (xiental imagery,
nor is it possible to conceive any metaphorical analogy or
propriety, under which these abominations can be expressed
by the name of whoredom. It is not less difiicult to con-
ceive what is the nature of that whoredom^ which Jeru-
salem, as a irogvi}, (if that word be interpreted in its ^^li^wjcwl
sense,) could commit with the images of men, (tixoM^
afa-t¥tKei§) with idols, spotted, coloured, or sewn together,
with the sons of Egypt, with the daughters of Assyria,
and, according to the gloss of the LXX, with her own
daughters, with all of whom it is very conceivable that she
should apoatatixey and record of history that she did ufio-
stoHxe. The daughters of the Philistines are said, accord-
ing to the LXX, not to have been ashamed of her lewd
way, but ixx^avouara; are ^ oSou, ^^ ijo-c/Siio-a^, and this method
of expressing a prevailing temptation to aposiacy by »-
xXivsiy, as a synonyme of fXTo^n/fiv, has been observed
before. The expressions from v. 26 — SO. are all of the
same description, although they may all be appropriated
to a distinct species of vo^f lo, reserved for future conuder-
ation. In that part of the extract which seems to de^
scribe Jerusalem more expressly as a iro^ in the ordinary
sense, besides the intricacy of the passage, may be re-
marked, that she is said to be SifOT^a/tftfMvi), ordinarily inter-
433
preted of religious obliquUy and peryeraenesB, and the
resemblance is introduced by the conjunction ce;, and with
the illustcative addition ds to^ ^uvayowra liAiriwyMroL^ but
in the application she is called, as in Isa. i. 25. to^, aUeny
or apostate^ without any sign of comparison. It is in
reference to her heathen origin and actual apoatacy^ that
she is called to^ in the Hellenistic sense, and in respect
of her intimate communion with the heathen, she is said to
be mingled with them, (nrc/xiyi}^,) but if it had been in-
tended to denote her conjugal infidelity, it is hardly
possible that she should never have been addressed by the
name of /tcoip^oAi;. In the conclusion it is indeed written,
that she shall be judged with the judgment of an adul-
teress, (/Aoip^oAiSo;,) but that judgment is introduced by a
comparison, and is coupled with the judgment of a mur-
deress, and there is no allusion to the adultery in any
other part of the description. In the end of the chapter,
Jerusalem is compared with Sodom and Gromorrha, cities
eminent for their apostacy, and is reckoned among them
that are guilty of spuming or thrusting away, flnrcDO-ajxevoi,
their husbands and their children, a fit emblem of alienor-
Hon. Throughout the description the ofiences of Jeru-
salem are called abominations, avo/xiai, idols of abomina-
tions^ evivfArjiiaroL rcov avofumv, and eurefiua. nri irourais Toui
avofjucusj all terms appropriated to idolatrous apo8tacy\
which, notwithstanding its admitted difiiculties, appears to
be the principal and predominant sense of xognta through-
out the chapter.
Ezek. xxiii. 2—6, 7—9, 11—14, 16—19, 82, 27, 29,
30, 85, 48—49. There were two sisters, the daughters of
one mother, and they committed whoredoms, {apoatatixed^
* AnfiuM, aver$io, is Deat. xix. 16. the translation of the same word PnO,
which in Deut. xiii. 5. is rendered by irXsvivrif, apoitasia, and Isa. i. 5. by
att/ua, or, according to Theodotion, by ««'#rrK«-<«. So Origen, Select, in
Ezech. c. iii. au/uaf ^tmf i«ri nf m^Uf nm rif rm %!^mkm it^awtm. Theodo-
tion renders au/um, in zvi. 58. hy formcaHo. So plainly does «'*fv«Mi correspond
with aftfum and mw^tm*
VOL. II. F f
e^erogvevo-av) in Egypt : they oommitted whoredom (Child.
erraverunt in Egypto : post cultum idokfrum suorum 0rra-
venint) in their youth : there were their breasts pressed,
and there they bruised the teats of their virginity (nui tie
Tagdffvetxrav.) And the names of them were Aholah the
eldery and Aliolil)ah her sister: thus were their names;
Samaria is Aliolah, and Jerusalem Aholibah. And Aholah
playeil the liarlot when she was mine, (apo8t€Uized from
me, ^eTTo^evasv air e/xou. Chald. erravit a Cultu meo :) and
she doated un her lovers, on the Assyrians her neighbburt-
. . . Thus she committed her whoredoms {apasiacyy fBOfvtut^.
Chald. elegit errarcy) with all them that were the chosep
men of Assyria, and with all on whom she doated ; with
all their idols she defiled herself: neither left she her
whoredoms (apostacy^ irogvitav. Chald. cuUum idolorumy)
brought from Egypt in her youth . . they lay (cxoifLonrro)
with her, and they bruised the breasts of her virginity,
(hsTTsigieveua'av atmjv,) and poured their whoredom {apoaiaey^
TTogvuavy Chald. ulola sua) upon her. Wherefore I have de-
livered her into the hand of her lovers, into the hands of the
Assyrians, upon w^hom she doated. These discovered her
nakedness, . . . and slew her with the sword. . . . And when
her sister Aholibah saw this, she was more corrupt in her in-
ordinate love than she, and in her whoredoms {apoatacjfy
TTogvsiavy) more than her sister in her whoredoms, {apastacfj
iro^noLv.) She doated upon the Assyrians her neighbours,
. . . Then I saw that she was defiled, (/MfiiaiTflei,) that they
1x>th took one way, and that she increased her whoredoms;
{apostacy^ frogvtiav. Chald. errores suos,) for when she saw
men pourtrayed upon the walls, the images of the Chaldeans
]K)urtrayed with vermilion, . . . she doated upon them,
and sent messengers unto tiiem into Ciialdea : and the Baby-
lonians came to her into the bed of love, and they defiled
her with their whoredom, (iier apostaofi mpniav aam^^
Chald. in idolis suis,) and she was polluted with them, and
her mind was alienated (otreo-riQ) from them. So she dis-
covered her whoredom, {aposlaa/j irogwiav. Chald. confum
435
ejus,) and discbrered lier nakedness. {««o-;^wV)jv.) Then my
mind was alienated from her, (flwreori),) like as my mind
was alienated (a7rg<mj) from her sister : yet she multiplied
her whoredoms, (apostaa/y 'rrogveiav, Chald. tdola sua,) in
calling to remembrance the days of her youth, wherein she
had played the harlot {apostatized^ eifbgviwroiSy) in the land
of Egypt. . . . Therefore, O Aholibah, thus saith the Lord
God : Behold, I will raise up thy lovers against thee, from
whom thy mind is alienated, (flnreo-n},) and I will bring
them against thee on every side. . . . Thus will I make thy
lewdness to cease from thee, and thy whoredom (turn from
thee thine impieties and thine apostacy^ omoirrqrifw tol;
a<re^6ioL$ <r6\j ex <rou xai tijv irogvsiav (row. Chald. cuUum
idolorum tuorum,) brought from the land of Egypt ; so
that thou shalt not lift up thine eyes unto them, nor re-
member Egypt any more. . . . The nakedness of thy whore-
doms {apostacyy aia-xyvYj frogveias^) shall be discovered, both
thy lewdness and thy whoredoms, (apostacy.) I will do
these things unto thee, because thou hast gone a whoring
{apostatized) after the heathen, [oun^ua (tov xat vj Togvsia crov
eiroirio'e (roi rotura, ey ret exTrogvevtroti o"? ovicw sdvcov,) and because
thou art polluted with their idols. . . . Because thou hast
forgotten me, and cast me {oi7re^piy\/ug) behind thy back,
therefore bear thou thy lewdness, (ao-g/Seiav,) and thy whore-
doms, apostact/y fTogviiav, Chald. idolorum tuorum.) . . .
Then said I unto her that was old in adulteries. Will they
now commit whoredoms {apostatize) with her, and she with
them ? (oux ev toutoi^ |Lwi;^juou<ri, xai sgya wogvijj. Chald. idola
sua. xai auTij ffgwogv6u<rev.) Yet they went in unto her, as
they go unto a woman that playeth the harlot, (a foreign .
woman, 6v t^otov eKjirogsuovrat irqog yvvaixa Trogvtiv, Chald. ad
mulierem hospitatricem:) so they went in unto Aholah and
Aholibah, the lewd women, (tow 9roiij<rai avojxiav.) And the
righteous men, they shall judge them after the manner of
adulteresses, {jttoi;^aXi?oj,) and after the mariner of women
that shed blood ; for they are adulteresses {[jLoix^^t^eg) and
blood is in their hands. For thus saith the Lord Grod ; I
F f2
43(>
will bring up a company upon them, and will give them
to be removed and spoiled ; and the company shall stone
them with stones, and dispatch them wiUi tfieurawoids;
they shall slay th^ sons and their daughters, and bum up
their houses with fire. Thus will I cause lewdness to
cease {earooTfe^ai eun^uav) out of the land, that all womoi
may be taught not to do after your lewdness, (oo-f/kMo^)
and they shall recompense your lewdness {aa-tfism) upon
you, and ye shall bear the sins of your idols ; (rof afMynsf
raw evtvfMiiMtrewj) and ye shall know that I am the Loid
your God.
This is another passage in which mfma may seem to be
used in the ordinary sense, and to be convertible irith
fMix^oc, but in which, upon a more severe examination, it
will be found rather to denote idolatry properly and with-
out a metaphor, which is carried on by other terms. The
metaphorical terms used for idolatry are, Bifira^fcMo^ay,
tfMi^mrroy jxoip^euouo-i, and perhaps also aiaj(w^ and aiffjfw^
iropfnaSf although in the last expression there is probably a
combination of the proper and metaphorical terms. The
beginning of the idolatries of Israel and Judah is traced to
£^pt, the prolific parent of pagan superstition; and to
Assyria, not less distinguished for the early and constant
practice of idolatry. The apostacy of Aholah or Samaria
is too obvious to need remark : it was established by the
erection of an apostate and idolatrous altar ; it is expressly
called an apostacy from the Lord, {car i^xou,) and in refer-
ence to the Assyrians it was denominated a defilement with
their idols, ev irouri roi^ evhfM^fJLeur^y aunov e/xioiMTo*
The excesses of Jerusalem or Aholibah are also called a
defilement or pollution, (/xe/xiairrflu,) inflamed or excited by
pictures of the Chaldeans painted on the walls, and by this
defilement her mind was alienated, (atrean),) the very word
which is used to express the judicial alienation of the Loid
from Israel and from Judah, and which in that reladon
cannot admit the idea of any sensual pollution. In pro-
nouncing judgment upon her, the Lord threatens to bring
437
to an end, not her lewdness and her whoredom, as it is
expressed in the authorized version, but ra; ourifiaa^ crov xoi
njy iro^sioLv <roD^ of which the former explains the latter, and
restricts the sense to an impious apostacy. The vindica-
tion of this righteous judgment is, according to the LXX,
that this impious apostacy was the occasion of it : aa-efina
cov xai vj mgveM aov sroiijo'f 0*01 rauro, fv ro) txiropftwreu <rt
oiTKrai eivoovy because she had forsaken the Lord to follow
the Gentiles, and had been corrupted with their idols.
Therefore, namely, because she had forgotten the Lord,
and cast him from her, airtppi^ag, she bore the burthen ; of
what ? of her lewdness and whoredom ? no ; but of her
impious apostacy, a<rej3eiay <rou km irogveiav cou. This judg-
ment is followed (v. 36— 4S.) by a more detailed descrip-
tion in plain and figurative terms of her oiFence, which is
called avojxia in the strict sense of that word, and is shewn
to consist in adultery with idols, in the initiation of children
by fire, in the pollution of the sanctuary and the sabbath,
in the sacrifice of children to idols, and in the hypocrisy of
approaching the true altar in the midst of these abomina-
tions. These are all circumstances appropriate to the
notion of idolatrous apostacy^ and irreconcileable with that
of simple whoredom. There follows an allegorical descrip-
tion of the idolatress, among whose offences it is, as in
other passages, particularly specified, that her table was
furnished with the incense and oil of the Lord. The
question is then put: ovx tv rovroif jtiOi;^euou(ri ; xeu tgya
70^^ xon aimi e^e/rogviwre ; Tn this question the sgya vo^m^g
may be understood, most consistently with the language of
the LXX. and of the Chaldee version, of the worship of
an idolatrous or apostate Church, of them that communi-
cate with which it is said, that they luoiyto^^^h ^n expres-
sion common to the prophets in connexion with ico^uol^ and
that they approach her, 6y r^ov fi(nrogffvoyrai ir^; yDva^xa
TTogvYiv, The yt/vii vogvii, as the phrase is used in Proverbs,
both in her extraction and her habits, is not unworthy to
represent an apostate Church : and it may be permitted to
Ff3
^3S
remark, tliat the comparison is introduced cautiously, w.
T^cnrov^ and that the phrase, eKnro^fueo-tai %fog yvvauxa ^npp^
is very diiTerent from exTrogveuuv oan xu^iou, and may denote
no more than partaking of the common fare ** mulieris
tahemaria' aut hospitatricis." Compare Jud. xvi. 1. and
the Clialdee on lK)th texts. The eifect of this free com-
munication was that which is again and agUD ascribed to
idolatry, roy iroii}(rai avopay, at least according to the LXX,
although in the authorized version, Samaria and Jerusalem
are calleil lewd women. The judgment which was finaUy
denounced upon them, and which righteous men should
execute, is the judgment of adulteresses, fioip^aXiSo^ : and if
To^veia had been intended to represent properly adultery,
and figuratively idolatry, there would have been no occa-
sion for this change of the expression. With this punish-
ment the Lord threatens to abolish not ao-eXycMcy, or the
more equivocal offence frogveiav, but oure/SEiay, {otwooTgr^
oKTefiuoiv^) for an example to others not to follow aa-tPuWy
and that they themselves might bear the punishment of
impiety and sins of idolatry, aa-ifiaav xeu rag dfAogrieig tot
ev$ujxi;|u.0eTa)v, and might know who is the Lord.
In this passage then other terms besides irogHia are used
figuratively to denote the circumstances of the great apo-
stavy of Samaria and Jerusalem ; 'and in immediate appo-
sition with frogveioLj and with the plainest and most un-
adoraed reference to idolatr}', are other words entirely
distinct from sensual pollution. If xogvua is interpreted
proixjrly of aposfai^, there is perfect con^stency and
analogy in the description : if it is used only in a meta-
phorical sense, there is irretrievable anomaly and con-
fusion. If it be objected, that the interpretation contended
for depends principally on the LXX, it is obvious to
reply, that it is that version only which can ascertain the
sense of To^veia, and that the Chaldee agrees with that
version in denouncing the worship of idols as equivalent to
Ezek. xliii. 7, 8, 9. Son of man, the place of my throne,
439
and the place of the soles of my feet, where I dwell in the
midst of the children of Israel for ever, and my holy name
shall the house of Israel no more dei^lc, neither they nor
their kings, by their whoredom, {apostacy^ wogveia,) nor by
the carcases of their kings in their high places. In their
setting of their thresholds by my threshold, and their posts
by my posts, and the wall between me and them, they have
defiled my holy name by their abominations (avo/xtai^) that
they have committed; wherefore I have consumed them
in mine anger. Now let them put away their whoredom
(apostaa/y ^frogveiav) and the carcases of their kings far from
me, and I will dwell in the midst of them for ever.
Chald. idola sua ... in idolis suis.
The offence was, that the name of God had been defiled
by abominations, avojxiai^: the c*ommandment was, that it
should no more be defiled by apostaa/y wogveia : and thus
avofjLtoi and Trogveioi are coupled in their common sense of a
departure from the law. The commentators say, " Non
pollucnt, scil. idololatriis: Juda&i enim post reditum a.
Babylone non amplius coluerunt idola. Poll Synops. in
V. 7.
Hos. V. 3, 4. I know Ephraim, and Israel is not hid
from me; for now, O Ephr^m, thou committest whore-
dom, {apostacy^ efCTrogveuo-g,) and Israel is defiled : (f/miavSij :)
they will not frame their doings to turn unto God ; for the
spirit of whoredom (apostaa/y ^o^e/ac) is in the midst of
them, and they have not known the Lord.
Chald. erraverunt viri domus Ephraim . . spiritus errotis.
It will not be denied, that the apostacy of Ephraim is
the same with the defilement of Israel ; and it is afterwards
said to be the iniquity of both that they had dealt trea-
cherously with the Lord, or forsaken him, gyxareAiwov, i. e.
they had apostatized. This apostacy is ascribed to the spirit
of apostacy or errors frogveiasj which ** is not ill expressed
in the MS. Arabic translation out of the Hebrew : A firm
or obstinate purpose of error, (or whoredom, or idolatry,
as the general word is applicable to either, as the Hke word
F f4
440
in the Chaldee:)" and this spirit tenninated in a vdbntnrjr
ignorance of God^ in ** wilfully putting from them the
remembrance of hi«, and obstinately refanng to walk in
his ways.*^ Pocock in loc.
Hos. vi. 10. I have seen an horrible thing in the house
of Israel : ' there is the whoredom {aposiacj^ vofwioy) of
Ephraim, Israel is defiled.
Chald* aberraverun^ viri domus Israel.
** Sentcntia est : In domo regift, quae est penea tribma
Ephraim, viget idololatria, et illo exemplo omnea decern
tribus ad idololatriam adducuntur.^ It has been supposed
that the prophet alludes to Jeroboam, who was of the
tribe of Ephraim, and with whom the idolatry of Isrsel
ori^nated. Poole's Synops.
Nahum iii. 8, 4. They stumble upon the corpses, be-
cause of the multitude of the whoredoms (fiposiatyj wof^
mas) of the well-favoured harlot, {alien^ ^o^,) the mistiess
of witchcrafts, that selleth nations through her whotredom,
{apostaa/y ropmioivj) and families through her witchcnfis.
Chald. prse multitudinem strepitQs civitatis, quae est
sicut meretrix et scortum . . • ut prodat gentes idolis suis.
The multitude of whoredoms is explained by Gtotius
and Drusius: ** Vel 1. cultuum idololatricorum . • • vel SL
artium, quibus usa finitimis persuadebat optime coli numen
ritu suo.*" Witchcrafts are also frequently mentioned in
conjunction with other acts of idolatrous apostory, and
Nineveh, in respect of her heathenish alienation from Gkid,
is described in terms afterwards appropriated to the great
aposfalCy the mystical Babylon of the Apocalypse.
Ecclus. xxiii. 22, 23. Thus shall it go also with the
wife that leaveth her husband, and bringeth in an heir by
another. For, first, she hath disobeyed the law of the
Most High; and, secondly, she hath trespassed agamst
her own husband ; and, thirdly, she hath played the whore
in adultery, (hath committed adultery in her separation,
e/toi;^eutij sy ^opfua^) and brought in children by another
man.
441
Arab, quod fraudem seortvmque coaimittat
This is the only text to which Parkhurst refers, besides
Matt. V. 32. xix. 9. in justificatioD of the expontion of
ifopiiOL in the sense of ^' whoredom in « married woman.^
It is however obTious^ that the words inrolTe some distinc-
tion : ifu^x'^h in itself is of too jdain import to require
any explanation: the addition of wa^tm in the sense of
adultery rather perplexes than illustrates the meaning, and
to commit adultery by adidtery is but mere tautology^ and
if it had been intended to aggravate the offence by redun*
dance of expression, the ptn^BC would have been ifboipgiuAf
fjuotxeiet. But if the word be interpreted in the Hellenistic
sense of separation or alienation, it will correspond with
the expression in ver. 22. xeergtXmw<ra roy ca^eu The
aggravations of her offisnce of leaving her husband will
be ; 1. that she breaks the divine law; 2. that she offends
her husband; 8. that she commits adultery, ty wofma,
while she is separated and bears diildren by another man.
It is in this sense, and m words nearly similar, that Origen
speaks of the separation of the Jewish Church, which was
not divorced by Christ, but departed of herself, wiro^vrnxrw
extirfi ri yvvri, ii^of^tuSiura vuro rw mwigov : and if any doubt
remains of the meaning of this iro^cia of the Jewish Church,
it is removed by the additional remark, ixfivi} ow iaxmiv
AIIESTHSE, ftoXXoy i) 6 oyi}^ eami¥ anrfVTciAfy earokuca^,
hoveg ovtthJ^w atmj AIIO^TASH outw, x. r. A. Comm. in
Matth. torn. xiv. s. 17.
Rev. ix. 20, 21. And the rest of the men that were
not killed by these plagues, yet repented not of the works
of their hands, that they should not worship devils, nor
idols of gold, and silver, and brass, and stone, and of
wood^ which neither see, nor hear, nor walk; neither
repented they of their murders, nor their sorceries, nor
of their fornication, {apostacy, wogmetf,) nor of their
thefts. «
Is it reasonable to fasten a figurative sense upon iro^Mt|
when all the other offences are jdainly expressed, and in
442
their unadorned sense appropriate acts of idSatrous apo-
stacy?
Rev. xiv. 8. Babylon is fallen, is fidlen, that great
city, because she made all nations drink of the wine of the
wrath of her fornication, {apostacy, vo^HOf.)
Arab, ob vinum suse necis, Cf. 8 Chron. xxi. 11. widi
the Arab. Syr, and LXX.
Rev. xvii. 1 — 5. I will shew unto thee the judgment of
the great whore {apostate, rngm/^g) that sitteth upon many
waters, with whom the kings of the earth have committed
fornication, (apostatized, ewognwroofj) and the. inhabitants of
the earth have been made drunk with the wine of her
fornication, {apostacy, xo^eiM^. See S Chron. xxi. 11, fee.)
So he carried me away in the spirit into the wildemess;
and I saw a woman sit upon a scarlet-coloured beast, full
of names of blasphemy, having seven heads and ten horns :
and the woman was arrayed in purple and scarlet colour,
and decked witli gold, and precious stones, and pearls,
having a golden cup in her hand full of abominations and
filthiness of her fornication, {apostacy, iro^ia;,) and upon
her forehead was a name written ; Mystery, Babylon the
great, the mother of harlots, (the apostates, ra>y iro^Nsy,)
and abominations of the earth.
llev. xviii. 3. All nations have drunk of the wine of
the wrath of her fornication, (aposlacy, icogvtiag,) and the
kings of the earth have committed fornication {apostatized,
eirogvtv<ray) with her.
Syr. de vino excandescentise ejus.
Rev. xix. 2. True and righteous are his judgments, tar
he hath judged the great whore, {apostate, tijv xo^y,)
which did corrupt the earth with her fornication, {apo^
stacy, icoqvua,)
The same apostacy which Saint Paul describes under
the verb a^i(rr»}/xi, and the noun 0x00x00-1;, is expressed by
Saint John by the words iro^eoeo and xogyiio. This is no
inconsiderable proof that these words arc synonymous, and
that apostacy is the true meaning of xo^io. It is gene-
443
rally admitted that the word denotes apostacy in a figiira*
tive manner ; and it is for the reader to determine between
the ordinary interpretation and that which is now pro-
posed, and to judge whether the supposition of a metaphor
is not altogether gratuitous and unnecessary. There is no
imputation of moral lasciviousness on the vogvi] of the
Apocalypse ; her frogvuuj like the apostacy foretold by Saint
Paul, consisted in the worship of devils and of idols ; it was
accompanied, as other cases of idolatry, with witchcraft ;
the cup of her that made nations drunk with the wine of
lier iro^uot, wa& full, not of lasciviousness, but of idolatrous
abominations; she was the mother of the apostates, and
with her apostacy she corrupted the earth. It is not pre-
tended that the mystical Babylon originated any new
description of debauchery, and all the interpretations of
the Apocalyptic iroqvi^ are agreed in supposing it to foretell
a power not so much of moral licentiousness as of religious
apostacy and alienation from the genuine purity of the
Gospel.
Let now the evidence in favour of the proposed inter-
pretation of TTogveta in the sense of idolatrous apostacy be
brought together. However clear or undisputed be the
sense of the word in the use of the classical writers, even
the received etymon involves the notion of a transgression,
or passing over from one to another, and all the words are
of rare occurrence. The sense appropriated to icogveM,
and more especially to irogvri and vogvof, in classical Greek
is expressed by other words by the Hellenistic writers.
There is also another etymology of the word irogveuoo of
highly venerable authority, with which the use of the
LXX strictly coincides, and which is indicative of apo^
Stacy, This and the kindred words, with very few doubtful
expressions, denote an apostacy; their general construction
is such as implies not a communication withy but an alien-
ation from, a per^n ; they are coupled with other words,
directly relating to religious apostacy, such as avo/Uria,
ao-e/Ssia, and ^ikuyfiMTa, and having no allusion or refer-
444
enee to the ordinary meaiung of wnf¥taj and tlicy are
occasionally expbuned by other words substituted for
them, and having an undoubted reference to apMact^j as
a^ioTtifM and ixxXivw. The word irofvfioy is used to denote
the high place of idolatry, and iro^ in the Book of
Proverbs is almost convertible with oAXot^mu If these
words are used in a figurative sense, it is extraordinaiy
that that figurative sense should be perpetually in use;
that the traces of the proper sense should be faint and
indistinct, and of the rarest occurrence ; that the figurative*
sense should be* found in passages of the history and the
ritual, where a metaphor could hardly be expected ; that
the word in a figurative sense should be combined *with
other words in their plain sense, as xo^na and aa-ipeia,
mgwta and jSScXuyfMrro, and that in the florid passages of
the prophets other words, such as liAi^aofuuj xogfiao/uUf
heara^fvwofjLeuy should be introduced and predominate. It
is not presumed, that the proposed exposition has been
established beyond controversy or exception ; but the diffi-
culties of the texts which appear most irreconcileable with
this interpretation are by no means insuperable ; and in
many texts, without this exposition, the supposition dt a
metaphor is so indispensable as almost to justify without
other evidence the exposition of iroqveM in the proper sense
of apostacy. This exposition has the advantage of agree-
ing with the etymology of the Hebrew word; with the
ordinary use of the Jews in entitling their treatises of
idolatry treatises of xo^sio, and with the Chaldee para-
phrase and the most ancient versions, which translate the
words in the sense of erroTy deviation^ aberration^ and
worship of idohj and in many of the texts it is confirmed
by the indirect allusions or positive comments of Hellenistic
and Christian writers.
But can this exposition be shewn to coincide with the
texts in question, without which the whole discussion is at
least irrelevant ? It is admitted, that it affords no direct
advantage in the interpretation of Acts xv. 90, S9* because
445
as the other acts forbidden are of a particular kind, it is
reasonable to suppose, that whatever is interdicted under
the word irofwia is some specific offence, distinct from a
general apostacy. The texts Matt v. SS. xix. 9- might
receive an adequate illustration in -the present state of the
argument, and it might be shewn, that a yowi tici xo^no, a
wife in a state of apostacy^ or subject, Aoyo iro^iuiSy to a
charge of apostacy, is equivalent to a yuw^ irofveia^=yyyi)
ffo^=yvyi) ttAXor^io,. and thus the object which it is pn>-
pcMed to attain by a more elaborate investigation,, and the
exhibition of a more refined meaning of the word, might
be anticipated, and the clause of exception in our Lord*s
prohibition of divorce might be applied to the case of a
^oman married to the faithful from among the unbelieving.
This inference might also be applied in illustration of Acts
XV. 20, 29. But it is desirable to confirm the ^neral
meaning of the word by alleging instances of its particular
use, 1. in respect of the initiatory rites of the heathen
religion; and, 2. in respect of the intermarriage oi the
heathens with the Jews, and to prove that the words
To^vffiMo, eKKogvmjooy iro^, and iro^Mta, not only convey a
general notion, but express specific acts of apostasy and
alienation from God.
As the representatives prindpidly of the Hebrew word
tt^Tp, and occasionally of ni?, the words in question are
appropriated to the rites of prostitution which prevailed
in the idolatrous temples. The original word, according
to Buxtorf, signifies, Parari, praparari, destinari ad ali-
quid generaliteTi in specie^ sacrarij consecrariy sanctificariy
sanctum^ sacrum esse vel fieri, Parkhurst, Heb. Lex. under
inp, affirms, that its ideal meaning is, *< to separate or set
apart from its common and ordinary, to some higher, use
or purpose ; and thence he derives its subordinate sense,
^^ to set apart, separate or appropriate to sacred or reli-
^ous purposes, to sanctify, consecrate, * . . to consecrate
in an idolatrous manner, or to idolatrous purposes.**^ He
explains the sense of the derivative nouns to be ^* a prosti-
44(>
iutc male or female,'^ such as among the Canaaiiitcsaod
apostate Jews were consecrated to Venus, and practised
their abominable impurities as acts of religion. '^ The
learned Doctor Spencer (De Leg. Heb. 1. ii. c 82, 9A.)
has shewn, that among the ancient pagan idolaters there
were males as well as females consecrated to their deities;
who prostittUed themselves on the sacred festivals, and
were thought by so doing to yield them acceptable service,
and that they were woril to dedicate the gains of their prosti"
tutiofi to their gods and goddesses And from Gren^
xxxviii. 21, 22. comp. ver. 15. it appears that a similar
consecration, or rather desecration, was in practice among
the Canaanites as early as the days of Judah, and no doubt
had gained ground among them before the Israelites came
out of Egypt : hence one reason of the laV, Deut. xxiii.
18.^ The law thus adverted to demands the first attention.
Dcut. xxiii. 17, (18,) 18. There shall be no whore
(vogv)}) of the daughters of Israel, nor a Soddmite {wopwen)
of the sons of Israel. (The LXX adds, wx errm reAj^
c^o^i can Suyotregcov lo'gaijX, xou ovx f<rrai reXiOTco^xfve; «ro
uicov lo-^aijX.) Thou shalt not bring the hire of a wbmc^
(iFogvriSy) nor the price of a dog, {xvvos,) into the house of
the Lord thy God for any vow ; for even both these are
abominations to the Lord thy God.
Targ. Onkelos. Non erit mulier de filiabus Israel uxor
viro servoy oequc accipiet vir de filiis Israel uxorem an-
cillam. Non afFercs mercedem meretricis. — ^Targ. Jerus. .
Non profanabitis filias vestras, ut sint meretrices, neque
prophanabit vir filius Israel seipsum per scortationem.
Non inferatis mercedem meretricis. — Arab. Et ne sit ex
filiabus Israel scortum, neque ex filiis Israel scortator. £t
ne introducas quicquam ex salariis meretricis.— A q. lySniA-
The Hebrew word is " Eedesah, which ordinarily signi-
fieth holiness, but is used here for the contrary ; or it was
some filthy religious order among the heathens, among
whom such abomination was practised under pretence/crf
44/
religion. And in the apostacy of Israel houses of these
profane persons were contiguous to the house of the Lord.'*'
Ainsworth. Thus the original words, ordinarily denoting
holiness, or a dedication to holy uses, are used in the most
opposite sense, to signify the vilest profanation, not only of
an apostacy from true hoHness and religion, but the con-
secration of a priesthood by personal prostitution, and the
words iFogvfi and %ogviva>v as the representatives of the
Hebrew original, are ascertained to denote idolatrous ini-
tiation, as in Hos. iv. 14. 1 Reg. xxii. 47. See Spencer de
Leg. Hebr. Diss, in Actt. xv. 20. c. iii. s. 4. The words
which are added by the LXX are supposed by Grotius to
be taken from another version, in which ttflp is explained
sensu initiationis idololatricae. Theodoret explains Ttke^
(Tfogov Tov fjLvaTayeoyouvToi' T6Xi0'xo|xevov §§ rov fivarayoayovfievov,
Biel interprets TB\e<r^^g, ^^ prostibulum seu foemina genr
tium sacris vcl daemonum mysteriis fornicatione initiata C^
and he translates the latter part of the clause, *^ non erit
initiatus impuris gentium sacris aliquis ex filiis Israel.^'
Thus again the gloss of the LXX corresponds with and
confirms the sense of the original ; and although in ver 18.
Togw} is the translation not of snp, but of nM, still, if the
words be placed in the order of parallelism which prevails
in the writings of the Jews, there will be found in the
several verses a correspondence of terms which almost
defines the sense :
OvK fforai irogwi onro iuyotregwv Icgavj^y
xat ovx eoTeti irogveumv evKO uiaov Ivqat^X*
ovx, e(rron TeXeapogos otto ivyartgoov IcgariXj
Kon ovx. eoTM T0Xi(rxojtt«vof airo vloov Itrgay^X'
ou 7rgo(roi(rei§ fiKriaofjLU Tfogwig
ov^e oLXkxyfjLU xuvo^.
The first verses forbid the profanation of the holy seed ;
the last prohibits the appropriation of the wages of pol-
lution in either sex, as an ofTering to the Lord, after the
manner of the heathen, and denounces it, whether £rom the
44.S
wofhi or the mmht, as an abomination. By tUa inttrptcU-
tioa of XM0V io the sense of a oonaecrated mmiioHuB, dme
is a correspondence in the whole passage ; ^ ut ▼• 17. cum
meretrice cinaedus^ ita v. 18. cum scorto canis oonjungitnr.**
Allusion is made to these Sodomites, as they are called in
the authorized version, in other passages of Scripture, in
which TFognucQv is not used: 1 Kings xiv. 24. they are
called, probably by a different reading of the original, (see
Biel,) om^fo-ftouf : 1 Kings xv. 12. al rfXfrai : 2 Kings xxiii.
7. by the LXX, xaBi^trtfi: by Aquila, fv8ii}AA«eyyMvoi : by
Symmachus, rekrrou: by Theodotion, xethfi-uft^ Biel also
quotes the version of Drusius, who renders the latter part
of the verse, ov iiroiow tySo/Mcra roi; aarofvsuova'w eon ju^ioo.
The subject is too disgusting to admit of detail; and it
will be sufficient to refer the reader to Firmicius Matemus
de Err. Profan. Relig. s. 10. for an account of one of these
priests of Venus ; and to Herodotus, Clio, c. 199* for the
appropriation of the wages. Schoettgen, Hor. Hebr. in
Phil. iii. 2. Apoc. xxii. 15. shews that the Jews understood
by xofloy a person not a Jew, one out of the covenant of
Grod. Spencer contends for the literal interpretation of
xuooy, and conceives the precept to be directed against the
worship of Isis and Anubis, of whom the former was wor-
shipped with prostitution, the latter with a dog, or the
price of a dog. See also Waite's Jewish Antiq. p. 61.
Lev. xix. 29, 30, SI. Do not prostitute thy daughter,
to cause -her to be a whore, ov fie^kooo-us -npf tuyartfa vw
ixxogviutrm atmiv, lest the land fall to whoredom, (aposlocy,)
and the land become full of wickedness. Ye shall keep
my sabbaths, and reverence my sanctuary. I am the
Lord. Regard not them that have familiar spirits, neither
seek after wizards, to be defiled, fx|xiay0i}yai, by them. I
am the Lord your God.
Targ. Onkelos. Non prophanabis filiam tuam prosti-
tuendo eam.— -Targ. Jerus. Non poUuetis filias vestrss
dando eas ad soortationem, neque tardabitis locare filias
vestras viris juxta tempus ipsarum. — Samarit. Ne poUuas
449
filiam tuam prostituendo earn. — Pei^s. -Non profanabis filiam
tuam deviam faciendo illam.
Nature rec(Hls at this precept in the ordinary sense of
the English words, and the practice of men has never been
such as to call for a general prohibition, except in the vain
ambition of conciliating the heathen deities. The margin
of the English Bible suggests a comparison of the text
with Deut. xxiii. 17. in conformity with which it will
receive its best expontion. Spencer interprets the word
j3cj3i}Xoe0, in this and other texts, de scortatione idololatric^ ;
especially of a woman, *^ idolis mancipatas et in eorum
sacris vitiatse:'^ and this interpretation agrees with the
comments of Grotius, Patrick, and Selden, on this par-
ticular text. In this exposition, fxiro^euw, as in other
texts, is equivalent to jSejSigXoeo, and bears the active sense
of alienation or separation to a profane from a holy use.
The motive of the law is the necessity of reverencing or
sanctifying the sanctuary of the Lord, which unavoidably
would be, and actually was, violated by these abominations,
abominations resulting in the general apostacy of the land,
in the sense already explained.
Lev. 5cx. 2 — 8. Whosoever he be of the children of
Israel, or of the strangers that sojourn in Israel, that
giveth any of his seed unto Moloch, he shall surely be put
to death ; the people of the land shall stone him with
stones : and I will set my face against that man, and will
cut him off from among his people, because he bath given
of his seed to Moloch, to profane my holy name, (to ovo/xa
reuv i^yioo-ftsvcov jxoi.) And if the people of the land do any
ways hide their face from the roan, when he giveth any of
his seed to Moloch, and kill him not, then I will set my
face against that man, and against his family, and will cut
him off, and all that go a whoring after him, to commit
whoredom with Moloch, (pravrag rovs hiuovoouyrai aurco (Al.
mgveuovTois OTrKToo avrto) wtt€ §xwopfiueiv atrrov ng tov$ agp^ovra^,)
from among their people. And the soul that tumeth aft6r
such as have familiar spirits, and after wizards, to go a
VOL, II. G g
450
whoring {aposiatixe^ narofnoo'cu) after them, I ?rill even aet
my face against that soul, and will cut him off firam among
his people. Sanctify yourseWes, therefore, and be ye
holy ; for I am the Lord your God : and ye shall keep
my statutes, and do them : I am the Lord who sanctify
you.
Targ. Onkelos. Omnes qui errant post eum ut errareni
post Molecli, . . . qui decUnatni ad magos ut errei post
eos. — Targ. Jerus. omnes qui errant post eum, errandmm
post cultum alienum . . . et homo qui decKnaverii . . .
errando post haec. — Arab, omnes errantes cum eo post
idolum, et quicunque diverterit, ut seducant hmnines poist
eos. — Syr. cum omnibus qui post 6um aberrant eo quod
aberrent post extraneam . . • et anima quae Merit post
magos . . . atque aberraverit post eos. — Pers* omnesque
deviantes post eum ad deviandtim post Molech . . . anima
autem quae respexerit ad pythoncs, ... ad denianduim post
illos.
The commentators understand by giving of the seed to
Moloch, an idolatrous dedication of children to that idol,
either by actual immolation, or by carrying them, or
obliging them to pass, through the fire, or between fires,
kindled for the purpose, as acts of lustration or purifica-
tion. With this exposition, aimgfwn in this text will bear
the sense of an idolatrous dedication to Moloch, accom-
panied by alienation from the true God, and aggravated
by the previous dedication of the children to him in cir-
cumcision, and by the defilement of his sanctuary and
tabernacle, when he " was sacrificed unto otherwhere, or
by other wayes, than he commanded. Lev. xvii. 4, 6. or
when they sacrificed unto idols, and yet would come into
the sanctuary to serve Gt)d also.*" Ainsworth. There arc
some remarkable variations in the texts which relate to this
profanation, and in some of which the words throu^ the
fire are rightly marked as an interpolation in the English
version. In Lev. xviii. 21. the people are forbidden to let
any of their seed pass thrcu^ the fire to Moloch. This is
451
rendered by the LXX, that they should not give their
seed, Xargwttv rm ag%oyri, but by Aquila, Symmachus, and
Theodotion, more consistently with the Hebrew, va^
fitfietreu rop MoAo;^, to pass them over to Moloch from the
tme God. In the present text the initiation to apostacy
is very singulariy expressed, rwi bfjMvoovvrus our^, covtm
aanq¥9m» ourov, as if there were certain persons concurring
cr consenting in the apostacy of the particular offender;
or, according to the Alexandrian MS. following the ex-
ample of his apostacy, (iro^veuOKr^^ omo'co eorrtOj) so that in
their company he alienated himself or his children to the
idol. The apostacy with the wizards may denote no mate
than a desertion of God and a renunciation of his wisdom,
with a disposition to be defiled in the abominations of the
heathen, and an approbation of their magical rites. In
respect of this apostacy it appears on the collation of the
two texts that BXfuaviviveu in Lev. xix. 31. is equivalent to
exifo§viV(rai in Lev. xx. 7. both bearing the sense of legal
pollution.
Ezek. xvi. 20, 21. Thou hast taken thy sons and thy
daughters, whom thou hast borne unto me, and these hast
thou sacrificed unto them to be devoured. Is this of' thy
whoredoms a small matter, (co; /Urix^a eKOfviwras^) that thou
hast slain my children, and delivered them to cause them
to pass through the fire for them, ev ra> axoT^iafytriou ty
Aq. Sym. The. transtuhsti et transduxisti eos.
In this passage the verb wwof^eu^ots is coupled with the
verbs ta-^e^as and sSe^xa^, and the action of the several
verbs results, ev inf oanrfoirtetfyviai aura §v ouroi^. The
sense of an expiatory sacrifice, which the ancient glossaries
have fastened upon the word, is not inconsistent with the
main purpose of the oblation ; but it is at the same time
agreeable to the etymology of the Greek wordS and to the
t A^tr^utffuut avertmr, abmmmat. Scapula. A«n»«')(MrM#^Mf tt used of tke
•eaps^goAt. Jpaeph; Ant. 1. iii. e. 10. s. 3. OrigM. e; CelnifB, L i^. t. 43i. of
an amulet, or means of averting evil. Joieph. 1. i. c. 3. •• 6. Jkhm tmmm ^v^lf
Ggg
452
ancient veraons of Aquila^ Symmadius, and Theododoii,
to understand it of the aKenaiion or trander finom tlie
Lord to Moloch of the children oflbred^ or of him that
offered them. In leading their children through the fire,
and devoting them at the dictation of the priest, the
parents initiated them with a view to their more perfect
consecration at a future period; they abandoned their
right over them, and transferred it to Moloch, to whom
they dedicated them as they had been dedicated to Grod.
Spencer de Leg. Heb. 1. ii. c. IS. The Psalmist indig-
nantly alludes to this offensive rite of the apostate Israel-
ites: They were mingled among the heathen, tad learned
their works, insomuch that they worshipped their idols,
which turned to their own decay ; yea, they offered their
sons and their daughters unto devils, and shed innocent
blood, even the blood of their sons and of their daughters,
and the land was defiled vdth blood :
xai EMIANOH w mtg fff/oi^ otnwy,
xoi EnOPNETSAN n rotg twi-nfitufMunv otirfioy. Ps. cin*
36—38.
Joel iii. 3. They have cast lots for my people, and
have given a boy for an harlot, ra weuioigut xoffoui, and sold
a girl for wine, ra xogaa-ia oyti tou oiyou, that they might
drink.
Chald. meretricis. — Syr. pro mercede meretricum.
There is such a difference of construction between sSbncm^
ra, iceiiZaqioi TOfvcu$ and rx KOfeuna tmoXovv aatn rov oiyoti, as int
itself supersedes the idea, that the boy was the price giveiP-
f6r the debauchery. Some copies read tv vofytu^ and i^
that word, as in other texts, is interpreted of an idoB-
temple, the sense will correspond with ver. 5. ra griAucnig
jMu ra xaKa Miffwr/Korn u^ rw^ vaoug vfAcw^ i. e. dedicando
r#» MMfMf ««r<#«wf r« huy^mt mwr^m^fut ifMtmn fmtfXsn Ibytiiwf
XmfUH « mfftmi n i»fir>Mmg, n rt rm «a^mrA«#HMb Orig. c C«Ia. L L ■• Sim'
J«r« Ttt ZmXmm Iih^wvv. Orig. Select, in Num.
453
idolis vestris. Poli Sypopg. and it is natural to suppose
that the children were given, wopou^y to wait upon them, fv
wo fwup^ as the girls were given, for the wine used in the
idolatrous feasts. Or the word may mean no more than
foreign women: and as the children of Grod had been
given, mfVMSy and sold to the Grecians, that they might
be removed far from their border, the strict recom*
pence or retaliation, arramiofjM, should be, that the Lord
would sell their sons and their daughters into the hand
of the children of Judah, and they should sell them to
the Sabeans, to a people afar off, ug iflyo^ fiaxfav ear^xovf
a term exactly corresponding with wogvms, in the sense of
aliens.
Mic. i. 7. xai icotyra ra yXurra eamis xeeretxo^ouo'r
SiOTi fx futo'ieofji^aroov rngvitotg awrnYaytf
xai ex fufftoofji^aroov irogvuag awtrrft^t.
Chald. quandoquidem mercede meretrids cum sint con-
gregatse, in donium colentium idola tradentur.
Tlogveia may, according to some commentators, be under-
stood of idolatry, mercea idoMatruB : but there is an evi-
dent allusion to Deut. xxiii. 18. as has been observed by
Drusius, ^^ nihil illft mercede villus, unde et vetabatur in
templum inferri." Poli Sjrnops.
Baruch vi. 11. They will give thereof to the common
harlots, reug em rw oreyou^ wogvcuSf quae sub tecto ipsorum
sunt.
These mpm^ whose residence was in or near the temple,
are the same with the women described in ver. 48. ^* The
women also with cords about them, sitting in the ways,
bum bran for perfume; but if any of them, drawn by
some that passeth by, lie with him, she reproacheth her
fellow, that she was not thought as worthy as herself, nor
her cord broken.*" " Testatur Herodotus, 1. i. c. 199. ^ Se
ai<r;^i<rTO$ toov vofjuov eori roi^ BoifiuKwioia'i oSe* Sei xcureof ywauia
Ar^A
av^t 0fV0. His affinia de Babylonkmim floortis, Bdo
dcYotis, habet epistola Jeremiie, Banicbo subnexa, qaanm
sensum nemo percipere potent, nisi heeq Herodoti hittorift
fidem prsetulisset.'" Spencer de Leg. Heb. 1. ii. c 85. See
also Bibl. Brem. CI. iii. p. ^7. Herodotus enters into
detail of this abominable idolatry at the Assyrian Venus.
In the Sibylline Oracles, p. 621. ed. Amst 1689> is a
passage nearly coinciding with the text, in censure of men,
who among other acts of incestuous pollution.
This interpretation of the word in the sense of idolatrous
initiation or consecration, has no reference to Matt. t. 32.
xix. 9. and it is for the reader to determine whether it
affords any illustration of Acts xv. 20, 29. which has been
variously interpreted of whoredom ordinarily so called, and
supposed to be indifferent among the Grentiles; of sacri-
fices offered by prostitution ; of the accubitus in an idol-
atrous temple, and the participation of an idolatrous feast.
Each of these opinions has tiie authority of the lugfaest
names ; but the first and the second are justified by the
best examples of this use of the word wv^mm. The seooiid
coincides with the other acts forbidden to the Gentiles, and
nearly resembles the sense which it has been now attempted
to establish. In the investigation of the remaining inter-
pretation of the word in the sense of marriage between the
believing and the unbelieving, it is proposed to shew, from
the texts which have not yet been brought under review,
that the predominating sense of the word is opos/oey, irith
a particular reference to a more intimate communion wiik
apoBtcdes or aUena in the rites eithw of sacrifice or of
marriage.
Schlcusner, among other expositions of the word, in-
cludes incest^ and he explains it in one text, Tob. It. IS.
de cwijugio cum muliere aKendj A. e. genHU. Parkhunl
also explains it of inceahums whoredom, in which sense die
455
word is used 1 Cor. v. With reference to this text it is
the remark of Bishop Jeremy Taylor, that although the
word ^^ be often used for adultery, yet I find it not used
for naptuE nefaruB, or that which is usually called incest.^
If the Bishop had specified the texts in which the wcnxI
^^ is often used for adultery," there would have been no
occasion for the present investigation, or for the exhibition
of proof that it is used for nupHiB nefariie. Hammond^
in his par^^rase, explains it of ^^ sins of uncleanness, and
marriages within prohibited degrees (^ and in his note he
observes, that in this place it is ^^ a genernl term to com-
prehend all unlawful desires of the flesh, acts of whatever
prohibited carnality under it. For it is observable, that
the precept given by Grod'^s positive command to the sons
of Adam and Noah, and so to all mankind, which is styled
by the Jews disclosing nakednesses, under which style all
the marriages within the prohibited degrees, Lev. xviii.
and all the unnatural sins, are contained, is. Acts xv. ex-
pressed by abstaining earo wo^vitagy from fornication.^ The
judicious Hooker came to the same conclusion upon this
apostolic decree: '^Very marriage within a number of
degrees being, not only by the law of Moses, but also by
the law of the sons of Noah, for so they took it, an un-
lawful discovery of nakedness ; this discovery of nakedness
by unlawful marriage, such as Moses in the law reckoneth up,
I think it for mine own part more probable to have been
meant, in the words of that canon, than fornication accord-
ing unto the sense of the law of nature. Words must be
taken according to the matter whereof diey are uttered.
The apostles command to abstain from blood: construe
this meaning according to the law of nature, and it will
seem that homicide only is forbidden. But construe it in
a reference to the law of the Jews, about which the ques-
tion was, and it shall easily appear to have a clean other
sense, and in any man's judgment a truer, when we ex-
pound it of eating and not of shedding of blood : so if we
speak of fornication, he that knoweth no law but onyl the
Gg4
456
law of nature, must needs make thereof a narrower
struction than he wUch meaaureth the same by a kw
wherein sundry kinds even of conjugal copuhUxm are fm>>
hibited as impure, unclean, unhonest. Saint Paul lumadf
doth term incestuous marriage fornication.^ Eocl. PoL
b« iv. s. 11.
The notion of incest in the mind of a Jew was by no
means restricted to marriages contracted within the fo-
bidden degrees ; it extended to all intermarriage with ik
heathen, or strange women, as they are more commonly
denominated, which they were on no account permitted to
contract. The prohibitions of these marriages were
pressly delivered, Exod. xxxiv. 18, 15, 16. Deut. viL
for the observance of the Jews after their settlement in the
land of Canaan ; and they comprehended all the heathens
as well as the seven nations of Canaan, which are particii-
larly mentioned, because the Jews by residing among them
were under stronger temptations to intermarry with them,
and to incur the guilt al that apostaey which was justly
apprehended, and which it was the purpose of the inter^
diction to prevent. The law thus recorded was of very
ancient origin, and it was an occasion of ofience ev»i in
the antediluvian world, that the sons of Grod, the posterity
of Seth, saw the daughters of men, descended of Cain,
that they were fair, and took them unto them for wives,
without regard to ^* the will of God, whose law after for-
bade such profane marriages,^ Ainsworth in Gen. vi. SL
and made the great distinction by prohilnting the mairiage
of his people with the apostate heathen. It is of import-
ance to remark, that the issue of this intercourse of the
sons of God with the daughters of men is called by an
ancient Hellenistic writer the sons tvh mo^Mi^*. The vio-
lation of this commandment, by the intermarriage of die
Jews with heathen women during the captivity at Babylon,
** See Liber Piimiu Enoch de Egregoru, pabliahed from Synccllus bj
FabriciuK Cod. Pieud. V. T. v. i. p. 193. It U toppoaed to hare been wiittca
ab antiquissimo quodam Judaro aDte ApoBtobram, vt f idetur, •tatem.
457
was an occasion cyf the deepest affiction to Eara and
Nehemiah, in whose judgment it amounted to a transmuta-
tion of the holy seed, and to a rejection of the covenant
with God : irapix!^ frmqiLa ro ayioy w kototg Twy yoicoy, xm
yniq Toov oj^ovTwy ly rji etarvvd§(n^ rourp w otf^. The zeal of
these reformers was powerfully exerted in correcting these
excesses, and in compelling the people to put away these
foreign wives. The utmost care was taken at all times by
{nous parents to prevent these marriages, in imitation of
the example of Abraham in obtmning a wife for Isaac,
and the deepest grief was felt whenever they were con-
tracted, and was passionately expressed by Rebecca, on
the marriage of Esau with the daughters of the land, by
whidi he incurred the title of iro^yo;. The advantages of a
descent from parentage, uncorrupted by foreign alliances,
were a source of high satisfaction to the true Israelite. I
am thy servant, and the son of thine handmaid, said the
Psalmist, appealing to the mercies of God, not only in his
own name, but in that of his mother also: nor didi^the
great apostle call himself, Phil. iii. 5. a Hebrew of the
Hebrews, without exulting in the purity of his lineage,
uncontaminated by any pollution of servile or of Grentile
blood. Spencer de Leg. Hebr.
These points are too familiar to be in^sted upon ; it is
more necessary to shew that these incestuous or foreign mar-
riages are represented under the names of To^yfuai, irofyiy,
and wofvttcL Maimonides has explained the word «o^,
or n3!, of a heathen woman, or a maidservant, or a Jewish
woman with whom marriage was forbidden under the
name of incest, or some other sacred prohibition ; and the
Chaldee paraphrasts, who are valuable witnesses of the
meaning of words in the interval between the captivity and
the time of our Lord, have in Deut. xxiii. 17. Hos. iv. 10.
explained the vofm^ and to^iimo of the LXX, of servile and
foreign marriages. This interpretation was also known in
the primitive Church, and it has been revived by different
writers on the continent. Schleusner, with 4 heaitatian
458
which his own more mature expositioa of the word m Tobi
iv. 13. does not justify, refers to the dissertatioD of ** Dan.
Hen. Hering. de voce vofffia in decreto apostohoo, qui pott
L. C. Miegium ostendere conatus est, wognuv inteUigendan
esse de matrimonio cum gentili sen idololatri.^ The
reasons on which Miegius grounds his opinioii, that the
word bears this meaning, ^* si non tantum . . saltern i»3*
mario" in Acts xv. are, ^^ 1. quia tale oonjugium huic ipn
oontroversise in personi Titi occa»cmem dedit: SL quia
Heb. xii. 16. Esauus mpvo^ vocatur . • . ita etiam Judasis,
gentilis n3? dicitur . . . Sic et sequentes Christiani temper
etiam abhorrebant ab istiusmodi camis sanctse in came
gentili inquinamentis.'" Melet. Sac. de Off. Past c xyi.
s. £}. Hering refers to another treatise of Ja Frid.
Frisch, qui ^^ in commentatione de muliere peregrinA apud
Ebraeos minime honeste habitft allatis rationibus ostoidit,
etiam Gen. xxxviii. 15. 1 Reg. xxiL 88. (xxi* 19»)
Isa. xxiii. 16. peregrinam mulierem vore rut indigitari.**
Notwithstanding these references, Hering acknowledges
the novelty of the opinion which he embraces ; and in his
own dissertation on Acts xv. SO, 99, published in BibL
Brem. Nov. CI. iv. he examines the previous expositions of
the text; and having stated the ground upon which he
rejects them, he proposes his own exposition of the wmdy
as denoting marriage with idolaters, which he maintains by
reference to the scope and occasion of the decree; by
shewing from other passages that such marriages are called
by the name of TrofWM; by producing reasons for which
the apostles may have used this in preference to a less
equivocal word; and by obviating the objections whidi
may be made to the interpretation. He resumes and con-
firms the argument in another dissertation, BibL Brem.
Nov. CI. vi. ^^ de doctrinft Bileami^ Nicolaitarum, et Jen-
belis ad Apoc. ii. 14, 15, aO."" Bosenmuller, in Actt
XV. SO. refers with approbation to another treatise in G«^
man, observing, ^^ ncc contemnenda est D. Guil. Ahrahanu
Telleri sententia, banc vocem, To^onr, expUcantis de ma-
469
trimoiiio cum ethnidfl. Exod. xxxiv. 15^ 16. Num. xxv;
1, 2. Hebr. xii. 16." It will be proper to exhibit this
expositicHi of the word in the texts in which it is as it were
defined, with the illustrative remarks of Jewish and other
commentators ; and afterwards to trace the same sense of
the word in other passages of the Scriptures. The texts
which relate to the family of the priest demand the first
attention.
Lev. xxi. 7. They, the priests, shall not take a wifii
that is a whcnre, or profiEUie, ywmuia irojnfy, (al. tySiiiXAay^
fiwfjli) KM fisfiftiknfunpfj neither shall they take a woman
put away from her husband : for he is holy unto his God.
Targ. Jems, mulierem errantem in scortatione, et quae
Data est ex nefando coitu.-— Pers. mulierem deoiam.
Lev. xxi. 9« The daughter of any priest, if she defile
herself by playing the whore, eea /3f/3i)Aii4p rou ixwoq^mMrmif
she prafaneth her father, vo ovo/xa rou imr^ ceumfi aviT%
^/Si^Aoi. She shall be burned with fire.
Targ. Jems, filia viri sacerdotis despcmsata, quando pn^
fanaverit se errando in scortationibus, quamdiu est in
domo patris sui, si scortatur«— -Pers. cum cceperit esse
deuia.
Lev. xxi. 13, 14, 16. He, that is, the high priest
lamong his brethren, shall take a wife in her virgmity ; a
widow, or a divorced woman, or profane, or an harlot^
/3f/3)}XflofMir)9v xau xo^v, these shall he not take ; but he shall
take a virgin of his own people to wife : neither shdl he
profane bis seed, xm ou /S^AoM-fi to Tngfia aurwy among
his people ; for I the Lord do sanctify him.
Targ. Jems, et qus nata est ex illicito oonculntn, et
errantem post scortationem.
The law of the marriage of the priest was designed po
preserve the purity of the sacerdotal lineage, and, as the
law is repeated by Ezek. xliv. 9SL to teach the people the
difference between the holy and profane, And cause tbettt
to discern between the unclean and the clean. The prieat
was allowed to marry none but maidens of the house, of
460
Israel, or a widow that had a priest befScm. The emtrut
or distinction is drawn, 1. between a widow or a diroieed
woman and a virgin ; and 2. between a prafSme woman or
a xofyfj and one of his own people. The Jews understand
by vo^ any woman not an Israelite; Hering: or an
Israelitish woman, with whom a man had lain whom it was
not lawful for her to marry; and by the profane woman, a
woman bom of such a person as a priest is forbidden to
marry. Patrick, Selden. In the Testamentum xii Patri-
archarum, a work of the first or second century, a re-
ference is made to this law, in a manner which leaves no
doubt of the sense in which it was understood by the
writer. He offers to Licvi advice very similar to that
which Tobit offers to his son : ir^oo^f nxvof otiro tou wrk
fLarof rtig ^opttag' rouro yof eySfXfp^i km /buAXfi juuoiyriy ha tov
uireffjLeerog <rov aytcL AojSff ow o'taurm yweuKOf tri fwog mif^
fti} §xov(rav fitofiovj fitfrt jSf|9i)AflDfMyi}y, fofn AIIO FENOTS
AAAOMTMIN ij E0NX1N. Fabr. Cod. Ps, V. T. v. L
p. 570. This paraphrase is decisive in the explanation of
the word ve^, for which it is substituted. Philo the Jew
suggests the same interpretation : rwrw km waftmmg tx ns
Ugw yevovs dgfiol^rrm*. Grotius adverts to a similar law at
Athens, which required quod rex uxorem duceret «rayv,
civem xeu %ag6ewv et virginem. Ubi nota ovniy, quod hie
sequitur de populo Mfo, et omnino jus id Atticum et multa
alia ad Athenienses a Phoenicibus, ad hos ab Hebrseis ve-
nerit. So the Athenian law of legitimacy was restricted
to birth of a mother that was a citizen, vote; 6 «0 0nn|f* li
is added, that the priest shall not profane his seed, mi
jSffj3i}Xa)0-fi TO trmfiia axmvj which he would by marrying
* De Profugis. 0pp. ed. Pfeiffer. v. iv. p. 274. He adds, with his unal
interpretation of wsftn in the lenae of a polytheiat: XH"* Tf "" tmfi§|lm^fimtt
mm ^^X»m mm w^mt »n^ M)f«'«n ymrmif w$KifU9 a^wmlfi um mmtt^wmrwt 0|pv
»«u wtfyym^ufHmi ir^ »»rn$, mm waw irs »9 tf fitfinXtf 9tiffm jmm mta^n, TA
wtXtffuytf mm w§Xtm9^Mf jmm 9§X&h§9 fuw §m mmm§9 si^nrv m)i w^agtkn mf^'B *V
Im M^fa JMM wmn^ r»9 nytfum 9u9 ttnyty^mftfunf vymniMMf •
461
fiffift^lkmpt KM mpnjVy or ducendo emtraneam^ (Oleaster in
Poll Synops.) according to the received maxim of the
Jews that the child inherits the condition of the mother.
The children of any of these unlawful marriages would be
profane and incapable of the sacerdotal office; and the
priest who should violate the law and go in to an heathen
woman was to be beaten as for a whore. Maimonides in
Ainsworth.
There is more difficulty in explaining the law which
respects the poUution of the daughter of a priest. Jewish
and Christian commentators are agreed in expounding this
rule of an act of whoredom ; and it may seem presump-
tuous to dispute their unanimous decision. It may never-
theless be allowed to remark, that this law intervenes
between two other laws, prohibiting the priest himself to
marry a iro^y, or a woman not an Israelitess ; and that in
the latter of these laws the priest is forbidden to profane
his seed by marriage with a foreigner. Now if in respect
rou fXTo^viuo-ai the priest's daughter may be thought to
offend in the same manner as her father, namely, in marry-
ing a iro^i}v, or if she should be profaned, 69^X0^^ in the
same manner as he would profane, /SfjSijAaM*}}, his. seed,
namely, eaitraneam ducendo^ and thereby contracting to
his family the unholiness of the heathen, it seems neces-
sary, from the analogy of the terms, to interpret the act of
the father and the daughter, of an unlawful marriage witli
an alien. It is also worthy of remark, that the same word
is applied to the woman'^s profanation of herself, and to her
profanation of her father's name, sotv fiifiiiKndfi rou ntwof^
nwraif ro oyojxa rou iForgog aurris eurni jSfjSigAoi, both of which
would be committed by her marriage with an alien. The
interpretation has thus the advantage of ccnnciding with
the general use of the word naeofftucrou in the sense of
apostacy, and with the particular use of the words fitfit^m
and iro^vi) in. this chapter. In another law. Lev. xxii. 12,
13. concerning the mafriage of the priests daughter unto
a stranger, it is expressly provided, that during her mar-
4«2
riagc she may not eat of the offisringof the holy tiungi;
but if the priest^s daughter be a widow, cr diToroed, uid
have no child, and is returned to her father*! houie, she
shall eat of her father^s meat ; but there shall no stranger
eat thereof. The purport of this law was to jvevent such
profanation of the holy things of the Lord as would follow
if strangers were permitted to eat them. A distinction is
therefore made between the priest''s daughter who was a
widow, and his daughter who was married to a stranger,
and by her marriage had fallen into the condition of a
stranger. ^* The Hebrews say, . • . that if she be a priest's
daughter, be defiled and made an whore or profane, as
Lev. xxi. 7. it is unlawful for her to eat the heave offer-
ings for ever, according to the judgment of every profime
person, for the profane is as the stranger in all respects.**
Mairoomdes in Ainsworth. In this comment the daughter
of the priest married to a stranger is supposed to be in the
same state with the fisfitiknfuvfi km wofvt^ whom the priest
was himself forbidden to marry, into whose condition the
daughter would be degraded by marrying a stranger,
j3ijSi}^6p Tou txmgvwa-cu, in which she was distinguished
from women divorced and from widows. There is another
law. Lev. xix. 29. which in the LXX is similarly ex-
pressed, but which the commentators have explained of
idolatrous initiation, supposing it to be parallel with Deut
xxiii. 17. This last law is however explained by the
Chaldee paraphrast, improperly according to Ainsworth,
of servile marriages : '^ None of the daughters of Isradl
shall be the wife of a man that is a slave, and none of the
sons of Israel shall take a servant to his wife.*" They
considered that the condition of a Gentile slave was incom-
patible with the law of marriage.
Deut xxiii. 2. A bastard, «x irofnis, shall not enter into
the congregation of the Lord.
Targ. Onkelos. non erit mundus mamser. — Taig. Jcrufti
non est idoneus, qui natus est ex scortatione, in quft est
macula mala, quse posita est in populis profknis ut accipiat
463
uxorem integram ex ccetu populi Domini : etiam generatio
decima non erit idonea ei, quse intrct in congrcgationem
Domini. — Samarit. spurius.— Vulg. mamzer hoc est de
scorto natus.-^Syr. filius adulterii.
The Hebrew word is mamxer^ " which meaneth one bom
of a stranger, that is, not a lawful wife ;" and, according
to the Helnrew doctors, ^^ the bastard spoken of in the law
is he that cometh of any of the nakednesses or unlawful
copulations forbidden in the law, Levit. xviii. It is lawful
for him that is a bastard to marry her that is a stranger,
and for her that is f. bastard to marry 'him that is a
stranger, but the children of them both are bastards, for
that which is ^bom goeth after the blotted person ; for it is
said, into the congregation of the Lord, and the congre-
gation of heathens is not called the congregation of the
Lord.**^ Maimonides in Ainsworth.
Philo the Jew frequently refers to the textj which he
invariably and distinctly interprets of polytheists or idol-
aters. Thus he pronounces of the builders of Babel, that
they were men of iroXXot;; fTiy^a^oftsvoi rwv wroov (6(retvei xotre^
xeu TO ifoXudsov siaifiyoufAevot arifog . . . rcov ex ico^wfi ocKownfiwrrwf
ou$cy, C9^ y oi/xai, ^la^e^yre;, ou; 6 vojxo^ cxxAijcria; oarnk/^KBOU
Sffia^ €VK(ttv* ot/x fi(reX8tio*prai ex irogvi); u; exxXijo'iav xu^iou. De
Confus. Ling. 0pp. v. iii. p. 378. *X2<nrf^ $e to iroXuirouy
xfti oacmv . . . artotAa^oL uvaygaferou' otrrtog' kcu ^ aieos kou
iroXuiBog . . . So^ai /Ss/SijXoi. Sij/teiov Se, otfifoTtga^ 6 vofM? exxAi)-
cias iegas aireXrikoMe' njv fi,iv alfov, rep iXaS^av xai 0nroxffxoju.fMyov
ug^as exxXfjcia^eiv rvjv $e ifoXvdeov rco tx frofwi$ ^ftoio); xcoXucra;
oxot^eiv 1} Xeyeiv, AieOf fuv 6 etyovo$f rnXuteof Se 6 ex ^ogwjg^
TV^XeoTTcov ifegi rov aAi}9i} irotregoi xeu ha rovro woKKoug ovS* lyo;
yoveig aiviTTOftevo^ De Migr. Abrah. ibid. p. 44S. 01 iroXu-
isiag egaaraiy xai roy woXvdeov exTerijxijxore; 9ia(rov, o! ex wogw^
yeyoyoref, rov ha ai^ga xai warega ^ikagerov ^ifv^s @eoy oux
eiSore^, ag' ovx eixorco; eXauvouroi re xat fvyaStuovrai, De
Nom. Mutat. 0pp. v. iv. p. 408. Clemens Alexandrinus
^opts the same interpretation : 6 ex to^;, 6$ iroXkovs ^w^
^wuvfMvg ®€Ovs twiygaperai am rot; fiovov 0eou oyro^.
464
Spencer, De Leg. Hebr. 1. i. c. 6. in an dabarate
sertation on the text, has shewn, that althcHi^ all the
versions agree in interpreting the word of an issue *'a
thoro illicito,^ that interpretation in its ordinary sense
cannot be reconciled with historical fact ; with grammatical
etymology; with reason and right; or with the analogy of
the Scriptures; and that the word means, ^^ alienigenam,
gentilem, extraneam, a genere Israelitioo alienum vel alieni-
gense filium.'" He shews, that this exposition agrees with
the proper translation of the word in Zech. ix. 6. and with
the Chaldee paraphrase; with the context; with other
passages of Scripture ; with the character and disposition
of the Jews ; with the design of the law in separating them
from idolaters; with their known aversion from strangers;
and with the Hebrew root, which signifies, ^^ peregrinari,
alienum esse.*" In examining the probable reasons of this
translation of the LXX, he alleges various instances in
which, in the judgment of the Jews, and the use of
Hellenistic writers, merctrix and peregrina, xo^ and a^
Xor^ia, are synonymous and convertible terms; and that
by using the more obvious word aXXjaywi^i the LXX might
have given ofience to the Greniiles. In the prosecution of
his argument he affirms, that the apostle alludes to the
condition of the tnamxers in Ephes. ii* IS. and that no
child of Jewish parentage was excluded, and no child of
heathen parentage admitted. He concludes that this law
gave occasion to the complaint of the stranger, Isa. Ivi. 3.
and to the gracious reply of the Lord, that such as were
not strangers in disposition, as well as in descent, should
be accepted. The result of this demonstrative argument,
of which it is possible to give but a very brief analysis, is
to prove, that 6 f x irogvfis is the son of an eUien woman ; or,
in other words, that Trogvfi denotes an €Uien or foreign
woman.
It may be further concluded from some of the texts upon
which the argument is founded, that vo^ denotes, in the
words of Ainsworth^ a stranger, that is, not a lawful wife;
465
not only an alien woman, but an alien tucmdn married to
a Jew J the ytivi) oAAorgio, such as were the wives of Solomon,
and of the Jews in the time of the captivity. It is not
improbable that the prophet Ezekiel, xliv. 9. alludes to
the violation of this law, which under the captivity was
infringed even by the priesthood, in his strong expostu-
lation with the Jewish Church, at whose altars strangers
were then permitted to serve : No stranger, no son of
foreign birth, ulos aXkoyevriSi uncircumcised in heart, nor
uncircumcised in flesh, shall enter into my sanctuary, o{
any stranger, that is, of any sons of foreign birth, that are,
ev treunv u!oi; aKKoyevtov^ among the children of Israel.
Gen. xxxiv. 31. And they said. Should he deal with
our sister as with an harlot ? ohu iro^vi}.
Targ. Jems, sicut mcretricem et scorium cui non est,
qui requirat, fecisset sororem nostram, si non fecissemus
hanc ' rem. — Pers. velut demam. — sicut exeuntem foracf.
Bibl. Brem. CI. iii. p. 442.
If the sons of Jacob had meant under this term to com-
plain that Dinah had been ravished and reduced to the
condition of an harlot, it would have been more appro>
priately used in the instant that they were apprized of the
ofience, and made an impediment to the arrangement <^
any conditions of marriage. Their father, according to
Josephus, hesitated to accede to the proposal of Emmor,
ov vofiijiov vj^ovf/^BVOs aXXo^uAxp (Tvvoixifyiv rriv dvyanget. Ant.
Jud. 1. i. c. 21. s. 1. When her brethren heard of
what had been done, they were grieved, and very wroth,
because Shechem had wrought folly in Israel, or against
the Israelitish family and Church; Biblioth. Bibl. or,
according to the Testament, xii Patriarch, their anger,,
and especially that of Levi, was excited, efyiXioo<re hei ro
fi^eXvyfioi^ 6 eronjcav ev I(rgai}X. This folly, or our^fMirvvfif is
used in Leviticus of the incestuous marriages, and in the
present instance it consisted in Shechem'^s lying with Jacob'^s
daughter, xai oux odroos fforai, say the LXX, or was not
right or meet to be done, according to the Chaldee. They
VOL. II. H h
466
further explained what ought not be done, when they
settled the conditions of the marriage: it was the alliance
of one uncircumcised with the sister and daughter of the
circumcised. We cannot do this thing, to give our aster
to one that is uncircumcised, for that were a reproach unto
us. The learned Dodwell understands this reproach, or
ovfiSo^, of a charge or ground of accusation against them,
which would expose them to the vengeance of Grod. On
Marr. in DifF. Comm. s. 14. where he treats of these unhdj
marriages under the name of mfvtia. The fcHx^e of the
objection was admitted as a point generally undmrstood.
The circumcision of the Shechemites was made' the con-
dition of the marriage of Dinah, and when the acms of
Israel had crueUy and treacherously abused this condition,
and exposed themselves to the just remonstrance of their
father, they defended themselves with the question, Should
he deal with our sister eia-u m^^? Should he treat
with the sister of the holy people as one of his own alien
women, whom he was free to marry, and who would not
have been profaned by the alliance ? In the revival of their
suppressed resentment, they seem to have forgotten the
conditions which they had imposed, or to have judged
them inadequate to excuse the dishonour done to the house
of Israel. It is not said, in- any part of the history, that
Shechem woqvwtrt with Dinah, or she with him : the act is
described under very different terms, exoifti|0ig yur^ aam^*
treoFetvooa-tv aimiVy and the report brought to Jacob was, hi
f ** Sichem, the son of Emmor, ahall not insult or impow on vs for hii circvm-
dsion. Had we not done this thing, he had rendered our sisler ai a whoce that
had wandered from home, and had no arenger. Targ. Jonath. For if the bad
voluntarily prostituted herself, there had heen no ground for their qnarrd,
according to the Hebrew doctors, because Shechem had not then oflfended
against the laws of the sons of Noah, as they speak, i. e. the right of nations,'
which was not violated by a man*8 lying with a single woman by her free
consent." Biblioth. Bibl. in ver. 31. In the tame worii it is ^mStt^^ that
ver. 2. *' seems to intimate as if Dinali herself were in some measure contenting,
or at least not very reluctant.'* The offence on this principle was independent
of the simple violation of Dinah.
467
tfMctiVev 6 ufo; 'EfiiuDg njy tuyan^ auroui which may be under-
stood of the personal injury, or of the defilement of the
family of the faithful. The Jewish writers have laboured
strenuously in defending the conduct of Jacobus sons, which
the apocryphal heroine Judith, ix. 2, 8, 4, conceived to be
meritorious, and her comment upon the transaction may be
alleged in proof that in Jewish judgment the offence of
Shechem consisted more in the incestuous profanation of
the fEunily, than in the ravishment of the pei-son of Dinah :
O Lord God of my father Symeon, to whom thou gavest a
sword to take vengeance of the strangers, aXkyywoVy who
loosooed the girdle of a maid, tig iuioutim^ to defile her, and
polluted her virginity to her reproach, t^fiv^kaoa-av ei^oytiSo^,
for thou saidst, It. shall not be so; but they did so.
Wherefore thou gavest their rulers to be slain, and all
their spoils to be divided among thy dear children,^ which
were moved with thy zeal, and abhorred the pollution,
/xMMTfMe, of their blood. In Judith^s opinion it was an
occasion, of piou^ commemoration, that vengeance had been
taken, oAAoyeMov, and it was the sum of Shechem^s offence,
that he, who was a stranger, Jiad defiled Dijiah, tig fi^ianrfiat
had profaned or polluted her in the sense in which the
word is. used in the law, with reference to foreign marriages,
and had corrupted the blood of Israel in the same manner
as by the marriages with the heathens during the captivity,
by which vofijix^ ovtgiJM to dyiov ev Aooi^ taov ycuoov.
Gen. xxxviii. IS— S6. It was told Thamar, saying,
Behold, thy father-in-law goeth up to Timnath to shear
his sheep. And she put her widow's garments off from
her, and covered herself with a veil, and wrapped herself,
and sat in an open place, which is in the way to Timnath ;
for she. saw that Shelah was grown up, and that she was
not given unto him to wife. When Judah saw her, he
thought her to be an harlot, mg^v^ because she had covered
her face : and he turned unto her by the way, and said,
Gk> up, I pray thee, let me come in unto thee; for he
knew not that she was his daughter-in-law. And she said^
Hh 2
468
What wilt thou give me, that thou mayest come in unto
me ? And he said, I will send thee a kid from the flock.
And she said, Wilt thou give me a pledge till thou send
it ? And he said, What pledge shall I giye thee P And ahe
said, Thy signet, and thy bracelet, and thy staff that is in
thine hand* And he gave it to her, and came in unto her ;
and she conceived by him: and she arose, and went her
way, and laid by her veil from her, and put on the gar-
ments of her widowhood. And Judah sent the kid by the
hand of his friend the Adullamite, to receive his pledge
from the woman^s hand ; but he found her not. Then he
asked the men of that place, saying, Where is the harlot
(ne^npTT) Aq. tj^ti^XXayfuini) that was openly by the way
side ? (ttou eoriv ^ to^ ^ ywo/uni fv Aivov esri rt^g Uou ;) And
they said. There was no harlot (nsnp, to^, Aq. miaiK'
XayfjLivyi) in this place. And he returned to Judah, and
said, I cannot find her ; and also the men of the place said,
that there was no harlot in this place. • And Judah 4Nud,
Let her take it to her, lest we be shamed : behold, I sent
the kid, and thou hast not found her. And it came to
pass, about three months after, that it was told Judah,
saying, Tamar thy daughter hath played the harlot, txn-
Tojysuxff, and also, behold, she is with child by whoredom,
ffx iro^ffiof. And Judah said, Bring her forth, and let her
be burned. When she was brought forth, she sent to her
father-in-law, saying. By the man whose these are I am
witlii child : and she said. Discern, I pray thee, whose are
these, the signet, and the bracelet, and the staff. And
Judah acknowledged them, and said. She hath been more
righteous than I, because that I gave her not Shelah my
son. And he knew her again no more.
Targ. Jerus. videbatur in facie ejus veluti meretrix. . . .
Annon filia sacerdotis est ? educite cam ut comburatur.-—
(15.) Samarit. meretricem : in marg. extraneam* — (15, S4h)
Pers. deviant . . . demationem fecit, et ecce imprsegnata est
demationibus.
It cannot be denied, that upon this occamon Thamar
469
assumed the position, the dress, aiid the character of an
harlot in some sense, and that the words tn^mi, ^o^yfia, and
fXTo^eueo, are appropriated to her and her offence. It has
also been conceived, that, in the sentence pronounced by
Judah, she was condemned not for incest, but for adul-
tery. It may however be observed, that Judah himself
felt no compunction or consciousness of wrong in what
he had done; that he communicated upon the subject
without any reserve to his fiiend the AduIIamite ; that he
only desisted from enquiring after the woman from the
fear of ridicule, jm.i} xarayiXao'dwfuv ; that it was the re-
ceived opinion of the Jews, that under the law of the
Noachidse the man incurred no guilt in debauchery which
was free from incest and adultery ; and that in the issue,
when Judah justified the act of Thamar, he brought
against her no accusation of adultery. The Jewish law of
chastity in respect of the woman was on the contrary so
copious and so precise, that she could hardly offend without
the violation of a particular law. The principal word ap-
plied to Thamar in the former part of this history is not
rot, but TVinp^ a word properly meaning a separation to
holy uses, but occasionally denoting, in the most opposite
sense, a person devoted to prostitution in the service of the
heathen divinities. This consecration, or rather desecrai-
tion, is supposed by Parkhurst, on the authority of this
text, to have been in practice among the Canaanites at the
time; and his opinion is agreeable to the sense of the
original word ; to the translation of Aquila here, as in
Deut. xxiii. 17. and to the old exposition which is extant in
the Test, xii Patriarch. Fabr. Cod. Ps. V. T. v. i. p. 601. in
which the people affirm, that there had been no rfXio-xofMyij
or TsXouftffvi} in the place, and where Thamar's change of
dress is interpreted of the bridal ornaments, in which it
was the law of the Amorites Tigv ya^wrav w^koSio-cu w
^TTO^veia kirra ijfMgag Traga rr^v ?ruAj|y. The conduct of Thamar
was also in strict correspondence with the rites of the
Assyrian Venus: see above, p. 4S4. In this sense the
II h 3
470
Adullaroite appears to have put the question 16 the people
of Enaim, and they retorted, in the wordis of thi6 enquirer,
that there had been no kadesahj no Barred prostitute in the
place. It is plain, that in the first interview Judah did
not contemplate a harlot of his own people, but according
to the Samaritan and Persian versions, a woman devia or
CiVtranea. This kadesah or to^ was afterwards accused
by her own people, exxeiro^evxf, a word which the LXX
supplies no authority for interpreting in the sense of sitnple
fornication, but which occurs in the sense both of idola-
trous apostacy and idolatrous prostitution. If therefore it
be supposed that the people had heard of the aposttfcj of
Thamar, and of her acting the part of a kadesah^ and that
their accusation is founded upon that infimnation, all will
be consistent. Thamar will be spoken of by the Adiil-
lamite, by the people of Enaim, and by her accusers, as a
kadesah; and as the fathers Ambrose and Augustin are
agreed, Biblioth. Bibl. in justifying the motive of Thanuur,
which was to bear issue of the sacred line, she may be
supposed, under the influence of this motive, to have fielt
the less repugnance in assuming the offensive character and
condition of a kadesah, under the pretence of roidering to
the true (rod a better service than the ordinary kadesah
rendered to her idol.
But as different terms are used in different parts of the
history, it may be thought necessary to put a different in-
terpretation on the words of the AduUamite and the men
of Enaim, and those of the accusers of Thamar. It is said
of Thamar, not only that she ixwiwogvwxif but that she was
pregnant ex mgnioii. If to be bom fx to^; bears any ana-
logy to being pregnant rx wofntas, it is certain that the
former expression would convey to a Jew the sense of a
conjugal union with aliens; and there are many texts from
which it may be shewn, that to be bom fx vo^titt^ lis to be
the issue of an apostate or idolatrous parMtiige. The
expression, tx frogvuas, may thus be made auxiiiaiy to tiie
interpretation of the act implied in fx^rwogwroxt, wiiidi has
471
been shewn to relate to such an apostacy from the holy
family, as is implied in the marriage of an alien, in the case
of the daughter of a priest, in the very law which Judah is
supposed to have anticipated in the sentence which he pro-
nounced on Thamar, when he ordered her to be burned on
the charge rov txiFiwogyevKevou. This interpretation may
also be reconciled with the Test. xii. Patriarch. 'The
people, seeing her in the bridal dress, xocfuxeo wfi^ixwj
judged that she was married, yafLova-aVj especially as they
saw her according to the law of the country, xgoxaita-M ty
mgvuoL, and confirmed in their suspicions that she was
pregnant fx irogyeia^, pronounced that she exinwofvivxi.
They knew that she was not married in the holy family ;
they did not suspect her of debauchery; and they con-
cluded from her conduct, either that she had prostituted
herself in the heathen rites, or had contracted marriage
with the people of the land. Judah himself eventually
approved and justified the conduct of Thamar, and re-
tracted the sentence, which he had precipitately pro-
nounced, and to which it has been supposed that he was
moved by the authority of a prevailing opinion, respecting
the infringement of a peculiar law, prohibiting the prosti-
tution of a woman unmarried, of a woman reserved for a
future marriage, or of a woman of certain rank and con-
dition. Selden de Ju. G. et N. 1. vii. c. 5. It is plain that
Judah could not have contemplated in his judgment the
adultery of Thamar, for however she had been betrothed
to his son Shelah, it was his fault that the marriage had
not been completed.
Numbers xxv. 1, 2, 3. The people began to commit
whoredom, ej3e|3i)Aa>tft} iro^eucrai, with the daughters of
Moab : and they called the people to the sacrifices of their
gods ; and the people did eat and bow down to their gods :
and Israel bowed himself to Baal-peor.
Targ. Jems, et inceperunt populus profanare sancti-
tatem suam et apei-ire corpora sua idolo Peor, et scortari
cum filiabus Moabitarum, quae proferebant imaginem ipsius
II h 4
4/2
Peor, qu6e latebat sub faaciis earum et vocabant populom
ad sacrificia idolorum suorum et comederunt populut in
oonviviis eorum, ct incurvati sunt idolis eorum.— •?€».
deviare post.
It may be thought that sexual intercourse is here at
least implied under the word iro^itKrai, which the Cbaldee
paraphrase again translates, according to Ainswortb, ** to
crre or go astray ^"^ as he understands by f/3f/3i}A»A|, the pro-
fanation of their sanctity. The LXX, in translating the
subsequent reference of Moses, xxxi. 16. to this history,
use the word oxocnio'ai: These called the children of
Israel, through the counsel of Balaam, to commit trespass
against the Lord, rou oroonjo-ai xou vx-f^iStiy ro pn[i>a Kvjioub
or, in the words of an old version extant in Orig. Hom.
XXV. in Num. Ipsae sunt qusefilios Israel secundum verbum
Balaam apostatas fecerunt Joshua, xxii. 17, 18. also
calls the transaction oifjLaprr,fjM, and compares it with acts of
aversiofi and apostacy^ eanffrqou^^y anromp-f. The Psalmist
also, in his marked allusion to this history, takes prindpal
notice of the idolatrous apostacy : They joined themselves^
or were initiated, rreXfo-Sijo'ay, to Baal-peor, and ate the
offerings of the dead. When Moses pronounces judgment
on the offence of the people, he overlooks the supposed
delmuchery, and commands them to slay every man his
men that were joined, rov rrreXso'/xevoy, to Baal-peor. Thus
it appears from the Scriptures, that the idolatrous initia-
tion was the principal offence designated under the words
r/3ff/3i}Xa»$i} trogvetxrai^ and in this interpretation the com-
mentators of all ages are agreed, notwithstanding a certain
bias in favour of the more obvious and ordinary meamng
of the word. See Philo Jud. de Nom. Mutat. Opp. v. iv.
p. 368. Selden de Diis Syris. Synt. i. c. 5. So TertuUian
c. Gnost. s. 3. In Arithmis cum divertisset Israel apud
Sethim, abeunt libidinatum ad filias Moab ; invitantur ad
idola ut spiritu fornicarcntur ; edunt denique de pollutis
eorum ; dehinc et adorant deos gentis et Bcelphegor initi-
antur. The author of the Josephi Hypomncstioon, Fabr.
473
Cod. Ps. V. T. V. ii. p. 104, 120, 130. records the slaughter
>f the people, nrijE/tcfuyijxora^ rp W(re/3ci yveojE^i) n)^ eiSwAo-
KotT^MSj and their punishment in Moab nri rco reXso-tigyai rep
BffA^eyeo^. The testimony of the learned Spencer is too
iraluable to be omitted : *^ Hoc modo populus Israeliticus
jQ honorem idoli Peor se scortari testabatur, nam foeminis
juibusdam iili miscebantur ! Grseci quidem dvYoersga^ tan*
turn Moabi, at S. Cyrillus eos iSixo)^ vocat, Ta$ rou BeeX"
peyeof legeiasy mulieres sacrificas Beelphegor. Eodem con-
dlio diu postea, jxrra rcov rrrcXfo-jxeveov sAuov, cum initiatis
sacrificaverunt, i. e. cum foeminis impietatis sacris imbutis
it instructis, ut scilicet impuris harum foeminarum am-
plexibus se libidinem in honorem profani nominis exercere
testatum darent.^ De Leg. Hebr. Diss, in Actt. xv. 20.
:. 4. It is added, in a note from Theodoret, ren^^^fuwus
Whatever was the precise offence of the Israelites, it is
certain, that the plague which followed the offence is called
the plague for Peor^s sake. It was in the midst of this
plague, and of the sorrow which it occasioned, that Zimri
brought in the Midianitish woman, or according to the
LXX, that one of the sons of Israel brought a Midianitish
wcHnan to his brother. His offence, both in the history of
the transaction, and in the reference to the judgment, was
marked as a distinct offence accumulated upon the sin of
the people; ha ^oyog xai ^m, Xour^r and Ainsworth re-
marks, that the word used in respect of his act signifies ^^ a
[mnging to commit fornication, as in Gen. xx. 4." The
reference of Josephus, Ant. Jud. 1. iv. c. 6. to this whole
transaction, is very different from the general interpreta-
tion. He makes Balaam to recommend a mission of the
most beautiful of the Midianitish women, to captivate the
Israelites : ewetZav h xfp^ei^ftevou; Ofooo'i rou^ nritv/tioi^, x«rra-
\iir6Ta>o'av' xm irotgoacockovvTtov jxevfiv, /tij frgon^v nriyft/rroxray,
rgiv av freKTaxTiv avTovs a^trras tou; weer fious vofiAv^ xeu roy
TOVTOus auroi^ iejxevov ri/^ay Ssov, tov$ MoSiavireov xai MflOtf/SiTflOv
Ttfiaxrtv, He gives a highly theatrical colouring to the
474
conduct of the women in proaectition of this advice; re-
presenting their art in tampering with the patnonate ad-
dresses of the Israelites, who KnrofWfns nvxiiyrD, /bu| 9f«f
ffwotvas eanii^tifi'Ofuvas wamoifj m ^$xey ovrofS* The wo-
men insist upon their apostacy as the only condition of
their marriage : Tiariy 8* luvoia^ Aa)3ou0-aj riff fAOfvpf %uy cft^
koyov yo/turSeio'ay, ayoan^ofieif roy /mS* u/acdv jSiov df yafwroi
hawo'eu. itos yog je^ij xai xo^y n}^ ^/xsrffjo^ 6jxjAia; Ao/Soyn^i
fTcid' ufigiayfn xai ori/tou^ orore/t^njrf ir^f rovf yoytif* He
gives the same view of the history of Zimri, who under the
influence of Cozbi, ov ivooif ra rarfia xoi yoftov ifyfuno^
aXKo^vXoVf boldly defends himself under the insinuations of
Moses on the offences of the people, ywouov t§ (fyixpy, dg
^^^i iiyjEi'fiti. It must be acknowledged, that this view is
very consistent with the deep subtlety of Balaam's design,
in promoting the apostacy of the people, not by a casua]
debauchery, but by a conjugal union, produdng the per-
manent apostacy which was always apprehended from
foreign marriages. See Hering, Diss, in Apoc. iL 5M). Bibl.
Brem. Nov. CI. vi. Origen, Hom. xxv. in Num. coincides
in this view of the designs of Balaam, in words highly
adorned, but evidently founded on the narrative of Jo-
sephus. Clemens of Alexandria, Strom. 1. u. c. 18. has
not omitted to notice the tendency of the transaction : euj^i
al MoSiijyaicoy ywouxts rep xakKn rtf c^oov iroAffftOtirra^ tou(
'Efigcuous sx <roo^go(rurfis i<* axgcuruof its oAmmfroL dm^ywyom ;
xgofrtTMgtO'afitvou yag etrmvs sx rq^ (ri[AViiis aarxiKTwtos tK iytnw(
hMgtxa$ rco xaXkn SsXfoo'acrai nri n rots Tao¥ ffi&oXfloy tiMriof, iiri
Tf rets aAAo$0c^a; i^c/t})yay ywouxas' yweuxew Tf dfjM xeu ifs^s
ifm}9flyrff^, eefr§(mi(rav (uv rou 0ffou, eefrtmfi'eaf Bt neu vofun.
The author of the Josephi Hypomnesticon, c. 99l is more
decided. In the chapter of which the title is, ia-eu yumintf
Tovs avigas ite^ngav, he affirms, xeu rou Koiov 8t rou Ioij«i}A*-
rixou rijy aveagtcnf al toov AiM^pcuwf emtr^eofto yuMuxi^, x«r«
yvafiilf rov fiavrmos BaXaofJL n]y rtf BoAox fioi}yi)Afi0'ay, uf
mroTTaxnifj etitrove rrayayojEuyeoy;
475
An objection will probably be made to both of these
interpretations from the words of the apostle, 1 Cor. x. 8.
Neithier let us commit fornication, m^mftofuv, as some of
them committed, twofviwrav: which Schoettgen renders,
neque idololatriam foveamus (ubi prsecipue partidpatis
eorum, quss diis immolata erant, indigitatur) quemad-
modum quidam illonim idola coluerunt. It will not be
denied that the apostle uses the word in the same sense as
it is used in the passage to which he refers. Under this
word he means something distinct from idolatry, of which
he had spoken in the preceding verse: and whatever be
the guilt of debauchery, it may be asked, whether any rin
of individuals is worthy to be classed among the public
sins of idolatry, temptation of Christ, and murmuring
against Grod ; which provoked the general judgments of
the Almighty, and with which it has no natural connexion,
but in the sense of an idolatrous consecration, or a mar-
riage with idolaters ending in apostacy, which under the
name of some, was incurred by large bodies of the people.
Joshua ii. 1. vi. 17, SS, 35. Hebr. xi. 31^ James li 95.
Rahab the harlot, 4 iro^.
Chald. mulieris cauponarise. — Arab, venditrix.
According to the Chaldee paraphrase she kept a house
of public reception : Chrysostom calls her TavSoxfur^io, and
Bishop Patrick reconciles the versions by alle^ng, that there
is no doubt that she kept a public house ; but such persons
in those days made their bodies as public as their houses,
Schleusner supposes that two Hebrew words, the one signi-
fying scortum^ the other catipona, were mistaken by the
LXX, whose version was copied by the apostles. 'H irognij
in the sense of the foreigner or aUen^ affords a very compe-
tent exposition of the peculiar circumstances and condition
of Rahab in the Jewish history, in which nothing is re-
corded derogatory to her moral character, which is certainly
not impeached in the long alluaon of Clemens of Rome.
Ancient but not very consistent tradition has made this
woman of Canaan the wife of a Jew. In the genealogy of
*/
47i>
Saint Matthew, Salmon is made the husband of Rachab,
probably of another woman of the same name, aa Rahab 4
wofwi and Salmon were not contemporary. Justin M.
makes her the wife of Joshua : 6v yof r^omw Iifo^u^ ixmm;,
6 Affyo/xeyo; vro rov v^o^rou !c^fu^, puwa^ liiarui ffavii ^•fOPVi
Smc to yuvoixa iro^ir XfXep^toi etXij^fyou auroy . • . dtrwf JfjEuy,
X. r. X. Dial, cum Tryph. c. 116. In the whole passage
he seems to use iro^, to^vo^, and to^io, in the sense of an
alienation from the covenant of Grod, or, according^ to
Dodwell, of the guilt contracted by alien marriages.
Judges xi. 1, 2. Jephtha the Gileadite was a mi^ty
man of valour, and he was the son of an harlot, yuvaixo;
To^^, and Gilead begat Jephtha : and Gilead^s wife bare
him sons; and his wife'*s sons grew up, and they thrust
out Jephtha, and said unto him. Thou shalt not inherit
iu our father'^s house, for thou art the son of a strange
woman.
Chald. mulicris tabernario*.-— Arab, cujusdam meretrids.
The word translated m^ by the LXX is the IDt whidi
the Jews explain of one of another tribe, or of a stranger,
one of another nation: and so Josephus himself under-
stands it, saying, that he was (evo; irc^i njv ft^rf^ a stranger
by his mother^s side, or according to the law, h fx vofnK-
He was the son of a favourite wife of his father, and the
context asserts that she was a foreign woman. Patrick,
Spencer.
1 Kings iii. 16. Then came two women that were
harlots, yvvMXis Togyai, unto the king, and stood befote
him.
Chald. mulieres tabcmarise.
In Poolers Synopsis, three reasons are assigned in proof
that these women were not harlots in the ordinary sense:
1. that such women do not pass the night alone, nor do
they bear children; 2. that David would not have tole-
rated such women at Jerusalem ; 3. that such women would
not have ventured into the presence of the king. Josephus
calls them erai^oi roy /3ioy, which Grotius explains of foreign
477 .
women not comprehended in tlie law. Patrick holds that
they kept a house of public entertainment, as the Targum
translates it, and were of the same condition as Rahab«
llie Jews suppose that they were not Israelites, but
strangers. They may have been the foreign wives of
Jewish husbands, who, having no legal interest in the
children, did not interfere in the wrong which was sus-
tained. Patrick.
1 Kings XX. 19. xai ai frogvai Aouo'ovroi sv ro) alfji^otri <rov,
xxii. 38. xat ou 'jrogvou eXouo-avro ev rep aljjMTi,
It is not easy to assign any adequate meaning or motive
for this interpolation of the LXX. No advantage is ob-
tained by understanding it in the ordinary sense of prosti-
tution. I. F. Frisch is said by Hering to have understood
it in the sense of foreign women, and the same name is
given by an early writer to the woman of Samaria. In
this sense it may have been an aggravation of the judg-
ment of Ahab, that, instead of his eyes being closed by his
nearest kin, the last office of bathing his body should be
performed by ^^ foreign hands,^ or that foreign women
should bathe in the pool of Samaria, in which his body was
washed. Or is it an allusion to Jezabel, that all which his
foreign wife or wives could do for him, was to bathe his
bleeding body, and that while the swine and dogs (common
designations of aliens) were licking it they should be sprin-
kled with his gore, and not scruple to wash themselves
where he had been blcteding.
Ezek. xvi. S6 — 30. Thou hast committed fornication
with the Egyptians, e^rrogvwa-as roug viovg Aiyvrrou, and
hast increased thine whoredoms, iroXXaaus ^arogfwa-a^, to
provoke me to anger. Behold, therefore, I have stl^tched
out my hand over thee, and have diminished thine ordinary
food, and delivered thee into the hand of tbem that hate
thee, the daughters of the Philistines, that are ashamed of
thy lewd way, Svyoengas aAAofuXfloy to; gKKXiVOiMraf cr tx n^
oSotf, j}^ Yjo-ff/Sno-flt;. Thou hast played the whore also with
4/8
the Aflsyrians, ^ftn^Huffai iri luywrifag Afvwif , becaii«
thou wast iiiBatiable; yea, thou haat played the haxloC,
^mfOfHoa-mSj with them, and yet oouldeat not be Mtiafied
Thou hast moreover multiplied thy fomicatioiiy ImApmv.
Chald. idola tua, Arab, fcedera. Theodoret ra wop§»a nu^
in the land of Canaan unto Chaldee, yi|y XoAbuMy. nL y^
Xoivaea km us rw; XoXSouot;;. How weak is thine heart, n
8i0i4«0 niy tuyoTBgaj al, xa^uof o-ou; seeing thou doest ail
these things, the works of an imperious whorish woman,
ywcuxos wogm$ (Th. wopn^ weippi^iei^funni) xeu t(mropno9'ai
The argument upon this passage must depend prin-
cipally onihe version of the LXX, whieh is inoompatihle
with the notion of ample proetitutiiMi ; which may. be
interpreted of the several states of Jewish apostacy; but
which requires some notion of w^ftmut which the Jewidi
Church, considered in the character of a toomofi, oould be
supposed to commit with the mnu of Egypt, with the
daughters of Assyria, and with her awn dmughiersj^mad
which should not be incompatible with the notioii of a
covenant or contract. The daughters of strangers, rnkkn
fukanfy are they, who, according to the LXX, had aeduoed,
ncxXiyovo-o^, the Jewish Church from the way^-from which
she had transgressed; and the same word, nutXimuemsj is
used to describe the influence of SolomoD^i foreigii wives
in tempting him to idolatry, and is connected with the
original prohibition of marriage with the heathen. 1 Kings
xi. 2. Exod. xxxiv. 16. Deut. vii. 8. The idea of idol*
atrous apostacy prevails throughout the chapter, but it
was chiefly by marriage that the Jewidi Church could
apostatise with the daughters of the Aasyrians, by taking
them for wives for her sons, and with her own d«ig^ters,
by giving them in marriage to the heathen. It was thus
that she took pleasure with her lovers, gfaffxaf §¥ si; snyuyiKf
another word which is used of matrimonial oonnezioQ with
the heathen, and of the mingling or oonfiisioii ci the hdy
seed in the impurity of the heathen. Josh, xxiii. 18. Ps.
479
cvi. 86. 1 Esdras viii. It was thus that she multifdied
her fornications, or, as the LXX translate, her covenants,
Bi0(ft}xa(, covenants of marriage with the heathen, resulting
in apostacy, marriages which she was expressly forbidden
to contract, and in respect cif which she acted in the true
character of a ywni ^fvi), a wife an alien by birth, by prac-
tice, and by alliance. The covenant is ordinarily inter-
preted of a league or treaty with the heathen ; but it is
obvious, that such covenant would not have been contracted
with women, and least of all with Jewish women : Jerusalem
could derive no advantage from a league with her own
daughters.
Hoeea i. 2, 8. The Lord said to Hoeea, Gro, take unto
thee a wife of whoredoms, and children of whoredoms:
yweuxa wopnctg xeu Tfxva irof¥tMs: for the land hath com-
mitted great whoredom, narofveoowra newofnuo'Uy departing
fixim^the Lord. So he went and took Gromer, the daughter
of Diblaim.
Chald. prophetiza prophetiam contra habitatores civi-
tatis idoMatriBy qui addunt peccare, quia errando errabunt
habitatores terrse, a cultu Domini.— Syr. uxorem fomi-
cariam et liberos fomicarios, quando valde fcnmicatura est
terra, aversata a Dmnina
It would be tedious to- insist upon the several difficulties
iirfiich perplex the interpretation of this text, or upon the
moral objections which have been brought against the
divine injunction addressed to the prophet, and against
the supposition that the prophet in his prescribed com-
munication with a harlot, in the ordinary sense of the
word, could be a suitable* type or emblem of the God
of holiness. Of the various interpretations collected by
Pooock, that of Lyra is the most unexceptionable, as it is
the most agreeable to the use of the word, which he here
interprets of a wife ^' that was a Gentile bred up in idoU
atry,^ and, as he unnecessarily adds, ^'so guilty of spi-
ritual whoredom ."^ A ywif irofnuis is evidently equivalent
to a yuyi} ftogmj an idolatrous or heathen wife ; and sudi an
480
alien and forbidden wife, Hosea, whether he were a priest,
a prophet, or a private Jew, .ordinarily sealoua tar the
legal holiness of his people, would not think of manyiDg,
without the authority and sanction of a particular oom-
mandment repealing the general prohilntion. The chil-
dren of such a marriage would be children, mfmm§ or n
To^f, of idolatrous or heathen parentage; and there is
certainly nothing in this parabolical history to require the
supposition of Gomer's conjugal infidelity, or to justify the
interpretation of wogvtM, in the sense of adultery. This
interpretation will faithfully represent the state of the
Jewish Church, whose mother was 'an Hittite, and whose
father was an Amorite, and h&ng thus alien in her origin,
and unfit and unworthy to be admitted into the covenant
of God, she had been an alien in her practice also: the
land had committed great whoredom, departing from the
Lord, or rather, naro^mova-a ttewofnunt ii yti eon owiaim
Kugiovj apostatizing^ had apoafatixedj from the Lord, a
version in which the word departing is as unnecessary as
it is confessedly gratuitous. The names of the parties,
according t& a writer in Foolers Synopsis, coincide with thu
exposition : he calls Gromer RewjiUj and Diblum the fFti-
demess; as if it had been said, I married Revolt, the
daughter of the Wilderness: the one name representing
the practice, the other Ihe origin, of the Jewuh Church.
To this origin in the wilderness, allusiog is frequently made
in the judgment denounced on her idolatry : and in respect
of her original condition it is said. Ye are not my people :
and in reference to her subsequent marriage or admission
to the covenant of divine favour, Ye are the sons of the
living Grod. Thus Hosea in taking an alien wife was a
type of the Lord, who had entered into covenant unth an
alien people ; and when she was proved unworthy of the
distinction, the prophet was again his representative in
threatening to disown his alien wife.
Hosea ii. 2 — 5. Plead with your mother, plead; for
^he is not my wife, neither am I her husband: let her
481
therefore put away her whoredoms, ^a^ njv irogvuav Aurv^g
ffx trgwoBfirou fMVy and her adulteries from between her
breasts ; lest I strip her naked, and set her as in the day
that she was bom, and make her as a wilderness, and set
her like a dry land, and slay herewith thirst : and I will
not have mercy upon her children ; for they be children of
whoredoms, rexya iro^eia^, for their mother hath played the
whore, ^twogveuav^ she that conceived them hath done
shamefully, xcayr^vtv,
Chald. opera sua mala . . . filii qui idololatriam perpe-
trant . . . fomicata est post pseudoprophetas.
An alliance with an alien woman was a meretricious, rather
than a conjugal, connexion, which it was unlawful to con-
tract, and an act of piety to dissolve. In respect of such a
marriage with a yuvi} To^vtio^, Hosea might justly say, She
is not my wife, nor am I her husband ; nor was he bound
to recognize the union, or fulfil its obligations; he had
taken her, and was at liberty to discharge her : and so the
Jewish Church being an alien had no claim on the marital
care of the Lord. In respect of the issue of such a mar-
riage, as they inherited the condition of the mother, and
were properly nxva To^eio^, they had no claim of right
upon the care of their father. The wife is therefore re-
quired to put away her whoredoms out of her sight, or
rather, according to the LXX, the Lord threatens that he
will take away her iro^fiav out of his sight, and her adul-
teries from between her breast. Adulteries is put meta-
phorically for idolatry, and iro^vcioe, according to the com-
mon use of the LXX, is put in connexion with adultery,
and plainly and properly denotes apostacy, or the state of
alienation from (rod. It is said, in reference^ to this state,
1. lest I strip her naked in punishment of her spiritual
adultery ; and, S. in reference to her primitive alienation,
lest I set her as in the day that she was bom, and make
her as a wilderness, and set her as a dry land, and slay her
with thirst: and it is further threatened, it may be in
aggravation of their mother^s punishment, that pity should
VOL. II. I i
482
not be taken of her diildren, for they be drildno of niioi^
domsy bom of an alien marriage, and thereCote iaoafnbk
of pleading either in thor own. or their mother'^s name.
In the same sense that vofycw represents the state of die
mother, it represents the state of the children also: and
for the same reason that the prophet refused to oompaa>
uonate the children, did he disown the mother of the dul-
dren ; for their mother hath played the harlot, ^fwfnan^
hath apostatized, or been an apostate ; she that bare them
hath done shamefully, xarvf^p^viv. It is in perfisct har-
mony with this description, that it is said, (ch. t. 7.) They
have dealt treacherou&ly against the Lord, or forsaken him,
r/xaT9Xvw9ifj for they have begotten stnmge children; or,
according to the Chaldee paraphrq9e, susdtarant sibi ipsk
liberos e filiabus gentium. In this view of the state of the
yvrfi Togvueis and TiKva vo^ia^, the ori^nal maniage was so
completely nullified, that the Lord pramises, afiter a jndi-
cial alienation, to betroth her as a new Mde to himself,
when she shall call him Ishi, or her husband, instead of
Baali, or her lord. The perpetuity of these new espousals
is very forcibly expressed: And I will betroth her unto
me for ever ; yea, I will betroth her unto me in righteous-
ness, and in judgment, and in loving-kindness, and in mer-
cies ; and I will even betroth her unto me in fiEuthfulness,
and thou shalt know the Lord. The effect of this marriage
should be such, that it should be said to them which were
not-my-people. Thou art my people ; and they shall say.
Thou art my God. It is difficult to conceive a clearer
expression of the previous state of -alienation. In the fot
lowing passage there is a plain allusion to the law of mar-
riage with a heathen woman, whether that woman represent
Gromer, or any other parabolical wife of the prophet.
Hosea iii. 1 — 3. Then said the Lord unto me. Go
yet, love a wife beloved of her friend, yet an adulteress,
yuvouxa ayeeiraxrav Trovtiqa xeu /Mi^atXiy, according to the love
of the Lord towards, xaSoo$ ayeara 4 0fo^, the children of
Israel, who look to other gods, itovs oXXor^u;, and kite
483
flagons of wine : so I bought, cftM-taxrajxi^v, her to me for
fifteen pieces of silver, and for an homer of barley, and
half an homer of barley : and I said unto her. Thou shalt
abide for me, xaiiiayi ti^ fftoi, thou shalt not play the harlot,
nm 01/ iLti To^vfiMTp;, and thou shalt not be for another man ;
so will I also be for thee, otiSf fivi yfyp ca^gt xcu eyw nrt
rot,
Chald. non fomicabimini neque fraudabimini idolis.
Hosea was directed to love this wife, as the Lord loved
the children of Israel, although in her disposition she loved
evil things, and was an adulteress, figuratively put for an
idolatress, as the Israelites looked to foreign gods, ieovg
oAAoTgiouf , gods not their own. The gift which he gave
her was the marriage portion or dowry of the bride whom
he had again betrothed, ii. 19, 90. and who, in strict cor-
respondence with the ritual of the marriage of an alien or
heathen woman with a Jew, was to remain in his house,
KaHietreu sv ri} oixidt o-oti, and bewail her father and her
mother a full month, and after that thou shalt go in unto
her, and be her husband, and she shall be thy wife, aw-
oixirt>j<nj oarni xeu earou coi t^vij. For this period the wife
was not to depart, ov fivi Tro^vei/d-i^f, she was not to be given
even to her husband, ovh jx*j ycyjj avhgi. They were to wait
for each other, xoedi)a>} eir e/xoi xm syao en-i <roi. In the forlorn
condition of this captive bride was represented the state of
the Jews, ¥rithout king, priest, sacrifice, image, ephod, or
teraphim : in her union with her husband, the restoration
of the Jewish Church to ♦he goodness of the Lord in the
latter days.
The type thus explained in these several passages has
an exact correspondence and agreement with its antitype :
Hosea married an alien ; the Lord had entered into cove-
nant with a people originally alien: Hosea disowned his
alien wife ; the Lord abandoned his alien people : Hosea,
according to the ritual, entered into a new marriage with
his alien wife ; the Lord entered into an everlasting cove-
nant with an alien people, comprising the whole body of
I i 9
484
the Gentttes together with the Jews originally descended
of an alien stock.
The apparent novelty of these espositioiis requires the
exhibition of the authority from whidi they are principaUjr
derived: ^'Hoseas propheta jubetur a Deo siimere nVK
B^W. Difficile opus aggredietur, quicunque hie vel de
scortatione verfi ac propria prophetas a Deo jussA oogita-
bit, vel omnia aut prophetic^ tantum prsdieatioiie, aut
somniante aut stertente viro divino, non re veri acridiMP
et gesta esse autumabit: vel quse est omnium improbi^
bilissima conjectura, cum Luthero, Tamovio, aliisque sibi
persuaserit, prophetam honestam virginem duxisae eiqtie
tantum scorti nomen imposuisse: difficile, inquam^ opus
aggredietur, qui hanc suam opinionem sive cum sanctitate
Dei ej usque praeceptorum sive cum fide SS. bistoricA coo-
dliare operam dabit. Sed si hie intelligas mulierem extia-
neam et gentilem omnia erunt plana : modo quod Hos* iii.
S, 3. observes xv. siclos non soortationis aliquam.mercedem
esse, sed novam et alteram dotem, qu& foeminam riln denuo
desponsavit propheta et loci, Deut. xxi. 13. memineri% ubi
mulier per^gprina per aliquot dies ante celebrandas nuptias
domi considere jubetur. Atque tum et perspicua erit ana-
logia typi et antitypi. Deus enim populum Israeliticum
ex idololatricis nationibus extraxit suumque esse jussit
populum ; hoc ut effingeret propheta, mulierem extraneam
assumpsit. Deus se ut maritum, ecclesiam Judaicam, ut
desponsatam sibi rite mulierem, prsedicat: bine et pro-
pheta, ut Deo similis fieret, justum cum muliere illA matri-
monium iniit; nee adeo de scortatione qufidam hie erit
cogitandum, qud pacto enim tum Hoseas Dei personam,
mulier vero personam eccl. Jud. potuisset agere? Judsi
postea a Deo aversi, ad idololatriam antiquam redierunt,
ita ut infidelis mulier, rupto matrimonii vinculo, ad popu-
lares suos rediit. Deus iterum saepiusque Israelem ex
superstitioso deorum cultu retraxit per vates suos, et sA
veram religionem antiquam quasi matrimomi fcedus re^
duxit : pari modo et Hoseas mulierem infidelem denuo sibi
485
desponsai^it. Deus tandem bona ea, quibus sibi Israelem
quasi in uxorem redemit, reddidit, possessionem terrse
Canaaniticse oronemque vini ac fnigum copiam, ut nov&
quasi dote dat& pristinum connubium renovaret, c. ii. 14,
15, 19. ss. ita et propheta nov4 dote xv. siclis et sesqui
chomero hordei ad renovandum matrimonium mulierem
oompulit. Atque hinc clarum esse dudmus non de scorto
proprie sic dicti, sed foeminft peregrin^ in matrimonium
ducendft Deum ad Prophetam esse locutum.'" D. H. Hering.
Diss, in Actt. xv. 20, 99. s. 18. Bibl. Brem. Nova CI. iv.
Hosea iv. 10 — 18. They shall eat, and not have enough:
they shall commit whoredom, ero^ytuo-flty, Chald. accipient
uxores, and shall not increase, xareufoywo-i : because they
have left off to take heed to the Lord. Whoredom, to^
yffiflty, and wine, and new wine, take away the heart. My
people ask counsel at their stocks, and their staff declareth
unto them : for the spirit of whoredoms hath caused them
to err, and they have gone a whoring from under their Grod.
imofuari frogwiag firAaMjAtjo-oy xai ^ewo^ewroof, Arab. Syr.
averteru/nt se. Chald. spiritus erroria ad errorem adegit eos
et aberraverunt a cultu Dei sui. They sacrifice upon the
tops of the mountains, and burn incense upon the hills,
under oaks and poplars and elms, because the shadow
thereof is good: therefore your daughters shall commit
whoredom, exTo^euaoao-iy, and your spouses shall commit
adultery, /xoi;^euo'otKri. I will not punish your daughters
when they commit whoredom, ira^fuo'eoo'i, nor your spouses
when they commit adultery, iMt^toctoo'i : for themselves are
separated with whores, fwrat t»v irofwov (rtmfugorro, and they
sacrifice with harlots, /xrrflt rcoy TtTtkea-fuvcov : therefore the
people that doth not understand shall fall, o-uverXixfro /xrra
^ogytj^. Though thou, Israel, play the harlot, jxi) fleyvoti,
Chald. si erratis vos ; yet let not Judah offend ; and come
ye not to Gilgal, neither go ye up to Beth-aven, n; roy
oixov X2v, nor swear the Lord liveth. For Israel slideth
back as a back-sliding heifer; now the Lord will feed
them as a lamb in a large place. Ephraim is joined to
I i 3
48«
idols; let him alone, furoxof ub$Km Effouft* d^Mn iaurf
(Txxy^eikoL Their drink is sour; they bftve committed
whoredom cmitinually, vo^Muom; ^mropmmt* ChaUL em^
verunt,
13^ 14. Chald. fomicantur filiae yestne, quas MU90tpiMii$
dejiliabus populorum et nurus vestne quas accepiatiB JUm
vestfis ex papulU adulteria committunt . . . ipsi enim cum
mcretricibus societate se jungunt, atque cum soorto co-
messantur et potant, populus autem generadonis, qui hod
intcllexit legem, nonne collidetur. — ^14. Syr. Istse cum
fbmicatoribus commiscent sese, et illi cum fonnims cur-
santibus per plateas sacrificant, et populus rationis expen
amplexatus est scortum.— Arab. Isti cum fomicatcnribuB
miscuerunt sese et cum fomicatoribus sacrificavenmt et
populus prudens implicavit se cum meretrice.-*Vulg. cum
efTeminatis sacrificabunt et populus non intelligens vapo-
labit.^-Aq. e^wgifyrro fura tco¥ wfihXoBYiLsmntj al. SngX^AyixfNnPW
— Sym. ijxoAouAijo'ay /xrrflt toov houftSaw^ al. fltxatajTWV.— The*
xotnjgiBfMio'otv . . . /xira reoy xep^cojiO'/Miwy (al. nm rptg jSSiAtf-
yfieurti) dvov. — ^15. Aq. Sym. The. £br. « mfvmms ov Wfm^
There is copious and powerful evidence in this passage^
corroborative of the exposition of vogvtw and the kindred
words in the proper sense of apostacy. Eirofiwray, they
deviated from, is put in immediate opposition to xarwottmnnf
they were directed in the right way ; and is ocumpared with
the leaving off to take heed unto the Ixntl, Kupov rpua^
€AiTov rou ^Aflc^ai. In the spirit of this error or apoatacjff
they erred and wandered, esrXoyijtfijo'ay, from their God*
consulting their stocks and their staves; sacrificing upon
the mountains, and burning incense upon the hills, in the
company of persons initiated in the heathen rites, fttra rm
rrrcAetrfMiwv. Thus, according to the LXX, they betrayed
their ignorance and folly, fleyvoii, exhibiting it in vain and*
unavailing processions to Gilgal, and Beth-aven, or the
house of On, the temple of the sun : or if, according to
other versions, they erred and apa9iaiizedy it was by a
487
tUinqueney and offence, in which Judah was adnuxiished
not to concur, (mi (rfii/flrkt^i^Ukfuirr^. There was a refractori-
ness of mind, wafotvrfota'a, in participating with idols, and
in a continued and aggravated state of apostacy, sro^ytuovrf^
tftwogntxrav. There are however some expressions, which
even this exposition does hot explain* The trofwia which
took away the heart, and which was celebrated in the
midst of wine, seems to denote a distinct part of the idol-
atrous feast in which the people ju^ra rcov wogwov (jvy^vgwro
and fMva reov renXga-fUivoov ^vov. The rrrffAjo-jxcvoi are the
same with the xo^ifu or rffAerai, the initiated priesthood of
idolatry, the consecrated prostitutes of the heathen temples,
otherwise called n^XXayjcttvoi or xtp^flojio-jxeyai, changed in
their nature and their dress, de mria facti foendncs, or
effbsminati^ priests devoted and set apart to the service of
Beelphegor, and of either sex, as may be conjectured from
the different genders used in the different versions. The
judgment of a people, thus inconsiderate, and either desti-
tute of understanding, or failing in the improvement of
their knowledge, or voluntarily acting in defiance of their
better judgment', is that they shall be {precipitated and
confounded. According to the LXX, it was not their
judgment, but part of their offence, that 6 Kuoi 6 /tti] vwmv
awfxXiKm f/^mi irogvus. It has been supposed that the
words fura wo^^ belong more properly to the following
verse ; but if the present reading of the LXX, supported
by the Syriac and Arabic versions, be approved, and the
words be read in connexion with aweirXtxtro^ it is suggested
whether they do not mean, that there shall be either judi-
daikf a conftision of the people of God together with their
apostate Church, collectively described as in other texts by
the name of ^ro^ : or whether there shall not be such a
confusion qffeneively^ through the intimate communion and
* See Clem. Alex. Pb<L Li. c. 19. where the wordsiure thut recited : i Xmn
i 09mm 0tfHwXtM%r§ ie$^. It ii immediately added, Kjsiwrif Mtwr fkiri^MrifH
I i 4
488
marriage of the people with the heathen, vumwkBun ««fiff
according to Clemens Alex, who elsewhere makes it eqai-f
valent t|) irofa luAiix^9 iMfyiif : amplezatus est soovtuoi.
Syr. implicavit se cum meretrice. Arab. The effisct of
these communications was to exculpate the ofience of the
women, and to protect them from the punishment which
was due. The whole case may be arranged in the follow-
ing parallelism.
exirogviv<roiJinv ai dtjyotTBgtg u/xa»y
xai ai wfifai u/xcoy fMi^tv^ovcr
xai ov jUri} m0'Xfl4feo/xai
nri Toig ivyeeregoig u/umoV| 6ray TO^yffu<rc0(rf,
xMi nri Tus wfjLfa$ vfjuov^ oretv fMt^wo'toa'nf*
OTi avTOi iJLtra reov mfiKov avwfygom
xai ju^ra row rereXeo'fuvoov iiuov,
xai 6 Xaos 6 jxij avvuov 0'yyevAfx«ro /trra iro^;.
If the offence of the men in respect rw mprnfy and in
respect roov rersAjo-jXfVGoy, is one and the same ; if there is no
variation but in the terms, as in Deut. xnii. 17, 17. ac-
cording to the LXX ; and if that offence is oommunication
with the idolatrous priesthood ; the offence of the women»
which is but the counterpart of that of the men, will be
most consistently explained of an idolatrous derotion, in
which married women could not participate, without an
act of adultery. But if the offence of the men, in respect
roov irofwov^ denotes their intermarriage with the heathen
women, and in respect row rrrffAfo-fbcveov, the worse abomina^
tion with the priesthood of idolatry, there will be a cor-
responding difference in the offence of the women also:
and the offence of the daughters, 6ray mfifrnkoa-ij wiO be
consummated in marriage with the heathen ; and the same
or any similar communication on the part of the wives will
be aggravated by the guilt of their adultery. This expoo-
tion of the word irofifoov in respect of the men, and of vof-
vwaxn in reference to the women, is authorized by its use
in other passages ; by the Chaldee paraphrase of nro^vniffw
489
in V. 10; by accipient uaores; by the reference of tbe
same paraphrase in this very verse to Grentile women ; by
the inverted reasoning in which these marriages are ascribed
to apaetacyy as apastacy is said in other texts to be the
result of these marriages ; and by the singular expresnon,
otive^u^irro /xrra fco^eov. The verb trvft^ugoo denotes some
extraordinary pollution, some peculiar incest, as in the
Greek version of Ezekiel xxii. 16/ where it stands at the
head of a catalogue of crimes, comprising various acts of
incest and transgressions of the pure law of marriage : and
while the separation implied in the original word denotes
an alienation from the household of Qod, the conneaion
involved in the Greek signifies the most intimate union
with aliens and apostates^. There is the same variation
from the original in the use of the word o^yrrAfxrro, which
denotes very equivocally the confusion resulting ^rom the
communion of the Jews with aliens and apostates, in con-
sequence of which, according to the Greek version of
Ezekiel, aVa/xf/xiy/MVOi irayrf^, or ffic avyxgeuruiv fuay, and
placed under the judgment, I will scatter thee among the
heathen, and disperse thee in the countries, and will oon-
* Joseph. AdU Jad. 1. i. c. lOr i« 5. The word is used of the corruption of
the sacred line, in speaking of the desire of Abraham, r« ««' «min> yiwf fuvw
rtt mX%Mt ftm 0»/*f»^ftuHf, i. e. according to Zonaras, r«if mXkui %hwn mn^-
fUMr§9. See Hudson's note.
b « Primo intuitu videtur hie duplex dissonantia, quia in primo commate
Mparari et miseeri contraria videntur : sed propheta hie per metonymiam honeste
antecedens ponit, pro quo Graed interpretes hie consequens seu rem ipsam
impudicam exprimont, adeo ut in re ipsi non discrepant, nam qui tegngatur
cum scartis in animo habet «e cum Ulit miteere, Deinde quajodo altero commate
dicunt ft§rm rm rtrtXt^/tum9 evm inUiatis taerifiearuntf etiam non discrepant a
teztu sacro, quia DIltHp erant publicas meretrioes Veneri sacre Priapoque
mancipats adeoque recte diets nrtXi#/«fNu initiate, quasi It^us vel sacerdotes
Veneris vel Veneri sacrs, uti sic apud Gentiles tales rtrOa^funu vel pubticas
meretrices, vel sac^otes Veneris erant, quss ante idola prostituebantur, nr-
ginitatis imminutSB pretinm diis suis pnmitiamm loco ofl^Brentes, persuasas
oblatione ilU meretrici& Deos placari sibique propitios reddi, ut Spencems, ex
Ambrosio, Herodoto aliisque schptoribus demonstrat* De Leg. Heb. 1. ii. c. 22."
Outhov. in Bibl. Brem. CI. i. p. 215. See also Seldeu de Diis Syris Syniagm.
i. c. 5. *
41)0
sume thy filthineas out of thee; and thou thall take thine
inheritance in thyself, or, as the margin readsy thou shdt
be profaned in the sight of the heathen. It b aaid jet
more distinctly in respect of these foreign marriages. Ye
have corrupted the covenant of Levi, saith the Lord of
Hosts : (part of that covenant was, that the priest of the
tribe of Levi should not marry a mfni,) There£nre have
I also made you contemptible and base before all the
people. . . . Have "we not all one father ? Hath not God
created us? Why do we deal treacherously every man
against his brother, by profaning the covenant of his
fathers ? Judah hath dealt treacherously, and an abomina-
tion is committed in Jerusalem : for Judah hath prafiuied
the holiness of the Lord, which he loved, and hath married
the daughter of a strange god. MaL ii. 8—11. Compare
Nehem. xiii. ^, 29- It was thus that they forsook the
Lord, and that strange children were bom unto them;
Hos. V. 7. and it was thus when the daughters mfMuowi,
when the men,
fura row mpnov omwf u^orro
and that the common apostacy issued in the confusion and
mixing up of the people of God in a promiscuous union
with the people of the land.
Amos vii. 17. Thy wife shall be an harlot, iro^wuo^ in
the city.
There is no necessity for interpreting this text of the
adultery of Amaziah'^s vrife, or of her raviahment by mili-
tary violence in the sack of the dty, a sense which is ooo-
veyed by other words, and cannot be imputed without an
acknowledged catachresis of the original word. It was
consistent with her husband^s offence, as the apostate priest
of Bethel, that she should be consecrated to idols ; or that
when she waa carried into captivity in Assyria she should
hMX)me the wife of a foreign husband. The marginal
491
reference, Hos. iv. IS. agrees with either of these exposi.
tions. The judgment is on the man, not on the woman :
Quod ille in spirituali fomicatione fecerat, idem in externft
experietur. The simple apostacy of his wife could have
given no offence to Amaziah.
Tobit iv. 12, 13. Beware of all whoredom, ceiro ^our/fi
iro^ua§f my son, and chiefly take a wife of the seed of thy
fSathers, and take not a strange woman, yvvMxu oXXorgiay,
to wife, which is not of thy father's tribe ; for we are the
children of the prophets, Noah, Abraham, Isaac, and
Jacob : remember, my son, that our fathers from the be-
ginning, even they all married wives of their own kindred,
and were blessed in their children, and their seed shall in-
herit the land. Now therefore, my son, love thy brethren,
and despise not in thine heart thy brethren, the sons
and daughters of thy people, in not taking a wife from
them.
Tobit viii. 7. Now, O Lord, I take not this my sister
for lust, diu Togvsiay, but uprightly.
In these two passages, the incestuous marriage of a Jew
with a Gentile is very distinctly expressed by the word
To^veiflt. The general precept of Tobit was, that his son
should avoid all To^ffio, and the chief means of fulfilling
this precept was to take a wife of the seed of his fathers,
and not a foreign wife, yvveuxa akkorgutVj or tojvijv, as she
is usually called ; following the example of his progenitors,
who all took wives of their own kindred. If he did not
avoid this TFOfveia, he would despise the sons and daughters
of his people, in not taking a wife from them. Tobias
followed the instructions of his father, and took a wife of
his kindred; and he therefore offers his thanksgiving to
Grod : ov ha to^siov tyo) Kx^u^ytA njy aSfA^i)V ftou TauTi}y, eiKKa
flsri a>afiuoLg, Schleusner admits the interpretation of iv. 13.
de conjugio eum muliere alienA, h. e. gentili, Lex. ad
LXX, but explwis vui* 7* de Ijegali e^ipletione libidinis.
Ibid, or de libidine procreandi naturali. Lex. ad N. T«
In this exposition the antithesis ou Im, mofimwf «AAa n^
4i)2
akiffiiuig is destroyed ; and the imputed sense is expressed
by other words, as rtximroii}<ro0, Gen. xyi. ir8iito*pifio4«», or
TW¥ ijUriXMW ynworffi waiieof yr^i^av ean»mr9m. PUlo. Jud. de
cong. quaer. erud. gratis. Opp. iv. 148.
Wisdom xiv. 12. The devising of idols was the be-
ginning of spirittial fornication, TOfwiag.
The %fi^tuL, which in this eloquent passage is attributed
to the invention or mental contemplation, frivoio, of images
or idols, whether in a£Pectionate commemoration of the
dead or devout homage of the living, may denote no more
than apostacy from God. It is certainly distinct from the
debauchery, which is described under other names, and
under the influence of which men kept neither lives nor
marriages any more undefilcd, xoSo^;, but one slew an-
other traitorously, or grieved him by adultery, i| vofciMnr
o^uvot, by bringing in bastards, v. 24. Among the effects
of this idolatrous apostacy are distinctly enumerated dis-
order of marriages, adultery, and shameless undeanness,
otreim ya^tjm^ /xoi;^«a, xoi eunXynoj an arrangement in whidi
eera^tot yo^ioov appears to supply the place of vopmui, as it
is distinguished both from fMix^ci and aeo-ffXytia, and in its
etymology denotes marriages contracted out of the pre-
scribed order. Are these marriages under the name of
To^ffia in V. 12. made the effect of the idolatrous contem-
plation of idols, compare Hos. iv. IS. of which they are
more commonly described to be the motive and principle?
In Wisdom iv. 3, 6, 6: mention is also made of bastard
slips, that shall not take root ; and it is said that branches
not initiated, xXme; oreXeoroi, shall be broken off, and shall
be excluded from the inheritance, as children fx iro^;, as
was Jephtha ; and that children bom of unlawful beds,
ayojxeoy vnwy, are witnesses of wickedness against their
parents in their trial. Philo, in speaking of the children
of Jacob by the concubines Bilhah and Zilpah, observes
that they were yotoi aiiXipoi oi votXkBoutwif wns can rov X'V^
yeyou; rov 7Fgo$ yvyouxeov, ciAA' ovx earo rov x^irroyo^ tou «ft$
ariBgwy. Dc Gigant. Opp. ii. 440. The degeneracy of the
493
mother'^s race was the fault devolving on the Jewish
bastard.
John viii. 41. We be not born of fornication, tx Tro^nas^
we have one father, even God.
Pers. nos iUicUe nati non sumus.
It is the remark of Schleusner on the text: ^^Hsec
verba, quse proprie sonant non spurii Uberi aumus et ex
illegitifno concubitu procreaH h. 1. vertenda esse, non aumua
iioMatrcBy sed posteri Abrahami, qui unum verum Deum
colebat, jubent verba, quae statim sequuntur, hot vartga
9X9 fuv Tov 0soy. This is a just paraphrase of the words,
founded on the use of %ofwm in the sense of idolatry and
apostacy. The meaning is more fully represented in
Hammond's paraphrase : ^^ None have dubious parents but
they that are unlawfully begotten ; we are not such ; we
are none of those to whom the style of children of whore-
doms is given, Hos. ii. 4. but owned and acknowledged by
Grod as his only children.^ Whitby also furnishes the
means of explaining the text, although he fails in its appli-
cation, adverting to the common idiom of the Jews, in
denominating their treatises of idolatry treatises of fornica-
tion, and reciting the expressions of Philo Jud8eus% which
have been already quoted under Deut. xxiii. 2. in which
he interprets the 6 tx iro^f of the idolater or polytheist,
who in his judgment differed in nothing rwf w, nj; 7o^i|f
onKoxw/fiofTwv^ from those that are bom of whoredom, and
are therefore excluded by the law from the congregation.
The intention of the Jews in the use of the expression is
to obviate the insinuation, that they were not the children
of Abraham, which they would have ceased to be if their
< Compare his fine comment on the declaratioD of the sons of Jacob, that
they were all the ions of one father, Gen. xlii. 11. which he interprets of men,
Imk %m r§w Mfrn iWtyty^mfi/iUMi w»rt^ §» 0fnr§f «XX* «#SMiir«f, ttfi^atwtt Su», if
r«« ms^v X»y§s If •! mutyunt tuu myrn i0rt mfim^$g . • . «< )i In ytM/ xmi^wrtf
MM l»« r«n^ r§f §^§f rtfunrtf Xiy§9f rwf n tmt^trw urn trmftfumw ftt/t-
ftnmf m^rm nlMpuMftf, i«9i0f »m y«X«Pff fim f/unt* De Confiis; ling.
Opp. iii. 332.
A\)4
line had been corrupted by foreign marriaget, and they
had been bom rx ^o^f , whose fault would have cnntanri-
nated her issue. They at the same time oontended that
they were the children of God, bom by uncomipted de-
scent from Abraham, the sons of Jewish men by Jewish
women, Hebrews of Hebrews, and therefore not Uable to
the imputation of a doubtful or spurious descent. The
drift of the Jews in this expression, coupled with the
reference of Philo to 6 fx mgm^gj according to the demoD-
strative exposition of that text by Spencer, is of the highest
importance in explaining the Jewish notion of wofnut in the
time of our Lord.
1 Cor. V. 1. It is commonly reported that there is for-
nication, To^ia, among you, and such fornication, wognutj
as is not so much as named among the Grentiles, that one
should have his fathcr^s wife.
It is universally admitted by the commentators, that this
fornication was incestuous; and the context defines it to
consist in the violation of the pure law of marriage, by
having a father^s wife. The incest was not abated although
the injured father was living at the time, as is inferred
from 2 Cor. vii. 12.
1 Cor. V. 9 — ^13. I have written unto you in an epistle
not to keep company with fornicators, fwni avMCMCjEuynwl«
wofvtisj yet not altogether with the fornicators^ roi; wo^i;,
of this world, or with the covetous, or with extortioners,
or with idolaters, for then must we needs go out of the
/world: but now I have written unto you not to keep
company, if any man that is called a brother be a forni-
cator, Tojvo;, or covetous, or railer, or extortioner; with
such an one, no, not to eat : for what have I to do to judge
them that are without ? Do not ye judge them that are
within ? But them that are without God judgeth. There-
fore put away from among yourselves that wicked person.
The word trogwi is frequently used by the primitive
writers to denote the unconverted heathens, and, according
to this exposition, Saint Paul, in speaking of the fomi-
495
cators of this worid, probably refers to nothing more than
the general apostacy of the heathens. Thus Tertullian,
De Idol. s. 14, alludes to the passage, licet convirere cum
ethnicis: and Fabricius, Cod. Apocr. N. T. v. 1. p. 990.
translates ver. 9. non loquor de ethnicis^ qui vobis ferendi
sunt. These Tphfvoi are the same with oi i^eo"*, whom the
apostle refuses to judge, and whose judgment he leaves
unto Grod : who are called by Schoettgen, Lex. in v. e^co.
Hor. Hebr. in loc. Non-Christiani ; qui non sunt in ecclesi^
Christian^ ; and who are evidently opposed to the o2 m-w,
whom he instructs the Corinthians to judge. If it be
objected, that in this interpretation itogvoi is synonymous
with eiScoXoXor^oi;, there is not more coincidence than be-
tween the other terms, extortioners and covetous persons.
In the general precept, jxi) (ruvavaiMywo^eu iro^i^, the apo-
stle alludes to the particular case of the incestuous person,
of which he proceeds to make a large application: jxi)
ovvavoifMyvutrdcUf bolv ri^ oSsX^o; oyojtMt|ofMVOf i) TO^f • • • n^
roiotmp fjLyfie avvtcdmy. The brother who is a fornicator, and
with whom the brethren are forbidden to eat, is interpreted
by Tertullian of a Christian brother married to an un-
believer: Fideles gentium matrimonia subeuntes, stupri
reos esse constat et arcentur ab omni communitate frater-
nitatis. Ad Ux. ii. s. 3. In S Cor. vii. 14—18, the apo-
stle treats of the same subject, prohibiting more explicitly
the marriages with the heathen, and insisting on the sepa-
ration or distinction required in the people of God, who
are not su£Pered to touch the unclean thing, or peraon^ rou
otxaia^tj. Compare Acts x. 14, S8.
1 Cor. vi. 13 — 19. Now the body is not for fornication,
vro^ffia, but for the Lord; and the Lord for the body.
d Compare Rev. xxii. 15. £{» )i m* nmtt tuu »i pm^ftmntt »m «/ r#^ffM. mu §i
panti %m §S u'^XiKmr^mt, tuu wmg i ptXmf tuu *§mf 5^iii)«f .— »yfif , if^ni and
uimk$>Mr^ are general descriptions rm •(». pm^fAmmti, f«»i«r and i wtsm*
^ui^ denote the common offences of idolaters. If there is any particular
distinction implied in §5 iro^t, the ordinary sense is not adequate to describe
the general guilt.
496
And God hath both nused up the Lordj and will also
raise up us by his own power. Know ye not that your
bodies are members of Christ ? Shall I then take the nunn-
bers of Christ, and make them the members of an harlot ?
^gvns ; God forbid. What ! know ye not that he who is
joined to an harlot, Tgi To$y>)9 is one body ? for two, aaith he,
shall be one flesh. But he that is joined to the Lord is one
spirit. Flee fornication, Trogvuoof. Every sin that a man
committcth is without the body ; but he that committeth
fornication, 6 Se to^sucdv, sinneth against his own body.
What ! know ye not that your body is the temple of the
Holy Ghost which is in you, which ye have of God, and
ye are not your own ?
^thiop. omnc peccatum, quod facit homo ad extra, in
corporc suo facit : et qui fomicatur in corpore suo peccat
The elevation of an act of incontinency to the same mys-
terious dignity with the matrimonial union is alone an
insuperable objection to the ordinary interpretation of this
passage, of which the difficulty depends principally on the
equivocal use of the words body and bodies; the former
relating to the whole body or Church of Christ, and the
latter being equivalent to the persons or bodies of indi-
vidual or separate members of Christ. In this sense the
passage is evidently alluded to by the apostolical father
Clemens of Rome : Iva n ht?\xoiM¥ xeu Suunroafiw ra /uXq reu
XgiOToy xai arao'iafyfji^w irgog ro <reofia ro iSiov ; Ep. i. c 46.
This body was for the Lord, and in its coiporate fonn
constituted the temple of the Holy Ghost. What then
was the irogvuot for which this bod}' was not designed, and
which was opposed to the Lord, for whom it was designed ?
It was apostacy : (rwfut ie atAXsjyo^fiTai ^ fxxAijo'ia . • . ou tj
TFoqveia^ ovBe ti} awo lov BuayYtXkiou oatwrreto'u • • . m^mu ymf
n$ njv ffxxAi]0'iay, xai to ourou o'co^mc ... 6 Be xoAAoBfuvo^ tj
Tp^, Ti) vaqot Sia9i]xi]y cve^sio, oAXo <rtofUL ynftreu ouk <iyiov,
§t4 <ragxu {juatv xai /Siov edvixov. Clem. Alex. Strom. 1. vii.
s. 14. The earliest Latin fathers insist upon the particulir
nature of this apostacy. Cyprian recites the principal part
497.
of the passage in proof that marriage slK)uld not be con>
tracted with the heathen: and Tertullian also, with evi-
dent reference to the text^ enumerated among the chief
evils of marriage with the Grentiles, camis sanctss in carne
Gentili inquinamentum ; and, in arguing against second
marriages, he maintains, Extranei hominis admissio minus
templum Dei violat, minus membra Christi cum membris
adulterae commiscet. Ad Ux. ii. s. S, 3. By such *mar-
riages, the man that was one body with the Lord, and one
spirit with the Lord, would break that divine union ; for
he could not at the same time be mystically one with
Christ, and actually one with an unbeliever. Origen, who
was the first to assert the difficulty of the text, and is very
inconsistent in its interpretation, nevertheless explains the
body of the Church of Christ : Die ei, quia templum Dei
effectus sum, non mihi licet immundum aliquid illic indu-
cere, nee fas est mihi violare tecdplum Dei: sed et illud
adde, quoniam, qui fomicatur in corpus suum peccat : non
in istud corpus solum, quod templum Dei effectum est, sed
et in illud quod dicitur, quia omnis ecclesia corpus Christi
est, et in omnem ecclesiam videtur delinquere, qui corpus
suum maculaverit, quia per unum membrum macula in
unum corpus diifunditur. Hom. v. in libr. Jesu Naue, s. 6.
1 Cor. vii. 2. Nevertheless, to avoid fornication, hot ra^
^o^eia^, let every man have his own wife, and every woman
her own husband. Quisque homo habitet cum uxore suft
et quaeque mulier habitet cum viro suo.
The passage relates not to the future, but to the past,
to the marriages contracted before the conversion of the
parties to the Christian faith, which is the subject of the
apostle^s discourse to the end of the seventh verse. There
was an apprehension that these marriages were voided by
the Christian profession, as they would have been by
prosely tism to the Jewish religion ; and the apostle super-
sedes this apprehension by instructing the parties to have,
to keep, and retain their respective consorts, and to live in
VOL% II. K Ic
498
discharge of their conjugal duties. This is the proper
meaning of tp^fiv yuMuxo, which does not ngnify to take,
XojSciy, a wife in marriage. These 99fnuu were disdn^
guished from the cases of the unmarried and the widows,
and were restricted to persons both of whom were uncon-
verted at the time of their marriage. Aioc is here used in
the sense of qttod (Minet ad : the wopnteu was one of the
subjects, iregi oov, the Corinthians had written to the apo-
stle, and which he proceeds to determine : Now in respect
of the things of which ye have written unto me, and espe-
cially as concerns roii mgvtiois. The apostle clearly distin-
guishes the rogvuou from the ordinary communication of
the sexes, which he resolves without hesitation : xoXov m^
t^coTcp ywaixog jxi) earrtaian but the decision was more
difficult where the parties had been married before their
conversion. Origen, De Orat. calls the passage the place
nj^ wagavOfMu (u^eoo; vro rou eanoToXixw Xoyou, x«era.(rv^i«B|w|v
ou xoT* fTiTayijy o^yxcp^oo^jxfyqf. The authorized Yenioa
rests on the paraphrase of Chrysostom.
2 Cor. xii. SI. Lest when I come again my Grod will
humble me among you, and I shall bewail many which
have sinned already, and have not repented of the un-
cleanness, and fornication, and lasciviousness, fri tij axa-
taga^iOj xeu to^sio, xeu flureAytif, which they have com-
mitted.
Ephes. V. 3, 6. But fornication, and all undeanness,
frogveia h xeu iracra eataioiga'Mf or covetousness, let it not
once be named among you, as becometh saints: for this
ye know, that no whoremonger, nor unclean person, wfvo^
19 axatagrosy nor covetous man, who is an idolater, hath any
inheritance in the kingdom of Christ and of God.
Coloss. iii. 5. Mortify therefore your members which
are upon the earth ; fornication, undeanness, mgnuLVf tauf
da^iavy inordinate affection, evil concupiscence, and covet-
ousness, which is idolatry.
The sense of mgvuay in these and some other texts, (as
499
Rom. i. 29. 1 Cor. vi. 9.* Gal. v. 19.) will depend upon
the wei^t of the evidence in favour of the Hellenistic
meaning of the word. It is suiBcient to remark, that
TTogvsia is in all these texts a specific oflPence, distinct from
axaSaga'teij not requiring that indefinite sense which was
fixed upon it in later ages, nor the more restricted sense
of adultery, which is more properly included under okcif-
tagcioj and is in some texts expressly distinguished from
wofvtta. Grentile hearers might receive adequate instruc-
tion from the ordinary sense of the expressicHi, although to
the Jews it would convey a separate admonition, accu-
mulated upon the general precept delivered under the word
axaiagcrm,
Hebr. xii. 16. Lest there be any fornicator, wog^o^y or
profane person, as Esau.
'' Esauus TOfvog vocatur, non quod scortator fuerit, sed
quod contra voluntatem parentum alienigenas duxerit."
Miegius de Off. Past. c. xvi. In this respect the Midian-
ites seduced him aHiXfov avrcov yevfO'toi iia n}^ wofvtMs xeu Sia
Trig tiSwXoXargeiag, Test, xii Patr. Fabr. Cod. Ps. V. T. v. 1.
p. 74(5« There is no record of his fornication but in his
marriages with the daughters of the land, which were a
grief of mind to Isaac and Rebecca. ^* The wives he took
were absolutely aliens, and out of the covenanted family,
contrary to the pious caution of his holy grandfather, . . .
and to that rule of matrimony among the patriarchs which
united in that holy state his father and mother. He gave
an early proof of the perverseness of his temper in marry-
ing these women without the knowledge of his parents, . . .
or, if with their consent, at least contrary to thdr inclina-
tions.^ Biblioth. Bibl. See Allix's Reflections on the Old
Test. p. 78.
Rev. ii. 14. The doctrine of Balaam who taught Balak
* Griesbach notes that lonie MSS. reiul w^nmt for w§9n^m§ in 1 Cor. t. 6.
where it would bear the sense of error in oppoeition to mkfi/hmtf or it would b«
an allusion to the peculiar abominations of the idolatrous feasts.
K k 9
500
to cast a stumbling-block before the children of- Israel, to
eat things sacrificed to idols, and to commit fiMnicatioD:
The design of Balaam, according to the rcprcacntation of
Josephus, was to inveigle the Israelites into a partidpatioD
of the idolatrous sacrifices, and into intermarriages with
the daughters, of Moab : h&c enim re Balacum id eSectu-
rum, ut utraque gens aut brevi in unam coalesceret, adeo-
que ille utrique imperaret, aut saltim non habere! quod a
populo tafn affini timeret mali: quod si vero puellarum
istarum ope insuper ad communionem sacrorum, quae Diis
Moabitarum exhibebantur, adducerentur Israelitse, quod
omnium optime fieri posset invitando ad epulas sacras ex
f i$eoXo9tn^i; paratas : tum eos grave Dei sui utpote qui solus
ab iis coli velit incursuros odium, tum eos ab eodem plane
repudiatum in, nee amplius forti ejus et tremendo patro-
cinio esse fruituros. Hoc modo certe si explicetur Bileami
consilium, non erit adeo crassum et pingue, sed tarn astuto
et vaferrimo, ut erat, homine dignum.^ Hering, Diss, in
Apoc. ii. 14, 15, SO. in Bibl. Brem. Nov. CI. vi.
Rev. ii. 20. That woman Jezabel, who calleth hersdf a
prophetess, to teach and to .seduce my servants to oonunit
fornication, and to eat things sacrificed unto idols, vo^muo-cj
It is not unreasonable to assume from the recurrence of
the same expressions in vv. 14, 20, that it is meant to
denote the same offence ; and it has been strongly argued,
that no man would have been found in the apostolical age
to advocate and recommend either promiscuous intercourse
or positive idolatry; that our Lord would not have in-
cluded such offences under the name of oXtya* w^m xara aw
oXiya* and that there is no foundation for the hypothesis,
that these words are used ironically. Our Saviour says
further, ou fiaka> i^* vfias aXXo fiagogy irXijy 6 fpcrrt* xfcmfi-eenj
axf^s ou ca rj^co. The same word, fiagos, is used in the
apostolical decree, where it has a direct reference to the
ordinances of the law; but fornication and idolatry were
501
restrained more by the natural than the Mosaic law, and
our Saviour did not mean to add any thing to the ritual
obligations which was not enforced in the apostolical de-
cree. This burthen was however to be borne, until be
should come to the destruction of Jerusalem, when all the
distinctions of the law should cease. '^ Fuerunt scilicet
Pergami homines, et Thyatiris foemina quaedam, ex Chris-
tianorum coetu et in eo viventes, quibus nomina ilia, sc.
NicolaUiB et Jexahel, dantur, vel quod iis propria erant,
vel quod mysticA qu&dam aut symbolic^ ratione iis conve-
niebant, nam id certo definiri nequit, quamvis posterius
priori sit probabilius. Hi qtiemadmodum olim Bileamus
Balacum regem docuit, Israelitas ad nuptias cum idolo-
latris ineundas et idolis oblatum cibum comedendum, Ps.
cvi. 28. posthabitis Dei sui mandatis, allicere ; ita pariier
spreto divino per apostolos prsecepto, tum temporis omnino
adhuc observando, publice docere audebant, hcere quovis
casu vel in ipsis tiSeoAsioi; cum Gentibus de eo, quod diis
eorum sacratum erat^ cibum capere, et cum idololatris pro
lubitu matrimonii vinculum nectere. Erant scilicet ex illis,
qui yvcoatv se habere (cf. 1 Cor. viii.) €1 ret fioAr^ inspicere
gloriabantur, Apoc. ii. 24. quA opinione inflati apostolorum
decreto ut ad idiotas tan tum pertinente neque se neque eos,
qui se ab iis erudiri paterentur, teneri existimarent, atque
hinc sibi et his ilia omnia licere. Quft doctrinA vero et
agendi ratione cum Ecclesiam turbarent, Judseos fratres
vehementer offenderent, aliosque deterrerent ex gente Ju«
daic4, ne Christo nomen darent, gravi castigatione omnino
erant digni, nisi resipiscerent et mentem mutarent: ii
autem, qui nimis indulgentes eos ita agentes tolerabant,
et, ut officii ratio exigebat, scandalo sese non opponebant
pro viribus, admonitione ill^ quae eos vigilare jubet, ne res
Christiana suA nimiA indulgentift aliquid detrimenti capiat.*"
If it be objected, that this exposition does not agree with
the character given to the Nicolaitans by the ecclesiastical
historians, it may be observed, that the Nicolaitans of the
second century are not the same with the Nicolaitans of
K k3
502
the Apocalypse, and even their ofienoea have been unjustly
aggravated'. Hering, Diss, in Apoc. ii. 1^ M. The
principal texts, which it is the design of this diMiiiUtioD
to elucidate, remain to be brought under review.
Acts XV. Wy 29. We write unto you, that they abstain
from pollutions of idols, (=meats offered to idoky) and
from fornication, ti)^ to^io;, (ssvo^Mt;,) and from things
strangled, and from blood.
Syr. ab immolato et a sanguin^, et suffocato et soor-
tatione. — ^Vulg. ab immolatis simulachrorum et sanguine et
suffocato et fomicatione. — Arab, a sacrificus idolorum et
sanguine et suffocato et fomicatione.— >^thic^. quod reKn-
quant necessario immolatum idolis et sanguinem et tcor-
tationem et mortuum et quod non vultis volns fieri nan
faciatis contra fratres vestros.
The difficulty of the word TO^noe in this text may be
easily conceived from the variety of its expontions : 1. by
Saknasius ; of prostitution properiy so called, of the act of
men and women qui in fomice sedebant, et corpus auum
venale habebant : ^ by Heinsius ; of the vo^ucif ha-ta or
aXtayiiiiMTOL nj; vo^ytio^, or sacrifices obtained by the wages
of prostitution : 3. by Beza ; of idolatry, and especially of
the accubitus tv nSmXtta ad idolothy ta partidpanda : 4. by
Heidegger; of vo^eia in polygamic et divortiis: 5. I^
Curcellaeus, in the most ordinary sense; pro oommixtioiie
soluti cum solute : 6. Spencer adds his own cypinion, that
the word denotes venerem omnem extra conjugalem: 7.
Hammond explains it to be poUutionem omnem contra
naturam: 8. Selden understands it in a more restricted
sense of incest de omnigenis turpitudinibus atque concii*
bitibus ex lege MosaicA illicitis, id est, tam ex jure Noachi-
darum illicitis, quam ex Levitico : De Ju. G. et N. 1. ini.
' It U worthy of enquiry, how far the miMpprehMwion of the word m^mm
may have contributed to exaggerate the vicious character of the NioolaitaM,
and how far the indiicriminate and promiscuous intercourse which they are
charged with recommending consisted in the disregard of all distinctioiis vw
wtntfftu, interpreted of marriage out of the communion.
503
c. 12. or of the concubitus in Lev. xviii. interdicti ac
apostolorum lingu& t%$ icoqn^ai nomine designati, etiam pro
interdictis in Ecclesia Cbristianft perpetuo interdicti. De
Ann. Civil, c. 21. He also says, pro locorum discrimine
in Testamento Novo, aliter atque aliter wogveMv sumendum
satis attestantur, qui in concilio Hierosolymitano earn noD
pro fomicatione, ut verti solet, sed pro quftdam idololatris
specie intelligunt viri sane magni. Ux. Ebr. 1. iii. c. 38.
There is no proof that the extended sense of xofvtia pro**
posed by Spencer was known to the Hellenistic writers:
the opinion of Hammond is also unauthorized : the inter-
pretations of Salmasius and Curcellseus are more appro-
priate to Greeks than to Jews; they have no connexion
with the occasion or design of the decree, with the other
acts which it proscribes, and which were in their own
nature indifferent, or with the ceremonial law of the Jews
to which the decree relates. In all the texts which have
been recited, there is none which justifies the comment of
Heidegger, or connects iro^vsia with polygamy and divorce;
and, although the opinion was held by Lightfoot, it is
justly pronounced by Spencer unauthorized. The opi-
nions of Heinsius and Beza have the support of many of
the texts which have been alleged. Deut. xxiii. 18. con-
tains an express prohibition of the to^vixi} ivaoL^ or reli^ous
offering of the wages of prostitution ; and the very word
TrofVBioiy Hos. iv. 11. may comprehend all the circumstances
of an idolatrous feast. In either of these expositions there
is a just correspondence between irogvua and the other terms
of this apostolical canon. The principal objection is, that
in the interpretation of Heinsius, the uiookottna or oXioyi}-
furra rcov eiScoXeov are too nearly identified with wogygiay and
indeed he appears to anticipate the objection, by compre-
hending the two under one expression, »Xd<ryrifjMTa n}; %of^
vuas. Schleusner very heartily embraces the opinion of
Beza : Alii denique, quibus ego accedere nuUus dubito, de
metaphoricft vocis irofvua significatione cogitamnt, ita ut
significet idololatriam, non quidem crassam illam sed sub-
K k4
504
tiliorem et illft state reoeptam, que ad oonculntuiii ill
IiSgpAjmp et esum rmv fiScoAoSvrwy spectat.
Hooker, whose very conjectures are worthy of defercnee^
supposed it to relate to marriages within the Lentical
degrees. The same opinion was held by Calvin and by
Selden. Miegius, Hering, and Dodwell, also exphm the
word of that peculiar incest which attaches to marriage
with aliens. Several instances of this use of the word have
been already produced ; and it is the argument of Hering,
that such marriages were always offensive to the Jews,
whom it was one principal design of the decree to con-
ciliate, and were expressly prohibited from a conviction of
their fatal power in tempting the people to apostacy ; that
foreign wives were called tojvsu, and foreign marriages
^o^ffiai; and that it was worthy of the address of the
apostles, who were scrupulous of offending the Gentiles, to
inhibit these marriages in terms not unequivocal, in terms
at once ^^clara fidelibas, satis obscura vero infidelibus.^
The principal objection to this interpretatiim is, that such
marriages (and under the very name of vopeioi) were
affirmed by the apostle : but it is of importance to observe
the great distinction between the confirmation of marriages
already subsisting, and the prohibition of marriages not
yet contracted : and whatever objection may now be made
to the ambiguity of the word, its meaning was familiar to
the Jews and to the Pharisees by whom the question was
moved, and any explanation which was required might be
easily received from the delegates who were intrusted with
the publication of the decree. Diss, in Actt. xv. SO, S9>
There was a very general agreement among the primitive
writers, although they have left nothing which can define
or circumscribe the sense of this particular term in the
decree, that it was chiefly designed for the prevention of
any relapse into idolatry ; and this principal purpose should
be kept in view in any interpretation which it may be
thought proper to adopt. This is the main design of the
orip:inaI inhibition of ancient marriages; and it is remark-
505
aUe, that upon the occasions on which faytiv eiSeoXofora xat
wogvwa'at and irogviwreu xai ^oytiy etBnXoturei are indiscrimi-
nately combined as matter of reproof, and in the consecu-
tive argument of the apostle, hia rag mgniasy 1 Cor. vii.
and mgi run tiSepAoforeoy, 1 Cor. viii. m^ifua is understood of
alien marriage. The analogy of parallel expressions seems
decisive of the sense of the apostolic decree.
Matt. V. 82. Whosoever shall put away his wife, saving
for the cause of fornication, irojexro; Xoyou xo^iasy causeth
her to commit adultery.
Syr. praeterquam ratione fomicationis. — ^Arab. iBthiop.
sine fomicatione.-— Pers. extra causam adulterii. — ^Vulg.
except^ fomicationis causft.
Matt. xix. 9. Whosoever shall put away his wife, ex-
cept it be for fornication, ei fti}, or fti] rri to^siji, and shall
marry another, committeth adultery.
Syr. prseter adulterium. — ^Arab. praeterquam ob fornica-
tionem. — Pers. nisi stupri causft. — ^thiop. nisi propter
adulterium. — ^Vulg. exoeptft fomicationis causft.
All the expositions of these texts may be reduced to
those in which wofnm is interpreted of fornication before
marriage ; of adultery properly so called ; and of vice in
its largest and most comprehensive sense. These inter-
pretations are not authorized by any unequivocal use of
the word in either of these senses. The sense of the word,
which predominates in the Hellenistic writings, is that of
religious apostacy; and it was the just persuasion of
Hering, that the word ^^ n)? et Graecum mpftuuv apud
Judaeos fuisse ambiguae significationis, nee necessario ubi-
que de fornicatione intelligendum, nisi id ex adjacentibus
eiliciatur, atque ut demonstrftsse mihi videor ad matrimo-
nium stabile cum idololatris vel infidelibus indicandum
etiam fuerit adhibitum."" Diss, in Apoc. ii. 14, 15, 90.
Now the nftture of the relation does not require but pre-
clude the sense of simple fornication: and it has been
shewn that the word is distinct from fboixfMt, both in its
general use, and in those particular texts, in which one
oOH
word is used in the chuiae of exceptaqn which justifiet
divorce, and another in the sentence which points out the
contingent effects of an unlawful divorce. Selden affinqs
that woprnw is equivalent to JWWy or 0eo]p^i)fioy wfayfimf or
turpitudo, or uncleanness, for which divorce was allowed
under the Mosaic law, Deut. xxiv. 1. and that the same
word was probably used by our Lord: but it was the
object of our Lord not to confirm but to restrict the abused
law of divorce ; to restore the perpetuity of marriage to
the strictness not of the Mosaic but the primaeval Ikw of
God: and it is quite as reasonable to suppose that our
Lord used mt^ which is always translated vofVfMc, as mrv»
which is rendered by a different word. The primaiy
meaning of the word in the sense of apostacy or alienation
has been more than sufficiently illustratedi and it is only
necessary to make the application. The context demands
some connexion between the sexes, distinct from simple
fornication, which the nature of the relation precludes, wad
from adultery, which the word in question does not de-
scribe. If. the Aoyo^ irogysia; be understood of a suit of
adultery, it was no ground of seeking divorce fix>m the
courts, and there was no sentence or rule of law which
annulled the marriage of the adulterer with the adulteress,
who could be divorced only by connivance ; but the suit
of TogvtM or foreign marriage had been adjudged by Ezra,
and had been positively forbidden by the law ; and such
marriages were at the time abhorred and held to be null.
The sentence is otherwise expressed, u fuj flri vo^ift, or f«|
ffTi To^sidu The first reading requires onroAuoji ocmiy to be
understood, and the words in question may then be inter-
preted of the ground or cause upon which the woman is
divorced: in the other reading, which i^ approved by
Griesbach, ywouxx /X19 nri vo^fi^ denotes the state or con-
dition of the woman that may or may not be divorced:
yvni ari %ofV€ifz=yvin^ Trogntasssyuv^ ^^g^j such a woman,
being an unlawful wife, may be divorced : but the yvni fu|
fvi ?ro^fi^=fti) %ofmct5s=fufi Trogn^j the lawful and genuine
507
wife may not be divorced. In this tense the permissive
rule of exception corresponds vdth the sentence of the
apostle; » Sf 6 eanaro$ x^S^^^"^ ;(»}i2{m'0«* cu SfSouAan-oi
6 ftSfXfo; 1} ij aiiXfvj w roii roiouroi^.— The doctrine is not
however the purpose of the present investigation, which is
restricted to the meaning of the word, and may now pro-
peed with furoofs collected from other Hellenistic writings^
that the word does not mean adulteryi and that it is to be
understood chiefly of alienation and religious apostacy.
In that portion of the works of Philo the Jew which
was edited by Pfeiflel*, fAot^^ta is found in its ordinary and
specific sense : the word wopma does not occur in any
sense; its classical agnification is most commonfy ex*
pressed by koLyvmUj ncAuyAOj ijSovi). Thus y^hntm^ wAt^fMo^
Kcu rot oSsA^dt rourcoy toA)}. 0pp. ii. 162^ kxtfULgyiug xm
Xayviiag wnrtg w ;^afMerrv«'ffi^. 0pp. iv. 48. trwowneu oux
ffyyofboi or exvojxoi. 0pp. iii« 240, S48. ^do^ xm [jLOt^uag, xcu
roi aXXas oux euayus f^^^si^. There are but two occasions
on which he uses the word wofvmm. In the first he recites
from Num. xxv. 1. sj9f/3i}Aflodii wogvtwreuy on which he weaves
a mystical comment, describing the people axoXcuma^ xeu
katyvKFTefov bfjukovvrois rdug rou vov ivyetTfetcriVj aicrAjo'Rriy, «(
XetfJMiTwrous KM To^ai^. Opp* ^' ^^* I^ another alluoon to
the same history he speaks chiefly of the initiatory aliena-
tion : ouroi TtXtTMi avu^ig reus rov BuKfr/»g Tiksffimms xeu
ra rou <ra)fjMro$ crofiara irenfra mgwotrrsg irgog rvgy rosy t^coStif
nciyjsoyi.ivcov uxoSo^y . . . x^cri xXuo'oy roy ijyffjxoya youy xeu tm^cof
us fiv6ov ecrp^oroy, as M^ aafavti^affieUf {Mfie fuxfov bo'ov ivrnfi^peu
oofoffx^iv. Opp. iv. 866. The other occasion upon which
Philo uses the word iro^avoD, is in allusion to the history of
Thamar, whom he calls not only iro^ but 1C9lcof\fmi|uw^ 4^tfp^,
a figurative expresaon, in ascertaining the meaning of
which he adds, axoXooro; yotq 19 fM^Aa^ 1} r^tAvng cofiaSf hi ro
T^s wqus avios nrtiMvi^ovcra . • . ly to Affyo^ujyoy ToAtMtyS^y xaxM
as oLyaiov ftrroSioBxovo'a, i| voAvyofuo^ f^coco, if uaro fMqmf
o'cofMCTooy 6/xou xoi irfayiAetrtm^ efur«i|ofMyi9 urn Tifiufifi^lfifitini,
Opp. iv. 290. But even in this large paraphrase there is
508
not the {Sdntest imputation of adultery cast upon Thamaf .
Philo's expomtion of the sx wogm as the polytheist have
been already recited, p. 463. and in the same manner he
calls those iro^v^^ njv ^o; 0^$%*}'^ oiroSiSpaoTcoyra;, ^^PP* ^- ^^^*
and he explains the law of the priest who should marry a
woman iegartxov ytvws not a to^, or according to his idews,
iroXu/xiyt; xm ToXuat^gtov xou troXvitov aitov xoxoy. Opp. iv.
S74. It is thus too plain to be disputed, that he under-
stood %ofifosy iro^yij, and ex iro^f, of a polytheist or apostate
from the true religion. It would nevertheless be vain to
deny that he was acquainted with the classical use of the
word, although he applies it only to the case of Thamar.
Opp. iv. 196, 28&— 292. On the history of Dinah he in-
dulges in the most mystical comments, arguing, that in
violation of the law, Deut. xxiii. 17. ed; ovx ta yfvoiro son
iro^ rooy rou fiXtwovrog Io'^an}X, the Shechemites njv waft&rp
4^vp^v ^ogiraa-oiifTes XaSnv i}Xino-ay. Dinah was nevertheless
protected from these attempts : eri yaq tartv ^ /xidroiron}^ nm
a/xfiX4xro^ km oSixovfteycoy afcoyoSf eefrafourrfrog Sixi}, o'^aAXouo'a
ret reXi} reov MO^voyron ojmjv, coy irfo-ouvraoy, tig iceL^wHUOf iro^v
4 io^aa-a ma^viiiveu fiftroSaXkn Tpujp^i). Ao^etffa ST firoy, in
ouBnrorr t^lfi^sro. Opp. iii. p. ult. From such commentaries
but little can be gleaned : Philo also uses the word irofiFo«
T^fosy but the words under which he describes the prosti-
tute, except in the case of Thamar, are ^ofuurvTM, krcufot,
ToAXaxai. ^oAAoxiSs^. But if Togvii in the time of Philo had
borne that unequivocal meaning which later ages have
fastened upon it, is it reasonable to suppose, that with the
kindred words it should have occurred so seldom in this
sense, and so frequently in a very different sense P It is a
negative, but it is a powerful argument, that Philo, in not
using the word irogvtMj gives no countenance to the iotei^
pretation in which it is confounded with jxoip^fio.— -It is of
importance to observe, that he uses the simple word nm^
with its compounds avanveo and exywes.
The twelve first books of the Antiquities of Jose|Aus,
which comprehend a period considerably more extended
509
than the canonical books of the Old Testament, contain
much of the same negative evidence. The only word in
question which he uses is trogw^j which in one single pas-
sage, 1. ix. c. 6. s. 3. he applies to Jezebel, calling her
^offAOKov xou iro^v. In this position the word is of too
obvious signification to require a renewed interpretation,
even if it was not said in another place that Ahab learned
from her, rov^ ihovg atmis iiovg wgocxwuv. L. viii. c. 13. s. 1.
Instead of the word irogrtiy whether as used by the LXX,
or in its ordinary sense, he substitutes the words ^ou^ftiyii,
1. iv. c. 8. s. 9, S3. Cf. Deut. xxiii. 17, 18. heufeu rov j9ioy,
1. viii. c. 2. s. S. Cf. 1 Reg. iii. 16. erai^f^ofAevflu, 1. v. c. 8.
s. 11. Cf. Jud. xvi. 1. 1. viii. s. ult. Cf. 1 Reg. xxii. 19.
xxiii. 38. sec. Ixx. For the word iro^vffucD, or. the several
senses which are now attached to that word, are used,
^0f(^fiv S/ agTrayniiy 1. i. c. 21. s. 1. of Shechem and Dinah :
xomjy inaven. vfiptiTM yoftoy, 1. ii. c. 4. s. 5. of Potiphar^s
wife : xahfigifyoj 1. v. c. 2. s. 8. Cf. Jud. xix. 25. fiioifyficu^
1. vii. c. 7. s. 3. of David'^s sons and his wives: c. 8. s. 1.
of Thamar and Amnon: o-uvfXSeiy, Ibid. ^rXijcia^etf, 1. vii.
c. 11. s. 6. 1. viii. c. 1. 8. 2. It is the history of Amnon
that Tcp $* efam xaioiJi.evo$ xai roi; rou iroi6ov$ xfvr^i^ fjuumwi"
^Ojxeyo^ /Sfflt^erai njv oSeX^ijy • • . vfigio'eta'ieu ^ietfucMf vnc
oSeX^v. 1. vii. c. 8. For the word in its Hellenistic sense,
and with reference to the various apostacies in which the
people, according to the LXX, ^eiro^vtvcravj the syno-
nymous expressions used by Josephus are, gxrgeargrrwv h
n$ ireqoov rfya>y /xi/4i}0'iy, flnroor^a^ijo'Ojxeyou to yiyo; iffuiv. I. v.
c. 1. s. 25. Solomon vo^f/Si) fiev tov$ Moowthos yofbou;, 6$
ooTfyoftua-i (tvvoikhv tmi^ oux 6jbb0^uXoi; . . • |ya jUri} roi; 0<yo>^
nrrx-Attxeyrs^ dea-i rwv irarguov earoaraa't* 1. viii« c. 7. s. 5.
Jeroboam t^fproen^i rov Xmv xou ti}^ ireaqoDor) A^o'xfMt; oesro-
VTOLVToii eronjcf tol^ci^vm rovs yo/xov^. c. 8. s. 4. and ou iiiXnrtv
ouSf r^gefAi^ev us rov itov ^ufigtfyov, c. 9. ad fin. In the same
manner all the kings of Israel f ^frour ds earoimia'coa-tv eon rov
&§ou roy Kbiov toi; xaff ^/xf^oy «o'f|3i}/xacri. c. 12. s. 5. Espe-
cially Jehoram iraa^ iroyij^ia XfV^^H''*^^ '^^ aff'ffitif wfo^ toy
510
c. 2. 8. 9. Jehoram the m>n of Jehosaphat ou tuXmy ImrnK
ilfugag xoufovpyon eir emfiuu xai XufLf rmr nrijfwfunf dur^mt
. . . i}v 8* ouTflD^ efiMMTfiSj wm Toy Xotoy ijvfleyxa^fv en rot v4ni?m
Toiv oqtcv avafiaivorrei ir^o^t/yeiv rov^ oAAor^iou^ (fov^. c. v. B. 1.
Cf. 2 Chron. xxi. 11, 13. Joash neglected nfy m/xtXffMv
fl*^^ Toy 0eov' o^vSis^o^o'ay 8* onmp xm o2 rov irXi}0ou; «|v
Ttuovres. c. 8. s. 3. Jelioahaz was eurt^xs 8" io-ot xoi oi
wgojTOi rou 0eou Koroi^^rffl'oLms. s. 5. Jehoram was ei; tw
0foy vPgKm^g xm ToigoivofiAi . . • fiBdiAa Tf O'f/Sojxcyo; xoi toXAoi;
orofl-oi; xai 0svoi; ey^ffi^eov f^i^. c. 10. 8. 1. Ahaas was
aa-efitrroerog. ^agoifiois vo/xou^. /3»/xou^ ayaOTi}(ra;. tuen roi; fitv-
Aoi;. c. 12. s. 1. Grod finally dispersed the Tsraelites iraj»-
fiawas Tous vofjLOvs xou ireifaxoua'arreig ran irgo^vfraWf o2 wfwXgyn
rounjy at/roi^ TYjy (Tu/x^o^oy fbi} ^ouo'aftfyoi^ twv euT9^n^iuerm9.
c. 14. s. 1. Manasseh also eare^^t /ttcy otnw raw rou Vfltrgo;
erinj^etz/xoeretfy xai ry^v evotyriav erfeanrOf itaof fiSo; voyq^Mf
eTiSff(^at|xcyo^ ty rep r^oxy xai /4i}8iy curgfiig irojocXinwy, oAXflE
fbi/xou/xcyo^ ro^ rcoy I(rgan}X4rcoy icaqavoyLias oLtg us top O«oy
^afMLgravomg flnrcuXoyro. I. x. c. 3. s. 1. The word iro^Mia
is not used by Josephus, but its ordinary sense is veiy
frequently expressed by v/S^t^) and occasionally by Xoyov;
iregi (i^i^eoosy I. ii. c. 4. s. 2. by ^6ofa in respect of IXnah, I. i.
c. 21. s. 1. and in reference to that of Thamar and Amnon
by oSfxou xeu fuioiqoLi inriiti/xia^ . . . o^ft.i}y n}f oq^§mg » • •
oMTxywi 0 . . /3i(x. I. vii. c. 8. s. 1. by wgog rot afgdia-ui xm
yvvmxos 6/4iXi0ey. c. 14. s. 3. and ug yvveuxag tx/xayi}; xcu rp
Toov a^gohfTioov axgaxnav, 1. viii. c. 7. s. 5. The Hellenistic
sense of irognta is expressed by yoijreidt xeu irXoyij. 1. ii. c IS.
s. 3. and the men of Sodom, whose to^m is frequently
made the subject of comparison in the Scriptures and pri-
mitive writings, are said to be irgog ro 6em ooYjSfi^, dg fupurt
lABfji^w^icu TOOV itoiq aurou ytvofjLwoov co^fXfiotfy. Li. C. 11. S. 1.
If the words are not actually used by Joaephus to denote
the forbidden marriages of the faithful with the unbeliev-
ing, the paraphrase which Josephus has left upon Numbers
xxv. sufficiently proves^ that in his judgment they will bear
511
that interpretation ; and hb relation of the rejection of the
foreign wives under Ezra, and of other incidents connected
with alien marriages, affords adequate evidence of the ex-
treme abhorrence in which they were held among the
Jewish contemporaries of our Lord. Josephus, as well as
Philo^ uses the simple word vttm with its compounds
eanvwoD and mviuooy and the manner in which he eludes
the use of the words wopnuoo and irogvtM gives probability
to the opinion that he considered the words to be at least
equivocal, and it may be unintelligible and even offensive
to the Gentiles ; and as may be inferred from the collation
of parallel passages, ordinarily signifying corruption, 8a0-
ftagy^av impiety, oun^icf aberration, tA^vi}, ^afiM^awi$' and
apostacy or alienation, earorrcoa-u There is no doubt of the
sense in which he uses the word [uaiytuu
In the fragments of the apocryphal Book of Bnoch,
collected by Fabricius, Cod. Pseudepigr. V. T. and sup-
posed by him to have been written ^ ab Hellenist^ qnodam
Judseo ante apostolorum, ut videtur, setatem," is tin ex-
plicit instance of the use of the word xo^titf in the sense of
alien marriage. It is related, not only that the Egeegori,
the sons of Seth, or of God, as they are called, went unto
the daughters of men, xai neoifuo'Aiio'av /xer' axntojf xen ei' rcu^
ti]Af (oi; f/xiavSijo-flty, s. 4. but that the angel Grabriel was Wnt,
s. 7. And who are these vloi nj; wopmaij but, in agreement
with the interpretations already given, the issue of the
Egregori by the daughters of men, the issue of a degraded
and degrading marriage, proceeding in apostacy, andi ac-
cording to the Jews, proscribed from the beginning of the
creation.
The learned Dodwell, Cod. Ps. V. T. Grabe Spicileg.
conceived the " Testamenta xii Patriarcharum Seculo I.
condita, quia Stylus plane est Hellenisticus, qualis inter
Seculi II. initia, in usu esse deuit.^ Later ages have 5een
assigned to the work, and it has also been supposed U> be
interpolated : but the opinion of Dodwell is but too ftilly
512
confirmed in respect of the word irofmo. The vwofut «o^
nuiSf an expression of frequent occurrence, is plainly equi-
valent to the wifwfia irXawis' and if it u said in one passage,
wx tmfvwa-a ev fuerKQgurfMM o^toAfuoy, Test. Isach. s« ?• it is
said in another, ou wKetmreu fMnopji^/xoi^ oftaAfunr. Test
Benj. 8. 6. Mention is made of vo^io, which oun wnrn
ovrt wcifieiMf 0^» w ieturp* Test. Reub. s. 6. OXiJ^ y't
ffiittXoi^. Ibid. 8. 4. or tw BfXiaj, so that, according to the
prophecy of Enoch, ol uSoi vium {uff vfun w vo^mi^ ffcy
o-ovTM. Teat. Sim. s. 5. and, according to the same pro-
phecy, wopnua-rre wogviun SoBopoy. Test* Benj. s. 9« The
same apostacy and communication with aliens is otherme
predicted among the characters of the last times: vforw
iva-^arm xvguoj Xi]\pff04f ra ncXixrOp w xancffonfO'fi mtmns
fUTOL WOgVOOVy XOU €¥ %XmOV^M TOf WTOkBi^ X»ftOU Sllo^tri^ VMS
vKo^fovg fiefitikoo<rmi xeu wa^nw^ lirfeo^k fUOEMiTf, luu sronifai^
xaiafwovres eturof xatafto'fjLcp Xflt^vofup, xm ytmnrtrcu f fy^if
viMw^ ag il SoSo/xa xeu TofM^ §¥ cufftfitif. Test. LevL 8. 14.
In this passage the fo^iny /xtrot vo^woy seems to dengnate
the communion with aliens, probably with an especial
reference to the participation of the idolatrous feasts: it
is distinct from the seduction of Jewish Turgins, from adul-
tery, and from the pollution of the seed by alien mar-
riages*. The word is distinctly paraphrased in Test. Levi,
6. 9. AflcjSf ow vtoanoa ywfeuxa iri mo; cvy, fu| 9)gMVtK9 fMBfMf^
fufTff /3f/3i}AfiOfMyi)v. /xijrf oro ytnvg aXM^kaw if fdwy, of which
the last words are a manifest allusion to the kgal pr&^
hibition of the marriage of a priest with a «ofw|. So Judah,
Test. Jud. s. 13. describes Thamar as ntting in sacred pro-
stitution, n To^itUy and calls her rtXio^cofuni or nXan»tij|uy|.
S Compare the PtalteriiuD Salom<mii, an HeUeniitic work of doobtftd agd
in which it it said, Ps. ii. 12. that God Mwnr «w«f «2mv l0^mfX uf ^giiifii
rnvrt noPNOT tt mtmf, and it it added, ver. 14, 15. Ipyrtfif I«|m««Ai^ M^l*
•Mww r« Mfifam #»», «»/ m mwnu ifutnm9 imvrmt ir fi^yy ma^uliiVv Cod* FlMod.
V. T. V. i.
513
He also laments his own offence; ro mwiui n)^ wofvacif
&a(Mif njy injiJLipiod§Krea> roi^ ukif ftov. In respect of the former
he was ovjcrcome with wine, xoi eqeurdeii at/ni; amtxwoL kcu
wofifiviy e¥TO?^v Ku^iou xeu fyroA3)v irarefanf /xou xai §keifiov atmjv
ffi( yvveuxa. In Test. Dan. s. 5. it is foretold ; eo^ av «eiro-
onfTf OTO Ku^iov, w ^eurjt kcmi^ to^sum-Ji, woiouvrf; /SSfAuy-
fMtra ftywvy exiro^vet/ovre^ tv ywcu^tv a^^fuovj km n %affv^ voyij^idt
9¥BfyQWTanf n u/xiv revv irvfti/xoreov T19; irAoyi}^. Asfeyvaw yoLq w
/3f/3Aja> Evfi0% rov Sixoiou, 6ti 6 a^oov u^um cotiv 6 Soroya^ xai
m Ttfcvra ra irviUfMMToi rot ty;; wo^ueig xeu nj^ usri^^fltveio^ rep
Aft/i viraxova'oyToUy rou ira^s^^sueiv roi^ uioi^ Afui, rou voiffv ourov;
a/xo^otysiv ewoviov Ku^iou. In the last day the Lord will
judge s¥ roi^ txXexroi; rcoy edvouy rov Icgar^Xy ooaireg i}Xff7^< roy
Ho'MJ fy roi^ MoSiifyaioi^, roi^ cacanf^eta'w ouroy oSfA^oy atn'fltfy
ysvta^eu ha Tri$ wofvuag xcu cfSeoXoXotr^ffia^. Test. Benj. s. 10.
These and many other texts which might be recited, and
in which the word is used as synonymous ¥dth vAotyii, leave
no doubt that the Hellenistic meaning of the word is re-
tained in this apocrjrphal record, notwithstanding the many
instances in which the word may be interpreted with some
qualification in its ordinary sense. It is suspected that the
work has been interpolated by a later writer : may not one
of these interpolations be found in the aphorism ? 6 e^oov
iiaifoieaf Kadaigav fy otyonrp oux 6ga yvvouxa ng irogvttav. The
allusion to Matt. v. ^. may be thought too obvious to be.
denied : but if the text be genuine, it is not necessary to
suppose that icoqvnoL and jxoix«« are convertible terms, or
that wogvtut signifies any thing more than vAoyii, or error ^.
It is very probably in the same sense that Joseph, Test.
Jos. s. 3. says that the Egyptian woman eo^oroy us ^o^siay
fie f^ffXxtf^fltro. The passage is corrupt, and it is otherwise
h The text it very probably an interpolation in the inaccurate language of the
third century. So Origen, De Rect. in Deum Fide, t. 2. says, in allusion to
the lame text, rm r^«rr«mi ft4ix*9U9, it yt mm r§ /uf§f tiuw r^«f nrili^KMif, ««
«ffM4«» m^ru^nm* : Again, Select, in Exod. itftmt ^ttyrn^f un fuix»90f, alhidiog
to the law, Lev. xxi. 9. where it ia written, mw fitfinXmif «•» t»w^fH9fm,
VOL. IT. L i
514
read, that Joseph was ignorant, 6ri u^ woff§ta» /«• ffsXavtro,
and it is afterwards added in the Latin text, that he was
grieved for many days, " quia cognovi dolum qua eC
errorem. With this addition, the word may be exjdained
by erroTf and under no interpretation can it relate to more
than the meditated crime. Actual adultery is expressed
by the usual phrase. Joseph, Test. s. 4. says that the
Deity has no pleasure cv toi; /xoip^fuouviv, and the woman
makes her proposition » fAOt^mjccu ou (aXfi;, tyv carmfm rw
Aiytnrriov km ovtco^ vofnf Ai^/xoi ov ng ai^fa* In Test. Aser.
s. 3. the words are distinguished : oAXo; ftoip^fvci, wofpmm sou
aem^erai f$f(r/xaraw, x. r. X.
From these remains of Hellenistic writers, who are sup-
posed to have been contemporary with our Lord, and had.
been brought up in the use of the same idiom and phraaa-
ology as the apostles and evangelists, it is proper to proceed
to the uninspired writers of the Christian Church, and to
trace, in the relics of Christian antiquity, the progresnve
alterations in the sense of the word wd^mc, and the inter-
pretation which has been thus superinduced on the daiiae
of exception in our Lord^s law of divorce.
In the large collection of apocryphal and suppoaititious
writings, which claim to be the works of apostolic men,
but which thQ best critics have assigned to a very different
period, the evidence is varied as the writers were more or
less familiar with the Jewish idiom and phraseology. In
some of these compositions the words are not used, not.
was there any occasion which required their use. The
argument from the disuse of the words can only be col-
lected from passages in which they might be expected to
occur.
In the Acts of Paul and Thecla, ascribed by Grabe to
the apostolic age, and considered by Jones, on the authority
of Tertullian, to be the work of a presbyter of Asia, inter-
polated in its fabulous narratives, the words are not used.
Paul is made to teach that there is no resurrection, tw /u|
fltyvoi jxeysirt, fiyfii n^y o-agKoi ufuw f^oXuvmy c. 11. and that he
515
was sent 6irc»; ain ri}^ fdogag xcu rufi eoteSafvta^ oanvfcour»
arnvvs xa$ vounfi rj^rn^ r% xat davorov, c. 14. The attempts
of certain ca^g^g aroacroi upon the chastity of Theda are
described by the terms f6eigeu xou ^t,mvx% ouinnv . • (nyyueAw^
hj(Tai otxrr^ . . Zgairoii otokov . . xa6ufigurM eamiv . . eyu/S^io'ai niv
waptiftavy c. 9Q. This is but negative evidence: but if
wogveta had in the apprehension of this, writer borne the
sense which has since been ascribed to it, and been of as
definite signification as /xoi;^eia, there was certainly here an
occasion for its use, and it would hardly have been omitted.
There is the same negative evidence in the Apocalypse
of the primitive heretic Cerinthus, affirming of the millen-
nium, eiriivfAiat^ xeu ijSovai; ev Te^uo'dtXijjX n}v (ragxa, ToXireuo-
jxfvijy SouXweiv. Fabric. Cod. Apocr. N. T. p. 967. This
periphrasis would have been unnecessary, if the »ogvij, iroj-
veuflo and rngvuuy of the canonical and contemporary Apo-
calypse had been used in the ordinary sense of the words :
their Hellenistic meaning with reference to the Antichrist
is expressed by an old writer by the phrase irXarv} earrov.
In the .Protevangelium, which Jones pronounces to be
** the composure of some Jew or Hellenist,'' of a writer,
as Fabricius interprets the words of Eustathius, ^^ dubis
incertseque autoritatis, utut propter antiquitatem non plane
contemnendi,*" none of the words occur, but their place is
supplied by other words in the reasoning of Joseph and
the judgment of the council on the state of Mary. When
Joseph found t)jv ^agjevov oyxoujxfviiy, he asked, rig to rovri^v
TOUTO vKovf^trsv cv rep ofxcp /xou xai iff)(jiJLdKayrwvn njv va^syov nott
8jxi«cyey aunjv ; and he demanded of Mary, ti rrarefyaM-a^ njv
^t^ijy 0*01;; wofcv wt* to eyyaoTgiov cou; s. 13. He was
therefore in doubt, whether he should conceal to ajtto^jxa
avnj^ s. 14. The High Priest, supposing that Joseph had
anticipated the marriage, pronounces that he i}vojXi(re er^oS^a*
ngy yaq ^a^tffvoy, ^y iragiXafiiv ex vaov Ku^ioti, §(navev axmjpt xou
ffxXff\^f Tou^ yei(jMV$i xeu oux ifcmf»9'i roig vloig lo'^flnjX. He
enquires of Mary, r* rrearuvtoa-otg Tijy ^in/X"!^ ^^^ *^' frtAafcw
Kvgioo Tou &eou o-ou ; and he proceeds to rebuke Joseph ;
L 1 2
51G
otfx fxXiyo; n|v xt ^otAiyy crou diro xjoEraioy X**^ ^*V iuA0yi|tjf rt
amffia cou. s. 15. If the writer of the ProtevangdUoo had
been acquainted with the use of wofvmM to denote that
indiscriminate intercourse of the sexes, whether in or out
of marriage, which later writers have attached to the word,
he would naturally have applied it to the case of Joseph
and Mary : and the disuse, the omission, or evasion of the
word will appear the more remarkable, if the language of
the Protevangelion be compared with that of the corre-
sponding Evangelium de Nativitate Mariae, ascribed to
Saint Matthew, and extant only in a Latin translation bj
Jerome of the fourth century. The translation is called
by Fabricius, interpretatio liberior, as were all the versioiis
of that age, and it is vain to conjecture what were the
original terms. In the version of Jerome ; Joseph neque
eam traducere voluit, quia Justus erat, neque fomicatiomi
suspicione infamare quia pius : and he was warned by the
angel; noli timere, hoc est, ne velis fomicationis auspici-
onem in virgine habere, s. 10. There is another example
of the similar use of the word famictUio in the Gkiapel of
Nicodemus, assigned by Jones to the end of the third
century, in which the unbelieving Jews are made to affirm
that our Lord was bom. eof fbmicatumef a charge whidi
his disciples deny: nos non dicimus eum esse natum ex
Jamicatume: hie sermo vester non est verus, quoniam
desponsatio facta est, sicut ipsi dicunt, qui sunt ex gente
yestr^. s. 2. This charge is again and again repeated and
denied in a manner which betrays the most extreme igno-
rance of the history, or some misapprehension of the term,
which may have crept into it in the lapse of two centuries
and a half. The Jews appear to have understood the
word, as it is explained by Whitby in reference to the
clause of exception, of seduction before marriage ; and the
disciples repel the charge by insisting on the fact of the
espousals. Fabricius has justly remarked upcMi this dar-
ing forgery ; ^* Nullo testimonio £de digno constat, banc
517
talunmiam unquam objectam fuisse, vel Christo a Judaeis,
euro in terra versaretur, vel apostolis, ut tanto magis ap-
pareat Judaeorum recentium malitia.^
In the undoubted epistles of the three apostolical fathers,
Clemens of Rome, Ignatius, and Polycarp, and also in the
larger epistles of Ignatius, there is an entire disuse of the
words TTogveuoo and cxto^cvao. The word to^ occurs only
in the epistle of Clemens, who, in speaking of Rahab 4
tro^, c. IS. approves her hospitality, and recommends it
to imitation, without offering the faintest imputation upon
her chastity. Own irogvot occurs as a quotation of I Cor.
vi. 9. in the epistle of Polycarp and in the larger epistle
of Ignatius ad TralL c. 9. The word vo^fia is entirely
omitted, although it might have been naturally expected
in the following catalogue of crime: ^wyoyrt$ xaroikoi>aas
fUhaqoLii Tf %ai avayvovs avfxwkOKagy fi^oi$ r% xeu vfcorf^Kr/xou; xai
fii8§XuxTas ffTiSujXitt^, f/Lwregav jxoi;i^siay, /SSsAuxn^y vvf^^ftviotr.
Clem. a. Ep. i. ad Cor. c. SO.
In the larger epistles of Ignatius, Ad Magnesios, c. 9.
as also in the supposititious epistle of Mary to Ignatius,
G. 8. the word ro^ is omitted in the direct reference made
to the case of the Togvou yvvouxi^j which was adjudged by
Solomon. The Antiochians are warned, c. 11. Iva fMi pififiog
ywrfTM %ai to^voxovo^, and in a fragment preserved by Grabe,
Spicil. V. i. p. 24. roif nwrnqo^s e^ir^flrt yafMiv^ x^iv i} ita^Sa*'
fooa-iv ffi^ ywMKas. '^Fhe Philadelphians, c. 6. are warned of
apostates, who call fiogav i§ xai iMktxrfjLOv ri^y fOfUfiyiv jxi^jv km
n}y Twv TTcuBaQv yeveo'iv, and who consider ra^ Tragayofuts fJi'i^ui
ayoAov ri, but there is still no mention of in^ua^ which in
the sense of an irregular or unlawful marriage was a xa;a-
yoiMs yt'i'i^' In the Ep. ad Philipp. c. 2. the evil spirit is
addressed by the niune of mqwia^ vycvfto, the spirit of error
and apostacy, the whj^m TKoanis or 6 n^^ rofwtoii 0t$x»y, as
he is called in the most ancient apocryphal writings. In
this sense it is the eloquent expostulation of Ignatius ; n
h§ xaxi^eis njy ^udv ti}; to^cvou, xcu ra fuofia atroxaAfi; euar^fa ;
wa?<M ravrei vofurtuwy^ xou yv[ji,vowr6pu xt?^tmy o/^^CM^ [mv i^
Lis
518
o^riv A)AffM0v, tnknc^ ^ tif «xoA«9Toir mniupuap mfpmm\ mn
atayjfot fn^ rceurei vtvofnarau mu oi^avo; tiwif vftraaq}, ov n iy
To^ia^ ^rvsvfiaf atrffwaf^ Ifti ron yivrrcu atiO]pi^{Of n, faw wy
otiSev f otiXov, otAAft iravr^ xoAa Aiav. Thus wofvruL is used in
the sense of falsehood and error : its ordinary sense is sap-
plied by other words, as eatoXaaro^ fvifoftia.
From these examples of the use and disuse of the word
in the authentic writings of the apostolic age, it is certain
that there is no primitive authority which drramscribes
the meaning of the word, that in the interval of its sus-
pended use its original sense may have been o>verlooked,
and its progressive and indiscriminate misapplication may
be exhibited by contrasting the supposititious with the
genuine writings of the apostolic Clemens. •
In the Apostolical Canons, as they are called, wfakfa
exliibit the discipline of the Oriental Church in the seoood
and third centuries, and were first appealed to in the
council of Constantinople, A. D. 894, the word vopmun does
not occur. In rules evidently deduced from the Levitical
law concerning the marriage of the priest, waXXaaai and
^ai^ occupy the place of «o^. The distinction between
mgvtM and /xoi;^fia is retained in Canon LIU. n ns nanf
yaqia xara tiotou mgviuis ^ jmi^imk; i} e^J^f nyo; eaniyofafigmis
'frge^Ms, xa' ^^^'TXlh^ ^'^ xktjgov fii) vjooyKrAeo. In other pas-
sages the word TopvsM is used very indefinitely. In Canon
XVIII. the derk is to be deposed 6 m^if, i} twiofuf ^
xXoTi} aXovg. In the titles of the Canons published es
Balsamone from a MS. by Cotelerius, Can. XXV. is en-
titled, xf^i rctfv firi rofveta aXjavvrw¥ Ifjeo^MMW. Can. LXI. wtft
rou its KXafigov fti} 7rgoay§aiat rovg eariktyxj^titraf mrt wofmf.
In the Apostolical Constitutions, which have certainly
no claim to the antiquity which they assume, the words
mpttMy &c. occur frequently, and in very different senses.
Uofvivw is opposed to lawful marriage, and it is prescribed
in respect of servants : I. viii. c. S2. h V eeymiu^t firi, /mwlaiw
retfo-ov /Uri} iro^etifiv, eiKkx yoe/xeiy vojtAcp* «i S^ i 8f9iron|f iurrttf (of
619
the servant) vurro§ mv xai tiSco;, ori wofnuu^ ou Si&po-iy autf
Yweuxof )} Ti} yuvoux4 «yS^ awofioikkBrioD, The same Consti-
tution contains the rule of the toXXoxi}, see Coteler. not. ad
Sflp^ffcrdfio* €1 $6 Tgo( oAAou; ourtXyounij (not TO^ysufi,) enwo^aX"
Aj<rda>' TrKTTOS sav fp^|} ir«eAAtfxi|yy fi ftfv SouXijVy vawreuriw, xoi
yofbo) yoifMiTW ei $f fXevts^ay^ §xyei(/LeiT» w/njv yo/A4|p' ci$£ /uuii
fo-o/SoAAflo-ico. One and the same rule is delivered in re-
spect of the iro^o/3o<rxo$, the vo^, and the fiScMAoToio^. Ei
Tis TQ^vofiwrxoSf 1) votio'aa'fco rou lutffr^WHVy i) avojSoAAjO'Aai'
TO^ TFgoctava i| Touo'aritf i) flnro/SoAXM'Aai' eiSooAoiroio^ t^iow
1} irAU<ra<rta» i} tt^ojSaAXccrdov. Ilo^fuw is also distinguished
from [jLOi^wMy 1. vii. c. S. ou fjuot^jsocBig • • ou irouSo^dopijd'fi; • •
ou Togyevo'sif* ot/x mtm yot^f ^i^h ^ro^ycufloy ey uloif Wgw^K^ for
in this mistaken sense is the text more than once recited.
The word however had not entirely lost its proper sense of
^ipostacy^ as appears from the writer^s reference to the
sacred tiistory: 1. i. c. &• 60-01 it ^outOms t^moqvtuvoM aw^
&toVy fy aworroiv'^f eurrpov ^vrrofMog earcoXavro. It is also used
to describe the doctrine or the practice of the Nicolaitans
and other heretics of the second century : 1. vL c. 8, 10<
•1 he avaiiriv fx^ogyevovTiy, o'm 01 yuy NixoXfluroi, and in this
use it is equivalent to xaqaxgouricu t^ o'ot^xi, and may refer
to their indiscriminate views of marriage. — The word ff^^o;
is distinguished from |umi;^o^, 1. iv. c. 6. ^fuxraioi S* aur(p xai
vogvoi, xou dfwaryiSy km rooy aXXor^foyy mSufji^YfTMy xou fbOi;i^oi*— -
The word .vo^yi} is used in its ordinary sense, L viii. c. 82.
and with more or less marks of being a quotation, 1. iL
c. 41. iii. 8. iv. 6, 7. The unusual word to^xmto^, Cf.
Pr. xxiii. 21. occurs 1. ii. c. 4. iv. 11. The word m^yixo;
is also used in the same sense as in Proverbs, and is pro-
bably a quotation, in describing the woman who has the
fi$o$ ffv^yixoy, 1. i. c. 7. but it is also synonymous with tivtxofj
I. X. c. 10, 11, 12. The Christian ouSt obH^v i(wxi)y o^tiAfi
Xr/siy, ovSr ourfia vo^ixoy, mru Wfiififfl'trM aytt^ &« ni; «8iff
ffiSwAtty |biyi}|xoyffUfiy ovoiaotu ieufMvtxa. The title of the Con-
stitution in one Vienna MS. requires Christians to sToid
L 1 4
520
OfY^v eifuTfOVf jtAoipoAoyiay, C0B99 rfyuniv, tifopmrupf i^mkm mm
SdufiONtfy. The following cUbpter requires him to avoid mif
uiakakotrpMs ro fUMTo^, and appears to be oannected with
c. 10. The title of c. 12. is 6ri /uuj x«$i)xci cpSipr ftfinxipr xau
vo^ixijy oBciv, ouSe eiro/biyuo^i etSoiXaw, in which the Vienna
MS. again omits the words xoti iro^ixi)y, and gives room to
suspect that they are synonymous and redundant, included
under the word edvixi}y, which sufficiently denotes the song
that was sung in the heathen and idolatrous processions.
The distinction between the principal word mfnm and
luoix^tOj may not only be inferred from the juxtap-positiaa
of the two words fuoixiteu^ vo^yejoiy 1. vi. c. 27, 88. vii. 18.
but it is defined in an argument on their distinct nature
1. vi. c. 28. Marriage, in the spirit of the age, is reoom*
mended as the means of preventing irofynot, in whatever
sense the term is used: and parents are exhorted, in re-
spect of their children, fura 6fM}Aixa)y ng avfj^woctov fu| mavng
mjTot avfifiaXXuVf ourco yo^ ug ara^^eaf txrfoaniitrwrm xoi ug
iro^fiov Ts^ixfo-ouvrai • • . fi yaf r^ reov ytifoiuvcav pcAtfUf
0'uyfio'iv oxoAooTOi^, 01 veui»s d/sMfri^amg wx ouroi fbovoi xoAa*
0'9i}O'oyrai, aXXa xcu vwe^ canon 01 yovfi^ aurwy xfiftgo'orrau' 8hi
rouro ovouSa^f to^et yaiMv fyifyvweu xm WHiXXaavuv aura, ba
M "^S i^Xixia; cv axfjujn t^owii$ fti) vo^xoira eanfiifi. L iv. c. 11.
A third marriage is called %gofa¥f^s wopnia. 1. iii. c. 52.
In the Recognitions of Clemens, which is extant only in
a Latin translation, there is little worthy of notice which
may not be found in the Clementina, the Homilies, and
the Epitome of the Acts of Peter. In a brief passage of
the original preserved by Caesarius, 1. ix. c. 17. xoiimwlM
and avyxaiwhw express the ordinary sense of vofnomw.
The translator Ruffinus observes the distinction b^ween
adulterium and scortum, meretrix and adultera, 1. is.
c. 19- and he may have expressed the tfue sense of «e;iiiMi
or <if its ancient synonyme vXayi}, when he calls the early
idolatries, erraOciB religiones, en'oHoB superstiuones, erro'
tici cultus, 1. iv. c. IS, 14, 29. In a passage which has
perplexed the commentators, 1. ii. c. 81. Haran, €ren. xi; S8«
521
whose death is ascribed by other fathers to idolatry^ is
said to have died ^^ ob incesti crimen." Was the original
word To^ia, which RufSnus misapprehended or hesitated
to express ; and which in his time was losing its ancient
sense? It is not improbable that he also adverts to the
word in the sense of alien marriage, in amplifying the
matrimonial alienation of the sons of God; 1. ii. c. S9.
Homines justi, qui angelorum vixerunt vitam, illecti puU
chritudine mulierum ad promiacuos et iUicUoa concubitus
decUnaverunt et inde jam indiscrete et contra ordineHn
cuncta gerentes, statum rerum humanarum et divinitus
traditse vitse ordinem permutarunt. This was the ^ iro^ia
of the apocryphal Enoch: was it also the indiscreta, the
indiscriminate intercourse of the second century ?
In the Clementina xt^ia bears the sense of passion, or
o^i^y as it is called in the parallel passage, Horn. iii. c. 68.
It is also opposed to frm^^vDvt^^ and distinguished from
fAOixjsMy being by a very unusual arrangement made the
genus, of which /xoip^ia is the species : iro^eio^ uhi toXAac,
In the Homilies iro^etM occurs in a sense distinct from
/lAOip^evojxai, H. iii. c. 68. and in a sense very indefinite,
which may be appropriated with the same facility to apo-
stacy and prostitution : iuvoarou xai irroo^os • • • xai vgeerrrif
6 TrgwuyoviMycp ov yj^' i} yaug fiSeoAa (TfjSfi, i} /SXao'^/mi, i}
/Siou^ H. XV. c. 10. The word vo^yeoy is interpolated in an
allusion to the case of the unfaithful servant, Luke xii. 45.
beating his fellow-servants iv6uo¥ xeu tiwov [ura froptov xat
fi^tjovTwvj q. d. aliens or apostates. Although the principal
word TTogveta is omitted in such catalogues of crime as
Tor^^ovMe^, TffXTOxrovM^, fti^fi^ eta-efiei^ fujrff^, dt^yartgooVy
oBiXifanr [LOt^nct^ awgtiniSi xou Oj^j^fvop^fif xai ft^iciqots otppt^
Tovfyuif irgog uXkeuf fji^uguu^ rouaneuq aiefji^cu^ [At^ta-tiff H. vi.
c. 18. although in various allusions to the apostolic decree
the word is suppressed, and its place, as if it were an unin.
telligible term, is supplied by ex wearro$ earoXvtv^^ Avfuierof,
522
H. vii. c. 4. iLTn oHmimfrmf fiimi¥, c & ud although, with
cepecial referenoe to the bods of God, Ae phratw |<iPMiw
|ufKi or votn jUM^K} H. viii. c 18, Iff. are subrtiftuted fior die
more andeDt word wogmta^ the word is nevcrtheleaB uaed in
its ordinary sense, mffum^ ooiXyiMiis vXionfMiv aw vat^
/jAjfo-^iUMatf, H. xi. c. 8. more equivocally ai^o/3i«, ovistw,
irofvfMt, H. i. c; 18. and Epit. but distinct frooi adultery,
im wwf tjnva-a 4 ^t^^S vfo^affit TOfMMc^ if psfjfumt Aaifisv «ftr.
•rayxoi Tj) fxnAifO-i^. H. iii. c. 68. In one instance it la said
to Matthidia, a married woman, who had misted an
attempt upon her virtue, m^uf. ouifMi sw mm fiiwwy
H. xiii. c. 90. The attempt was however made by her
husband's brother, and the word may bear the sense of
incest, as 1 Cor. v. 1. If it be understood of adultny, it
proves the corrupted use of the word at the time.
In the Epit. de gestis Petri, c. 165. and in the Martyr*
S. Clem. Venus is called «o^.
This diffuse and indiscriminate use of the word w%fmm
affords a powerful test for distinguishing the suppoaitilious
from the genuine writings of the apostolic Clemena, and it
marks the progress in the misapprehension of the word,
which eventually obtained in the writings of the third
and fourth centuries, compared with those of an eariier
period.
In the Epistle of Barnabas, which is admitted to be the
work of some Jew who lived in the 6rst oentuiy, there is
an entire omission of the words «o^ and vo^iwia. Hoij^wi
is used as a proper and specific term, distinct from the
word substituted for vo^io. Ou fii) yiyjy jiioip^;, ovBr ftofwfi
•uSff hfiAuiAijfr^ roi( Toiotrroi;. s. 10. on «0{mim^;, ov /Mij^wrH^
ov irati8of(o^fuo-fi$. s. 19. Thus vojmims is either redundant
or distinct from /Mi^^ttMO, mtui^iofmm tuu tdi; roieuroi^.
Of the Shepherd of Hermas there are but few fragments
extant, except in a Latin translation, of which the freedom
sufficiently appears upon comparison with the renmining
fragments of the original work, of whic^ the foUonring
passage is preserved: fuXoffvn Tifv ayma^ xm fuf mmfumm
523
If «f^ rojourwy ovofMtranr • . • rovro'yaq mumfj iiuifnaw luynki^^
Mand. 4. This is probably the first cxscasion upon which
the word iro^sia is used by any uninspired Christian
writer ; and if the oXXorjia yvvi} or matrimonium alienum
denote another man^s wife, or adultery, «o;yei« is distin-
guished from that offence: or if it be equivalent to the
«\Xor$(a ywil of the LXX, the rule corresponds with the
precept of Tobit, iv. 18. The distinction is preserved in
another mandate: ty^etrgwrM eaeo /uioi^^ftaf, wofmof • ^ .
fliriSujxia^ mmifag . . . xm hffa rototnot^ ifiout fOTii^
There is another passage, unhappily extant only in the
Latin translation, whidi is of the first importance in asoer*
taining the sense of the wosrd vo^ide, and which, without
reciting the clause of exception in the law of divorce,
throws a strong light on its meaning and intent : ^ Et dixi
iUi ; Domine, permitte me pauca varba tecum loqui. Die,
inquit. Et dixi illi; Domine si quis habuerit uxorem
fidekm in Domino et banc invenerit in adulterio^ numquid
peccat vir, si convivit cum iMk ? Et dixit mibi ; Quamdiu
nescit peccatum ejus, sdne crimine est vir, vivens cum illA :
si autem scierit vir, uxorem suam deliquisse, et nan egerit
pomitentiam mulier et permanet in fomicatione suA, et
convivit cum illft vir, reus erit peccati ejus, et particeps
mcechationis ejus. Et dixi illi ; Quid ergo, m permanserit
in vitio suo mulier ? Et dixit ; Dimittat iUam vir et vir
per se maneat. Quod si dimiserit mulierem suam et aliam
duxerit et ipse mcechatur. Et dixi illi : Quid si muUer
dimissa pcenitentiam egerit, et voluerit ad virum suum
reverti : nonne recipietur a viro suo ? Et dixit mihi ; Imo
si non receperit earn vir suus, peccat et magnum peccatum
sibi admittit: sed debet recipere peocatricem, quae pceni*
tentiam egit.— Propter pcenitentiam ergo non debet,
miss4 conjuge suA, vir aliam ducere. Hie actus est
in viro et in mutiere. Non solum moediatio est Uha, qui
camem suam ooinquihant, sed et is^ qui sirauladirum i^tit^
524
BKBchatur. Quod » iq his factis peneverat et poenitentiain
nan agitf recede ab illi et Doli convivere cum iU&; ^KAf|vii»
et tu pardoeps cris peccati ejus.^ L. L Mand. 4.
It has been already remarked, that the principal ques-
tion relates to the case of a man who has uxorem Jiddem
in Domino, whom he detects in aduUerio. The question
would have been unnecessary if the case had been reaolTed
by our Lord : and hence it is concluded, that the clause of
exception does in some sense not include the uxor jScUKs
detected in aduUerio, The meaning of the passage must
be ascertained, not by the ordinary sense of single words,
l)ut by a collation of the several parts of the context. The
question concerns a believing woman detected in aduUerio^
and it is answered, that if this woman pei%ists in fomioh
Hone suft, her husband, being privy to her offence, and
consenting to live with her, becomes reus peccati ejus et
particeps moschatumia ejus, and in this position, odtij-
terium^ fomicaiioj peccatum, mcechatiOy all represent the
same offence. But it is not necessary to interpret either of
the words of adultery properly so called : they are all used
by Tertullian, a contemporary writer, to denote aposiacjff
and as translations of the word mgviieu In this sense the
words used by the translator of Hennas are afterwards
explained : '^ Non solum,*^ according to the received notion,
^^ moechatio est illis, qui camem suam coinquinant, sed et,"*
in the Christiun sense principally and more especiidly *^ is
qui simiilachrum facit moccbatur. Quod si in bis factis
perseverat et pcenitentiam non agit, recede ab ill& et noli
convivere cum illft: alioquin et tu particeps erjs peccati
ejus : i. e. the man, qui invenerit uxorein fidelem in adtii-
terio . . . qui scierit eam deliquisae et permanere in form-
caHone, becomes partaker of her crime, unless he separates
from her. Would he, by the doctrine of this primitive
period, have been so contaminated by overlooking her
adultery? Was such contamination received from the
woman quae camem, suam coinquinat ? or not rather from
h^, quae simulachrum fecit et in his factis perseverat, who
525
abandons herself to idolatrous practices, and persists in
them without repentance, and whose husband, unless be
refuses to live with her, is implicated in her guilt, and
tempted by her example to participate in her offence.
Part of the passage is recited by Bingham, in proof that
idolatry was among the primitive causes of divorce, which
it could have justified only under the Hellenistic sense of
the word rogvux. Hermas takes no notice of the clause of
exception : did he restrict it to the case of a believer
having an unbelieving consort ? He makes no reference to
the apostle^s doctrine, 1 Cor. vii. did he understand that
doctrine of persons married before their conversion to the
truth, confining his own question to that of a person
having a believing consort, apostatizing after marriage?
It is no objection to this interpretation, that the word
mcechatur, in the passage concerning the marriage of the
husband after an unlawful separation, is used in its ordi«
nary sense : it is the very word used in the rule of our
Lord; and examples of the proper and improper use- of
the word are but too common with the writers ^ of this
period, especially Tertullian; and the true meaning can
only be ascertained by weighing the context, and referring,
wherever it is possible, to the originaL
The few remains of the heretical writings of the second
century, as they are collected by Grabe, afibrd the clearest
evidence of the proper use of the word /aoix^^» ^^ ^^
general disuse of the word mfma'm its ordinary sense, ao||
of its use in the sense of apostacy. Thus Basilides, Frag.
Com. Spicileg. v. i. p. 40. speaks of the adulterer and his
design : ms 6 [Mixps n ^ fovius, . . . *X2^ yoig 6 imi^bvo-m ..$§Km
[Mi^os e<m, KOLv TOW fMi^tvcen ft)) «r«Ti;%p. — Valentinus, Frag.
Ep. Ibid. p. 50. uses another word for ftoip^fia in its ordi-
nary sense, iwfi^^fyvTMV firituftiai^ ou ir^oirqxotKraif, and p. fiO.
he describes the adulterer by the periphrasis, 6g tou mknunt^^
xoinjy rqam^vai roigogfiMv, See also Epipbanes Haeret. de
Justitia. Ibid. p. 62. and Isid. Haeret. Frag. Mor^ Ikill
526
p. 65. Hcradeon, Comm. in Ev. 8. Johan. inr a myaticil
exposition of the woman of Samaria and her nx husbands,
uses mfnwa in the sense of religious apostacy : l^ftipnvH yt
T^¥ uXixi)v vcwmf xoxiav t^iXovo'tou 8ia rm¥ i^ eaXfonj ii vwnwXgxwn
iMi ffirXi)0-ia^ev ireLgm Xoyov mpvettw^-a, xai fnijS^iJJbfiiyi), ueu otr-
Toujxffyi) xai ffyxoTfliAf ixo/xtyi} u)r' atrraiy. Affxreov 8ff v^; Mnw,
friy ffim^ ffiro^vftfly ^ Tytv/xorixi}, inJMfrcafw li nvivfurriiti)* ci b
ig/LMtgroyf TirfV|xarixi}, SfvS^v otyalkv ovx i)v ^ vMVfurrixi]. lUd.
p. 97* Here are the text of the second and the comment
of the third century ; Heracleon using voffmova-ei in the
sense of separation, and Origcn pronouncing tvognuw to be
equivalent to v^[jMfTan. Agun ; the Samaritan woman, ac-
cording to Heracleon, explains the reason V 4^ egwopwww,
the reasons of her religious apostacy, namely, 6n SMMiflor,
or rather, art Si' ayvoioy &9W xai ri|^ xeera rov Ofoy Kaerpm;
KQU rivi r^oTcp ft;aejeoTi}0'flto'a xeu &mf w^Kowfi'oura tanOsXetr^
rou ffo^vsufiv. p. 98. The last words are repeated, and it
is plain from them that the wonum erred or apaataHxed
through ignorance of Gk>d and his worship, and that she
had hope, that by adoring him she should be delivered
from her alienation, 0np ir^ooTcuyijo'ao'a onraXXayfii} rou «o^
vffueiy, evidently opposing the delation to the apostacy.
This exposition is confirmed by the remark of Origen, ex-
plaining irnro^ffvxfyai by fxirtmoxorct;. od^ uau fifet)^t»s mw i
^H^oxXf CSV txTfrrcoxoraf, ngy ^So^Mc^firiy Xfyotfv wnufuerixm ^
v^Btf ovo'av inwogytuxivat. p. 101.
A considerable portion of the writings which remain to
be examined, are the works of men who had studied deeply
in the schools of the heathen, and were occuped in the
refutation of the errors of the heathen philosophy and
mythology; and it is not therefore wonderful that thqr
should depart from the style of their Hellenistic prede-
cessors, and fall into that of the classical writers. It may
nevertheless be observed, that among the writers of the
second century the words in question are but slowly intro-
duced ; that they very rarely occur in the pointed
527
tions of the varied licentiousness of the heathen divinities ;
and that but few texts are recited from the LXX, in
which the words are used. With these reservations it
may be freely conceded, that the words, are found in their
classical sense ; and it will only be necessary to shew, that
in their more general use they do not mean adultery, but
something distinct from adultery, something equivalent to
all the accumulated abominations and the uncovenanted
guilt of the idolatrous state, which, in connexion with the
vice implied in the classical use of the word, eventually
produced the large and comprehensive signification of vo^
viMc, and widened in proportion the law of divorce.
Justin Martyr, in adverting to the passages in which the
word wofV€tm is used by the LXX, either ontits the word,
as in quoting Deut. xxxi. 16 — 18. Dial. c. Tryph. c. 74.
or substitutes another word for it, as in alluding to the
law of the phylacteries, which were ordained for the pre-
vention of apostacy, and the maintenance of reli^us obe-
dience: ov hctffrgaifi/^i(r$§ omo'eo rwv Sioyo/eoy 6fuo¥ xoi ra»y
oftetXfMoVj fv 01^ ufbft; fxmgvturrt oriow ouresy x«i ^wcof otv funfyr^
ftfrr xai ffoiijcrflre wcara^ rag nToAa^ /mo luti mrwii dym rep. tttf
viiew. Nimi. XV. S9. Justin M. affirms that the provision
was inefficient, ot/Se ftix^ov iJi'^ifinv *X^^ '''^^ dsoo-f/Sfiy, kcu otiST
ovToog iwnir$ffra jxi} fi8coXoA«rp£iy. D. c. Try. s* 46. On the
transgression with the daughters of Moab he says, xm*
^fog r»s dvYetngag ran^ oXXoyfvwy wofnwrm xeu fi&oAoAtfr^ftMroM
wnrwicuroTi, Ibid. s. 182. and upon another occasi(Hi he
describes the people as being alwi^s mtxetraifofoi xai ^^*8*^
wfog TO afurrMricu rv^ yvotf'mog tanw. Ibid. s. SO. For the
common expression mfyeoa-M xeu ffi&»Xo0ttr« f oyviir, he uses
(Mfr§ f iSeuAoXflrr^o-flu xoi Mi^takotvTa foyfiy. Ibid. c. 84. These
are sufficient proofs of the sense in which Justin M. un-
derstood the word wopwja-oUf and of the manner in which
he thought it necessary to explain it. There is one occa-
sion upon which he uses it with a peculiarity engrafted on
the ordinary sense, with reference to the polygamy of the
patriarchs : ovpg tig mfMoomg inXKxf •sxw -yuimim; ol irwiy m
528
ufxM, Ibid. c. 141. 'Fhe ou^ tk vo^MUMTif is equivaknt
to etyofmeu ovofueri yatfiAu ywouxag^ the marruige of the Jews
with the concubines, a sort of illegal and dissoluUe mar*
riage, and- in contrast with otj% tig vo^Muom; is put mX)!'
oixoyofiia ri; xeu fLVon^gM xoesra Si' ourwy onrmXiiro; llie
word wo^s is distinguished from fioix^y Apol. ii. a. S. fufrt
ftoi;^ov fiifrff xofvov, and it is used in the seiSiie of alien, and
in reference to Luke vi. 32, 88, is substituted for ^^Mif-
ra>Xoi=the Gentiles : xat yotq oi to^i rovro iroiovo'iy. Apol. i.
s. 15. So, in an argument on the conversion of the Gen-
tiles, and with allusion to the scarlet thread given to
Rahab rij To^vp by the spies, he calls it a sign of the blood
of Christ, Si' ou iroAai iro^i xeu oSixoi fx iranrronr twr fAiwv
O'a^oyroi, o^fO'iv o^xa^iflov Xoc/Sovre; xoi fu^xtri dfui^oMrr^.
These expressions are more adapted to the general apo-
stacy of the Gentiles, and their exclusion from the cove-
nant of God^ than to any of their particular offences. The
same salvation is described in other terms ; oi oe vmsfrmt rm
fAyetfv fi; itocefitiMf trqean^iFoiv ecwo roov fuereuotv iAoKBtw ujbu tai-
fbovwv, or, more ambiguously, oiriw^ w vo^mmu; %eu dw)ms
vcun^ ^vwofOL Trga^n v^ag^omSf or, ra ^ctfa Ifiarutf TOuritfTi
Tus dfutfTM^f ijftfifo-ju^voi. The ambiguity is however re-
moved in respect of Joshua, who pvKofoL IfjLttna efwti fofm
ha TO ywouKa wofvr^v T^ke/ieu riAi}f fvoi, and by the expositioQ
of the ^oL^ liLotTM^ which are connected with the w^fmm
of the sins of the alien state. D. c. Tr, c. 116. The sup-
posed marriage of Joshua to Rahab ri} iro^ was a sign of
the conversion of the to^i or Grentiles. IIo^mk is quoted
from Isa. Ivii. 3. ain^fjM xat nxvegmofw^g. Tlofnui is not only
distinguished from fiot^uaf as, 6ri fioixiui xaxoy km «§}«■•
xeu avS^o^ovia xai ia'a oKKx TOiovra, D. c. Tr. C. 9S. but it
is also used in the sense of idolatrous apoetacy. In de-
scribing the power of demons before their conversion, it is
said, that the Gentiles had separated thenutelves from
them: 6v rgowoy km ^i$ /xrra to tw koytp wuat^mt nmfm
fjLn ee^ion^n' Qaop Sc fio^ oyytwiyrw 8mb tou vIov cvoyuMla, •}
529
01^ Sf xai fi,ayixat( texj^k$ ^^fwftffvoij x. r, A. Ap. i. c. 14. To
r^ove the iimbiguity of this expression, and to prove its
r^erence to the alien ataie^ it should be compared with
the passage already recited from D. c. Try. c. 116. and
.with his manner of introducing the words of the prophet
Jeremiah : Ou vf^i eOveoy oXXo^uXeov ^i}criy, oAAa xc^i tou (ruft-
fanovvrog roi^ eiviO'tv xaret ro fipijftavoy wro legtfjuotj , . . fxci
SioXudijo-Ojxai ey ty] fFo^veta [jlou : understanding irogveiet of a
personal act or state of apostacy. Apud Grabe^ Spicileg,
V. ii. p. 175.
Theophilus of Antioch, in describing the various apo-
stacies under the judges, calls the people Togo/Sayro^ earo
T(w ivrQ?^v rov 0eou, Ad Aut. 1. iii. s. 24. and in conse-
quence 'KTMa'oLVTODv avTODVf oAAo^uAoi iK^arria-av. Ibid. He
makes the distinction ftoi;^o;, ?ro^yo;, Ibid. 1. i. s. 2. and
again, oare^eaiai oart^ Trig aiifi,irov u^XoXargeioLg xeu fiot^eMg^
xcu ^oyou . . irofveiag tlcu icaffr^g our^Xytiag TCai axaAoL^iag, Ibid.
1. ii. s. 34. Cf. 1. iii. s. 3. He is the first writer who
recites the clause of exception : hg oarokoei yvveuxa 'Ku^Bxrog
Xoyox) ^o^vfia^ ?roi£f aunjy yMiyjsui^vou : upon which he offers
no comment, but he immediately subjoins the text: Pr.
vi. 29. 6 s^OTrogevofievog is^og yvvrnxa wravBgov oux aiooodt^aeraL
The words thus annexed relate to the woman divorced
wa^axrog Xoyov vo^veiag^ who, notwithstanding the pretended
divorce, was {nrav^og. Was the woman divorced justly,
and Xoyco iroqvsiugy therefore not urayS^o^, not so married but
that she might be divorced without offence ?
Tatian calls Helen n}y axiroqvwo'etffav^ c. Gr. s. 10. does he
mean that she parted from her husband ^ He is himself
^ha/ged as a heretic, yajctoy re ^io^oLV xai irogyeiay irotgoar^^a-Kog
Mo^xicoyi xai 'S^rovgviKco avayogeua-ag, Grabe, Spicil. v. ii.
p. 249. Did he elevate iFogvew into marriage, or degrade
marriage into vogveia? See Ignat. ad Philad. s. 6. where
the apostates are charged with calling ^iogav Ss xou [MXva^fiov
ngy yo/ju4fi>}y p^iv, xou njy ttouIow yvfaxnv. However the gram-
matical construction may require marriage to be the subject
of which (^ioqoLv h xai jM^ua-fjuov is the predicate, it is not
VOL. TI. M m
yM)
very consistent with the characteristic Ccentknuiieta of the
Nicolaitans of the second century to chaif;e rfv yofufup fu^iy
KM ngv xouioo¥ yma-iv with ^(o^ xoi itakua-iuv. The same
persons are accused of considering roe; wofatM^couf fuftK
ayodoy ri, and if these ^ageofOfioi i^iui are understood lite-
rally of unions out of the received law of the Church, they
will offend in calling the profane marriages, which the
Church reputed no more than a ^9o^ or fiokftcfug^ a
vo|xi|xi2y jxi^iy, and Tatian will act worthily of his party in
denominating ^ogot and vo^fia, or marriage out of the
Church, yaiMVy or approved marriage. The Apostolical
Constitutions say of the Nicolaitans, ol Se ayau9ipr ixireyiw-
otio-i, which, beyond the intention of the writer, using the
language of an earlier age, may mean the promiscuousnesi
of their marriages. The whole question is full of diffi^
culties : see Moslieim, Eccl. Hist, and Hist, of Ch. befocc
Constantine. And though it is very agreeable to the
nature of this practical heresy, that its disciples should
depart from the strict rule of the Church, and contrad
marriage promiscuously with believers and unbelievers, it
is hardly possible that any man bearing the name of Chris-
tian should teach indiscriminate debauchery, and the charge
may have been cherished by the misapprehension of a term
gradually losing its original signification. The interpreta-
tion suggested in these pages gives consistency to the
original prohibition, and the successive violations of the
prohibition. The apostolic decree proscribes mg¥§ia in
the sense of marriage with aliens. The apocalyptic Jezebel,
following the example of Balaam, teaches Christians «d^
viDa-ouy to marry indiscriminately. Tatian and the Nicolai-
tans revive the primitive error, and give the name of mar-
riage to ^iogoi, /xoXuo-jxo;, Togveia, ^agoivofiog fti^ig.
Clemens of Alexandria not only uses all the words in
their classical sense, but he uses them very frequently, and
in all their variety of signification ; he also appties different
passages of Scripture, in which they are found, according to
their classical use, and upon some occasions adopts them in
531
ge, flo indefinite, and indiscriminate a manner, as
almost lead to the conclusion, that he confounds
t with fTogveiOy or that at least he considers the former
a branch of the latter. Thus: xaranrauo-ov, 'O/tijje,
f¥' f/LOi^eiav iiBao'Xir xopfwuv St ri/Mig xat ret aaret To^jfrif-
Cohort, ad Gentes. Again the question is put with
A reference to the clause of exception, but hardly in
snse which is here proposed: u ov^co^ti, Kotrctftm-
: fir< xofvuei yvvMxos xai sx/SXijSeia^;, h§ftiv ytifuu, Strom.
I. 6. He nevertheless restricts the meaning of the
wo^ffio, by observing on certain texts of Solomon,
9S Jtaw T/^v ieeig6e¥0V tco rr^g mpfnoig iw^icag ovojEtari,
wt njy (Tf/xyonjra unrgarow iirraxaXiirou, Paed. 1. i. c. 9*
s admits that other words were in more ordinary use:
if ^ iro\voovvfiog xai toAusiSi}^, nniSay txrqetfr^ xarei twto
'a^Mg TO fAigog to xara Tijy af^iTy\Vf Kotyveia Atyrrai.
1. ii. c. 10. It is certain also that he uses ftoip^sia in
iinary sense, both plainly and figuratively, and with
Eon distinction from fnoip^tia. Thus ifreugt^Kw u/xcov ra
Wfmgvsvxcuriv oi of6aXfioi' al o^ug vfuov fUfMi^tuxao'iv.
t. ad Gentes. ov xogvtucrtig' ov fAOi;^etHrei;' ov toiSo^Io-
. Psed. 1. ii. c. 10. roug xogvcug xcu toi$ f^iX^^g* Strom.
I. 4. It is also certain that he was acquainted with
le of the words to denote apostacy. His comment on
fn)^, Deut. xxiii. S. has been already recited : and he
If affirms^ iro^eiag rgng rag . . . ha^gag ncaqwrrfireifL^'
imofy ^iXaqyvq^wtj fiSwXoXflCT^fiay. Strom. 1. vii. s. IS.
£ ascribes this use of the word to the apostle : xai §
»$ flnrooToAo^ ev n rcov Tr^g nco^uag €&oiv ^y fiScoAoXor^ioey
Strom. 1. vi. c. 16. In this sense he may be supposed
nbine fidcoAoXfltr^fuo'atyrf; xai iKwofvtwramgy Paed. 1. i.
and to speak of the taste as being vitiated, eKxof-
]g Tij; ywcBtag ha rufog xoaioieui/LOvog Ts^yi];. Psed. 1. ii.
He describes the apostacies under the kings by the
dfjMfTuva) and s^ot/tofrayco. Strom* L i. c. 90. After
ig 2 Cor. vi. 17, 18. on the separation and distinction
) people of God, he obviates the conclusion of the
M m 9
y.ij
heretics : ou reoy ytyflt/uiijxorfitfv, ed^ foriy (ol ol^ixai) aAA« noir
f0M0y TOW ev To^ita (in the heathen or alien state) fitcfowtmr
itf^g 8f, xoi row T^ti^ftfyeoy oljfO'fonr a^(i9ft|Mtt, ot^ dfngjagrwr
xai oSffflovy xfXfUfi x^frfTixeos 4ft^* Strom. 1. iii. c. 11. He
appropriates Rom. vii. S. to Christ and his Church, whidi'
should be pure rcov ras algsceig /xtrioiTBW xoi wofvmmp (to
separate) onro rov ^vo; ay^^o; ayonrfiSovroov. lb. c. 12. He ex-
plains 1 Cor. vi. 18. 6 Se iroqvtvQiv ets ro iSioy o-oojxa in one place
of second marriages, comparing the wopfiM with idolatry or
xXeov^icL of marriage, or ffx roti hog yo/xou tts ^ou^ voAAou;
fXTroxri;. Ibid, but in another passage he interprets wofut
of the Church, and vo^yeia of apostacy, or a condition or
act out of the divine covenant : frniMA it oXAiiyo^ttrai ii
ixxAijo'ia . . . ou r»} irogvua ou&§ ri} oro roti fUoeyytXiov onrooTotfYi
• . . w'O^vsuei ya^ ei; r»}y txxXijO'iay xai to ovrov ff'oi^ . . • 6 fc
xoXXoofjLswg Ti} ▼o^yT}, ri} Tot^a SioSijxijy svfffy«^, oXXo ow^ yini-
roi, oux ayioy ei^ (ragxa jxiay xoi /3fOV etvixoy. Strom. L vii.
s. 14. There is also a comment upon 1 Cor. vi. 16. but
it is not very perspicuous or precise : it shews however that
xogvua was marriage, and that Clemens did not understand
the sense in which it was called marriage : 6ri w roy ymiun
xo^ttav Aey«, eri^e^ei* H otix oiSoTf, 6ri 6 xoAXooftfVo; ri} vofvy
h (Toofi^a soTiy ; i} irogv^v ri; f^«i ?ra^ffyoy xqw i} yij/xoi ; Strom.
1. iii. c. 18. In a fragment of the Book de Nuptiis he
understands irogvua of an irregular marriage : xaftwmv ftofa
Affyerai ov /xoyoy xogvua^ oAAa xai ^ ?r^o xeup>v 1x809*1;* 6T«y, fll(
fiTTsiy, cuoqos 8x$o$i} TO) ay8^f, i}TOi a^ ieamig ij to^ row yoymy.
The school of Clemens did not qualify him to denounce
the unlawfulness of the intermarriage of the Jew with the
Gentile ; but the passages which have been recited may be
of use in counteracting any authority which might other-
wise be collected from his writings in favour of the indis-
criminate interpretation of the words, and in proving their
progressive misapprehension and more indiscriminate use.
In the brief remains of the original writings of Irensnis,
the word xo^ua, is only used in describing the error of
Tatian. Adv. Hieres. 1. i. c. 31. On other occa^ns the
533
word is disused, and its place is supplied by fw/Sji^tiy.
Mp^gtM(r6ou. ha^ofMia^^, $ia^o;a« hi^tttgav. The words for-
nicatio, &c. are used by the translator as quotations from
the Scriptures, but without any comment to define or
circumscribe their meaning. The irogvi^a of the Apoca-
lypse is called apostariaj in the course of which men were
deluded dsemoniis et apostatida spiritibus, in which was a
confluence of all the virtus apostaticuy and which compre-
hended in itself omnem malitise commentionem quae facta
est ex angelic^ apoatasid* 1. v. c. S7, 29. The fall of the
angels, which in the Book of Enoch is called Tojvfia, is
called by Irenseus aroorao'ifle. 1. i. c. 4. While contem-
porary writers speak of the redemption of men from a state
of To^f la, and from the condition of to^i, Irenseus or his
translator dwells on a redemption from a state of apoataaia,
L iii. c. 5. V. c. 6. cum essemus in apostasid, 1. iii. c. 8.
fraude universal et ab inspiratione apostaiicd et operatione
dsemoniacft et phantasmate idololatrise per omnia repleti.
1. ii. c. 56. The devil, whom other writers of the'age call
the a^cov ^ro^veia^, is called by the translator of Irenseus
princeps apostasice^ 1. ii. c. S6. servus apostaia^ 1. iii. c. 8.
and reference is made ei, qui princeps apostasicB est,
principi (ibscessionis et his angelis, qui apoatatce facti sunt
cum eo. 1. iii. c. 35. These are not inconsiderable proofs,
that Irena^us held icoqvua, to be equivalent to apaatasia.
Does he not also allude to 1 Cor. v. 11. when he says, that
some men nee cum ipsis Ethnicis convesd vellent? Again;
after a direct quotation of 1 Cor. vii. 5. ne tentet vos
Satanas propter incontinentiam, he assumes, Si in Novo
Testamento, qusedam prsecepta secundum ignoscentiam
apostoli concedentes inveniuntur, propter quorundam in-
continentiam, ut non obdurati tales in totum desperantes
salutem suam apoataUje fiant a Deo : it may be asked, does
he not allude, however improperly or inadequately, to the
hoL rots 'frogvuas of the apostle, 1 Cor. vii. ft? and the ques-:*
tion is rendered the more reasonable, because in the pro-
cess and conclusion o( the argument he makes a very
M in 3
yM
explicit reference to the irogvmm at the LXX; afirmingi
that under the old covenant the Deity gives enoounigeiiieiii
to men that detenti ab eo non revertantur ad idololatriam
nee apostatce fiant a Deo. 1. iv. c. S9. He dwells upte
several cases of the marriage of foreign or unbelieving
wives; as of Hosea; of the unbelieving wife, 1 Cor. vii.
Moses; and Rahab ; considering them as proofs, not only ci
the sanctification of the individual stranger, but as types
of the marriage of Christ to the Church, quae est ex
Grentibus ; and of the sanctification of that Church. ]. iv.
c. 37. In commenting upon Matt. xix. 7, 8. he does not
proceed to take any notice of the Christian law of divorce,
except by representing our Lord, as Moysen quidem ex-
cusans, quasi fidelem servum ; unum auteni, qui ab initio
masculum et foeminam fecit, Deum confitens; illos vero
arguens tanquam duros et non subjectos et propter hoc
aptum duritise eorum repudii prseceptum a Moyse aoce-
perunt. 1. iv. c. 29.
The evidence from the writings of Tertullian is under
all the circumstances as copious and satisfactory as may be
expected. If it cannot be denied that he uses the several
words, fomicor\ quiBatuaria, prostUuta, formcaria^ /bmi-
cator, stuprumy fomicatioj moechicj adtUieriumy as common
and approved translations of To^vfvco, to^, iro^$, and
mfveuiy and in the sense of simple whoredom; and that he
also uses the words fomicatioy maschioj and aduUeriumy
promiscuously for idolatry, (Quid enim tam proximum?)
it is equally certain that he understands fomicatioj sin*
prum, and adtUterium, to be proper and not figurative
representatives of mpua in the sense of idolatry ; and that
' It is by Tertullian (or by the old Italic version) that the words foniioor, £cc.
are first used. Were they derived from the Latin noun fornix, and adoptad
from their near resemblance to the Greek words m^, &c.1 The tnualator of
IrensBiis says that the mistress of Simon Magus, Selenen, qnrstmriam qoandaM
• . . contumeliam sustinentem in/omtcf prostitisse. Adv. Umr. 1« i. c. 19. It is
remarkable that the English versions have retained the vrord famkatkm, and
not ventured to introduce the less ambiguous adultfry insisted on by the com-
mcntatora.
535
be frequently marks, in their ordinary sense and use, the
distinction between mcechia, iiAi,y(Miot^ and fomicatio, vogvcio.
De Pudicit. passim. It is the sense however in which he
uses the word aduUerium as the translation of TOfvuoj
which it is of the first importance to ascertain ; and it is
not improbable, that the received doctrine of divorce is
principally founded on the prevailing misapprehension of
the original use of that word. TertuUian'^s general notion
of aduUerium is, that it comprehends whatever is fake^
caifTupt^ or contrary to Christian truth and discipline.
Thus in speaking of the idolater, he says, Proinde adul-
terium et stuprum in eodem recognoscas; nam qui falsis
diis servit, sine dubio adulter eat veritatis^ quia ofnne
falsum adulterium est. Sic et in stupro mergitur. Qui
enim immundis spiritibus operatus, non conspurcatus et
constupratus incedit ? Atque adeo Scripture sanctas atupri
vocabulo utuntur in idololatrice eofprobratione. De Idol. s. 1.
This is not a mere rhetorical expression, in aggravation of
the offence which he condemns : it is his common and or-
dinary language. It is thus that he censures the men who
nostram banc novitiolam paraturam suis opinionibus ad
philosophicas sententias adulteraverunt : and it is thus
also that he speaks of the aduUeria salutaris discipUnse ;
Adv. Gen. s. 47. and of the evangelii sane non Judaici,
sed Pontici interim adulterati. Adv. Marc. s. ^ He
maintains that the genuine Gospel under Marcion aduUeroa
passum est, and was aduUeratum by means of interpola-
tion, et inundatione falsariorum. s. 3. He describes the
sp'uritual adversary as ex diversitate prsedicationis primo
regulam adulterana fidei et ita ordinem aduUerana disci-
plinse. De Monog. s. 2. In the same sense he opposes
aduUerium to the truth, in respect of the progressive de-
terioration of the Christian doctrine : Verum quodcunque
primum : cuiulterum quodcunque posterius. Adv. Prax.
8. 2, Compare De Pr. Adv. Hse. s. 31. where the more
recent doctrine is pronounced aduUerum et falsum*
It is plain, therefore, tl;iat Tertullian means by adulr
M m 4
5;i()
terium any thing spurious, false, or oorrupt, any thing
contrary to or removed from Christian truth, purity, and
discipline. But it is necessary to shew that he adverts to
the word in the sense of alienation and apaUacy, especially
in matters connected with marriage.
He refers to Saint Paul's expression, 1 Cor. v. 10. of the
necessity of going out of the world if we would avoid
association roi^ irogvoi$ rov xoa-fLOv rovrov, ij ^XMOVixrcug i] df*
'jra^iy^ i] eiSooXoXar^ai;, and maintains, that the precept does
not forbid communion cum idololatris et aduUeria et csb-
teris criminosis . . . cum peccatoribus • . . cum ethnicis . . .
cum omnibus. De Idol. s. 14. In another allusion to the
same precept, he says. Nam et cthnicus homo adversarius
noster est, incedens in eadem vi£L vitse communis. Qe-
tcrum oportebat nos de niundo ex ire, si cum iUis convesd
non licet. De Anima. s. 35.
In alleging instances of the divine vengeance upon apo-
Stacy, and the neglect of the divine institutions^ he brings
forward the case of the daughters of Moab : Cum diver-
tisset Israel apud Sethim, abeunt libidinatum ad filias
Moab: invitantur ad idola ut spiritu fomicentur; edunt
denique de poUutis eorum : dehinc et adorant deoe gentis
et Beelphegor initiantur. Ob banc quoque idololatriam
moechisET sororem, viginti tria millia, domesticis obtruncata
gladiis divinse irse litaverunt. c. Gnost. s. 8. Here the
trespass is plainly called idololatria, mcechie soror: the
judgment is otherwise treated as a judgment on fornication
in the treatise De Pud. s. 6. of which the purpose is to
prove the unpardonable nature of incontinence.
In considering Tertullian'*s use of cuhUierium for wofmm
in respect of marriage, it is necessary to bear in mind what
kinds of marriage he held to be unlawful. It was Us
general doctrine, that not marriage itself, but the eascir-
bUoHo of marriage, was prohibited. With this view he
held second marriages to be unlawful, and pronounced
them species stupri . . . adfine stupri* De Exh. Cast. s. 9*
Quae hsresis, ni secundas nuptias, ut illicitas jiutta adul-
537
ieriumy judicamus ? Quid est enim adtUierkmy niH mcttru
manium illiciium f De Monog. s. 15. Nee secundas qui-
dem post fidem nuptias permittitur nosse, nuptialibus et
dotalibus si forte tabulis a moechise et fomicationis opere
diversas. De Pud. s. 1. He also held clandestine mar-
riages to be illegal, and liable to the charge of fornication
and adultery : Penes nos occultse quoque conjunctiones, id
est, non prius apud Ecclesiam professse juxta mcechiam et
Jbmicationem judicari periclitantur. Ibid. s. 4. Arguing
on the authority of the apostle, Tertullian also held the
illegitimacy of marriage between the believing and the
unbelieving: Certe praescribens, tantum in Domino esse
nubendum, nequis fidelis ethnicum matrimonium contrahat
legem tuetur creatoris allophylorum nuptias ubique pro-^
hibentis. Adv. Mar. s. 7. He also connects these mar-
riages with the apostle''s use of the words frogvrj and mfwM :
Fideles matrimonia Gentilium subeuntes stupri reos esse
constat, et arcendos ab omni communicatione fratemitatis.
Cum ejusmodi nee cibum sumendum. At nunquid tabulas
nuptiales de illo apud tribunal Domini proferemus? Et
matrimonium rite contractum allegabimus, quod vetuit
ipse ? Non adulterium est quod prohibetur, non stuprum
est? Extranei hominis admissio minus templum Dei violat,
minus membra Christi cum membris adulterce commiscet.
Ad Ux. ii. s. 3. In this passage the guilt of stupm/m' is
imputed to the believer who marries with the Grentile:
the sentence of excommunication identifies him with the
brother who is irojvo^, 1 Cor. v. 11. This prohibited mar-
riage is called adtiUerium^ and the Grentile woman witli
whom it is contracted, the ifo^ of the apostle, odvUerd.
The passage thus proves the sense in which Tertullian
uses the word adulterium, as the representative of iropveicu
It may be further asked, how and where has our Saviour
himself forbidden these marriages ? By what term, except
the word To^iia, used as distinct from fnoi^^fia, Matt. xv. 19.
Mark vii. ^1. or applied in the clause of exception, to
denote the only ground of a legitimate divorce ?
538
Again; in alluding to the apostle^s words, tm rm$w%fman^
1 Cor. vii. 2. TertuUian holds, that the ai^gument and per-
mission of the apostle were designed to remove the appie-
hensions of men, qui in matrimonio a fide depreheui
yerebahtur, ne non liceret eis matrimonio suo exinde uti,
or who thought in matrimoniia ethnicis non post fidem aibj
perseverandum. De Monog. s. 11. In this case the apo-
stle relaxed the rigid rule of matrimony, ut Jamicaibmi
obviam esset ; and to meet the exigency of the occaidon he
permitted and authorized matrimonii usum. Indulget sane
non aduUeriaj sed nuptias: parcit sane matrimoniis, noo
gtupris* De Pud. s. 16. Compare De Animft. s. 89. The
marriage of the Grentiles before their conversion was af-
firmed; it was matrimonium or nuptie: the marriage
of a believer with a Grentile was adulterium, fomicatio^
Without a clear apprehension of the sense, in which
Tertullian uses adtdterium or vogyiia, it would be difficult
to understand the sense which he puts upon the clause of
exception in our Lord's rule of divorce, to which he makes
four different allusions.
In the treatise De MonogamiA, in which he argues
against the validity of more marriages than one, he affirms,
s. 9* that our Lord abolished the divorce which had
formerly been allowed; because it was not from the be-
ginning, and because it is not for man to put asunder
what God has joined together : Solus autem iUe separabit,
qui et conjunxit, separabit autem non per duritiam repudii,
quam exprobrat et compescit, sed per debitum mortis.
He insdsts upon another reason for the divine prohibition
of divorce ; viz. that whosoever puts away his wife, pra&i-
terquam eof causa adtUteriiy causes her to commit adultery^
and whosoever marries her that is put away commits adi^
tery. He argues upon this contingency of divorce, and
shews that it cannot occur in second marriages : Nam et
nubere legitime non potest repudiata, et si quid tale com-
miserit, sine matrimonii nomine, non capit elogium aduk
539
terii, quia adalterium in ma^monio crimen est, that a
woman divorced, in pretending to marry, escapes the
charge of adultery, which rests on the validity of an
approved marriage. For the more perfect resolution of
the question, he defines his sense of marriage and adultery,
Biatrimonium est, cum Deus junxit duos in unam carnem,
aut junctos deprehendens in eidem came conjunctionem
s^navit. Adulterium est, cum quoquo modo disjunctis
duobus, alia caro, imo aliena miscetur, de qu& did non
potest. Haec est caro ex came me&, et hoc oe ex ossibus
meis : and when this communion is once ratified, it hokU
without distinction, whether the parties be living or dead.
Adulteratur autem, sicut supra praestruximus, qui aliam
camem sibi immiscet super illam pristinam, quam Deus
aut conjunxit in duos, aut conjunctam deprehendit. In
this use of the word adulteratur^ as also of the elogium
adulterii, Tertullian insists upon the contingency of an
unjust divorce ; making no reference to the clause of exp
ception, and asserting the entire abolition of divorce. Abs-
tulit repudium, quod ab initio non fuit, ut quod ab initio
fuit muniat, duorum in unam camem perseverantiam, ne
necessitas vel occasio tertise concaraationis irrumpat, soli
causa; permittens repudium, si forte prsevenerit, cui pras-
cavetur. What then is the only cause for which divorce
is permitted ? the nothing praeterquam ex causfi adulterii ?
that of which it is said, si forte prsevenerit, cui prsecavetur?
It is most consistent with the whole passage to understand
it of the adulterium or xofvtM of second marriages, in
which divorce is not followed by adultery, because there is
no marriage ; in which neither Deus oonjunxit duos, aut
conjunctos deprehendit ; but which is adulterium, because
quoquo modo disjunctis duobus alia caro miscetur. In
such marriages, prsevenit, cui pnecavetur. In this view
the causa aduUerii must be understood of a fault pre-
ceding, not following the marriage.
He makes another allusion to the qlause of excepti<Hi,
with reference to such as were married to the unbelieving,
540
and in ref utatkm of the objection founded on 1 Cor.- vL 15.
coU. vii. S. Cur si gentili inquinamur non et ilia dis-
jun^tur, quemadmodum et iste non oUigatur? Beapon-
debo, si spiritus dederit, ante omnia allegans Dominum
magis ratum habere matrimonium non oontrahi, quam
omniuo disjungi: denique divortium prohibet, nisi stupri
caus&. Ad Ux. ii. s. 2. He means that our Lord rather
held the invalidity of marriage under certiun circumstances,
than the dissolution of marriage rightly contracted; and
therefore he prohibited divorce nisi sttipri causA. . But
where can our Lord be shewn ratum habere matrimonium
non contrahi, or to drop the faintest allusion to the subr
ject, except in the prohibition of divorce, wofnarof A^ytu
irog¥€iasj nisi stupri causa, i. e. according to Tertullian^s
use of thie corresponding terms throughout the whole of
this treatise, when the marriage was vitiated by the cir-
cumstance of one of the parties being in an alien or infidel
state.
He again alludes to the text by the name of mcechia,
but without any other exposition than a general assertion
of the prohibition of divorce, and the unlawfulness df
second marriages : Interea et divortium prohibens, pro eo,
aut viduitatis perseverantiam aut reconciliationem pads
dominico prsecepto adversus moechiam procurat, quia, qui
dimiserit uxorem praeter causam moechie facit eam moB-
chari, et qui dimissam a viro ducit, moechatur. Quanta
remedia spiritus sanctus instaurat, ne id sdlioet denuo
admittatur, quod ignosci denuo non vult. De Pud. s. 1&
Here the mcechia, as the adulterium before, is the oflFenoe
of second marriages, in which, as there is really no mar-
riage, there can be no adultery.
In arguing with Marcion, 1. iv. s. 84. upon the law €i
divorce, he labours to reconcile the different doctrines of
Moses and our Lord, of which he shews the agreement in
respect of the restriction maintained by both ; by Moses
in permitting divorce only propter negotium impudicum,
by Christ in prohibiting it prseter eausam adulteriL He
541
adds, that Christ is every where the guardian of marriage,
quas nee separari vult, prohibendo repudium, nee cum
macuU^ haberi, tunc permittendo divortium. Is it possible
that Tertullian, in the singular phrase nee nuptias cum
macullL haberi, adverted to the Jewish notions concerning
the blotted person, or stranger, the macula mala que
posita est in populis profanis, ut accipiat uxorem integram
ex ccetu Domini, as the 6 ex irofvt^g is paraphrased by the
Chaldee? See above, p. 46S. Some incest invalidating
the marriage is most consistent with the process of the
argument, that our Lord''s discourse originated in the
imprisonment of John, who had rebuked Herod for having
his brother''s wife, and thus illicitorum matrimoniorum et
adulteri figur^ jaculatus est in Herodem, adulterum pro-
nuntians etiam qui dimissam a viro duxerit. Herod, in
being married to the divorced Herodias, was adulter ; his
marriage was also Ulicitumy or incestuous, because she was
his brother''s wife ; and in both respects he was male mari-
tatus ; and, as his brother was not childless, he kept pos-
session of Herodias ex libidinis, non ex legis instinct u.
Thus, with reference to Herod, the clause of exception
will bear the sense of incest, and the offence of a second
marriage ; in reference to maculaj it will signify an alien
marriage. Both interpretations are consistent with the use
of Tertullian, which does not justify the sense of adultery
ordinarily so called.
But it is time to leave the authority of Tertullian ; and
it is no gratuitous conclusion, that although he translates
the word vogvem by cidulterium, he understands by that
term some cause invalidating the original marriage, and
especially the incest attached to his notion of second mar-
riage, and the received doctrine of the age concerning mar-
riages with aliens or out of the peculium.
The investigation has now been carried through the
writings of the two first centuries, and it has been seen,
that during that period, both in the Greek and the Latin
Church, the words were at least of ambiguous signification ;
54J
that the notion of apostacy was still oommonly attached to
wofnta ; and that that word was not yet in any unequiYOcal
instance confounded with adultery ordinaiily so called. In
proceeding to collect the testimonies of the third centuiyi
it is natural to annex the evidence of Cyprian to that of
his master Tertullian.
Cypnan uses adulterium and tnoechia in their proper
and ordinary sense as offences which might or might not
be pardoned, according to the discipline of particular
Churches, without any infringement of Catholic unity.
Ep. 52. but he agrees more generally with Tertullian in
comprehending under aduUerium any thing which is dis-
tinct and separate from Christian truth and order. Thus
he speaks of the adulter ct extraneus Episcopus, Ep. SSL
of the aduUera aqua of the heretics, Ep. 7S. whom he
pronounces sponsa aduUera et fomicaria. Ep. 74, 75. In
the same manner he translates the ewo^iwre of Jeremiah by
mcschata est ; and explains it by spiritalia adulteria com-
mittere . . corrumpere atque adulterare prsM^epta divina.
Ep. 63. The 6 S« xo^towv of Saint Paul he also renders
qui mcschatuT^ and connecting with the text some other
passages in which to^; is rendered by fornicator, and
wogvuot by fomicatio^ he urges upon the heretics not to
excuse themselves, quod se dicant idololatris non comrou-
nicare, quando sint apud illos et aduUeri et fraudatores,
qui teneantur idotolatruB crimine ; and, after reciting Eph.
V. 5. Col. iii. 5. he proceeds; nam cum corpora nostra
membra sint Christi, et singuli simus templum Dei, quis-
quis adulterio templum Dei violat, et qui in peccatis com-
mittendis voluntatem Diaboli facit, dsemoniis et idolis servit.
Ita fit ut si peccato alterius inquinari alterum dicunt, et
idololatriam delinquentis ad non delinquentem transire sut
asseveratione contendunt, excusari secundum suam vocem
non possunt ab idololatrise crimine, cum constat de apo-
stolica probatione, mcechos et fraudatores, quibus illi com-
municant, idololatras esse. Ep. 52.
He indulges in more variety in the use of the words
543
■
fomicatio and fomioor. I'hus, in treating de idolis, quie
Grentiles, deos putant, he quotes the words of Jeremiah :
Confundar in fomicatione. Lib. Test. iii. 59. He recites
the words of the same prophet ; Fomicata est illic ; fomi-
cata est omnia, in proof that all sins may be forgiven upon
repentance. Ex. ad Pcen. s. 23. Besides other unexplained
references to the irogyyi and iropf»a of the New Testament,
he appeals to the dress of the apocaljrptic m^ and of
Thamar, in proof mulierem aasculariter ornari non debere.
Lib. Test. iii. 86. He recites de bonis virginitatis et
continentisp, to which they cannot refer, the words of the
apostle, ha rag ^rogvetoLg, which he renders propter forni-
cationem. Ibid. 32. He proves grave deUctum esse fomi*
cationis, Ibid. 63. by the text, Qui autem fomicatur in
corpus suum peccat : and this precept immediately follows
the position, Matrimonium cum GentiKbus non jungen-
dum, which he proves by the instruction of Tobit to
Tobias ; the conduct of Abraham in respect of the mar-
riage of Isaac ; the separation of the Jews from the alieni-
genas uxores, whom they had married during the captivity ;
the rule of the apostle concerning marrying only in the
Lord; and the text, Know ye not that your bodies are
the members of Christ? Shall I then take the members
of Christ, and make them the members of an harlot, ybmi-
cariie ? Know ye not that he who is joined to an harlot,
fomicaruBj is one body ? for the two shall be one flesh :
but he who is joined to the Lord is one spirit. This text
can have no possible relation to the proposition which it is
brought to prove, but on the interpretation of fomicaria in
the sense of a Gentile woman married to a believer : and
Cypriah confirms this interpretation by adding in the con-
clusion of the proof. Be ye not unequally yoked together
with unbelievers.
In this passage Cjrprian distinctly recognizes the sense
of xogyri which is contended for : and he may be thought to
make a more indirect allusion to the same sense in speaking
of the pollution of Chrisfs members per concubitus illi- .
544
citos, £p. 6. turpi et infami concubitu^ without the ooif-
sciouaness of stuprum, but to the prejudice of others ; Ep. &
and of their being so purified from all the filth of the
ancient contagion by the sanctification of the layer of hfe,
that nee violari ea aut poUui fas sit, quando qui violat et
ipse violatur, and care should always be taken, ne quid
immundum et profanum templo Dei inferatur, ne oflRnlsus,
sedem quani inhabitat derelinquat. De Hab. Virg. In
this passage there is a combined allusion to 1 Cor. yi.
15 — 20. and 2 Cor. vi. 14—18. Compare De Bono Patient,
where it is said, Adulterium, fraus, homicidium, mortale
crimen est. Sit fortis et stabilis in corde patientia, et nee
adtUierio sanctificatum corpus et Dei templum poUuitur.
This is the language of Tertullian, which has been already
explained.
With this recognition of the true sense of xoffna the
evidence of Cyprian may be concluded. In connexion
with many other texts in which he uses iiduUenum and
fomicatio indiscriminately for ingvtteLj and in one of which,
if there be any consistency in his expositions, he has ascer-
tained the sense which he attaches to both, he recites the
clause of exception: Hanc sententiam, quando uxorem
dimitti non nisi ob adulterium, dixit, interrogatus, tantum
honorem pudicitise dedit. . . • Hinc apostolus dicit; Hsec
est voluntas Dei, ut abstineatis a fomicatione. Hinc et
illud dicit, membra Christi membris meretricis non esse
jungenda. . . . Hinc merito regnum coelorum non tenent
adultcri; hinc est, omne peccatum extra corpus esse, solum
adulterum (rov irogveuorra) peccare in suum corpus. De
Bono Pudicit.
In the Tractatus de xii Abusionibus Sseculi, annexed
to the works of Cyprian, the nothi, or bastards, according
to Saint Paul, arc called adulteri, and are described as
men who sine disciplin^L sunt, et ccelcstis regni haeredi-
tatem non capiunt. The comment is valuable in explain-
ing the notion of that age concerning the meaning of the
adulteri, and, by consequence, of adfdterium^ as the
545
representative of TOfvtta: the adulteri were not sons of
€rod, nor included in his covenant^ but spurii, aliens, like
the children tx to^; of the law.
In the Libellus de Singularitate Clericorum the words
occur in their received sense, s. 11, 8. and remotely su^
gest the sense of apostacy, s. 8. The writer says of the
prevailing heresies concerning marriage, Pnevidebantut*
a Domino hsBretici, qui nuptias auferunt, et quod Deus
juiaxit, contra natures principium et contra evang^uni s&-
parare oontendunt.
. In the Epistle de Cibis Judaicis are recited the apostle^s
ivords : Meats for the belly, and the belly for meats ; but
the Lord shall destroy both it and them. Now the body
is not for fornication, but for the Lord. The argument is
upon the aboliti6n of the legal sacrifices, and the conse-
quent distinction of meats : and neither the argument nor
the text has any relation to incontinence. The comment
however, if comment it may be called, may betray the
progressive misapprehension and perversion of the sacred
language ; Deus ventre non colitur nee cibis . . . nam qui
per escas Dominum colit, prope est ut Dominum habeat
ventrem suum. After an interval is added the sound but
irrelevant maxim, Justitia et continentift et reliquis Deus
virtutibus colitur.
Min. Felix marks the distinction between adultery and
simple whoredom: Conducuntur stupra, tractantur lenc^
cinia, adulteria meditantur. Octav. s. 25. He speaks ci
the adulterium of Mars and Venus, s. SS. less distinctly of
the attempt of Cybele adulterum suum ad stuprum inli-
cere. s. 21.
Amobius strongly distinguishes whoredom from adul-
tery : Ad libidinem homines proni, atque ad voluptatum
blaoditias naturae infirmitate proclives, adulteria tamen 1&.
gibus vindicant.' Adv. Gren. 1. iv. s. 23.
Lactantius properly belongs not to the third but to the
fourth century, but it is desirable to add his testimony^
because he is the first to give the exposition of the text,
VOL. II, N fl
546
which was agreeftble to the imperial eourt under which he
flourished, and it may be useful to compare the cfausicil
precision of his style with the ruder and more simple doc-
trine and expression of the earlier fathers; nor is it of
inconsiderable importance to remark, that the language
which was used by the courtier corresponded with the
law which was modelled by the court. If the desire jof
generalising the Christian doctrine, if the studied purity
of his style, and the circumspection with which he ayoidft
the homeliness of scriptural phraseology, had not reatiHined
him, he might have confirmed the proof that fomicaiio h
equivalent to religious apostacy. It is probable that he
refers to the frequent apostacies of the Jews : InaL L iv.
c. 10, 11. Epit. c. 43. and it is hardly posrible to douk
his reference to the Apocalypse in describing the power «f
the Antichrist, under whom sapientium plurimi allicientig
ab eo (from God.) Inst. 1. vii. c. 17. and in respect of the
destruction of Antichrist he says, Malitift extinctft et im-
pietate compressfi non coluntur ulterius dii manufscti.
tgya Se x^ig^^otifra, 6ecov xaToiKoiv6i^a'ovTeu. Inst. 1. vii. c. 19*
Although in one passage he defines adulterium to be quod
fit contra naturam, Inst. i. 10. he generally, but not with-
out exception, Inst. i. 17. v. 10. Epit. c. 8. uses adulterium
in its proper and ordinary sense. He makes the distinctioo
between adultery and whoredom: adulteria et stupra et
mulierum prostitutiones, Inst. v. 8. Cf. 10. vi. 19. Epit
c. 61. and between the adulteress and the whore : adulterr,
lense, meretrices. Quid meretrix . . . quid adultera, quid
lena? Epit. c. 90. He denies the adultery of women
under a community of wives ; Inst. iii. SS. and maintarny
the comprehensive nature of the sevmth commandment in ^
making simple whoredom subordinate to adultery: Hoc
prsecepto non solum corrumpere alienum mattimonium
pn^ibemur, quod etiam communi gentium jure damnatup;
verum etiam prostitutis corporibus abstinere. Epit. c 64.
547
With this evidence it would be more than vain to dispute
the interpretation which he puts upon the clause of ex«
oeption, notwithstanding the unexampled novelty of the
sense and the expression : Sicut foemina castitatis vincuUs
obligata est, ne alium concupiscat, ita vir efidem lege tene-
atur» qucmiam Deus virum et uxorem unius corpom com-
fMige solidavit. Ideo praecepit non dimitti uxorem nisi
crimine adutierii remctamy ut nunquam conjugalis foederis
Yinoulum, nisi quod perfidia ruperit, resolvatur. Epit. c. 66.
Inst. vi. S8.
In the voluminous writings of Origen there is abundant
evidence of the principal meaning of the words in question :
but the exuberance of this writer^s imagination, his passion
for mystical and allegorical expositions, and th» general
deficiency of his judgment, are fatal impediments to his
authority as a critical expositor of the Scriptures, even if,
in respect to the present enquiry, he was not the first to
embarrass the clause of exception with the suggestion of
other equivalent clauses of divorce. It is certain that he
was acquainted ¥rith the classical meaning of To^ffio, and
that he distinguished that word from /xoip^iMt. Thus, [Mt-
X*^^9 xXomjy, iro^eioy-— TO yeiq ri}; ftAiy%ioti ovofjLci xoiMOVio^ forir
cof^g xcu yweuHog ayifuavnxov . . . xcu eri nig mpfnoig ht i esarog
Xtyyog. De Rect. in Deum Fide, s. 4. u tit Smpxii 4 tro^i*,
8i}Xoy &n xcu yi iMiytict. Select, in Ph. xxx. mu itMxwtufm^
TiffSff, KM fropftvo'M ToutrSt. Comm. in Joh. tom. xx. s. 90.
4t is also certain, and instances have been already given in
proof, that he understood the words in the sense of per-
sonal and i*eligious separation and apostacy. Thus «iro^
vfort i»Aix^*i^oL is explained by latni}y oevfftmia'i. Comm. in
Matt, tom* xiv. s. 17. So he speaks of Christ^s subduing
the evil passion of the Grentiles, xaf h uimkoXatfai ficw km
iro{foi« Select, in Ps. ii. hcaan^g iifiM¥ oifr«i, iri fnni fi$»AoAde-
tfrn^a-tp, fiTfi jtti} irrro^yfuxw. Hom. xix. in Jer. s. S. mpfrnm 6
earoffTog roc; w^fcpf ree xaXkti rw T/jg aAijtffifle; Aoyov. Select, in
Eaek. c. vi. He calls the Gentiles ^ wogniotg : In Jerem.
Horn. i. s. 14. and explains the ywoeixtt leofwiag by r^vg ant^
N n 2
548
row fftwy. Comm. id Mutt. tom. xii. s. 4. In Coinm. od
Ps. Ixxiii. he remarks, o^^ mfvwn can Orau, i twMimm
iavTW Ti} ro9¥ ieufiovtw Kargtia : and on Ps. cvi. wofnun 4^oxi|
fnrtffAOTa ?MfufiavotM'a nj^ amxniimnig ^wetfiHOf xa* rivrouM
Tex¥oi irowifa. He explains the transgressioq in Num. xxv. 1.
to be %ofv§toi ^otXtwaaretnj . • . aim^ di ipf ro eatomiaeu fU¥ nv
0eou, reXeairivM 8ff tw BftX^cT^. Select, in Deut. Cf. HoiQ.
XX. in Num. He speaks of our Saviour^s being fura
ito^g^ Select, in Ps. xxvii. by whom he probably means,
with Heracleon. the woman of Samaria; and in referriag
to the history, Luke vii. 39* he adverts in the same sense,
T)} irofr^ Tyj fLsravoovayi. In Jer. Hom. xv. s. 6. He admits
the difficulty, and indulges in the most varied exposition,
of the text: Qui jungit se meretrici; pro viribus mds
discuticns profundum satis et reconditum in iis verbis in-
tuebar apostoli scnsum, qui ita definierit, quod omnis anima
aut Domino conjuncta est aut meretrici ; et intellexi, quod
Dominum quidem dixerit virtu tes, quas Christus est . . .
meretricem vero omnes e contrario malitiae species. In
Num. Horn. xx. In another passage he places the ofiSmce,
inter prima sacrilegia, among the crafts of the devil, illa-
dentis hominem atque hujuscemodi peccati inoontinentiam
provocantis. Hom. i. in Ps. xxxvii. Again he understands
the corresponding expression of iro^; ficXi) in its ordinary
sense, c. Cels. 1. iv. s. 86. at another time he explains it of
carnal desire : hie mireris, si camem meretricem vocet, quK
illis omnibus quae supra enumeravimus vitiis atque pec-
catis, tamquam turpissimis amatoribus subjacet. Comm. in
£p. ad Rom. 1. vi. s. 1. In another place, in conjunctioD
with the TTogwi of the Proverbs, he calls it ifmHaniwgiAs yMoo-i^
6 St xoXXfltfjxevo^ wgo; aunjy h <FeofMi toriy avrf. Select, in Ps.
cxvii. Again he conceives it to mean iro^ uAi), the issue
of Satan, oWives xm toj; ccofMnrixotg wgorfrtwoyivnf xeu Wf09^•
KoofAivot xoXXfltfvrati ri} ^ro^vj} vAi;, ytvo/MMi irfo; ovrov iv a'mfm,
Comm. in Joh. torn. xx. s. 14. Lastly he puts in contrast
n: ixxXi^O'iat rcov ftv«9y . . . 6 8ff xoXXa>|EMyOf nf Kvfiy. ,-I|i Jer.
y|lom. xi. Origen himself could not have con^eac^ded to
519
offer such inteq^retaticins if there had not been some ambi-
guity in the original word, which it was not in his power
to develope* The original meaning of the word was now
falling into disuse, and the way was prepared for the
doubts which Origen suggested in enlargement of the re-
stricted permission of Divorce: /Mra rwrroi ^ijo-iv 6 voom^
1} /Aovj) irogvuoL cu^io'xOjEMVii ffv r»} yweuxi, to* 6$ ay otroAuo'i} n)V
yuveuxa aurou, fra^xrog Aoyou iro^vfio;, worn aurriv ftoi;^euii}yai*
^ifnfinyi $* av ha rouro xcoXuffi njv ywoiixot etiroKwron^ eav jxi} fri
m^sta iL&f d\Bo' fegs $* tnrciy, em ^^/xaxcia, i} ayai^fl<rej iroc^
n}y 0nroSi}j;tiay rou ay$^; rou ycyijdeyro; avroig irai$iov, i} e$' oIa)&}-
iroTs ^yflp* £1 Ss xai u^oci^v/xfyi), xoi avkso(roi njy oixioty ffu^ftni}
TOtf ay$^Of, jiti} TO^suouo'a $«, ^TDjo-ai ri$ ay, » cuXoyo)^ n^y ro<-
ocmiy a^ojSaXsi, c6^ rou <rooTrigog xwXuoyro;, iroigexrog Xoyou to^
ytta^ oaroXxxTM nva, njy lauTW yuveuxa, Comm. in Matt. torn,
xiv. s. 24.
It is useless to extend the investigation of the meaning
of these words. The sense of adultery, now attached to
wofvuay has been traced from times in which it was not, to
those in which it was, admitted into the Church ; and it
has been shewn, that during the whole period the sense of
apostacy was predominant. It has been also shewn, that
wcgwia does not, and that ftoix»a does, signify adultery.
Itv has been further shewn, by the citation of numerous
texts compared with their contexts, and with the most
ancient comments aiid versions, that apostacy properly so
called is the prevailing signification of the word in the use
of the Hellenistic writers, who use other words to d^iote
personal prostitution : and it has also been shewn, that the
words denote, in the use of the LXX, of the apocryphal
writers, and of the New Testament, the particular, apo-
stacies of the Gentile initiation, and marriage with aliens;
Among the -few remuns of the first century there is a
remarkable disuse of the word in its ordinary sense, a.
distinction between ^ix^iol and vo^io, and a recognition
of the sense of apostacy. Traces of the dame idiom are'
N n 3
550
perceptible in the second century, of which the evidence is
closed with the peculiar sense in which Tertullian uses the
word aduUerium^ and in which he applies the w^fma of the
Scripture to the clause of exception, and to many other pas-
sages in the sense of a forbidden marriage, a sense which
predominates throughout the two Treatises ad Uxofem,
and throws new light upon those treatises and the quota-
tions from Scripture which they contain. Cyprian adopts
TertuUian's sense of adulterium^ and occasionally his in-
terpretation of TTO^tiu: and Origen, admitting the Hel-
lenistic meaning of the word, throws out suggestions of
new causes of divorce. In the beginning of the fourth
century Lactantius affirms adultery to be the cause of
divorce, and all further enquiry is superseded by the force
of imperial law.
Before this period but little attention bad been paid to
the clause of exception ; no attempt had been made, except
by Origen, to mitigate its restriction ; it had been seldom
quoted ; Tertullian was almost its only expositor ; and all
the Christian fathers were agreed in upholding the indis-
solubility of marriage, as if there had been no clause of
exception, or as if that clause related only to a cause pre-
cluding the marriage. Under the new exposition very
different sentiments and very different expiressions began
to prevail in respect of the permissive law of divorce. It
is not necessary here to repeat the history of these va-
riations. The main purpose of this investigation will be
fulfilled, if it has been shewn, in the language of Gibbon,
that vogvua does not mean matrimonial sin ; if the primaiy
sense of any sacred text has been restored ; if the law of
divorce has been restricted to faults precluding nther than
dissolving marriage; if, in concurrence with other aigu-
ments, a just suspicion has been thrown on the doctrine ti
divorce for adultery ; and new caution been excited in re-
peating the words of the learned Spencer : Liquidius nihil
est, quam quod adulterium iis in lods Matt. v. SSL six. 9.
nomine iro^uof contineatur. De L^. Hebr. 1. ii. c. 1. s. S.
No. IL
<>OCUM£NTS, EXPLANATORY OF THE OBJECTIONS OF UNITA-
RIANS AND FREE-THINKING CHRISTIANS TO THE OFFICE
FOR THE SOLEMNIZATION OF MATRIMONY, AND OF THE
GROUNDS UPON WHICH THEY SEEK THE PRIVILEGE OF
MARRYING IN THEIR PRIVATE CONVENTICLES.
1. Copy of Petition addressed to the Houses of Parliament.
From the Edinburgh Review, No. LXIX.
** That your petitioners are Protestant Dissenters, dif-
fering from the Established Church with regard to the
doctrine of the Trinity, (and reindent at or near )
or (usually assembling at ) for the purpose of
religious worship.
** That the marriage service required by the existing
law is inconsistent in several points with the religious
belief which your petitioners conscientiously entertain.
** That by the municipal laws of many Christian states,
as well as of this kingdom prior to the Act of 96 Geo. II.
c. 83« commonly called the Marriage Act, the matrimonial
contract has been considered as essentially of a civil nature,
although usually consecrated by some religious ceremony.
" That accordingly the marriages of Dissenters, cele-
brated in the face of their own congregations after the
date of the Toleration Act, were considered valid by our
courts of law, although some attempts made to disturb
such marriages in the ecclesiastical courts, served to dis-
pose the majority of Dissenters (between whom and the
Established Church there was then no essential difference
in points of doctrine) to conform in that particular to the
ritual of the Church.
^* That whilst your petitioners are far from wishing to
impugn the policy of the Marriage Act, ccmsidered as a
measure of civil regulation, they beg leave to suggest, that
in its operation, in connexion with the present Church
N n 4
552
Service, it imposes a burtben on consdence, which they
humbly conceive was not intended by the I^sktufe, as
may be fairly inferred from the exemption in the Act, of
the two classes of persons against whose religious feelings
and discipline it seemed particularly to militate.
^* That the just and liberal disposition of the legialature,
manifested towards your petitioners by the Act passed in
the 53d year of his present Majesty^ c. 160. has encou-
raged them to hope, that their religious opinions present
no sufficient objection to the extension in their favour of
the recognized principle of toleration : but they humbly
submit, that such toleration is in their case necessarily
incomplete, while they are obliged by the marriage law to
join in a service, repugnant in many parts to their relig^us
feelings and principles.
^^ Your petitioners therefore humbly pray, that your
(right) honourable House will take their case into your
serious consideration, and afford them such relief in the
premises as in your wisdom shall seem meet.
" And your petitioners shall ever pray,^ 8cc.
S. Copy from the Times, Aug. 11, 18S4, of ResoliUuma
passed ^* at the Annual Gejieral Meeting of the Unitar
rian Association^ held at the London Tavern on Thurs-
day, June 10, 18S4. 6. M. Davidson, Esq. in the
Chair.
^^ Resolved, That the thanks of this Society are pre-
eminently due to the Marquis of Lansdowne, for his dis-
tinguished and zealous exertions in promoting the Bill for
the relief of Unitarians from the operation of the marriage
law ; and for his constant attention to the deputations of
the committee in their various interviews with him.
'^ That this meeting views with sincere pleasure the
truly Christian spirit displayed by many members of the
episcopal bench, and more particularly by his Grace the
Archbishop of Canterbury, in supporting a measure of so
much importance to the preservation of mental sincerity
553
and integrity of conscience, without Which no religious
service can bq useful or acceptable.
^* That the sincere thanks of this Meeting are also due
to the Earl of Liverpool and Earl Harrowby, for their
liberal and candid attention to the case submitted to their
consideration ; and to the former more particularly, for his
candid declaration of his sense of the unequivocal intention
of the legislature to place Unitarians upon the footing of
other Protestant Dissenters, by the Act of the 53d Geo. III.
and of their just title to further relief in the event of
doubts attaching to the complete operation of that Act.
** That this Meeting is also anxious to express its gratis
tude to Lord Holland, for bis manly and energetic support
of the rights of conscience; and to such other noble Lords
on both sides of the House as furthered the measure by
their speeches or votes.
*^ That while the members of this association are encou-
raged to look with confidence to the ultimate success of
their efforts, they think themselves called upon thus pub-
licly to declare the true object of their complaint; the
grounds on which they seek relief ; and the plan of redress,
which they have ventured to suggest.
*^ That the present marriage law of England, first made
in the year 1753, and for the avowed purpose of merely
preventing clandestine marriages, requires all persons, ex'-
cept Jews and Quakers, to join on that occasion in the
worship and service of the Established Church.
^^ That the conformity thus imposed upon the Unitarian
Dissenter, is repugnant to his conscientious^ feelings and
opinions ; first, because as a Dissenter he objects to being
forced to join for civil purposes in the ordinances of that
Church, frpm which he conscientiously withdraws himself,
under the sanction and protection of the law : but secondly
and chiefly, because the marriage service of the Church is
one in which he cannot as a Unitarian join, without a
species of equivocation, painful to his ponscience and de-
grading to an honourable mind.
o54
** That this compulsive conformity is ecmpundrelj of
recent origin, the Church having no such exdosive prl-
vHegdy until it was conferred upon it (not as an eodesi-
astical privilege, but as a civil regulation) in 175S, prior
to which time marriage appears to have been in England
as in almost all other countries a civil contract, requiring
for its legal validity the sanction of no Church.
*^ That the enforcement of conformity in this respect is
repulsive to the policy of the existing laws of England,
which, long previous to the Marriage Act, had sanctioned
and protected the right of dissent from the worship and
discipline of the Church.
^* That the efiPect of this Act, so far as it operates as a
constraint on conscience, could not have been intended by
the legislature; that the framers of it had avowedly in
view merely the civil object of promoting regularity in the
formation and registration of the matrimonial contract;
and that this is evidenced by the exception of the parties
(Jews and Quakers) against whose religious habits and
opinions it obviously militated— which exception would
most probably have been extended to Unitarians, if their
worship had at that time been included, as it now is,
within the protection and sanction of the Toleration Acts.
^* That the grievance is extremely partial, inasmuch as
the marriages of all Dissenters in Ireland are Iq^sed by
express Act of Parliament, passed in 1772, after the fullest
discussion, as those contracted in Scotland are of course
binding ; and as only a few years ago an Act was passed
for rendering valid Presbyterian marriages in British
India.
** That the law is not only unjust, but that it is not
warranted by the slightest political or civil expediency,
inasmuch as the object in view, the due publicity and re-
gistration of marriages, may notoriously and obviously be
accomplished with the greatest ease, vnthout any restraint
on religious feelings.
** That if the legislature feels itself in any manner called
555
upon to interfere with the celebration of marriage as a
religious ordinance, in order to secure a binding and im-
pressive influence on the consciences of the parties con-
cerned; still it is clear that such an object can best be
accomplished by avoiding all constraint, and by choosing
such religious ceremonial as will be accordant to the feel-
ings, and therefore most likely to produce the desired
effect on the minds, of the parties.
** That the existing constraint is not only vexatious to
Unitarian Dissenters, but must, as they conceive, be ex-
tremely unpleasant to the ministers of the Church, who by
the existing law are obliged to administer sacred ordinances
to, and join in religious worship with, persons who are
known to them on all other occasions to disavow and pub-
licly renounce their communion.
'^ That as a remedy for this grievance, the Bill recently
introduced, provided for the observance of every one of the
forms now required, as well as for the maintenance of the
fees and emoluments of the Church, and merely allowed
the religious service on the occasion to be performed by
the parties, according to their own mode, and in their ac*
customed places, registered for the purpose under clearly
defined regulations and restrictions.
" That the exact letter of the precedent in the Marriage
Act of 175S, (of merely exempting Jews and Quakers
from its operation,) was not followed in this Bill; first,
because the interests of the whole community, and the
avowed policy of the law, plainly require the checks and
regulations which it imposes to be of general obligation,
though in the case of parties so distinctly marked as the
Jews and Quakers, a relaxation in their favour could be
granted without danger : secondly, because the Unitarians
sought to withdraw themselves frcnn no sort of civil re-
straint or inconvenience, but were wiUing even to under*
take additional responnbility, and trouble, and expenot:
and thirdly, because it was avowedly expected of them
that nothing should be sought to be aJtered which was not
556
necessarily required by the concession to their religious
scruples.
** That registration in the common parochial register
was proposed to be preserved, (in the absence of any other
authorized and established register duly preserved,) be^
cause there would thus be a service to be performed, io
respect of which the Church minister might receive his
accubtomed fees ; because the continuance of one general
register, in which marriages are numbered consecutively,
was considered to be of great value, not merely to Unita-
rians, but to the whole community ; and lastly, because it
was conceived that such a duty (performed as it is now,
under the requirements of the law, as a matter of civil not
of ecclesiastical policy) could not be objected to as dero-
gatory to the dignity of the Church, on any grounds which
would not apply with far greater force to the obligation
now imposed upon that Church, of receiving into its reli-
gious ordinances, for a merely civil object, parties who
openly renounce its discipline and doctrines.
^^ That this Meeting instructs its committee to persevere
in their applications until the justice of their claims be
fully recognized, and the grievance be completely removed;
in a firm reliance on the justice of the l^islature for the
admission of claims so obviously just, and on its ifrisdom
for devising a mode of relief, which shall combine a due
regard for the rights of conscience with that attention to
the civil interests of the community, which none are more
ready than the Unitarians fully to recognize and admit,,
and, so far as in them lies, conscientiously to uphold."*^
3. Copies of Protests delivered on various occasions by tie
Free-thinhing Christians.
**' To Mr. Crosby, commonly called the Rev. Mr.
Crosby '.
> From tht Free-thinking Christians' Qu. Reg. No. III. p. 293. This Pro-
test claims attention as the first and original Protest which was delivered. The
passages bt-lween parentheses were added in a Protest d^fcred to *' Mr. Jones,
557
^* The undersigned, being Unitarian^ Dissenters, present
to you the following Protest against the marriage cere-
mony, to which according to the laws of the land they are
compelled to subscribe: they disclaim all intentions of
acting disrespectfully either to the le^slature or to its civil
officer, before whom they stand; and they lament that
they are placed in a situation so unnatural, as that eveh
forbearance to what they consider as established error,
would be a formal recantation of opinions which they re-
ceived on conviction, and which they will only renounce on
similar grounds. Against the marriage ceremony then
they can but most solemnly protest : —
^* Because it makes marriage a religious instead of a civil
act:
" (Because parts of the ceremony are highly indelicate,
and must to every correctly constituted mind be extremely
offensive :)
^* (Because the man is required to worship the woman,
though the founder of Christianity has declared that Grod
is the only object for the Christian to worship:)
^^ (Because it requires the recognition of the doctrine of
the Trinity, than which nothing can be more oppressive to
those who disbelieve, conscientiously and after patient in- '
vestigation, that doctrine; conceiving that the whole of
revelation fully sanctions their joining the apostle Paul in
declaring, that *^ To us there is but one God and one Me*
diator between Grod and men, the man Christ JeSus i"^
^^ Because, as Christians and Protestant Dissenters, it is
impossible we can allow of the interference of any human
institution with matters which concern our faith and con-
sciences :
^^ Because, as knowing nothing of a priesthood in Chris-
tianity, the submission to a ceremony performed by a
of the parish of West Ham, Essex, usually entitled the Rev. Mr. Jones," at the
marriage of Henry B. Feanon, Johanna Thompson. Other material
in the two Protests are marked in the foltonring notes.
^ Protestant.
.>5S
person in holy orders, or pretended holy ordefi» is painftil
and humiliating to our feelings.
^^ Because % as servants of Jesus, we worship the one
living and true God, his God and our God» his Father and
our Father ; and disbelieve and abominate the doetrine of
the Trinity, in whose name the marriage ceremony is per-
formed.
** Signed, William Coates, Mary Anne Thompson,
Members of the Church of Grod,
known' by the name of Free-think-
" June 10, 1814. ing Christians."
^^ The* undersigned, members of the Church of God
meeting in London, being Protestant Dissenters, and com-
monly known by the name of Free-thinking Christians, in
obedience to the dictates of their own consciences, and in
accordance with the instructions of the Church to that
effect, hereby protest, as well on the part c^ the Church as
on their own part, agfunst the use in their instance of the
marriage ceremony, as contained in the Book of Common
Prayer; to which ceremony, though the same be contraiy
to their belief, they are compelled to submit, as the only
means of obtaining a legal marriage. They feel themselves
compelled to protest agunst such ceremony for the follow-
ing reasons:
*^ 1st, Because, whilst admitting the civil institutions of
the country, they deny the Scripture (or Scr^^iural) au-
c *' Bfctnie, u warm and firm belieren in the truth of Chriitiaiiitj, thdy
dilbelieft and abominate the doctrine of the Trinity, in the name of itWch the
marriage ceremony is performed: and becaoae, u lervanti of Jeaoa, they
worship the one living; and true God, his God and their God, his Father a»i
their Father."
^ *« Meeting at the Crescent, Jewin Street, London.*'
« From the Times, Dec. 6, 1S24. Protests nearly in ihit same worda wen
delivered. May 23, 1823, at West Ham, at the marriage of BCr. John Debdl,
of Cranbrook, Kent, to Miss Juditha Thompson ; and at Cleihenwell, at the
marriage of Mr. Richard Nelmes, of PentoaviOe, to Miss Sophia Ranger, of
Marden, Keot.
559
thority of the Church of England to decree rites and oere-
mmiies; much less to impose such on those who dissent
from her community.
*^ Sdly, Because, whilst admitting the civil, they do not
admit the spiritual authority of the ministry, by whom
the marriage ceremony is performed, believing the Jewish
priesthood to have been superseded by Christianity, and
none other to have been instituted by Christ.
'^ Sdly, Because they do not believe in the doctrine of
the Trinity, in the name of which the marriage ceremony
is solemnized ; this doctrine appearing to them, and being
by the Christian Church of which they are members pub-
licly represented to the world, both in writing and dis-
course, as one of the many lamentable corrupticms of
Christianity, alike repugnant to reason and contrary to
Scripture.
" W. Woods. S. Hodges.^
The insertion of this Protest in the Times, as from a
correspondent^ called forth the animadversions of the Editor
in the leading article of the following day : and his remarks
are in themselves too valuablie to be lost in the miscella-
neous matter of an ephemeral publication, and are also
indispensable to the right apprehension of a subsequent
defence of the Protest. •
^' We inserted an article from a correspondent yesterday
on the subject of a Protest, tendered to a clergjrman cmF the
Church of England by a couple about to be married,
against the ceremony according to which the clergyman
was bound by his duty and solemn obligation to perform
the rite. The manner in which we have here stated the
case will shew our opinion upon it. If the clergyman had
previously promised to accept the Protest, he had inad-
vertently entered into an improper engagement, from the
infraction of which however the party, with whom the
engagement was made, could receive no damage : for what
good could this Protest do them, unless the degradation of
560
the parish priest were a good to those who were married
by him P What have the dergy of the EstaUidied Cliurdi
to do with Protests of this nature ? Or where is the aooept-
anc^ of them enjoined as a part of their duty ? It is not
optional with them to use or omit a part of any of the
Church ceranonies. They pledge themselves, and are
solemnly bound at their ordination, to comply with the
Liturgy of the Church of England : their hands therefiire
are tied, and it seems excessively foolish to pester them
ivith Protests in an affair totally beyond their control. It
w^uld be quite as rational in the clergyman to give the
couple a Protest on account of their faith, as for them to
give him one on account of a rite contained in the Book of
Common Prayer. Indeed it appears to us, that if a dis-
senting couple must tender a Protest on account of their
being married in the Church, and according to its ritual,
the minister of their own dissenting congregation is the
proper person to whom the Protest should be tendered,
and by whom it should be received, for by such a process
he learns and is assured, that though this portion of his
flock may seem to quit him on the most important occasion
of their lives, it is only because the existing law of the land
forces them, and that ha is not therefore to esteem them as
renegades and deserters.
^^ The particular Protest however in question (that
signed W. Woods and S. Hodges) possesses a degree of
absurdity peculiar to itself, from which perhaps ingenuity
might contrive to purify similar documents in future. The
parties protesting first go to the church, and then and
there they protest ^^ against the use in their instance of the
marriage ceremony as contained in the Book of Common
Prayer.^ Now suppose for a moment that the clergyman
had been inclined to violate his duty, and having got the.
couple into church had professed his readiness to save
them the trouble of a protest by marrying them aooording
to any other form they might wish; would ihejf hme
9ujfgred him f Would they have been content to place the
561.
validity of their marriage upon so rotten a foundation?
Certainly not. They therefore protest to the officiating
minister against his marrying them by the prescribed
form, whilst at the same time they would not suffer him
to marry them by any other. Does not this absurdity
prove that the clergyman is not the person to whom the
Protest should be presented ? He does not force them to
be married according to the ritual of the Church of Eng-
land : they enter the sacred temple voluntarily^ and wou}d
force him, if he should attempt to diverge,' to use that
ritual. The Protest then goes on to say, or to complain,
that ^ the parties are compelled to submit to the Church
ceremony as the only means of obtidning a legal marriage.^
And is not the clergyman also compelled to submit to the
use of that* ceremony ? How preposterous then, when all
are subject to the same compulsion, for one to protest to
another of an obligation which is not of his imposing to
whom the Protest is offered, but by which, whether with
or against his will, he is equally bound with the author of
the Protest." . . .
It was not to be expected that these remarks would be
suffered to pass without an attempt to vindicate the form
of the Protest, which had been thus powerfully exposed,
and of which a formal defence, under the imposing title of
** Dissenters' Marriages,'' was prepared and inserted in the
Times, Dec. 17, 1824.
4. Copy of the Defence of the Protest.
" Dissenters' Marriages.
^' The Elder and Deacons of the London Branch of the
Church of God, commonly known as * Freethinking Chris-
tians,' having observed that the late conduct of two of their
members, in protesting against the marriage ceremony, has
exposed them to the marked animadversions of a leading
daily journal, feel themselves called upon through the
same medium to submit to the public the grounds and
reasons of their conduct.
VOL. II. O O
562
*^ Marriage is regarded by the law of England, and it is
held by the Freethinking Christians to be, a dvil contract :
and even if the language of the Liturgy be adopted, which
represents marriage as ^ instituted of God in the time of
man^s first innocency,^ it is certain that marriage must
then have been performed without the intervention of a
priest.
^^ If in the progress of society it has been thought neces-
sary to superadd a religious solemnization to marriage, in
order to increase the sanctions of that state, the very rea-
sons which superinduce such necessity must be defeated,
unless the solemnization be consistent with the conscience,
and accordant with the faith, of those who are to be bound
thereby.
'^ By a comparatively recent Act of Parliament, (26 Greo.
II. cap. 83.) a submission to the marriage ceremony as
performed by the Church of England was for the first time
imposed on all who sought to obtain a legal sanction to
marriage, Jews and Quakers alone excepted.
^^ Derived chiefly from the Roman ritual and mass-books,
the marriage ceremony of the Church of England appears
to the Freethinking Christians to be popish in its doc-
trines, superstitious in its forms, and unsuited in its terms
to the refinement of the age or the occasion on which it is
used. '
^' Bound in all things by the authority of Scripture and
the dictates of conscience, the Freethinking. Christian re-
fuses to yield a voluntary submission to the marriage ser-
vice, which, if the above representation be correct, it is
difficult to suppose can be approved by any serious well-
informed Protestant. The objections <^ the Freethinking
Christian however to the service may be categorically
stated as follows : —
'^ Because that service is part and parcel of the religion
of the state, and must as such and of consequence be
opposed to the religion of Jesus.
" Because it is not a service enjoined in the Scriptures,
563
but is an assertion only of the unscriptural claim of the
Church to decree rites and ceremonies.
'^ Because the service implies a recognition of the doc-
trine of the Trinity, and directs divine honours to ^ the
man Christ Jesus/
^^ Because, performed as a religious service by a person
in * pretended holy orders,"* it carries with it an admission
of the claims of the priesthood, which claims, whether to
be regarded as a separate body among Christians, as the
ministers of Christ, or the exclusive iieachers of religion,
are unfounded in Christianity.
^' Because it is a public outward act of joint and social
prayer, and as such is contrary to the spirituality of the
Christian religion, and to the instructions of Him who
taught his disciples to pray in secret to their Father.
^' Because no earthly tribunal can possess the right to
propose a test for religious opinion, much less to render
the yiolatioi> of conscience the condition of obtaining a civil
righu
^^ Because in several particulars it is not accordant with
that purity of mind which should at jall times characterize
the Christian.
" With these objections to the marriage ceremony, as
imposed upon him by the law, the Freethinking Christian
o£Pers his Protest against that ceremony, or rather against
a forced recognition of that ceremony, in his instance. He
disclaims all belief in the doctrines he is compelled to sub-
scribe ; he declares it is by an act of compulsive conformity
alone that his submission is obtained to the forms of the
Church ; he disowns the sacred functions of the minister
about to perform the service; he purges his conscience
from all assent to unchristian doctrines and practices, both
in the sight of God and of men.
" This Protest he delivers publicly, in the church, before
the ^altar,** and to the minister. Publicly — ^because the
ceremony is public. In the church — ^because in the church
he is compelled to submit to such ceremony. Before the
o o 2
564
^ altar^ — ^because before the * altar* he is required to jrieM
an especial homage. To the ministe1^— because the min-
ister is the legal, the immediate, and willing agent in per-
forming the service, which under the circumstances must
be held to be as great an infraction of conscience, as it is a
profanation of religion.
^^ TRe Freethinking Christian then acccording to his
apprehension delivers the Protest at the time, in the place,
and to the party, when, where, and to whom it is most
suitable to be delivered ; and this in a manner, and under
circumstances, in which it is most likely to prove effective ;
first, in satisfying his own conscience; and, secondly, in
upholding to the world the wickedness, to the legislature
the injustice, and to the Church -the inconvenience, of
obtaining a forced conformity to established doctrines.
" Other and concurrent efforts must be used by the
Freethinking Christians to assert in this particular the
rights of conscience. They have been the first religious
body, who, by means of the press, have called the attention
of dissenters to this important subject, and for many years
past, and on several occasions, they have in common with
the Unitarian body petitioned both Houses of Parliament
for relief.
" Thus petitioning the legislature, as the framers of an
obnoxious law, and protesting to the clergy, as the executors
of such law, have the Freethinking Christians proceeded.
They are indeed aware, that where law is opposed to con-
science, no course can be wholly free from objection ; but
they submit, that it is not for those who inflict a wrong
to complain of the manner in which it is either received or
resisted.
" It is not denied, that the presenting of Protests ac-
cording to the practice of the Freethinking Christians must
be painful to the clergy: but the inconvenience is one occa-
sioned by the law, and the clergyman is the willing instru-
ment of the law. He takes upon himself priests^ orders-
he enjoys the honours and emoluments of his calling— and
565
shall he refuse to take the burthen with the benefit, when
he offers himself as the instrument of power to violate the
rights of conscience ? It results also from this statement of
the case, that it is by a sophism only, that the situation of
him who performs the ceremony can be held to be the same
as that of the party to whom it is administered ; for it is
really distinguished therefrom by all the difference between
acceptance and compulsory submission.
^' It is asked, ^ What have the clergy of the Established
Church to do with protests of this nature ? or where is the
acceptance of them enjoined as part of their duty ?* The
question is invidious to the clergy, and can only be raised
upon the presumption of their being the passive instru-
ments of arbitrary power, or hirelings caring not for the
flock. For if the clergy of the Church of England be,
as they profess to be, the servants of Christ ; — ^if they hold,
as they profess to hold, religion to be a sacred affair be-
tween man' and his Maker ; — ^if they honour, as they pro-
fess to honour, the principles of the Reformation, which
overthrew the dominion of law over conscience ; — then, by
the meekness and gentleness of Christ — ^by all that is
sacred in religion — ^by whatever was great and glorious in
the example of our Reformers — are they bound to receive
every declaration by which conscience shall assert its rights
and religion maintain its consistency.
^^ It is said, that * it would be quite as rational in the
clergyman to give the couple a protest on account of their
faith, as for them to give him one on account of a rite con-
tained in the Book of Common Prayer.'* Perhaps it would;
only it should seem the clergyman is more willing to com-
mit his conscience to the keeping of the state than the
Free-thinking Christian is disposed to do; otherwise in-
deed there seems no reason why the clergyman should not
protest to the Dissenter against being considered a willing
party to so indecent a mockery of religion, as the perform-
ance of a solemn ceremony to those who have* openly an4
oo 3
:)«6
beforehand repudiated its sanctions, denounced its min-
isters, and denied its doctrines !
^* Such protests on the part of the cler^gy, if accompanied
by petitions to the legidature, would tend speedily to
relieve themselves from a painful duty, and Dissenters
from a degrading submission. At present, howerer, the
clergy have neither protested nor petitioned; but they
have, by an overwhelming oppontion during the last Ses-
sion of Parliament, defeated the measure of relief, which
was proposed to make the Church respectable and the
Dissenter free.
^^ It is part of the case of the IXssenter, that the eTil
originated with, and is now upheld by, the Church. A
corrupt pontiff, misnamed Innocent (the Third), first ren-
dered marriage in the Church compulsory, and raised it to
the rank of a sacrament. The Reformed Church, through
the terrors of the ecclesiastical courts, continued to assert
the exclusive claim of solemnizing marriage. This claim
was for the first time sanctioned by Act of Parliament in
1753. By the progress of opinion the law has become
oppressive to Dissenters; they have petitioned the legis-
lature for relief, and the clergy have opposed their prayer.
When therefore the Dissenter protests to the clergy of a
wrong, it is not without a sense that they have a corrupt
interest in the wrong — ^that they are the cause of its con-
tinuance by being the obstacle to its removal. '
^' The Church, it is true, has become tolerant ; but
when the Dissenter calls to mind the enlightened declam-
tion made by the prime minister of the Crown, during the
debate on the Bill for giving relief to Dissenters in this
particular, that ^ the argument for the prindple of the Bill
was unanswerable, as long as Jews and Quakers were ex-
empted from submission to the marriage service f. can he
forget his Lordship's too prompt and devout assurance to
the reverend bench, that ^he was at the same time un-
willing to do any thing which should not receive the ap-
567
probation of the Church ?^ To the statement, then, that
the clergy < pledge themselves, and are solemnly bound at
their ordination, to comply with the Liturgy of the Church
of England,"* it should be added — ^but they have the power
to obtain an alteration of the law, so as to dispense with
this obligation with respect to the marriage of Dissenters^
and they will neither do so themselves, nor suffer others to
do so.
*^ It manifests, also, little acquaintance with this subject,
to assert, that ^ it is not optional with them (the clergy) to
use or to omit a part of any of the Church ceremonies f for
it really is optional with them to do so : and it is remark-
able that the Bishop of Worcester should, in the debate
above noticed, have defended the principle of the Bill,
which was designed to relieve the Dissenter by omitting
certain portions of the marriage service, by contending,
that it was only proposed to do that by law, which was
already to a certain extent done in practice ; ^ for,^ said his
Lordship, ^ does not every body know, that in large and
populous parishes the marriage service is now considerably
abridged ?'
'' Upon the known and ancient custom of the clergy,
then, in omitting some portions of the marriage service,
and in dispensing with some of the directions of the rubric,
the Dissenter prefers a claim to the minister, that in ad-
ministering the law he will relieve him as far as may be —
that he will do that for conscience which he does not hesi-
tate to do for convenience.
^^ So far also is it from being the case, that the Free-
thinking Christian would feel his marriage invalidated by
the omission of such parts of the ceremony as violate his
conscience, that he really offers his protest in the hope of
obtaining such; and that he has in some instances posi-
tively and successfully refused to kneel before the altar,
and to repeat the names of the Persons of the Trinity.
^' Not that the Free-thinking Christians will be con-
tented to receive that relief at the discretion of the clergy,
o o 4
568
which they are entitled to claim from the justice of the
legislature : nor will they believe that relief ean long be
delayed, when the principle upon which it was demanded
was recognized in the Marriage Act itself, in exempting
Jews and Quakers from its operation, and in not being
extended to Scotland ; when it has since been admitted by
the Iridh Parliament in the Act passed to allow the IXs-
scnters of the sister kingdom to marry according to their
own forms ; and when it was in the last Session of Parlia-
ment advocated by the most distinguished members of the
State, the chief ministers of the Crown, and some even of
the dignitaries of the Church.
" Signed, « J. Dillon, Elder,
« D. Harwood
" J. Kilner
" R. Hoverdon
" J. Denman
Deacons.*^
There is nothing in this defence of the protest which
has not been already obviated, (ch. i. ii.) or which renders
it necessary to produce the notes, which were prepared in
counteraction of every article. Tt is a singular proof of
the temper and judgment with which certain portions of
the periodical press are conducted, that it was announced
in the Sunday Times, Jan. 1825, in reference to this de-
fence : ^^ The Free-thinking Christians have published a
valuable protest against the scandalous practice of com-
pelling Dissenters to be married according to a vulgar
ceremony, which they deem impious and degrading.'" The
editor of the Times was far from concurring in this
opinion ; he inserted the defence of the protest, to which
he directed the public attention in an article of the most
uncompromising severity.
^' AVe insert an instrument of considerable length, signed
by some of the chiefs of the sect of * Free-thinking Chris-
tians/ in reply to some observations we made on a protest,
offered by a couple of that sect at their marriage according
569
to the forms of the Church of England. If the law of the
land, or the ceremonies of the Church, were to be altered
to please the fantasy of every innovator in politics, or
sceptic in religion, nothing permanent or comprehensive
could.be established. The ritual of the Church of Eng-
land was made to correspond, by the wisest, the most
discreet, and the most pious men that ever tived, with the
belief of the majority. It cannot be made to adapt itself
to the faith of a thousand different sects, or perhaps to the
peculiar tenets of every individual man : for we very much
doubt whether any two members, even of this sect of Free-
thinking Christians, think alike upon all reli^ous topics.
Indeed, what use is there in free-thinking, if they cannot
be free enough to think differently from every body else,
and from each other? The followers of Johanna Southcote,
who we believe are at this moment more numerous than
the Free-thinking Christians, would not be content with
any marriage ceremony, in which the name of their saint,
and an allusion to her miraculous conception, should be
omitted. This scruple must be indulged also, no doubt.
« « « «
... ^^ if the Free-thinking Christians believe marriage to
be only a civil contract, why do they not contract it among
themselves by civil forms .'^ Why do they obtrude their
remonstrances on the Church? It may be said, because
the children of such marriages would in the eye of the law
be illegitimate and incapable of succeeding: and how
many entailed estates do all the members of the sect of
Free-thinking Christians possess? How much property
that they cannot bequeath by will? Let replies to these
questions be inserted in their next petition to the legis-
lature : and it is under this form in truth that relief should
be granted to them — ^that after a civil contract with penal-
ties, the sexes may cohabit ; and that the offspring of such
union shall inherit, if there is any patrimony, ad if the
parties had solemnly plighted their faith at the ialtar.^
Times, Dec. 17, 1824.
No. III.
COLLECTION OF OFFICES FOB THE SOLEMNISATION OF
MATRIMONY.
1 . Offices of the Greek Churchy extracted from the m^Xaym
sive rituale Grsecorum, coroplectens ritus et ordiiwt
Diviiis Liturgiae, secundum usum Orientalis Ecdenae;
illustratum operi Jacobi Groar. Lutet. Paris. 1647.
(a) AxoXoutia yivo/xcyi) m fuf^rrfotg ^yow rou a^pafimn^*
Mrra rtpf duav Xtnovfyuofy rou li^eag kriwrog w rm itfcenm
va^KTravTM oi /tteXXovre^ ^euywaieu t^ toov dyuav fiu^onr* 6 fU9
ani^ ix Se^iflov, ^ Se yuvi} e^ iuoovvfimif, Aroxnrreu Sf fv t^
Se^icp f/Le^i Tfig dyias rgaxeCi]^ SaxrvXioi auT»v Suo, XS*^^^^ ^'^
a^yu^u^* 6 /u^ agyv^vg carofiuwv t^^ roe 8f0M() 6 8f ;^^0^tt(
x^0( ra o^iOTe^fliy ovviyyvs eOikt^Xoov.
*0 $s 2e§st;$ (r^^ayi^ii ro; xe^aKei^ roov ai/roov ytoyuft^oBy fx y\
xai, SiSoxriv auroi^ xij^u; etjmfMvov^y xoi ita'a^ag eojTwg- lySoy
Tou vaou tuftia OTau^fiSco^* xoi Xxyrrm icaqa rou Sioxovou' Eki-
Xoyijo'oy 8«a^ora.
Koi 6 legffu; ex^owei* EuXoyijro; 6 0fO( V^w ff'oyrorf, my xoi
oeiy xai 6i; rou^ ouoovas rwv aieovflov.
*Oxogoj' Aftijy.
*0 Sioxovo^' Ev up^yfTi rou Ku^iou SnjlflOji^fv.
'O x^S^S' K.<^$'< eXfi]<roy.
*0 $<axoyo;* *Txe^ n}( cffiiyij; rou o-u/xsrayro; xotrfioUf mwroAtm^
rcoy ayicoy rou 0eou txxXijo'Mpyi scoi rq^ rcoy iretnanf hoMTHog^ rw
Ku^iou Sffi}9eoftffy.
'O xo^o^* Kvfn fXsijo'oy.
*0 Sioxoyo^* *Tire^ rou ayiou oixou rourou kou raw fMr« viotmHi
ffuXo/Seio^, XOI ^ojSou 0eou ffio'ioyreoy tv flump, rou Ku^iou SnidcD/tty.
'O X^?^^* K^P<s 6Xci}(roy.
*0 Sioxoyo^' 'Tvff^ rou ogx'*^'^'^*''^^ ^f^^y rou Siiyo;, tou rifuou
v^fCjSurff^iou, Tfis ly X^iorco Sioxoyioi^y xotyro^ rou xAiffou xeu rou
Xaou, rou Ku^iou $si)4wftffv.
671
avTtoyf rov Kugfou Snjiwftffv*
'O Sioxovo^* 'Tx-f^ rov vojAO^p^ftiyvau fturoi^ rixva u^ SMeSop^y
yevovs xai Travra ra x^^ (ramigiav anr^iutroy rou Ku^iov SnjtoijHtcv.
'O x^S^i" Ku^is eXci}(rov.
'O Sioxovo^' 'Tarif rou iiaTeific§yi.^ififou enurots ayccmiVy TuAfiav,
ffi^y»xi}v, xai fioifiuaVf rou Kv^iou 8ffi)Acofify.
'O ^UMOWs* Tri^ rou ^Xfl^tijvai atn^u^ ly 6^yoMt xoi fiificux
wtvreif rotf Ktigiou $ei}dcoftffv.
'O xo^* JLtigif eXnjtf'oy.
'O $<axoyo;' 'Treg rou cuXoyijtijvai earrovs ev OjxoyoiA xai fitfiauf
TioTsi, rou Kugiou $ei}dflOj(4fv.
'O ;^o^o^' Kugiff eXfijo-ov.
'O Siaxovo^* 'Tvffj rou $ia^Xa;i^0i]vai ourou; fv ofUfMrrcf fitarj^
xa$ ToAiTf la, rou Ku^iou iirficoi^iv.
'O x^S' Ku^M eAf))(roy.
'O Siaxoyo;* *Oiroos Ku^io^ 6 0eo^ ^poy ^o^Krijrai atrroig rifuoy
roy yoLfiov xou n}y xoirqy af^iayroy, rou Ku^iou SnjAwaffy.
'O x^S^S' K^S*^ «Xii)<roy.
'O Siaxoyo^* 'Tire^ rou pwrtt^veu ^/xa^ cnro xa<n}$ 4Ai\pfeo(i ogyi^,
xai ayayxi}^, rou Kugiou 8ei}flwft6y.
'O x^9^^' ^^S*^ sXei3(roy.
'O Sioxoyo^* Ti]^ xayayMi^, a;^^ayrou, m^fuAoyiifMyi}^! tySo^u
SfO^oiyij; ^fi^Vy flfforoxou, xsu aunraftsvou Mo^ia^, fitra vayroiy rmv
dyuoVi fjLVtjfji/ivmja-arregf kaurovs xeu aXKt^Xovg run waffw Tijy tjomiy
r^ltuaav XgiOTO) rep 0ffcp ifet^aieofi^eL
'O x^9^^' ^^' Ku^if .
*0 ifgfu;* *Ori x^ffi (TOi xoora to^a, riftij xai v^xuyiyo'i^, r»
'jrargi xott tm vim xou rep dyuo Tysu/Meri, yuy xai ofi xai fi^ rou^
oicoya; rcoy oueovoov.
*Oxogor Af4iiy.
Eira Xtysi njy fu;^y fteyoXof euveo^*
*0 0so^, 6 (xieoyio^, 6 ra Siij^/tteya 9'ufayaymv ug fyonjrft,
oJ2
'Pff/3fxx0tv xai xAij^oyo/tov; nj^ oi}; fxatyyiXMi^ aowBfi^a;, oirrv;
ffvXoyijo'oy xoi rou^ SotiAou; <rov rourocif, dSifyonr eanw^ tv warn
0*01 Ti)y So£ay avoarefji^irofjLtVy rw warily km rep uicp xoi nop fltyioi
Tvsv/MeTi, yuv xoi at i, xoi fi^ roug ouanws ran euotvetv,
*0 if^fv;' Ei^vq Too'i.
'O iuixovos* Tag xt^akoig u/xcoy t» Ku^icp xXiyffre.
'O legffu^' Kv^ie, 6 Qeog lifionf^ 6 rqy e0 etfi«oy wgoiMJinfmvcetfU90g
exxAi}(riay ira^iwv etyvtiv^ fuXoyi}aoy roe {jLVfirrpu reana^ xcu he$ro9
xai Sia^uXof oy rou^ SouXou; (rou rourou^ ev uff/pn^ neu 6fiovoif* 0W
yo^ vgerei vaara Soj^a, rifti} xai '>rgo(rxwnfi'ig rw vor^ f xoi ni
vup xai Tfip fl^yio) Tyf^/Meri, yvy xai oci, xoi fi; Tou^ oueviw^ rwv
aicoyeoy.
*Oxo?or A/«jy.
Eira Xctficov 6 Ugevg roog 8axruAiou^, mSi&oo'i v^coroy, Tf
avSgi, roy xg^^^uy* eira roy agyufOuVf ri) yuyaixj. K^ti Asyfi t»
ay$gi' A/S^ajScoyiCn'oi 6 SouXo^ rou 0ffOU| 6 Sfiy^t, njy SovAiyv rev
0eou, Ti}y8e, n^ to oyo/iMt rot; weerpog xai rou u2ou xoi rou dyiou
fmvfjLceros^ yt/y xoti oei, xai rou^ euoovag rcoy aMoyooy.
Eira xcu rp ywoixi Xeyn* A^^afianfifyreu 4 SouAi} rou 0ffOU| ^
deiyoe, roy SouXoy rou ©ffou, roy^e, eig ro oyo/xa rou ^rar^;, xai rou
uiou, xai rou ayiou WiVfjLcerogj wv km au, xai ttg rou; aiMw; r»y
aioovoov, A/xijy.
Kai oray »ti} ei; kxaffTOv^ TfiSy Toiti <rrau^y, fMra rou
SaxTuXiSiou evi rag xs^akag aurcoy, xoi mridi^iy ourou; cy roi;
h^mg auTwv ^axrvKoig, Eira aXXafffni ra SoxruXiSia rofy
veowiji^v 6 (rvvrexvog, 'O 8e U^tog Xeyti njy iu%i}y.
Tou Ku^iou 8ei}dflo/tey\
> For the prayer, begioQing, %w^t I eMf f^M»f, the Office in Bigamof sabiti-
tutrs the following prayers : Aifrtrc, Kn^ii • 6i«f 4^v. i «tt*fw» f iJfl^i»«f mi
m9i^r$9nf ^tt^ttn, • vXm^mt nm$ i^fu»if^»t, i *Pmmfi rf v'ifvf ^^X^t"^^* "^
r§u TiXtitiv mv fAirmf»4m9 •'^•rii^M^iM^y fin fitneSift ifui^rnftmrm ^f^^^B mymat
573
Kupi?, 6 &tof r,fMov, 6 TOO ttaiSi rot; iirarpoi^ou \figaafji, (rvft^
irogevtus sv ri] Mea-oworafna orcXXofi^ycp vvfu^evtrafftM rep Kugiw
T>iv 'Pe/Sfxxflev afroxakw^foig' avrog evKoyrjirov roy appotfieova roo¥
SovXcov (Touy TOu$e xai Ti}0'$e, xa» <m]^i£ov rov va^' oturois XaXyiiivrot
Aoyov* |3f|3fliMo<rov euirovg rp vo^a (rou ayia ^oti}ti, (tu yo^ av*
oLqx^g f8i}ftiougy)}(ra; o^sv xai ti}Xu, xai vo^ (rou agfjLofyrou
ay$gi ycivi} ei; |3oi}dffiav xa» SioSop^v rou yevou^ T»y avi^eoTfiov.
auro^ ow, Ku^te, 6 0eo^ 4fi^('i'9 e^flcrooTf lAa; ti}V otXt^tnav m Ti}y
xXi}^voftiav 0'ou xai njv ncoLyyiKkact frw m rou^ SouXou; (rou,
rou; ifotregas rificov ei; xai' Ixotmjv ywtoof tou^ cxXsxtou^ cou,
nrijSAe^'oy ^* '^^^ SouXov (rou, rovSf, xai njy SouXijy (rou, njySf, xai
(mi^i^oy rov a^pafimvot avratv, fv vioTfi xoi ifMvoui xai aA3}dffia
xoi ayoTT)}. (Tu yo^, Ku^ie, wrti^et^as hiwrdou roy a^^afioovoi^ xcu
t»umeafAtf$s nvt ItuXtvt 0§v r§9 htfa Mm rtiv ittut, iMM'«v rif w^9S MXXiiXftff
Xn^T0u mt J^BftfXtynwtr tut ^m fitrmfttmt J^ iXnt um^ms mttrtttf i» i/MVMa umt
ii^ntifr ^*s t9r»XMt r«» t^m^ifi%f0i, »«r«(i«#«r« nm mi tmtt^ftiv r«v fim^iXumt*
irt 9u II • uxiufif vcyrwv, jmm rM rfi» )«{«v •Ni«'i^r«^v ry wmr^i nm rf awy mu
Tf iyty mivfAart' vyy ««i mUt *m u$ t§h umim$ rtn munatf. A^nv.
Ei^nvn ira^i.
Teif Mi^aXas v/A»t9 Tf Kv^m »Xt9mrt»
»m T§ K»i* fifiag ita^fnlimt X^t^i'^** *" ^' ^VMimMir t«v ^m^X»u ^v^mfitttg
nfttmtf tXa^inrt rmt »u/umt ratf i»vXit9 r«v' ivs «■• Mmwetfut »m r» ^m^»t rm
nfit^at nm rnt 9a^*§t Tifv tru^wtf fm t^xittnns fim^rmf^Uf, us ymfuv )ia^i^«»
JM/Mwvicv 0tn%^x,^vrmf xmius IM/M#iriir«f li« r«v rsiMvc rns %MXj»yni 9»y TlmyXtt
«r«v atwrtXtv, uirtt* 2i* n^c ^'Vf rmTuum r§' s^tirrw •» Kn^i* yfiuf n
wvfvffm. KUTf it ayaft nm ^tXmvi^uf^t fXi«rty um ^»yx''(^^**9 iXm^rt, Mns,
m^tg ra t^uXn/imrm n/Mtf, irs 9u u i rmt va^ovt nfMn iff*! r«v nfttf m^mfitfet- §»ius
ym^ t^rtv Kfafim^mrut *^ «* C^» nf^%^ i fitH «vr«v t^rtp, n x^f'f ^**^**** ^ f^^ ^^
fMff i 9M^*m ^a^tsttt m9m.fUi^rnTt0S nm rn* mtnwt n/u» ^^«'«/»iMf mwtJu^f
*Ort fu u 0i«r, Qt§t ratt ft,trm*—inTtn^' nm w$i m* )i^» mfmmfiiWfU*, ^f wmr^i
nm Tf yif nm rf kyt^ wnufimri, vm mm mu, um us tmh mtmms nn mmnn,
lav Kv^tau iiniatfitt.
'O Qt0s, « nyfSf i wXnrms m x**i *''* mvi^ttm, n. r. X. as in the following
nntXatf^ta rtv 9T%^»9tftMr§s •
574
iui SotxTuXiSioti tfoEVfjcDA) f| aAi}4ffia r^ &afutf' Sia SdoeniXiiioo ^
wetnig iifiM¥ 6 ou^io; oixri^/xcoy ytyoMV fVf tw vlov ovnu' Snv
yo^, fijo-^ SaxruXiSioy eri njy Si^y otirov, xoi tuown^ tw
fjLoax'^¥ Toy o-rrfftfrovy ^oyoyrc^ fv^^oyflfiOfMy. ovni i| tv^ia awi|
Ku^M, Toy Mcovo-ijv fOT^aroxaiSffuo'cy ey ifv0^ AoeAbov^. 8ia yotf
Xoyou <rou tou aA]}diyou, oS ou^oi mmfHoSiia'Wf^ xeu ^ yi| rfi^
XiCD^i)* xoi 4 Si^ia Tooy iovXanf cou wkyf^^^wrou^ rtf Aoyio irm if
xfetreueOf xeu tw /Sjop^iovi <rot; 7i^ o^njAif • avro( ocw moi yin^
SfOToro, ffuXoyijaroy to SocxruAotfO'ioy Touro tdAAyioy ouyowoyy nm
ftyyfXo^ Ku^iou T^ovo^iVfcrdo) e/xvjoo^ ouirvy mnroc; t«( >ifMM
Tiff Ijanis aanw. 6ti crv ei 6 wXaytov xeu AywXp^f t« avitmeanu xm
cot Ti}y So£aty ayair^tiuro/tey tw Vffr^i xoi ry v2(ap xoi tbi epytf
Tyfu/xaTi* yuv xai aei, xai ei; tou; oicoya^ Ta»y auopoov, etfion^,
Eira fXTsyi} xoi earoXucis,
(b) AxoXoudia TOU fnfetvcofieeng.
El ftey /SouXoyToi ey r aurtf <m^avaohpfeUf §w§f)(orreu t¥ rv
veufy [JL^a xi^gwv anrroftfyetfyy T^ovo^fvopjyou tou Mjpfev^y furc
Au/i.«riou, xai ^eiXXovros Toy tpaA/xoy ouTcof* A 8f Ko»g tv ixeUTf
frtiym kpyu to*
Ao^u 0*01 6 0eof 4/ta>y, Soj^a ooi.
Mfltxopioi vavTis 01 ^jSou/xcyoi Toy Ku^ioy.
Ao^a 0*01, 6 0ao; ^/uoy.
Oi To^fuojujyoi ey Tai^ 6$oif auTou.
Ao^u (TOi, 6 0eo$ ^jttcoy.
Tou; xa^ovg roov xapraov <rov ^aytvm.
Ao^a (Toi, 6 0ffOf iffuoy.
*H yuyi} o-ou, »$ afjureXinfj lutuyouora fy toi; xAM'fO'i n|( OfX4S(
cou.
Aoi^a (TOif 6 Qeo$ ^/tcoy, ^oj^a coi.
Oi uSoi <rou flJf yeo^ura iXaiooVf xuxA» tij^ Tg«9n{^f o^ou.
I Sou ouToo; fuXoyi}fli}0'erai avifaowoSf & fo/3oufUMf Toy Ru^ioy.
Aoi^a 0*01 6 0ffo^ ^fMoy, So^a 0*01.
EuXoyijo-ai <ri Ku^io^ ex Sicoy, xa» iSoif tcc ayata 'Ifjouo'fliXiyi
TftO'a; Toe; r,fji>egoL^ Trig l^onig <rov.
575
Ao^ft 0*01, 6 Siog f/uMov, lo^a cot.
Km li^ois uiou^ reov vUov (tou, ei^vp m rov Ic^oiiX.
EiTft $iaxoyo; n)y awaam^v* Ev ffifi)i^ tou Kv^iou tnjtoi/Xffy,
*0 xogo^* Ku^te aXffi}<roy.
*0 heuiovos' Tireg nj^ aycofcv eifi)vi);, xai nj; awnigta^ eurrmff
rou Kupiou $6i}$fl0jMy.
*0 xojoj* Kugie eXfljo'oy,
*0 Sioxovo^* 'Tti^ TVis ttpiviig rou eru/tvaryro; xoo-ftou) fuorateia;
TBoy elyicoy rou 0ffou ixxXijo'ifloy, xai nj; row TMrrwy kmcmA^^ rou
Kt/^iou $8i}0c0jMy.
'O x^?^^* Kugie eXfijo'oy.
'O $Mtxoyo;* 'Tireg rou oyiou oixou TOtrrou, xm rwy fimi
Tioreoo^^ gvXafitiaS xai ^o/3ou 0eov eio-ioyropy ty amp, rou Ku^mu
$ei]0c0|xey.
*0 x^S^S' K.WJW iXeijo^oy.
'O Sioxoyo;* *Tir6^ rou agp^itTio'xovou 4f^<^9 routf, rou ri/buov
irgea-fiuregiovj tij; ey X^iorep Siaxoyioc;, voyro; rou xXij^u xai rov
Aoouy rou Kugiou $ei]0eoft6y.
*0;^ogoj* Ku^te eXfljo'oy,
'O $iaxoyo^* *Tirtg reoy SdtiAfloy rou Oeou^ rov^f xai n^o'Sf, row
yuy (rvvotTTTOfji^svoov aXAi}Xoi; ei; yofjLOv xoiyooyiay, xoi ti}( awnigtag
earroovj rou Ku^iou Sffi)9a)fMy.
'O ^0^0^* Kugie eXei}<roy.
*0 Siaxoyo^* 'Trt j rou euXoyi)Si}yai roy ya/xoy rouroy, dg roy ey
Kaya t>}^ FoXiXaia^, rou Ku^iou Sn)$eo|My.
*0 X®?^^' Kugif iXeijo-oy,
'O Siaxovo;* 'Tmg rou ira^offx^^^' auroic o'cof^oo^yi^, x«i
xag^ov xoiXia^y ir^^ to (jvyj^nqw^ rou Ku^iou Sfi}0«|My.
'O X^§^^' Kujie eXnjiroy.
'O Siaxovo^* Tire^ rou eu^gayfijyai oeurou; sy Igewet UMoy xai
Ouyore^y, rou Ku^iou SeijAflOfiuy.''
*0 x^?®?' Kupie eXeijO'oy.
'O ^loxoyo;* *1tVe^ rou Sco^Sijyai ouroi; mntKnag eanXavctVf
xai axarayvoo^Toy $taya»yi)y, rou Kujiou StiifcofiMy,
'O x^?^^' Ku^ie fXajcoy.
576
'O ^loxovo;' 'Tire^ rou Seo^ijtijyfti airrotg re xat iifuv xonra ra
*0 xo^j* Kugie £Xsiy<roy.
'O Siaxovo;* Tsre^ rou ^triveu auTOVf re xai ^/ao; «dro ironri};
'O x^^^' '^wg** iXeijcrov.
'O huxovos' AvTtXafioVf cwcov^ eXnjo'ov, xai $iaf uXa^oy igfLO^} o
'O X®?®^' Kujie eXnjo'oy.
$e(nrojvi)( ^f^oW) deoroxou, xai osnro^eyou Mo^to;, jxera trarron rvn
dyuovf itrf^iiovtvfroivTBff ioarrov^ xcti oAAijXou; xoi Too'ay njy tpanpt
iifAcoVf XgiffTw TOO Oecp wofaSaai/L^au
Ex^fltfyci); 6 le^su^*
'Ort wgnrei coi Too'a So^ac, tijxi} xai irgocxim^o'i^ rep worrpi, xai
to; uicp, xai rep ayia> meuficeriy wv xai ast, xou et$ rovs suaavas rwf
auovcov,
*0 hoixovos' Tou Kugiou ^Bvfiooft^,
Koi 6 le^su; jxeyoXo^wyo)^ n}y etJXi}y*
'O 0eo^, 6 axfoims xai ifoffyfi xrio'ffltff Si}fuov^^;, 6 nqy
ir?iiuga¥ TOU T^OTOTO^; ASttft $ia n^y (njy ^iAoi^geoi'iay ei; yuyauxa
fUTaiJLog^co(rag^ xai tsoXoyy^cag avrws xai ttwmv' Av^eaftfrSt xeu
w\r^iuve(r6e xai xaraxvguvo'a'n ri); yiif xai ofiforefovg aurovs h
fjLeXog avoj^ei^as ^la ti)^ avfyyiag, kvtxn yaq Toyrou xoraXfi^w
av$gooiros roy warsga aurov xai n^y jxifre^ xoi ir^oo'xoXX])4i)0'fraj
T]} i5ia yuyaixi, xai itrovrai oi Suo ei; cagxa /uiMty* xoi ou^ 6
0eo^ (Tuye^su^ey, avifanwos jxi} x^f^t'^®* '^ ^o*^ te^flnrovra oiou
AfigaofA tvXQyr^(rag xai havoi^oig Ti}y /tifr^y So^^^i xoi voen^
tAi}0ou; edycuy iroii^as' 6 roy l<raax Tp 'Pe/3exxf X^^^V'^^^f ^^^
Toy Toxoy at^n]; euXoyijCoj' 6 Toy Iaxco/3 rij *Pax^X owo^m;, xoi
e0 aurou tou^ ta^exa irargia^a$ avaZii^a;* 6 rov Itoani^ xai rqy
Acnjyrf avfyu^as, xafKov waihowoiria'ag atmig roy E^^^ xoi Toy
Mayaccnjy X'^^^^H'^^^' ^ "^^^ ZMXoipoLv xai n}y CXicrajStr r^oo*-
Se^o/EMyo; xflti wgoigofjuov Toy TOxoy ouTOt; aya(8fi(«r i ex r^g ^{^
577
liCtroUf TO Kara (ro^xa, /SXaanjCM; rr\v aeiira^ivov^ xai ^ aun}^
a-oigKwQsis xou re^iiig ei; cconj^iav rov yevovg rcuv av6goo^a)v' 6 hoi
TYiv a^pouTTOv (Tou ioogeav xai iroXkr^v uyoiioTrifra iragayevoftsvos ev
Kavdt Trig ToLXiXouag^ xon rov exeto'e yoifiov euXoyijo'a^, iva ^avs-
gfloo'ijj, 6x1 o'ov $s\rifjLa e(rrtv yj Bwoiiog avlfyyia xai rj ef avrr^g
TaiSoToiVa. AwTOj, ^tairoroLy ^ravayie, ^rgoo'Sffai njv 8gij<ny ^|x«)v
TCDv ixerwy cou, w$ exn<re xon evraviet iroL^oLyevofji^og rij olo^oltco
<rou ewio'Tao'ia* euXoyija'oy tov yojLOv toutov, >cai iraga<r;^ou toij
$ouAoi^ O'ou TOXJTOig too Seivf xai ty} Setvi, ^ooijy ei^ytxi}y, /uoexgoij/xs-
^euo'iv, crcofgtxrvvrjv^ njy ei; oAAjjXou^ ayonjy, ey rcu 0Tfy$e(r|X6i) rr^g
sj^yi}^, CTFegiMi jxaxgojSioy, njy en rexyoi^ X^'^» '^^^ oL^uoLqavrivov
Tijj 8oJ)jj OTg^ayoy. of loxroy amovg ihiv Tsxya Tsxywy rijy xoi-njy
auTwy aveTri^ovXstrrov haTvip^a'ov' km $o^ a\)TOig olifo rr^g Sgo<rou rou
ougayou avcoSev xai utto tijj vtorv^og njj yijj, e[MrXyi<rov roug (uxou^
atrrcoy o-irou, oiyou xa» eXaiou, xai iroKTrig ayaiotrvviigy ivet [jLtTu-
dtdoocri xai roi^ X^^'^^ sp^o^<''<» Sw^uftevo^ fltjxa xai roi; (rv[ji/jragoucri
iroLYTot, TOL vgog croorripiav ainjjxara. on 0eo^ eXsou^, oixrig/yuoy,
xai ^i\avi§ayfriag inra^eigy xou coi njy^ 9o$ay avoefre[MrofMV crvv too
ava§^co (TOtj TFOLTqiy xa» rep iroLvayuo xat ayaScp xai ^eoo^roieo cou
meufjuxTi' vuv xoLi asij xai ei^ roc;; aioovag toov aioovoov,
'Oxo^o?' A/X1JV.
'O ^laxovo^' Tov Kugiou Seijtco/tey.
Ka« 6 Isgevg tyjv sv^v
EuAoyijTo; ei, Kugte, 6 0go; ^ftcov, 6 tov jxtiorixou xai op^gayrou
yafJi.ou Ugovgyog xai tov croofjMTtxov vofioisTrigj 6 Tfjg afioLg(riag
^uAo^, TOOV fiioonxoov ocyetiog oiMvofMg' atuTog xai wv, derrroToif 6
€V otgxV ''^^^^^S "^oy avigooTTOVy xai iefji^vog aurov cog fiacriKea Ti^g
XTiO'eoog xai eiTrooVy ov xaXoy eiyai roy avigoattrov jxoyoy eri n]; yrjgy
tcoif^cruoii^v uvTcp ]3oi]$oy xor' avTor xoei \oe/3ooy ft^iay rcoy ^rAevgeoy
atfTOu eKXauag yvvetixuy ^y iScoy A^ajx gt^re* touto yt;y oorot^y ex
Tcoy oa-Toov (jlov xai (rag^ ex -njf (roLgxog [mv aunj xXi}$)]0'eTaj yuyij,
OTi ex Tou av^gog auTr^g eXij^Sij aunj' ^yexey toutov xaTaXsi^ei
avdgoonog tov vuTegoL etvTOv xai -njy iwrfnga^ xai Tgoa^xoKkrfitf^eTai
Ti} »$ia yvvaixiy xai eo'OVTai oi ^vo eig (ragxa yuav. xai ou^ 6 0eo^
e^eu^ey, avigoovog [jlii ^oogit^eToo, avTog xai vvVy Seo^oroe, Kvgie 6
0eog rjfMOVj xarafrefji^lfov njy X^^^ ^^^ "^^ eirovgavioy em rou^
SouXou^ cov TouTou^, Toy hiva xai Tijy Seiyflc, xai dog ri} vai8i(rxM
VOL. II. P p
578
ravrfi w voffw dwtfrttfijpfai rm eeAqi^ nm rw tookn 0W tovtov
cnwi eis xffoAiiv rq^ yweuitof* ifw»g /Smdo'om'i luera to Ukui^ <rois
mf?<ojrn(r9v att/TOUf, Kujif 6 09og ^^um^ dg fiiAoyi|0'a^ rov Afifmofi,
xai njy 'Sappeaf. tuXoyijcoy otirov^, Ku^if 6 0fOf ^h^^^M^ cJ( fuXtf-
yijca; Toy Icoox xoi np' Pe/3ffxxay. ffuAoyi)<roy ovrov;, Kujif 6
0eo; ^fLcoVy tig fuXoyi}0'0e; rov Iaxco/3 xoi Tearroig rouf ifecTfutf^otgm
suXoyifO'oy ourou;^ Kugic 6 0ffo; ^jft^cV) ^0^ euXoyijcra^ roy loNni^ xoi
ryjy Aa>}y6d. euXoyi}0'oy aurovff Ku^te 6 0to$ ^fLcoV) c^ euXoyi^O'a;
Mfloo'ea xai Snr^o^av. suAoyijO'oy oamvSf Kujie 6 0eof ^f^ow, cu;
ft;Xoyi}0'a; IcDoxffijx xai Tijy Ayvay. et/Xoyijcoy ovrou;, Ku^it 6 0co^
^jxeov, co$ evkoy^o-ag Z,a^agioaf xai n^y KXiffafi&r, Sia^Aofoy
otirou;, Ku^ie 6 &sog v^fuov^ tog diefuXa^ag roy Nom fy rj) xi/Sim.
tio^uXa^oy aurovgf Ku^ie 6 06O^ ^fto^y «o; Sif^Xofa; roy lovyoy fy
' rp xoiXia Tou xijrou;. SMt^uXo^oy aciTOu;, Kujtff 6 0eo; ^ta^y* fl^^
Sis^uXa^a; Tou^ ayiou^ rptg iroiiSa$ ex tou tv^, xarear^^eig
auToig S^o<roy ou^ayotey. eXSoi m* mrrwg if x^'?^ fxeiyij, ^y m^^ ^
IMiKagia 'ElXew], m eu^e Toy Tiftioy OTou^oy. funf/xoyfi/^oy ourawy
Ku^tSy 6 0eo; 4fM0v» 00^ efji,vrifMvewrois rou Eyoop^, tou Sif/x, xai tou
HXia. i^vvjiJi^ovewrov avrooVf Ku^ie, 6 0eo; ^f^t^yy a( ffftyi|/xoyiu0'at(
Tfloy ayicoy 0*01; Teerca^axoyTa f/M^rvgcov^ xaroanitu'pag eamig ov-
^avo0sy rou^ rrefoofovg, ju^ytj/uboyeucoyy 6 0eo^, xai rosy eofoA^w^eafTWif
avTOv$ yoyscov* 6tj 6U%ai yoyea)y anj^i^ouo*! le/MXia oixeoy, furfifiO"
vetMTOVy Kugte, 6 06o; ^f^^oVy T»y SbuXow o-oui Tcoy wageafUfufotVf row
(TweXdovToov etg rriv X'^^i^'^ reitrn^. fty)}/uboyet/0'oy, Rujic 6 0fo; ^fteoy
TOU SouXou (TOU, TOuSf) xai Ti)^ $ouXi}; (Touy nfcSe. xoi euXdyijO'oy
ouTOu^. 80^ auTOj; xo^oy xoiXio^, xaXXiTexyMcy^ 6/uboyoMiy ^(aip^coy
xai Cflo/xoTeoy* u^'ooo'oy aurovg^ oog rag xtSjou^ tou AijSaeyou, «(
oft^sXoy ffuxX]}fiaTOu<r£ey. Scu^coy eunotg ffm^fAa vra^vogf iva xaurwf
wiragKuav e%oyre; ire^io'O'fuo'fioo'iy ei; T«y tgyoy oyodoy, xoti coi
suogfOToy, xai iScoo'iy uiou^ T»y ulcoy auTooy, oJ^ yeo^ura iXoticoy,
xfjxkao Tv]f T^oTTs^))^ avToov* xai eua^earqo'ayrf^ cyonrioy o^u, Xo^-
t);ouo'iy a^ ^OKTH}^?^ fy ou^ayw, ey 0*01 Tcp Kugicp ^jbuoy* fttt^ ou So^o,
x^oro^y Tijxi} xai v^oirxuyijo'i; rep aveif^m (rou rorji km rtp IjatO'
iroup <rov irvevfjMrr vvv xat aei, xa< ei^ rovg ouoovag Tooy OMoydoy.
*Oxofo^* Ajxijv.
'O Siaxoyo^* Tou Kugiou Snjtflojxey.
Kai TraXiy 6 hgevg njy ffup^y ex^floyoo^*
579
w?stu^ etUTOu oyoixoSo/xijo'a^ yweuna, x«i cvfyu^ttf wntf fioiffiw
xar flcuroy, S101 T9 ovrco^ oftftu rp 0if jxtyiflcXfionfrii juu) fiovov civai
rov ovl^eoToy tri n^ yv^s' euno^ km W9f Sfomra, f^anrooTfiXov nyy
;^ei^a o-ou f^ ^y»ou xaroixifni^tf tf'ou, xoi dfiM^w roy SovAov rov,
rovSs, xoi Tvjv SouXijy O'ou, njuSf , iri waga 0*011 cigfio^trm avt^i yuvi].
o-u^ffu^y avrou; ly 6j(Mf ^oonyj}* cnfavoorof aur^s fi; 0'a^xje /uiiay'
yaqivou oanois xapnv xoiAia;, ffurexyia^ anro\0UMny. *Ori coy to
xgarogf xat cov earw ^ fiour^knet xai ^ Svyofti; xai 4 ^S^ ^o^
Tfltr^^ xoi Tou viov xoi roo ayiou irycvftoro^' vuy xai ofif x^ ei^
rov; ouowa^ rmv eummv,
Kcu fi^a TO ofufy, Xa/3o»y i UgWf ra orc^yM, orriffi ir^oiToy
Toy wfjLfioVf XByooy' Sts^oi 6 SovXo; tou Ofoc;, i Sfiyo, njy SouXiyy
TOU Gfiou, Ti]y$e, n§ to oyojiMc tou voct^;, xoei tou uIou, km tou
EiTtf ore^f I xoi Tijy Wfji^ftpff Xgyaw* ^ff^er«i ^ 8ouXi} tou Oeou,
4 Sffiyoy Toy $ouXoy tou €^u, Toy Seiyo, ti; to oyofia tou irocr^; xai
TOU uiou xoi TOU oyiou mwfiaro^.
EiTft suXoyei outou; y. Xiywy tx y.
Kvpe, 6 000^ 4/Moy $0^ xai rijui} ore^oeycdO'oy auTOU^.
Erra to TrgoxeifJLivoy tou AirooToXou. 1^0; irA. $.
Eldi)XA^ eiri Ti]y xe^deAsjy ouToiy oro^you^ ax Aitaw Tijxuoy* ^y
iTn^crovTO 0*8, xai eSsoxoe; outok.
*0 ocirooToAo^. n^of E^oriou; ffTKrroAq; IlfleuXou to av0t-
yycoo'ita*
ASeA^oi, 8u;^a^ioTffiTe ironrrore uirtg treemov ey oyof^rn tou
Ku^iou ^/xcoy Ii^o-ou Xgiorou Tep 0ew xai ireetqy. Roi Ta ^$.
TeAo^' ^rAijy xai u/xfft; oS xot^ hou^ Ixooro^ Ti}y ^auTOu yuyoixa
ouTO)^ ayafKorm oq$ tauTov* ^ 8c 7^wi}» S'a ^/SijTai Toy ay$^a.
AAA)}Aot;ia. i};^. tA. a'. ZSu, Ku^ie, ^uAofai^ ^f^^^ >(m haenj^fj"
EuayyeAioy ex tou xora Ifloayyi}y*
T« xai^o) exetycp* ya/xo; eyfycTO fy Koya T19; FaAiAoiof, xai ijy
1} fti}Tf]^ TOU I))0'ou exei* cxAijA] 8s xai 6 lijo'ou^ xai 01 juaSifrai
i> All the parts of the Office preceding thia prayer are omitted ia the Office in
Bigamos.
p p 2
580
axrrw ug rov yofimf* Km ra i^Sf kog rw T«un)v tnsi^t Tijy
eifX}i¥ Tto¥ in^itMon 6 Iifcrou; tv Kava n^s FaAiXoMi^y xeu afcan^mn
n^y So^ay eunouy km twumwreof 9ig atmv o» fiatiftM aurw,
Ku^iCy iravTox^aTO^t 6 0eo( reoy irore^coy ^/xcoy.
EXei}<roy rifMLS 6 0ffo^, xora to fjuya ek^s trou.
Koi ftyi)/toyffuei9 a)y leAei.
Etra 6 ie^£u$ iKfcovcos'
'On eXtrifieov km ftXavigooirog Qiog (nroi^Btg xm <roi n^y io^sa
avotirefjLirofjLtv^ rat trar^i xeu rep vieo xa% rep oyiep yyfUftari, nw xai
oil xat ei^ Tou^ mcovolc toov aKitwov.
Eira 6 Siaxoyo^' Tou Kugiou het^ioofuv.
Km 6 iegeug niy etj^y
Kt/^is 6 0fo^ ^fMw, 6 cy Ti] o-omj^icoSci o'ou oixoyojxi^ xfltra^MDO'a;
tv Kavct Trig Taki>xucig riftioy ayoSei^oi roy yofjLOv hia nj; (nj;
iroL^ovcricis' ettrrog xm wv tou^ SouXou; O'ou, roy $eiya xm njy SeiMc,
ou; euSoxijco^ avvafh^vM aXXi}Xoi(, cy »^i}yij xoi 6jxoyoia Sia^v-
Ao^oy, Tiftrioy avroig roy yo^uov ayo^ci^ov, ofjuavrov aurwy njy
xoinjy $i0eT)}^i}O'oy, axi^XiSeoroy aurwy rvjy <rvfjifiioo<rtv $ia/xeiyai
cuSoxijo-oy* xoi xarct^mTOv wnorjg ev yifci irioyi xderaynya-ai, ty
xada^dt T|] xa^Sia egya^ofj^tvovg rug «yroXa$ cou. 0*1; yo^ ci 6 0eo;
^/LUtfv, 0eo^ TOU ffXs6<y xai ceo^ffiy, xai coi Tii]y So^ay avetwtfurofieif,
9VV TOO avA^co O'OU irargi, xai reo iroyayicp xoi ayaim xm ^ooowoteo
(TOU TTvevfiMrr vuv xm oin xm eig Toug Moovoig rmv Moovmy,
*OXOgog' A/xijy.
'O Siaxovo;* AyriA^jSou, (roxroy, ffXeijd'ov.
Tijy ri[ji,egav iraxrav reAeiay, dyiuv.
" AyytKov ei^yi};, tiotov, o&jy^y*.*"
^tiyyveojut^ijy xa< afi<nv reoy dfia^KOV,
Ta xaXa xm ovfA^egovTa TMg 4^^<(*
Toy u^oXoMToy x§^^^^ '^S S^S **•
Tjjy iyo-njTa njj irJOT«wf .
Ex^wyoi)^ 6 le^eu;'
« Omitted in the Office in Bigaraos. d The Office in Bigaraos adds the
versicle XM^rmfm ra rtXn rm.
581
Kai xorof taxrov ^jxo; , Sfoirora, fura ifo^^iais '' axoTMiqvtw^
roXfiMv erixaXeirtai cre^ rov esrou^avfoy Ofov irareqa^ xeu Xsytiv*'^
Kai 6 Xao^, to* Ilorff^ ^ftioy 6 ty roi; ou^voi^.
Ex^eovctf; 6 legeui* 'Ori cou foriv ^ ^euriXnui^ xai ^ Sumfti; xou
ij $o^a Tou iretrgo^ xeu rou uiou xai rou ayiou Tryev/xoro;, vw xai
a«i xai ei$ rovg atoovas rcov aicovoov.
*0 xofoj*^ Ajxijy.
'O Iff^fwj* Ei^vi} irflwi.
'O diaxovo^' Ta; Mfa?\M$ ufucov roi Ku^Mjp xAiMtrff.
Eira wgoo'fegiTat to xoivoy Tonj^iov, xeu wKoyt^ atrro 6 le^u;*
xai Xeyei tijv iux^jv Taunjv.
'O Siaxovo^* Tou Ku^iou SfljleojUMy.
'O 060^9 6 ^rairra iroir^<ras ti} io^uV tf'ou, xoi mqaao'oLi njy
o<xou/ut€y)]yy xai xtHTfMiO'ag rov ort^ayoy ^rayTcoy Tcoy Tnroii}fCfycoy usro
o-ot;* xai TO 9roTi}^ioy to xotyoy touto, ira^ep^Ojxsvo; toi; cwa^tsio*!
wgog yafxotj xowmnavy £vXoyi}(roy euXoyia TysufiaTixi}.
Ex^ctivw^*
'On evXoy)}Tai cot; to oyojtta xai SfSo^ooroi (rou ^ fiaxFiXiietj tou
xar^o^ xai tou uIou xai tou ayiou yyfUfiaTO^, yuy xoi osi xai ei;
TOD^ aicovas roov aioovoov.
EiTa Xa^v 6 Ugevg eri ynigag to xoiyoy ^ronj^ioy, jxrroSi&oo'iy
auToig sx y. ^r^eoToy rep ayS^i, xai au$i^ tii] yuyaixi. Kai 8u4sa>;
XoL^oov auTotjg o^isgeug^ *'tou o^/yrexyou x^orouyTO^ oricley rou^
0T£^avou^%^ (JTge^ei mg ey o^fMen xvxXov xat t);aAAfi 6 U^u; i)
6 Xao^ Ta xo^oyTa rqvKoqia ei$ i^oy tX. o*
Hcraia ^o^euf. 'H ira^tyo^ e^ey ev yonrrgiy xeu sTfxey uioy roy
EjU(.ftavoui)X, 0soy ts xai ayigeoaroy* oyoroXi} oyo/xa auT»* 6y \uyoL'
AuvovTg^ Tf]y fFxgievov jxaxagi^o/xa^.
*ETe^a ijp^of /Saguj*
'Ay 101 yMQTXiq^gy oi xaAco; adXijo'ayre^ xoi (m^oyeoteyrff^, v^ec-
fieva-oLTs irgog Kvgiov^ fXfi}^yai Ta; ^ini^ag Ofuov*
Ao^a 0*01, X^ioTf, 6 0eo;, airoo'ToXcDy xetv^fjMf fiagrvgav
ayoXAiajxa' coy to xripjyfJMy rgtag ^ 6|xoouo'io;.
EiTa enaiget tou; ore^ayou;, xai na^ rw ors^ayoy rou yu/ut*
^low, Asygr
c Omitted in the Office in fiigamos.
p p3
582
fv hxMOcwr^ rets wnXai^ rou 0eou«
Kfti tv rep nq^ vt;|xfi|;, Afycr
^uAoTTOUo-a Tou; ogovs rou voftou, 6ri out»^ cu8oja|OV 6 0ffo;.
Eira Affyei 6 Siaxovo^* Tou Ku^ou Snj^flOfMy*
Keu 6 iifgug np^ 0^%^
'O &togj i 0eo( 4f^^> ^ waqce/tvoiuvof tv Koyp rif; FotAiXMia^
xoi Toy ffxeio-e yoftov fuXoyijo'flc;, euAoyiyroy xoi rov; SevAou; ow»
Tourou^y Tou^ Ti) (Ti] trgovotoL trgof yotjxou xtiMmov nnw^fcirra^*
fuXoyi)(roy ot/row iio'oSou; xoi fi$b$ov$* wkffivpof t¥ aycS^i^ Ti)y
Cdo)}v auraw* avaXa^ rouf ar^flevov^ «rro»y «y rif /Sotf'iAfi^ rou,
row aioowav,
'O Ugeu;* Ei^vi) ireurim
'O Stoxoyo;' To; xcfoAoe^ u/uMoy rw Kujjcp xXiMtrf.
'O ^«n|$, 6 ulo;, xoi TO fllyioy wvwiutf ^ iratMeyiflt xoi 6|tAoeu0'io$
xai icotqaffyoi ufuy fMEX^^iiacyy mnxyiay, irgoxo«i}y jSiou xoi TionaB^
ra>y mnfyytX^uvwv ayaAao¥ nj^ oiroAauo'ffto;, if^^uu^ n|; ^Kyiflt;
fforoxou X9(i irayrwy rwy ouyimv. AfOfv.
Eira ffioYgp^frai. xoi cu^oyroi ooroi^, xoi aovavotfAfiOi oAAaf*
Xou^, yiwreu waga tou itgtoos reXgia eankuvtg.
*0 hoi Tifis ey Kaya nrtdiifuac; riftioy aya8ffif0Cf tov yttftLOv^
auTOV jxifr^^, reuy aymv^ ty^o^av neu wanofvifumf Avo9ToA«if, vm
dyuwj ifoo-ffiTTBoy jSoo-iAfaoK xou loranorrBAcsy, K^yorvoriMtf xtfi
'EAjyi)^9 rou clyiou (juyeikifiaifrvfOf tlfoaitowiWf mu iroyriiir tw
(c) Eu%i} exi \wri¥ OTcfoyeoy T|y oySo]i V9^
KvpUf 6 0fO( ^fMOV) ^ TOO eyiauTOti roy (mffliyey euAoyi^a; xoi
583
Tou; woLfovTog ffrt^cufovg fTiTidfa^i traqaiovi toi; vo/xcp yofjLOu
o'tjvoatTOfuvot^ aXkifikinSf km iautSov dffmg oarovefixov earrot^ roy Tijf
o'a^goawrigj on ayyoi t^$ rov uro o'ou wfjLo6miifVTa yofjLOv
0'uvi)^0i}(ray' ot/ro; xoi ev rp Xucet ra>v irotgovTaw rrs^oiveov roti;
auva^iiVTag aAA)]^i^ cuXoyijeroy, xm (rwafnav atrrcov oSioairaurroy
&0rn}^(roy* iva cTj^a^iarawi Sioesrayro; t« voyayMp ovojxari <rou
rou irargog xat rou t^lou xoi rou ayiou mtUfioTOSy wv xai eui xou
eif Tou^ oucova^ reoy oicoyeoy. Ajxi^y.
Ei^vi) TOO*!. Ta^ xifaXei$ Vfucov rep Kvfuo xAiyore.
St/ft^floya xfltraynjo'ayrs; o2 SouXoi cou^ Kujie, xai n)y axoAoutiay
exreXeo'ayre^ rou ey Koy^ yai/uov t/is ToiKiKouaf xca irwrreXkovreg
ra xoT auTOv avfJL^X^ Sofoy 0*01 avoanfjLirofMV roc trargi xai rco
vUo KM T(p OLym TryevfjLartf wv xai au xou us 'TOu; aieoyo^ reoy
auovoov. Ajxijy.
Kai yivtrou avoXu(ri$.
(The MSS. Cryptofer. Bessarion. Barberin. 2. contain
only the prayer : and for this the Barberin. 2. substitutes
the following form :)
KvXoyriTog st KugtSy 6 &eo$ ^fMoy^ 6 euXoyv^ag ^H^S suAoyia <rou
Ti} ayidt xai xotTaJ^Maag rif/MS eKTiXBeiv us roy fufj^foova rcov SotiXooy
(Touy 6, xai 6. o"n}^i$ov ourou^ xou ^ojSaiO'tai to oyojxa o^u ro elyioy
'TTouras Tois riiJi»egas "^S Koo^S avraoir ori <n flroSi}(ray, Ru^ia rwy
dwafxeoovy xeu Cf erixoXou/MAa (rvyfX9eif> |ui66^ f/ju^^} xoi fvAoyijcai
Tov yoLiLOv TOUToy xodflo^ i2t;Aoy«}<ra^ roy ya\uov roy ly Kaya T19;
FaXiXaiaf. Tijy ei^yi}y xai Ti}y Xoftv o'^v Ta§a<rp^ot/ otiroi^, flljxa
TOi^ iragavv[A^oi$y xott irourt roi; o^yeXlot^o'iy avroig xeu awtr/*
Soxoucriv sv ratmj ri} deixi} yo/xo$e<ria, too'i %cc^i^Ojttfyo; ra t^o;
(Toorrigtoaf atrrjixareL, 'Ori irgarei 0*01 V'aa-a So^o, xai ra 4^;.
(d) AxoXoutia ffi; Siya/xov;.
(The Eastern Church, holding second marriages to be
chargeable with incontinence, does not admit the parties to
any sacred rites without a previous discipline of prayer
and fasting. The OfRce for the use of the Digami is com-
piled from the Offices eiri ftyiyorgoi; and rov OTefayv/Aaro^.
The principal variations have been marked in the notes
upon those Offices.
P p 4
584
S. Ancient Offices of the Latin Church.
(a) From the Sacramentariuni Leonianum *^ ad Sancii
Felicia III. tempara (q. d. A. D. 526.) referendum.'" Mu-
ratori.
Incipit velatio nuptialU,
Ex audi nos omnipoteiis et miserioors Deus, ut quod
nostro ministratur officio, tua benedictione potius implc-
atur. Per etc.
Suscipe, Dominc, quaesumus pro sacr& lege conjugii
munus oblatum ; et cujus creator es operis^ esto dispositor.
Per etc.
Hanc igitur oblationem famulse tuse {illius) quam tibi of-
ferimus pro famuli tu& (illd) qusesumus, Domine, placatus
aspicias. Pro qua majestatem tuam supplices exoramus,
lit sicut earn ad setatem nuptiis congruentem pervenire
tribuisti, sic consortio maritali tuo munere copulatam,
desiderata sobole gaudere perficias* atque ad optatam
seriem cum suo conjuge provehas benignus annon]m^
Per etc.
Quaesumus, omnipotens Deus instituta providentis tuse
pio favore' comitare, et^ quos legitime sodetate connectis,
longa2v& pace custodi'. Per etc.
Adesto, Domine, sspplicationibus nostris et institutis
tuis, quibus propagationem humani generis ordinasti, be-
nignus assiste ; ut quod te auctore jungitur, te auxiliante,
servetur. Per etc.
Pater, niundi conditor, nascentium genitor, multipli-
cando? originis institutor, qui Ads comitem tuis manibus
addidisti, cujus ex ossibus ossa crescentia parem formam
admirabili divcrsitate signarent; hinc ad totius multitudinis
increnicntum, conjugalis thori jussa consortia, quo totum
inter se seeculum colligarent, humani generis fcedera nexu-
erunt. Sic enim ^^ tibi placitum necessario*, ut quia longe
I proficias. Saer, GeUu, b annorum: dienque oostros. Saer, Gtlmi^
^ amorc. Sacr, Greg. ^ ut. Sacr, Greg. ' cuitodits. Saer. Greg»
^ tibi, Domino placitum, sic necessario. Sacr, Gelat.
585
esset** infirmius, quod ^^ homini simile, quam* quod tibi Deo
feceras, additus fortiori sexus infirmior, ^* unum efficeret** ex
duobus, et pari pignofe soboles mixta ^* manaret ; dum** per
ordinem flueret digesta posteritas, ac priores ventura se-
querentur, nee uUum sibi finem in tam brevi termino,
quamvis ^^esset caduca po8terita5^ Ad hsec igitur ven-
turse* hujus famulae tuse Pater, rudimenta sanctifica: ut
bono et prospcro sociata consortio, legis setemse jura' cus-
todiat. Memineritque se Domine non tantum ad licentiam
conjugalem sed ad observantiam *^ Dei sanctorumque pig-
norum custodise delegatam^ Fidelis et casta nubat in
Christo, imitatrixque sanctarum permaneat fceminarum.
Sit araabilis, ut Rachel, viro; sapiens, ut Rebecca; lon-
gaeva et fidelis, ut Sarra. Nihil ^^ex h&c subdsivus* ille
auctor prsevaricationis usurpet: nixa^^ tidei mandatisque
^^ permaneat. Muniat* infirmitatem suam robore disd-
plinse. Uni thoro juncta contactus ^^vitet illicito6^ Sit
vcrecundi^^ gravis ; pudore venerabilis ; doctrinis cselesti-
bus erudita. Sit foecunda in sobole ; sit probata et inno-
cens, et ad Beatorum requiem atque*' ad cselestia regna
perveniaf*. Per etc.
(b) From the Sacramentarium Gelasianum : ** ilium jt£re
merito Morinus annum septingesimum antecedere QonjicU^
Thomasius.
Incipit Actio Nuptialis.
Adesto Domine supplicationibus nostris {etc. secundum
S(wr, Leonian.)
n est et. Sacr, Gelas, ® quod hominem similem quern* Soar, Gelau
V ut uuum efficeris. •Sorr. Gtlat, . ^ maneret : tunc Satr. Gelas. ' estent
c. proponerent. Sacr, Gelat. * date sint legei instituta ventune : quapropter.
Sacr. Gelas. ' jussa. Sacr. Gelat. » fidei sanctorum pignorum deligatam.
Sacr. Gelas. ' in ea ex actibus suis. Sacr. Greg. Ordo Bam, 7 nexa.
Sacr. Gelas. Greg. * permaneat foeminarum, serviens Deo vero : devota
rouniat. Sacr. Gelas. permaneat uni thoro juncta. Sacr. Greg, Ordo Rom.
* vits illicitos fiigiat. Sacr. Geta*. contactui illicitos fugiat : muniat infinnitatem
suam robore disciplinae. Sacr. Greg, Ordo Rom, ^ Verecunda. Sacr, Gelau
Greg. c usque Sacr. Gelat. i perveniat. £t videat (at videant. Or,
Rem.) fxWos soos usque in tertiam et quartam progeniem et ad optatam perveniat
senectutem. Per Dominum noitrum etc. Saer. Greg.
586
Quflssumus, omnipolens Deus (eia, $ee. Smer. Lmmian.)
Adesto, Domine, supplicadonibus nostris et banc obliU'
tionem famularum tuarum Ittantmf quam tibi offenint pro
famula tua Itta quam ad statum matnritatiB et ad dkm
nuptiarum perducere dignatus es, pladdus ac ben^mii
aBsume, ut quod tua dispodtioiie expeditur, tuft gratift oom-
pleatur. Per.
Deus, qui foedera nuptiarum blando ooneordig jugo et
insolubili pads vinculo nexuisti, ut multiplicandis adop-
tionum filiis sanctorum connnUonim foecunditas pudica
serviret*. Tua enim, Domine, providentia tuaque gratia
ineifabilibus modis utrumque dispensat : ut quod generatio
ad mundi edidit omatum'; regeneratio ad Eodeme per-
ducat augmentum'.
Infra Actionem.
Hanc igitur oblationem famularum tuarum illi et iUaa^
quam tibi oiFerunt pro famulft tuft illft, quaesumus, Domine,
placatus acdpias, pro quft majestatem tuam {etc. aec. Saer.
Leon.)
Infra Actionem.
Ad Tre. veL Annualem Nupt.
Hanc igitur oblationem, Domine, famulorum tuorum
lUi et lUaSy quam tibi offenint ob diem trigcsimum con-
junctionis suae vel annualem, quo die illos jugali vinculo
sodare dignatus es; placatus suscipias, deprecamur: ob
boc igitur reddunt tibi vota sua Deo vero et vivo, pro
quibus tremendae pietati tuae supplices fundimus preces, ut
pariter bene et pacifici senescant et videant filios filiorum
suorum usque in tertiam et quartam progeniem, et te bene-
dicant omnibus diebus vitae suae. Per Christum Dominum
nostrum. Quam oblationem, tu, Deus.
Percompleis Canonem plenariam: et dicis orationem
Dominicam, et sic eam benedids his verbis.
« aervaretur. Saer, Gre^, ^ onuunentom. Saa-m Gng, Jt wajgrnttOum.
£t ideo cum aDgelis etc. Saer, Greg.
587
Inctpit Orfttio.
Deus, qui mundi crescenlis exordio inultipl]cat& prole
benedicis, propitiare suppticationibus nostris^ et super banc
famulam tuam opem tuae benedictionis infunde; ut in
jugali coosortio, affectu compari, mente oonsbnili, aancti-
tate mutuft eopulentur. Per.
lodpit Benedictk).
Pater, mundi oonditor, nascenbum genitor {etc. aecJSacr*
Leon,)
Post fuBc dicis Pax vobiscum. Et rio eo8 comtmmicas:
Demde postea quam oommunieaverini^ dicU super eos
Bened. his verbis :
Domine sancte, Pater omnipotens, ieteme Deus, iteratit
prccibus te supplices exoramus, pro quibus apud te suppli-
cator est Christus; coDJunctioiies famulorum tuorum fovere
digneris: benedictionea tuaa exdpere mereantur, et fili-
orum successibus foBcundenturc nuptiaa eorum, sicuti primi
hominis confirmare dignere. Avertahturabeisiniiniciomnes
msidiae, ut sanctitatem patrum etiam in ipso conjugio
imitentur, qui providentift tuft, Domine, oonjungi meni-
erunt. Per.
Item post Commun.
Exaudi nos, Domine sancte, Pater omnipotens, seteme
Dcus, ut quod nostro ministratur officio {etc. sec. Sacr.
Leon,)
(c) From the Sacramentarium Gregorianum: (compiled
by Gregory the Great, (q. d. A. D. 590.) but afterwards
interpolated. The MS. used by Muratori is of the ninth
century.
Oratio ad Sponsas benedicendas.
Exaudi nos omnipotens et misericors Deus, (etc. sec,
Sacr. Leon.)
Super oblata.
Suscipe, qusesumus, Domine, pro sacra connubii lege
munus oblatum, et cujus largitor es, operis^ esto dispositor.
Per etc.
h opis. Ordo Rem,
588
PrafaHo.
Vere dignum et justum est, aequum et salutare. Qui
fcBdera nuptiarum blando ooncordis jugo, (eft;, sec. Saer.
Gelas.)
Hanc igitur oblationem famulorum tuorum, quam tiU
cifTerunt pro famulft tui (illft) quam perduoere dignatus es
ad statum mensurse et ad diem nuptiarum, pro quft ma-
jestati tuae fundimus supplices preces, ut earn propitius
cum viro suo copulare digneris; qusesumus, Domine, ut
placatus aspidas, etc.
Aniequam dictUur : Pax Domini, dicat hanc orationem.
Propitiare Domine, supplicationibus nostris et institutis
tuis {etc* sec. Sacr. Leon.)
Benedictio.
Deus, qui potestate virtutis tuae, de nihilo cuncta fecisti,
qui dispositis universitatis exordiis9 homini, ad imaginem
Dei facto, ideo inseparabile mulieris adjutorium condidisti,
ut fcemineo corpori de virili dares came principium, docens,
quod ex uno placuisset institui, nunquam licere disjungi :
Deus, qui tarn excellenti mysterio conjugalem copulam
consecrasti, ut Christi et Ecclesise sacramentum pnesignares
in foedere nuptiarum ; Deus per quem miilier jungitur viro
et societas principaliter ordinata ea benedictione donatur,
quae sola nee per originalis peccati poenam nee per diluvii
est abluta^ sententiam ; respice, propitius, super hanc^ fa-
mulam tuam, quae' maritali jungenda est consortio. Tua
se expetit protectionc muniri. Sit in ea" jugum dile-
ctionis et pacis fidelis et casta nubat in Christo, imitatrix-
que sanctarum permaneat foeminarum, (etc. sec Sacr.
Leon. Gelas.)
Pax Domini sit semper vobiscum.
Jd complendum.
Quaesumus omnipotens Deus instituta providentiae tuae,
(etc. as in Sacr. Leon. Gelas.)
^ ablata. Ord. Rom. k hunc famulum Uium et htnc. Ordo Rom. I qui
. . jungendi sunt . . . expctunt. Ordo Rom. ^ Sit erg«, I>oiiiiiie» in bac
iamula tua. Ordo Rom.
589
(d) From the Sacramentarium Gallicanum : " canscrip-
tum suh Pippino vd svb Karolo M. Francorum Regibus . .
atque adeo ante Annum Ch. octingentesimum.'" Muratori.
Benedictio tfudami su/per nvhentes.
Deum, qui ad multiplicandam humani generis prolem
benedictionis suae dona largiri dignatus est, fratres caris-
simi, deprecemur^ ut hos famulos suos iU, et iU, quos ad
conjugalem copulam ipse praeelegit, ipse custodiat. Det
eis sensus pacificos, pares animos, mores mutu& caritate
devinctos. Habeant quoque optatas ejus munere soboles,
qua sicut donum ipsius tribuit, ita ipsius benedictione con-
sequantur, ut hi famoli sui ill. et ill. in omni idem cordis
humilitate deserviant. Per.
Item alia,
Te deprecamur, Domine sancte, Pater omnipotens,
aeterne Deus, super hos famolos tuos ill. et ilj. quos ad
gratiam conjugii venire jussisti, qui per nostram licet pre-
cem aut vocem benedictionem tuam desiderant. Tribue
eis, Domine, fidele consortium caritatis. Induant can-
tateni Sarrae, poenitentiam Rebeccae, amorem Rachel, gra-
tiam et caritatem Susannse. Descendat super hos famolos
tuos ill. et ill. sicut descendit ros pluvise super faciem
terrae; manus tuae sentiant actum, et Spiritus Sancti tui
percipiant gaudium sempitemum.
Oratio super eos qui secundo nuhunt.
Antlpluma, Benedictio Domini super vos.
Beati omnes.
Deus, qui multimoda subsidiorum remedia fragilitati
humana? beneficia confers et tribuis incrementum, ut natura
non dcfrandetur a semiue, per quod geminata propago
crescat in progenies. Sic teniporibus pris(!is Ruth Moa-
bitcm benedixisti, sic in novissimis per apostolum tuum
secunda matrimonia concessisti. Da eis ergo Domine,
famolis tuis procreandorum filiorum unianime dcsiderium,
ut facia t Dominus banc mulierem ill. quae ingreditur in
domum tuam, sicut Rachel et Lia, quae aedificaverunt
domum Israel, et sit exemplum virtutis in Ecclesia Dei. Per.
590
(e) From the Ordo RcmumuB : ^< a fnagitiria Rommue
ecduuB turn conMriptmm, cum Siephof^ Poni^he ei
Pipino pritnum, demde Carolo magna procmraniBj dhhm
qfficia Romana cum Romano oaniu in GaUiam €uni tn/ro-
ducta. Hittorpius.
Oratio ad benedicendam aponsam.
PMtqtiamfiierUmfdiervirodesponMiaeilegaliierdatai
introeat cum mariio ecclesiamy et prostraHs m, dioai:
Propitiare Domine, supplicationibus nostris, {eic» aec
Sacr. Leon. Greg.)
Deuft, qui potestati virtuti^ tus de nihilo cuncta fedsU,
{etc. sec. Sacr. Greg.)
Qusesumus, omnipotens Deus, institute providentiae tuae,
{etc. sec. Sacr. Greg.)
Deus Abraham, Deus Isaac, Deus Jacob, benedic ado-
lescentes istos et semina semen aeternse Titse in mentibus
corum, ut quicquid pro utilitate su& didicerint, hoc facere
cupiant, per Jesum Christum recuperatorem hominum,
filium tuum unigenitum, qui tecum et cum Spiritn Sancto
yivit et regnat.
Exaudi nos, omnipotens et misericors Deus, (etc. sec.
Sacr. Leon.)
Epistola.
Fratrcs ; nescitis, quoniam corpora vestra membra sunt
Christi.
Evangdium.
Loquebatur Jesus cum disdpuUs suis in paraboUs, di-
cens: Simile factum est regnum coelorum. Require in
Dominica 21 Pentecost.
Secreta.
Suscipe, Dominc pro sacra connubii lege, (etc. sec. Sacr.
Greg.)
In firactione.
Hanc igitur oblationem famulorum tuorum, (etc, sen.
Sacr. Greg.)
Post Communionem.
Gratis tuse, qusesumus, Domine, famulo tuo et famul«
591
tuie legaliter oopulatis tribue largitalem, ut mandata tua,
te miserante, sectantes conaolationem praesentis vite perci-
piant et futurse. Per.
3. From the Missale secundum consuetudinem ac ritum
insignis ecclesise Sarisburiensis : (Mcribed to Osmond^ a
Norman^ a/nd Bishop of SaUabu/ry^ A. D. 1099. but in the
Paris edition manifestly interpolated. The principal va-
riations in the York Missal are marked in the notes from
Selden.
De modo solennizandi aponsalia,
StdtuaniuT vir et mulier ante ostium ecdesuB^ woe in
founem ecclesicB coram Deo et s(icerdote et populo : viratitem
stet a dewtris mulieris ; mulier autem a sinistris viri : cavsa
est : quia formata est ex costa sinistri lateris Adce. Tune
sacerdos interroget banna^ et postea dicat in UnguA ma-
tema ; cunctis audientibus,
Eccc convenimus hie, fratres, coram Deo et angelis ejus
et omnibus Sanctis, in facie ecclesise : ad conjungendum duo
corpora : scilicet hujus viri et hujus mulieris. Hie respiciat
sacerdos personas suas: ut amodo sint unum corpus et
duae animse sint ad promerendam simul vitam setemam.
Et quicquid antehac fuerint. Hie fiat admonitio ad po-
pulum in lingua matemd^ sic. Admoneo vos omnes per
Patrem et Filium, et Spiritum Sanctum ; ut si quis ex vobis
est, qui sciat aliquid, quare isti adolescentes legitime con*
traliere non possunt, modo confiteatur: Eadem momtio
fiat ad virum et mrdierem^ ttt si quid ab iUis actum /kserU
occulte^ vel si quid devoverinty vel aUquo modo de se no-
verinty quare legitime contrahere non possint, tunc con-
fiteantur. Si vero aliquis impedimentum aliquod proponere
volu£rit et ad hoc probandum cautionem prmstiterit : diffe-
rantur spcmsalia donee rei Veritas cognoscatur. Si vero
nullus impedimentum proponere voluerity interroget sacerdos
dotem mulieris.,
Nonfidet sacerdos^ Jieque consentiat adfidationem^ inter
virum et mulierem ante tertium edictum bannorum: et
592
banna dehewt mterrogari per ires die$ solennesef di^frn^
ctoe: iia tU inter unumquemque diem aolennem cadai ad
minus una dies feriaUs. Past hcec dicat sacerdos ad virum
cunctis atidientibus in lingita matemd: N. Vis* habere
hanc mulierem in sponsam et earn diligere et honorare,
tenere et custodire, sanam ct infirmam, et sicut sponsus
debet sponsam: et omnes alias propter earn dimittere et
illi soli adhaerere, quamdiu vita utriusque duraverit ? Be-
spondeat: Volo. Item sacerdos ad muUerenu N. Vis^ ha-
bere hunc virum in sponsum^ et illi obedire et servire, et
eum diligere et honorarc, ac custodire sanum et infirmum,
sicut sponsa debet sponsum; et omnes alios propter eum
dimittere, et illi soli adhserere, quamdiu vita utriusque
vestrum duraverit ? Respondeat : Volo. Deinde detur fe-
mina a peitre sua vel ab amico ; qtuB si puelia est^ disco-
opertam habeat manum^ si vidua^ tectam : qtuim vir reci^
piat in Dei Jide et sud servandam^ sictU vovit coram
sacerdote: et teneat earn per manum dewteram in manW
sud deaterd, Et sic vir det Jidem mulieri per verba de
prcesentiy ita dicensj sacerdote docente: I^ N. take the N.
to my weddyd wyf, to have and to hold fro thys day
forwardc, for better for wors, for richer for porer, in
sikcnesse and in helthe, tyl deth us departe, yf holy
Chyrche wyl it ordeyne; and therto 1 plyght the my
trouthe. Manum retrahendo. Deinde dicat mulier^ sacer-
dote docente: I iV. take the N. to my weddyd husbonde,
to have and to hold fro thys day forwarder for better for
wurs, for richere, for porer, in sikenesse and in helthe, to
be honour and buxum in bed and at bord, tyll deth us
>^ N. Wilt thou have this woman to thy wife, and love her and keep her in ,
sikneft and in helthe, and in all other degrese be to her as a husbande sholde be
to his wife, and all other forsake for her, and bolde the only to her to thy live's
ende?
N. Wilt thou have this man to thy husbande, and to be buxum to him, lenre
him and kepe him in syknes and ia helthe, etc.
P Here I N. take the N. to my wedded wife, to have and to hold at bedde
and at borde, for fairer for fouler, for better for warse, in sekenes and in hele,
tyl dethe us depart. And thereto T plyght the my trouthe.
593
departe^ yf holy Chyrche wyl it ordeyne: an4 theito I
plyght the my trouth. Manum retrahendo. Deinde ponai
fnr. aurum vel argerUum et antiium swper sctitum vel
Ubrum : et time qtusrat sacerdosy ri anuius fuerii aniea
benedicttia vel rum : si dicaiurj quod nan : tunc benedicat
sacerdos anulum hoc modo, Dominus vobiscum. Et cum
Spiritu tuo. Oremus.
Creator et oxiservator humani generis, dator gratis spi-
ritualise largitor setemae salutis, tu Domine, mitte bene+di-
ctionem tuam super hunc anulum ; ut quae ilium gestaverit^
sit armata virtute coelestis defensionis, et proficiat illi ad
aetemam salutem: per Christum Dominum nostrum. J2.
Amen. Oremus.
Benedic, Domine, hunc anulum, quem nos in tuo sancto
nomine bcnedicimus, ut quicunque eum portaverit, in tuk
pace consistat, et in tu& voluntate permaneat, et in amore
tuo vivat, et crescat, et senescat, et multiplicetur in longi-
tudinem dierum. Per.
Tunc aspergatur aqua benedicta super antdum. Si autem
anteafuerit anuius ille benedictus: tunc statim postquam vir
posuerit anulum super Ubrum: accipiens sacerdos anulum
tradat ipsum viro^ quem vir accipiat manu sud dexter&y eum
m
tribus principalibus digitis^ el manu sud sinistra tenens dex-
teram spons(p^ docente sacerdote, dicat : With this ryng I
the wedde, and thys gold and sylver I the gyve, and with
my body I the worshyp, and with all my worldly catell I
the honore. Et tunc inserat sponsus anulum pollici sponsiVy
dicens : In nomine Patris : ad secundum digitum : et Filii :
ad tertium digitum : et Spiritus Sancti : ad quarium digi^
turn : Amen. Et ibi dimittat eum . . . quia in illo digit a
est qucedam vena procedens usqtie ad cor^ et in sonoritate
argenti designatur interna dilectiOy qua inter eos semper
debet esse recens : Tunc inclinatis capitibus eorum^ dicat sa-
cerdos benedictionem super eos : Benedicti sitis a Domino,
^ With this ring I wedde the, and with this gold and silver I honoure the, and
with this gyft 1 honouir the.
VOL. II. Q q
5i)4
qui fecit mundum ex nihilo. Respandeiur : Amen. TViic
dicatur iste Psalmus :
Manda Deus virtuti tuae: ccmfinna hoc, Deus, quod
operatus es in nobis.
A temple tuo, quod est in Hierusalem: tibi offerent
reges munera.
Increpa fcras arundinis, congregatio taurorum in vaccis
populorum : ut excludant eos, qui probati sunt argento.
Gloria Patri. Sicut erat in.
Kyrie eleyson. Cbriste eleyson. Kyrie eleyson.
Pater nostcr. Et ne inducas in tentatlonem, sed libera
nos a malo. Benedicamus Patrem ct Filium cum Sancto
Spiritu. Laudemus et superexaltemus eum in secula. Lau-
demus Dominum, quem laudant angeli : quem chenibin et
seraphin sanctus, sanctus, sanctus proclamant. Domine
exaudi : Et clamor. Dominus vobiscum ; Et cum Spiritu
tuo. Oremus. Oratio,
Deus Abraham, Deus Isaac, Deus Jacob, sit vobiscum, et
ipse vos conjungat, impleatque benedictionem suam in rbbis.
Qui vivit et regnat Deus per omnia secula seculorum. Amen.
Alia oratio cum Oremus.
Bene +dicat vos, Deus pater, custodiat vos Jesus Christus,
illuminet vos Spiritus Sanctus, ostendatque Dominus fa-
ciem suam in vobis et misereatur vestri ; convertat vultum
suum ad vos, et det vobis pacem: impleatque vos omni
benedictione spiritiiali, in remissionem peccatorum yestny-
rum : ut habeatis vitam aeternam, et vivatis in secula secu-
lorum. R. Amen.
Hie intrent in ecclesiam usque ad gradum altaris: sacerdos
in eundo cum suis ministris^ dicat Psalmum : Beati omnea
Sine notay cum Gloria Patri. et Sicut erat. Kyrie eleyson.
Christi eleyson. Kyrie eleyson. Time prostratis spofuo ei
sponsd ante gradum altaris ; roget sacerdos circumsianUs
orare pro eis dicens : Pater noster. Et ne nos inducas in
tentationem, sed libera nos a malo. Salvum fac servum
tuum et ancillam tuam, Deus mens, sperantes in te. Mitte
eis, Domine, auxilium de sancto, et de Sion tuere
595
Esto cis, Domine, turris fortitudinis, A facie inimici. Do-
mine exaudi orationem meani, Et clamor meus ad te veniat.
Dominus vobiscum, Et cum Spiritu tuo. Oremus. Oratio,
Benedicat vos Dominus ex Sion, ut videatis quae bona
sunt Hierusalem omnibus diebus vitse vestrae : et videatis
filios filiorum vestrorum et pacem super Israel. Per recu-
peratorem. Oremus. Oratio,
Deus Abraham, Deus Tsaac, et Deus Jacob, bene + die
adolescentes istos : et semina semen vitse setemae in menti-
bus eorum, ut quicquid pro utilitate eorum didicerint, hoc
facere cupiant. Per Jesum Christum, filium tuum, recu-
peratorem hominum, qui tecum. * Respondeiur. Amen.
Oremus. Oratio,
Respice, Domine, de coelis et bene + die conventionem
istam, et sicut misisti sanctum angelum tuum Raphaelem
ad Tobiam et Saram filiam Raguelis ; ita digneris, Domine,
mittere bene-f-dictionem tuam super istos adolescentes, ut
in twk voluntate permaneant, et in ink securitate consistant,
et in amore tuo vivant, et crescant, et senescant, et digni
atque pacifici fiant, et multiplicentur in longitudinem die-
rum. Per Christum. Oremus. Oratio.
Respice, Domine, propitius super hunc famulum tuum
et super banc famulam tuam, ut in nomine tuo bene+dicti-
onem ccelestem accipiant, et filios filiorum suorum et filiarum
suarum usque in tertiam et quartam progeniem incolumes
videant, et in tua voluntate semper perseverent, et in futuro
ad coelestia regna perveniant. Per Christum. Oremus.
Oratio,
Omnipotens et misericors Deus qui primos parentes
nostros Adam et Evam suft virtute creavit, et su& sancti-
ficatione copulavit ; ipse corda et corpora vestra sanctificet
et benedicat, atque in societate et amore verse dilectionis
conjungat : Per Christum Dominum.
Deinde benedicat eos, dicens sic :
Bene+dicat vos Deus omnipotens omni benedictione
coelesti : efficiatque vos dignos in conspectu suo* . Super-
abundet in vobis divitias glorias suae, et erudiat vos verbo
Q q 2
596
veritatis, ut ei oorpore pariter et mente oomplaoere valeatis.
Respandetur. Amen.
{Missa S^Hmtidium.)
Finitis orationibus et introductis iUis in predyterium :
scilicet inter chorum ei altare ex parte ecclesia auUrali s ei
statutd muliere ad dexteram xririy scilicet inter ipsum et
altare incipiatur missa de Trinitate. Offertorium.
Benedicta sit sancta Trinitas atque indivisa Unitas : oon-
fitebimur ei, quia fecit nobiscum misericordiam suam. In
tempore paschali AlPa alPa, post. Benedicamus Patrem et
Filium cum Sancto Spiritu ; non dicatur ulterius* Kyrie
cum suis versibus dicatur. Ad hanc missam^serventur modus
et ordo per omnia, qui in duplicibus festis. Gloria in ex-
celsis. Ist€e dutt orationes dicuntur sub una Oremus, et
sub uno Per Dominum. Oratio.
Omnipotens sempiterne Deus, qui dedisti famulis tuis
in confessione verae fidei seternse Trinitatis gloriam ag-
noscere. et in potentia majestatis adorare unitatem, qua^
sumus, ut ejusdem fidei firmitate ab omnibus semper muni-
amur adversis. Oratio.
Exaudi nos omnipotens et misericors Deus, ut quod
nostro ministratur officio tu& benedictione potius impleatur.
Per Dominum.
Ad Corinthios.
Fratres, nescitis, quoniam corpora vestra membra sunt
Christi.'^ ToUens ergo membra Christi: faciam membra
meretricis.'^ Absit. An nescitis, quoniam qui adhseret me-
retrici : unum corpus efficitur ? Erunt enim, inquit, duo
in carne unk. Qui autem adhaeret Domino : unus Spiritus
est. Fugitc fomicationem. Omne enim peccatum, quod-
cunque fecerit homo: extra corpus est. Qui autem fomi-
catur: in corpus suum peccet. An nescitis, quoniam
membra vestra templum sunt Spiritus Sancti : qui in vobis
est, quem habetis a Deo, et non estis vestri P Empti enim
estis pretio magno : glorificate et portate Deum in oorpore
vestro. Gradale. Benedictus es« Domine, qui intueris
abyssos: et sedes super cherubin. vs. Benedicite Deum
597
coeii : quia fecit nobiscum miserioordiam suam. All^a. vs.
Benedictus es, Domine, Deus patrum nostrorum : et lauda-
bilis in secula. Si ii\ tempore paschaU cantigerit^ se-
cundum Alleluia erit unum de hebdomade paschae vel
unum de illis, quae scribuntur post Offertorium : Quasi
modo gentes, Seqtcentia.
Alma chorus Domini nunc pangunt nomina summi,
Messias, Sother, Emanuel, Sabaoth, Adonai,
Est unigenitus, via, vita, manus, homousion,
Principium, primogenitus, sapientia, virtus, ^
Alpha, caput, finisque, simul vocitatur et est co,
Fons et origo boni, Paraclitus ac mediator,
Agnus, ovis, vitulus, serpens, aries, leo, vermis,
Os, verbum, splendor, sol, gloria, lux et imago,
Panis, flos, vitis, mons, janua, petra, lapisque
Angelus et sponsus, pastorque, propheta, sacerdos,
Athanatos, kyrios, theos, et pantoncraton, Isus,
. Salvificet nos, sit cui secla per omnia doxa. Amen.
Sequentia sancti Evangelii secundum MaMhceum.
In illo tempore accesserunt ad Jesum Pharisaei tentantes
euro : et dicentes. Si licet homini dimittere uxorem suam
qu^cunque ex causft. Qui respondens: ait illis. Non
legistis quia qui fecit hominem ab initio masculum et foe-
minam fecit eos ? Et dixit eis : Propter hoc dimittet homo
patrem et matrem, et adhserebit uxori suae, et erunt duo in
carne un&. Itaque jam non sunt duo, sed una caro. Quod
ergo Deus conjunxit : homo non separet. Credo. Offert
Benedictus sit Deus pater, unigenitusque Dei filius, sanctus
quoque Spiritus, quia fecit nobiscum misericordiam suam.
In tempore Paschaliy all'a.
Nota, quod odor thuris benedicti nunquam datur in
ecclesia^ sponso et sponsne, Inde est^ quod oblato thure
benedicto super altare : si descendat thuribulum ad clericos
vel ad laicos: alitid thus est apponendwm^ et clericis vel
laicis qfferendum. Secreta.
Sanctifica. quaesumus, Domine Deus, Trinitas sancta,
per tui sancti nominis invocationem, hujus oblationis hos-^
Qq3
598
tiam : et per earn cooperante Spiritu SancCo notmetipaoa
tibi perfice munus eternum. AUa Secreia.
Adesto, Domine, supplicationibua ncwtris, et banc oUa-
tionem quam tibi oiFerimus pro famulis tuis, quoa ad
Htatum maturitatis et ad diem nuptiamm petthicere dig-
natus es, placatus ac ben^us assume. Eijifdaniur sub
UTio Per Dominum. Prefa. Qui cum unigenito. Past.
Sanctus, jtrostemant se sponsuset sponsa in aratione ad
gradum altariSf extenso paUio super eos: quodteneaniquatuor
derici in stiperpelliciis ad quatuor comua^ nisi alter eorum vd
ambo prius desponsatijiierini et benedicti : quia tunc nofi Aa-
betur pallium super eos^ neque sacramentaUs benedictio, De^
inde dicto^ Per omnia secula seculorum et responsdj Amen :
Post Pater noster, antequam dicatur: Pax Hommi/actd
fraciione eucharistia more'spliio dimissdque hostid in tribus
fractiotiibus super patenam : dicat sacerdos conversus ad eos
sequetites oraliones sub tono lectionis, illis interim genujlecten-^
tibtis sub jwliio. Dominus vobiscum : Et cum Spiritu tuo.
Oremus. Oratio.
Propitiare Domine supplicationibus nostris, et institutis
tuis, quibus propagationem humani generis ordinasti^ be-
nignus assiste, ut quod te autore conjungitur, te auxiliante
servetur. Per Christum. Oremus. Oratio.
Deus qui potestate virtutis tus? de nihilo .cuncta fecisti,
qui dispositis universitatis exordiis: homini ad imaginem
Dei facto ideo inseparable mulieris adjutorium condidisti,
ut foemineo corpori de virili dares came principium : dooens
quod ex uno placuisset institui : nunquam liceiet disjungi.
Caveat sacerdos de ista clausuld sequenti. Delis qui tarn
excellenti mysterio conjugalem copulam consecrftsti, ut
Christi et ecclesiae sacramentum prsesignares in foedere
nuptiarum. Qjuia non dicitur in secundis nuptiis usque* *
Deus per quern mulier jungitur viro ut patet inftriui,
Deus per quern mulier jungitur viro, et sodetas prindU
paliter ordinata eft bene+dictione donatur; qu« nee sda
per originalis peccati pcenam: nee per dyuvii est aUata
sententiam. Respice, quKsumus, prt^itius super hmut
599
•
famulam tuam ; quae maritali jungenda consortio, tuft se
expetit protectione muniri. Sit in ek jugum dilectionis et
pacisy fideiis et casta nubat in Christo, imitatrixque san-
ctarum permaneat fceminarum. Sit amabilis ut Rachel
viro SUO9 sapiens ut Rebecca, longseva et fideiis ut Sara.
Nihil in ek ex actibus suis ille auctor praevaricationis
usurpet: nexa fidei mandatisque permaneat, uni thoro
juncta, contactus illicitos fugiat, muniat infirmitatem suam
robore disciplinse. Sit verecundia gravis, pudore venera-
bilis^ doctrinis coelestibus erudita. Sit foecunda in sobole,
sit probata et innocens, et ad optatam perveniat senectutem,
et videat filios filiorum suorum, usque in tertiam et quar-
tam progeniem ; et ad beatorum requiem atque ad ccelestia
regna perveniat. Per Dominum.
Notandum esij quod hac claustda in oratione pradicta^
sciL Deus qui tam excellenti usque ad Deus per quern
mulier jungitur, non dicitur in secundis nuptiisj ut supra
dictum est. Vir enim out mulier ad bigamiam transiens
non debet iterum a sacerdote benedici, quia alid vice benedicti
sintf et eorum benedictio non debet iterari : quia caro bene^
dicta trahit ad se camem non benedictam. Et in titulo de
secundis nuptiis inhibitum est per decret. xxx. q. i. Uac
ratione benedictio non datur in secundis nuptiis^ quod tes^*
tatur beatus Ambrosius sic : Primse nuptiae a Domino sunt
institutes : secundae vero sunt permissae : primae autem sub
omni benedictione celebrantur: secundae vacarent aliquft
benedictione. Sedplures benedictiones sunt in nuptiis cele^
brandis : sc, in introiti4 chori : sub pallio : post missam : et
super thorum in sero. Quaro, quare benedictio sit iteranda
in secundis nuptiis, et quare non. Dicendum est^ quod in
hac oratione Deus, qui potestate virtutis tuae, sunt tres
benedictiones qua idem habent principium : sc. Deus : media
autem est omnino omittenda in secundis nuptiis sc. ista^
Deus qui tam excellenti mysterio conjugalem copulam
consecrasti, ut Christi et ecclesiae sacramentum praesignares
in foedere nuptiarum, ut supra, quia- in istd benedictione
agitw de unitate Christi et ecclesia:, quodjiguratur in primo
Q ci 4
600
wuUrimoniOf nott nuiem in secundo. Vnde tt dpaUolm ad
Corinthios VI, Erunt duo in unft carne, et extra de bi^
gamis^ capiiulo : Debitum unius uxoris. Sed qui adkartt
pluribus dissolvit unitatem vel fadm unitatisj et ideo be^
nedictio^ qua: agit de unitate, scilicet: Deus qui Urn
excellenti; non dicitur in secundis nuptiis. Et hoc eU
verum tarn pro viro bigamo quam pro mtdiere xndud^ quia
care benedicta trahit ad $e camem non benedictam. Sed
omnes alia benedictiones indifferenter debent diet secundum
Romanam ecclesiam^ secundum Hostiensem^ et secundum
Thomam de Aquino et Morardum Doctorem. Et sciendum
esif quod ista questio discussa Jiiit et determinata in saero
palaiio Domini Papoe et translata in Angliam per magis-
trtsm Johannem Haystede, Et causa discusiionis eraty quod
muiti sacerdotum tuf»c temporis ad sedem aposiolicum convo-
laverunt camd obtinendi absolutionis beneficium^ pro bene^
dictionibus in secundis nupiiis coUatis indiscrete. Ideo
slatuitur super hoc nova constitutio Joannis Papte XXIL
qua sic incipit,
Concertationi antiquie finem imponere cupientes, pra^
senti declaramus edicto, quod licet vir et mulier ad biga-
miam vel ad secundas nuptias transierint, benedid non
debent, cum fuerint alias benedicti. Quod si fonan alter
eorum vel ambo essent ad secundas nuptias transituri, et in
primis nuptiis benedicti non fuerint, danda est eis bene-
dictio in secundis nuptiis. Sane volentes antiquum rigorem
temperare, concedimus quod presbyter, qui secundas nup-
tias benedixerit scienter, ad sedem apostolicam ex hoc
venire minime teneatur, sed a pceml suspensionis hoc casu
a jure indicta per suos possit diocesanos absolvi. Si qui
vero, juxta opinionem quorundani, hactenus non reputantes
se esse suspensos, ordines quoslibet, seu quevis benefida
receperint, diocesani eorum a ponii suspensionis pnedictc
ipsos absolvere, ac super executione ordinum et reteotiaiie
beneficiorum hujuonodi cum eis valeant lidte diqpeoBare.
Hie quari potest^ quare secunda mgftia nam hemedieumtmr.
Ad hoc dicOf quod secundum matriwumiumj quaams in 9t
601
consideiahim habeat sacramerUum^ tamen in ordine ad pri^
mum sacramentum consideratum aliquem habet defectum sa-»
cramenti : quia rum habet plenam significationemy cum nan
sit una uniusj sicut est in matrimonio redemptoris et ecclesia
et ratione hujus defectus^ benedictio a secundis nuptiis: sulh
trahitur sed hoc intelligendum est, quando secunda nupiuB
sunt secundae ex parte viri et ex parte mulieris^ vet ex parte
mulieris tantum. Si enim virgo contrahat cum illo, qui habuit
aliam uxorem^ nihilominus nuptuc benedicuntur. Salvatur et
alio modo significatio etiam in ordine adprimas nuptiaSy quia
Christus etsi unam ecclesiam habetj habet tamen plures
personas desponsatas in und ecclesid, Sed animo turn potest
sponsa alterius esse quam Christie quia cum demone fornix
catur, nee est matrimonium spirituale; et propter hoc quando
mulier secundo nubify nuptia rum benedicuntur, propter de^
fectum sacramenti.
Post hac vertat se sacerdos ad altare, et dicat Pax Do-
mini: et Agnus Dei; more solito. Tune amoto pallioj
surgant ab oratione sponsus et sponsa^ et accipiat sponsus
patenam a sacerdote^ et Jerat sponsa^ osculans eam et nemi"
nem aliumy nee ipse nee ipsa: sed clericus statim a PreS'
bytero pacem accipiensj proferat aliis sicut solitum est.
Communio.
Benedicimus Deum cceli: et coram omnibus viventibus
confitebimur ei : quia fecit nobiscum misericordiam suam.
In tempore paschali Alleluia alFa. Post-Communio.
Proficiat nobis ad salutem corporis et animse^ Domine
Deus, hujus sacramenti susceptio, et sempitemse sanctae
Trinitatis, quam individuse unitatis confessio.
Alia post-communio sub uno Oremus et sub uno Per Do^
roinum.
Quaesumus, omnipotens Deus, instituta providentiae tuse
pro amorc comitare, ut quos legitima societate connectis
longaevd pace custodias : per Dominum nostrum.
Post missam benedicatur panis et vinum vel aliquod bortum
potabile in vasculo^ et gustent in nomine Dominii sacerdote
602
dieefUe Dominus vobiacum et cum Spiritu tua Oremtit.
OnUio.
Bene-f-dic, Domine^ istum puiem et hunc potum et lioc
vasculum, dcut benedixisti quinque panes in deaerto et sex
hydrias in Ghana Galilese, ut sint sani, sobni atqne immar-
culati omnes gustantes ex eis, Salvator mundi, qui vivis
et regnas cum Deo patre in unitate Spiritus Sancti, Deus.
Per.
Node vero $€quente% cum sponsus et sponsa ad ledum per^
venerifU, accedat sacerdos et benedicat thalamum djcens.
Dominus vobiscum: £t cum Spiritu tuo. Oremus. 0>*a/fbw
Bene-f-dic, Domine, thalamum istum et omnes habitantes
in eo, ut in tuft pace oonsistant, et in tufi voluntate perma-
neant) et in tuo amore vivant, et crescant, et multiplicentur
in longitudine dierum. Per recuperatorem. Benedictio
super tectum turn cum Deus vobiscum : £t cum Spiritu tuo.
Oremus. Oratio*
Bene -f- die, Domine, hoc cubiculum, qui non dormis
neque dormitas. Qui custodis Israel, custodi famulos tuos
in hoc lecto quiescentes ab omnibus fantasmaticis dsemonum
illusionibuB. Custodi eos vigilantes, ut in prseceptis tuis
meditentur dormientes ; ut te per soporem sentiant, et hie
et ubique defensionis tuse semper muniantur auxilio; Per
Dominum.
Deinde Jiat benedictio super eos in lecto cum Oremus.
Oratio.
Bene+dicat Deus corpora vestra et animas vestras: et
det super vos bene+dictionem, sicut benedixit Abraliam,
Isaac, Jacob. Resp. Amen. Item alia benedidio cum
Oremus. Oratio.
Manus Domini sit super vos, mittatque angelum suum
sanctum, qui custodiat et foveat vos omnibus diebus vils
vestrae. Resp, Amen. Item alia benedictio super eos cum
Oremus. Oratio,
Bene+dicat vos Pater et Filius et Spiritus Sanctus, qui
trinus est in numcro et unus in nomine. Resp, Amen.
603
Hn peractis atpergat eos sacerdos aqud benedictd, et sk diu
cedat et dimittat eos in pace.
4. The forme of SolemiiiEacion of Matrimonie :*»From
*^ the Booke of the Common Prayer and administracion of
the Sacramentes and other rites and ceremonies of the
Churche after the use of the Churche of Englande.^
London, 1549. King Edward^s first Book. The principal
variations made in the second Book are noticed in the
margin.
Firsts the Bannes must be asked thre several Sofidayes cr
holy dayes in the service tyme^ the people beyng present^
after the accustomed maner. And if the persones that would
be maried dwell in divers parishes^ the Bannes must be asked
in both parishes^ and the Ctirate of thone parishe shall not
solemnize Matrimony betwixt them without a certifcat of the
Baimes beyng thrise asked^from the Curate of the other
parishe. At the day appointed for solemnizacion of Matri"
mony^ the persones to be maried shall come into the body of
the Churche with their frendes and neighbors. And there
the Priest shal thus say :
Dcarely beloved frendes, we are gathered together here
in the sight of God, and in the face of his congregacion, to
joyne together this man and this woman in holy matri-
mony, which is an honorable estate, instituted of God in
Paradise, in the tyme of manneV innocencie, signifying
unto us the misticall union that is betwixt Christ and his
Churche, which holy estate Christ adoiimed and beautified
with his presence and first miracle that he wrought in Cana
of Galilc, and is commended of Sainct Paule^o be honorable
among all men, and therefore is not by any to be enter-
prised nor taken in hand unadvisedly, lightly, or wantonly,
to satisfie men''s carnall lustes and appetites like brute
beastes that have no understandyng, but reverently, dis-
cretly, advisedly, soberly, and in the feare of God : duely
consideryng the causes for the which matrimony was or-
dayned. One cause was the procrcacion of children, to be
604
brought up in the feare anc^ nurture of the Lorde, and
praise of Grod. Secondly, it was ordayned for a remedy
against synne, and to avoyde fomicacion, that suche per-
Bones ^^as be maried might live chastly in matrimony ^
and kepe themselves undefiled members of ChrisOs body.
Thirdly, for the mutual societie, heipe, and comforte,
that the one ought to have of thother, both in prosperitie
and adversitie, into the whiche holy estate these two per-
sones present come nowe to be joyned. Therfore if any
man can she we any just cause why thei may not lawfully
be joyned so together, let him now speake, or els hereafter
for ever hold his peace.
And also speakyng to thepersones that shall be maried^ he
shal sate :
I require and charge you (as you wyll aunswere at the
dreadfuU daie of judgment, when the secretes of all hartes
shall be disclosed,) that if either of you do knowe any
impediment, why ye may not be lawfully joyned together
in matrimonie, that ye confesse it : for be ye well assured,
that so many as bee coupled together otherwaies than
Grod'^s worde doeth alowe, are not joyned by God, neither is
their matrimonie lawfull.
At which day of tnariage, if any man do allege any im-
pediment why they may not be coupled together in ** matri-
monie*^ and will be bounds and suerties with him, to the
parties^ or els put in a caution to the fid value of such
charges as the persons to be maried do sustaine to prove
his allegation; then the solemnizacion must be differed to
such time as the trueth be tried. If no impediment be
alleged^ then shal the Curate saie unto the man :
N. Wylt thou have thys woman to thy wedded wyfe, to
live together after Goddes ordinaunce in the holy estate of
matrimonie? Wylt thou love her, comforte her, honoure
and kepe her in sickenesse and in health, and forsakyng
' at have not the gift of continencie might marie. ' mathmonie by Goddes
lawe» or the lawes of this reahne.
605
all other, keep thee only to her so long as you both shall
ly ve ?
The man shall aunswere, I wyll.
Then shall the Priest say to the woman :
N. Wylt thou have this man to thy wedded husbande^
to ly ve together after Goddes ordinaunce in the holy estate
of matrimonie P Wilt thou obey him and serve him, love,
honor, and kepe him in sickenes and in health, and for-
sakyng all other kepe the only to him, so long as you both
shall ly ve ?
The woman shall aunswere^ I wyll.
Then shall the minister saie:
Who geveth this woman to be maried to this man ?
And the Minister^ receiving the woman at her father or
frendes handes^ shall cause the man to take the woman by
the ryght hande, and so either to geve their trouih to other ;
the manjirst saiyng :
I N. take the N. to my wedded wife, to have and to
holde from this dale forward, for better for worse, for
rycher for poorer, in sickenes and in health, to love and to
cherysh, tyl death us departe, according to Groddes holy
ordinaunce ; and thereto I plyght thee my trouth.
Then shall they lose their handes, and the woman, takyng
again the man by the fyght hande^ shall saie:
I N. take the N. to my wedded husband, to have and to
hold from this daie forward, for better for worse, for
rycher for poorer, in sickenes and in health, to love,
cherysh, and to obey, til death us departe, according
to Goddes holy ordinaunce; and thereto I geve the my
trouth. •
Then shall they aga'tne lose their handeSj and the man
shall geve unto the woman a ryng^ " and other tokens of
spousage^ as gold or sylver\ laiyng the same upon the boke^:
And the Priest takyng the ryng shall deliva' it unto the man
< Omitted. ^ boke» with the accustomed duetie to the Priest and
Clerk.
606
to put upon ih9 fourth finger of the woman*$ left hani. Aud
the man taught by the Priest shall sate :
Wyth thys ryng I the wed: ^this gold and syWer I
the give': with my body I the worship, and with al my
w<Nrldly goodes I the endowe : In the name of the Father,
and of the Sonne, and of the Holy Ghost. Amen.
Then the man leavyng the ryng upon the fourth Jynger of
the woman^s left hande^ the minister shall saie :
. Let us praie.
O etemall Grod, Creatour and Preserver of all mankinde,
Grever of all spirituall grace, the Auctor of everlastyng
lyfe, sende thy blessing upon these thy servauntes, this
man and this woman, whom we blesse in thy name ; that,
as Isaac and Rebecca '* (after bracelettes and jewels of gold
geven of thone to thother for tokens of their matrimonie')
lived faithfully together, so these persons maie surely per*
fourme and kepe the vowe and covenaunte betwixt them
made, whereof this ring geven and received is a token and
pledge, and maie ever remaine in perfecte love and peace
together, and ly ve according to thy lawes ; through Jesus
Christ our Lorde. Amen.
Then shall the Priest joyne their ryght hanies together^
and saie :
Those whome Grod hath joyned together, let no man put
asunder.
Tlien shall the Minister speake unto the people :
Forasmuche as N. and N. have consented together in
holy wedlocke, and have witnessed the same here before
God and this company, and therto have geven and pledged
their trouth either to other, and have declared the same by
geving and receiving of '^ gold and silver', and'by joyning
of handes, I pronounce that thei be man and wife together :
In the name of the Father, of the Sonne, and of the Holy
Ghost. Amen.
And the Minister shall adde this blessyng :
" God the Father bless you -|- God the Sonne kepe you,
* Omitted. y Omitted. ' a riiig.
607
God the Holy Ghost lighten your understanding*: the
Lord mercifully with his favour loke upon you, and so*
fill you with all spirituall benediction and grace, that you
^^ may have remission of your sinnes in this life, and in the
world to come lyfe everlastyng^ Amen.
Then " shall thei go into the Quiery and the Ministers or
Clcrkes*" shall saye or syr^ thys Psalm folonvyfige.
Blessed are all thei that feare the Lorde, and walke in
his way es:
For thou shalt eate the labour of thv handes : O well is
the, and happy shalt thou be.
Thy wyfe shall be as the fruitfull vine upon the walles
of thy house.
Thy children like the olive braunches rounde about thy-
table.
Lo ! thus shall the man be blessed that feareth the
Lorde.
The Lorde from out of Sion shall so blesse thee, that
thou shalt see Hierusalem in prosperitie all thy lyfe long.
Yea, that thou shalt see thy childer'^s chyldren, and
peace upon Israeli.
Glory be to the Father, etc. As it was in the begin, etc.
Or eh this Psaltne folawyng,
God be mercyful unto us, and blesse us, and shewe us
the light of his countenaunce, and be mercyfuU unto us.
That thy waie maie be knowen upon earth ; thy savyng
health among all nacions.
Let the people prayse the, (God,) yea, let all people
prayse the.
O let the nacions rejoice and be glad: for thou shalt
judge the folke righteously, and govern the nacions upon
earth.
Then shall the yearth bring furth her increase, and Grod,
even our owne God, shall geve us his blessyng.
^ God the Father, God the Sonne, God the Holy Ghost, blesse, preserve, ftnd
kepe you. ^ maie so live together in this life, that in the world to come you
may have life e verlastyng. ^ the Ministers or Clerks going ta the Lord 's table.
608
God shall blesse us, and all the endes of the worlde nhall
feare him.
Glory be to the Father, etc. As it was in the, etc.
The Psalme endedy and the man and woman kneling afore
the Aulter\ the Priest standing at the AuUer\ and tumyng
his face toward them^ shall saie :
Lord, have mercy upon us.
Aunswere, Christ, have mercy upon us.
Minister. Lorde, have mercy upon us.
Our Father, whiche art in heav^, etc.
And lead us not into temptacion.
Aunswere. But deliver us from evill. Amen.
Minister, O Lord, save thy servaunt and thy hand-
maide.
Aunswere.
Minister.
place.
Aunswere,
Minister.
Aunswere.
Minister.
Aunswere,
Which put their trust in the.
O Lorde, sende them helpe from thy holy
And evermore defende them.
Be unto them a towre of strength.
From the face of their enemie.
O Lorde, heare my prayer.
And let my cry come unto the.
Let us praie.
O God of Abraham, God of Isaac, Gtxi of Jacob, blesse
these thy servauntes, and sowe 'the sede of eternal life in
their myndes, that whatsoever in thy holy woorde they
shall profitably leame, they maye in dede fulfill the same.
Loke, O Lorde, mercifully upon them from heaven, and
blesse them. And as thou dyddest sende ^' thy Aungell
Raphaell to Thobie and Sara, the daughter of RaguelH,
to their great comfort ; so vouchsafe to send thy blessyng
upon these thy servauntes, that thei obeiyng thy wyll, and
alway beyng in safetie under thy protection, maie abide in
thy love unto their lives' ende, through Jesu Christ our
Lorde. Amen.
* lord's Table. < Table. ^ thy blessyng upon Abrtbam and Sanh.
609
This Praier foUnoyng shal be omitted^ xvher the 'woman
is pasi childbirih.
O mercyfuU Lorde and heavenly Father, by whose
gracious gift mankynd is increased, we beseche the, assiste
with thy blessyng these two persons, that thei maie both
be fruitful in procreacion of children, and also live together
so long in godly love and honestie, that thei maie se their
childers children unto the third and fourth generacion,
unto thy praise and honour, through Jesus Christ our
Lorde. Amen.
O God, which by thy mighty power hast made all thinges
of naught, which also after other thinges set in order diddest
appoint, that out of man (created after thine owne image
and similitude) woman should take her beginning; and
knitting them together diddest teache, that it should never
be lawful to put asunder those whom thou by matrimonie
haddest made one; O God, which hast consecrated the
state of matrimonie to such an excellent misterie, that in
it is signified and represented the spiritual marriage and
unitie betwixte Christ and his Church : loke mercifully
upon these thy servauntes, that both this man may love
hys wife according to thy word, (as Christ did love his
spouse the Church, who gave himself for it, lovyng and
cherishyng it, even as his owne flesh,) and also that this
woman may be lovyng and amiable to her husband as
Rachel), wise as Rebecca, faithful and obedient as Sara,
and in all quietnes, sobrietie, and peace, be a folower of
holy and godly matrones. O Lord, bless them both, and
graunt them to inherite thy everlastyng kyngdom, through
Jesu Christ our Lorde. Amen.
Then shall the Priest blesse the man and the ivomanj saiyng:
Almightie God, which at the beginnyng did create our
first parentes Adam and Eve, and did sanctifie and joyne
them together in manage, poure upon you the richesse of
his grace, sanctifye and + blesse you, that ye maie please
liym both in bodie and soul, and live together in holy love
unto your lyves end. Amen.
VOL. 11. R r
610
Then ^^ shall be saiedj after ike Gospel' a SermoUy wherein
ordinarily^ so oft as there is any mariage, the office of man
and wife shall be declared according to holy Scripture; or if
there be no Sermon the Minister shall read this thaifbloweih.
All ye whiche be maried, or which entende to take the
holy estate of matrimonie upon you^ beare whaiholy Scnp*
ture doth saie as touching the duty of housbandes toward
their wyves, and wyves toward their husbandes.
Saincte Paule, in his EjNstle to the Ephedant, the ▼.
chapter, doeth geve this comaundement to al maried mok.
Ye husbandes, love youre wives, etren as Christ loved
the Church,^ and hath geven himself for it, to sanctifie it,
purging it in the fountaine of water through the worde,
that he might make it unto himselfe a glorious congrega-
cion, not having spot, or wrincle, or any such thing, but it
should be holy and blameles. So m^i are bound to love
their owne wyves as their owne bodies : he that loveth his
ownc wife loveth himself. For never did any man hate
his own flesh, but norysheth and cherisheth it, even as the
Lorde doeth the congregacion ; for we are members of hys
bodie, of hys fleshe, and of his bones.
For this cause shal a man leave father and mother, and
shal be joyned unto hys wyfe, and thei two shal be one
flesh. This mistery is great ; but I speake of Christ and
of the congregacion. Neverthelesse let every one of you so
love his owne wyfe, teven as himselfe.
Lykewyse the same Saincte Paule (wryting to the Co-
lossians) speaketh thus to all men that be maried : Ye men,
love your wyves, and be not bitter unto themi
Heare also what Saincte Peter, the Apostle of Christ,
which was himself a maryed man, saith unto all men that
are maried : Ye husbandes, dwell wyth your wyves accord-
ing to knowlege, gevyng honoure unto the wyfe> aa unto
the weaker vessel!, and as heyrcs together of the grace of
lyfe, so that your prayres be not hjmdered.
z shal begin the CommoQioQ.
611
Hetherto ye have bearde the duetie of the husbande
towarde the wyfe.
Nowe lykewyse, yee wyveB, heare and leame your duetie
towarde your husbemdes, even as it is plainly set forth in
holy Scripture.
Sainte Paule, in bis fomamed Epistle to the Ephesiana,
teacheth you thus : Ye women, submit yourselfes to your
own husbandes, as unto the Lorde ; for the husband is the
wives head, even as Christ is the hed of the Churche : and
he 'is the Saviour of the whole body. Therfore as the
Churche or congregadon is subject unto Christ, so lyke^
wise let the wives be in subjection unto their own bus*
bandes in all thinges. And again he saith, Let the wyfe
reverence her husbande. And, in his Epistle to the Co-
lossians. Saint Paule giveth you this short lesson: Ye
wives, submit yourselves unto your owne husbandes, as it
is convenient in the Lorde.
Sainte Peter also doeth instruct you very godly, thus
saiyng : Let the wy ves be subject to their owne husbandes ;
so that if any obey not the word, they may be wonne
without the worde by the conversadon of the wives, while
they behold your chaste conversacion coupled with feare :
whose apparel let it not be outwarde with broyded heare
and trimmyng about with golde, either in putting on of
gorgeous apparel ; but let the hydde man which is in the
hearte be without all corrupdon, so that the spirite be
mylde and quiet, wfaiche is a predous thing in the sight
of God. For after this maner in the olde tyme did the
holy women which trusted in God appard themselves,
being subject to their own husbandes, as Sara obded
Abraham, calling him lord : whose daughters ye are made,
doyng well, and beyng not dismayde with any feare.
The newe married persons (the same day of their maryage)
must receive the holy Comrnunion.
5. '*• The Form of Solemnization of Matrimony,"
tracted from *^ The Book of Common Prayert ^nd Adroin-
R r 2
612
istratioii of tiic Sacraments, and other Rites and Ceremo-
nies ; as revised and proposed to the use of the Protestant
Episcopal Church ; at a Convention of the said Church
in the States of New York, New Jersey, Pensylvania,
Delaware, Maryland, Virginia, and South Carolina, held
in Philadelphia, from September ^th to October 7th,
1785. Philadelphia, printed : London, reprinted, 1789-^
^ TJie laxvs respecting Matrimony^ whether by publishing
the Banns in Churches or by Licetice^ being different in
different States^ every Minister is left to the direction of
those laiDSy in every thing that regards the civil contract
between the parties,
^ At the day and time appointed for Solemnization of
Matrimony^ the Minister shall say to the persons assembled:
Dearly beloved, we are gathered together here in the
sight of God to join together this man and this woman in
holy matrimony ; therefore, if any man can shew any just
cause, why they may not lawfully be joined together, let
him now speak, or else hereafter for ever hold his peace.
^ Andy speaking unto the persons who shall be married,
he shall say,
I require and charge you both, (as ye will answer at the
dreadful day of judgment, when the secrets of all hearts
shall be disclosed,) that if either of you- know any impe*
diment, why ye may not be lawfully joined together in
matrimony, ye do now confess it. For be ye well assured,
that so many as are coupled together otherwise than GrodV
word doth allow, are not joined together by Grod, neither
is their matrimony lawful.
^ And if no impediment be alleged, then shall the Minister
say unto the man,
M. Wilt thou have this woman to thy wedded wife, to
live together after God's ordinance in the holy estate of
matrimony ? Wilt thou love her, comfort lier, honour, scad
keep her, jn sickness and in health ; and forsaking all other
keep thee only unto her, so long as ye both shall live.^
613
^ The man shall atmoer^
T wiU.
^ Then shall the Minister say unto the wmtan^
N. Wilt thou have this man to thy wedded husband, to
live together after God's ordinance in the holy estate of
matrimony? Wilt tliou obey him, and serve him, love,
honour, and keep him, in sickness and in health ; and for-
saking all other keep thee only unto him, so long as ye
both shall live ?
^ The woman shall answer^
I will.
^ Then shall the Minister say^
Who giveth this woman to be married to this man ?
^ Then the Minister , receiving the woman at herfatket^s
or friend's hands^ shall cause the man with his right hand to
take the woman by her right hand, and to say after him as
followeth :
I M. 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 cherishi
till death us do part, according to Grod's holy ordinance.
^ Then shall they loose their hands, and the woman with
her right hand taking the man by his right hand shall like-
wise say after the Minister:
I N. take thee M . to my wedded husband, to have and
to hold from this day forward, for better for worse, for
richer for poorer, in sickness and in health, till death us do
part, according to 6od*8 holy ordinance.
^ Then shall they again loose their hands, and the man
shall give unto the woman a ring. And the Minister, taking
the ring, shall deliver it unto the man^ to put it upon the
fourth finger of the woman's left hand. And the man,
holding the ring there, and taught by the Minister, shall
say:
With this ring I thee wed, and with all my worldly
goods I thee endow : In the name of th^ Father, and of
the Son, and of the Holy Ghost. Amen,
614
^ Then the man leaving the ring upon the fowrtk Jmger
of the woman* s left hand^ the minister shall say f
Let us pray.
O Eternal Grod, Creator and Preserver of all mankind.
Giver of all spiritual grace, the Author of everlasting life ;
send thy blessing upon these thy servants, this man and
this woman, whom we bless in thy name; that as Isaac
and Rebecca lived faithfully together, so these persons
may surely perform and keep the vow and covenant be-
twixt them made, (whereof this ring given and received
is a token and pledge,) and may ever remun in perfect
love and peace together, and live according to thy laws,
through Jesus Christ our Lord. Amen,
^ Then shall the Minister join their right hands together^
and say :
Those whom God hath joined together, let no man put
asunder.
^ TTien shall the Minister speak unto the company :
Forasmuch as M. and N. have consented together in
holy wedlock, and have witnessed the same before God
and this company, and have declared the same by giving
and receiving of a ring, and by joining of hands ; I pro-
nounce that they are man and wife together ; In the name
of the Father, and of the Son, and of the Holy Ghost.
Amen.
^ And the Minister shall add this blessing :
God the Father, God the Son, God the Holy Ghost,
bles8, preserve, and keep you : the Lord mercifully with
his favour look upon you, and fill you with all spiritual
benediction and grace, that ye may so live together in this
life, that in the world to come ye may have life everlasting.
Amen.
6. La Liturgie du M ariage : according to the Lituigy
of Geneva, which is principally used in the Protestant
Valleys of Piemont : extracted from Mr. Gilly^s interestii^
narrative of an excursion to the mountains of Piemont, and
615
researches among the Vaudois or Waldeiises : Appendix,
No. VI.
Uepoux et Fepouse Hunt debcui devani la chaired U
ministre leur dit :
Notre aide soit au nom de Dieu, qui a fait le del et la
terre. Amen.
Vous vous pr^sehtez devant Dieu pour implorer sa
b^n^iction sur votre manage, et pour vous engager so-
lemnellement k en remplir les obligations.
Ptiis le ministre i^adresse d Fassemblee:
Dieu, qui est le p^ du genre humain^ ayant or6i les
deux, et la terre et pr^par^ le domicile de Thomme, forma
rhomme k son image, et lui donna une aide semblable
k lui.
Telle fut rinstitution du mariage, par laquelle Dieu
pourvut k la conservation du genre humain et k la puret^
des moeurs. Ce moyen de perpetuer les g^^rations hu-
maines dtoit ^alement assort! k la nature da Thomme, et k
Tetat de sod^te, auquel il ^toit desten^, IXeu fit en
meme temps connoitre par la qu^il vouloit que chaque
homme fut mari d^une aeule femme et qu''il y e(it eiitr*eux
la plus ^troite union. C^est cette institution du mariage,
que Jesus Christ rappelle dans sa r^ponse k oette question
des Pharisiens : est-il permis k un homme de r^udier sa
femrae pour quelque sujet, que se soit ? Et il en tira cette
consequence : que Thomme, ne s^pare done pas ce que
Dieu a joint. Matth. xix. UEvangile, en nous rappelant
ainsi k Tinstitution divine du mariage, en fortifie toutes
les obligations. Le Mari doit aimer sa femme comme un
autre lui-m^me, en avdr soin, avoir beaucoup d'^^iards
pour elle. La femme, de son oot^, doit aimer son mari,
lui etre soumise dans toutes les choses bonnes et honnetes ;
ils doivent vivre ensemble dans la paix, user d^un supp(»rt
reciproque, et se garder une fiddit^ inviolable Tun k
Tautre.
Le ministre iarrete un moment et continue en iadressant
aux epoux sipariment.
616
Vous N. vous d^larez done ici, devant Dieu et devant
cettc assemble, que vous avez pris, et que vous prenez
pour votre femme N. ici pr^nte. Vous promettez de
Taimer, de rcntretenir, et de lui garder la foi, oomme c^est
le devoir d^un Mari Chretien envers sa fenune et comme
Dieu vous le conunande dans sa parole.
Reponse: Oui.
Vous N. vous declarez ici devant Dieu et devant cette
assemble, que vous avez prise, et que vous prenez N. ici
present, pour votre Mari legitime. Vous promettez de
Taimer, de lui etre soumise dans toutes les choses bonnes
et honnStes, et de lui garder la foi, comme c^est le devoir
d^une Spouse Chr^tienne envers son Mari et comme Dieu
vous le commande dans sa parole.
Riponse: Oui.
Souvcncz-vous, Tun et Tautre des promesses que vous
venez de faire. Et puisque Dieu vous a unis par
le bien sacr^ du mariage, vivez ensemble dans la paix,
dans Tunion, dans I'lionnetet^ : revetez-vous de dou-
ceur, de support, de complaisance; les devotions do-
mestiques ^tant infiniment propres k resserrer tous les liens
d'*aifection, k adoucir toutes les paines, k manager des
consolations pour les jour dVpreuves, prenez-cn la sainte
habitude et pratiquezJes sans interruption. Que PEglise
soit edified par votre conduite, et que votre example ap-
prenne qu^il n'*y a d^union vraiment douce ^t heureuse, que
celles qui ont pour base la pietd et la vertu.
Prions Dieu tous ensemble qu''il repande sa benediction
sur ccs i^ersonnes et sur leur mariage.
Seigneur Dieu, qui, dans ton infinie sagesse, as toi-meme
institud le mariage, et qui as pourvu par ce moyen au plus
grand bien de la societc et de tous ceux qui la composent,
puisqu'il €a, plu d'appeler ces epoux k cet etat sacre, ratifie
les promesses qu'ils viennent de faire en ta presence, et
fais-leur la grace de bien remplir les devoirs auxqucls ils
se sont volontairement engagds: qu'ils vivent saintemcnt,
dans la paix et dans ta crainte ; qu'ils edifient I'Eglise par
617
leur union et par la rt^gularit^ de leiir vie. Donne-leur ta
b^n^iction comme k tes fiddles serviteurs, Et s^ils ont
des enfans, fais qu'ils s'^appliquent avec soin a les instruirc
dans la pure religion que ton fils est venu nous enseigner
de ta part, et k les former k la vertu, afin que, remplissant
ainsi leurs devoirs, et entrant dans les vues de ta sagesse,
lis contribuent k ta gloire et travaillent de concert a
Toeuvre de leur salut. Exauce-nous, Pere de grace pour
Tamour de ton cher fils J&us Christ notre Seigneur.
Amen.
Ije ministre s'adressant encore aux deux persannes marieeSy
ajoute :
Que .Dieu, notre pere celeste vous oomble de ses bene-
dictions, et vous fassez la gr&ce de vivre ensemble long^
temps, heureusement et saintement dans sa crainte et dans
son amour. Ainsi, soit il.
AUez en paix, souvenez vous des pauvres et que le Dieu
de paix soit avec vous.
FINIS.
UAXTKR, PRINTER, OXFORD.
Lately published by the tame Author,
Cursory Remarks on the proposed measure of au Ecclesiastical Establishment
for British India, and on other general Suggestions for the Conversion of the
Natives. Is.
A Survey of the Platform of the Christian Church, eifaibited in the Scrip-
tures, applied to its actual circumstances and condition ; with Suggestions for
its consolidation and enlargement : comprising the Substance of an Essay on
the Divine Origin and Succession of the Christian Priesthood ; on its Necessity
as a Divine Appointment ; and on the Relation which it bears to the Jewish
Priesthood ; to which was adjudged a Premium of Fifty Pounds, by the Society
for promoting Christian Knowledge and Church Union in the Diocese of
St. David's. 5s.
The Doctrine of Regeneration, as identified with Baptism, and distinct from
Renovation, investigated, in an Essay on Baptism, as an Ordinance of C^pst ;
as his appointed means of Regeneration from Original Sin, and as such a means
of grace necessary to Salvation ; and on the difference between Regeneration
and the subsequent renewals of the Holy Spirit; to which was adjudged a
Premium of Fifty Pounds, by the Society for promoting Christian Knowledge
and Church Union in the Diocese of St. David's. 3s.
A compressed View of the Religious Principles and Practice of the Age, ot
a Trial of the chief Spirits that are in the world by the standard of the Scrip-
tures, attempted, in Eight Sermons, preached before the University of Oxfonl,
in the year MDCCCXIX, at the Lecture founded by the late Rev. John
Hampton, M. A. Canon of Salisbury. 12s.
i • '
THE
DOCTRINE AND LAW
OF
MARRIAGE, ADULTERY, AND DIVORCE.
THE
DOCTRINE AND LAW
OF
MARRIAGE, ADULTERY,
AND
DIVORCE;
XXUIBITIlfG A
THEOLOGICAL AND PRACTICAL VIEW
OF
THE DIVINE INSTITUTION OF MARRIAGE;
THE RELIGIOUS RATIFICATION OF MARRIAGE;
THE IMPEDIMENTS WHICH PRECLUDE AND VITIATE THE CONTRACT
OF MARRIAGE;
THE RECIPROCAL DUTIES OF HUSBANDS AND WIVES:
THE SINFUL AND CRIMINAL CHARACTER OF ADULTERY:
AND
THE DIFFICULTIES WHICH EMBARRASS THE PRINCIPLE AND PRACTICE
OF DIVORCE:
WITH AN APPENDIX,
CONTAINING AN U8AY ON THE UBLLSNI8TXC AND ECCLB8IASTICAL MEANING
or THE WORD nOPNEIA, ORDINARILY TRANSLATED FORNICATION.
Xt^yyint •X»rti§ rvMf{i)« h^vym. Nonnua.
Sed prudcDtiasima proculdubio est liberUtis divortionim coercitio, live libidinis
auat evitandas, sive tucceisiones, sive publicam aliter pacem atque pietatem
•pectes. Mden, Ui, Khr. \. iii. c. 34.
BY
HECTOR DAVIES MORGAN, M. A.
or TRINITY COLLEGE, OXFORD ;
MJNI47ER OPCAMTLE UEDINOHAX, E89EX ; PREBENDARY OF BRkftbN; AV*i
RIGHT HON. LORD KENYON.
'■ .\'r T i 1 .7?*l^"< TO THE
^ * - * / \
^ \ VOL. I.
\ .
V;.M \ oV >^ OXFORD,
'-^ ^_ .... ^'^ PRINTED BY W. BAXTER,
ron J. rARKER : and c. and j. rivinoton, st. Paul's church yard, and
WATERLOO place; AND J. HATCHARD, PICCADILLY, LONDON.
1826.
ADVERTISEMENT.
The reader of the following pages is ear-
nestly entreated to suspend his judgment,
until he has considered the series of argu-
ment which they contain, and of which it is
the one purpose to establish the doctrine of
the holiness and the indissolubility of mar-
riage, on the basis of its divine institution.
How far the Author has succeeded in the
support of this doctrine, it is not his province
to determine : he can ascertain and avouch no
more than the honest persuasion of his own
mind, and a perfect conviction, that not a
thought is suggested, which can prejudice the
interests of Christian righteousness. When
however he has considered the high au-
thorities which he has ventured to oppose,
the extent to which he has carried his theory,
and the nature of some of the arguments,
and the obsolete expositions of Scripture, by
which he has endeavoured to sustain it, he is
free to confess, that he has at times distrusted
his own judgment, and been apprehensive
b
VI
that his mind may have been unduly biassed
in favour of a particular system, conceived
and matured in retirement, and with con-
•
traded means and opportunities of informa-
tion and research. The argument never-
theless results in such an appearance of con-
sistency, as induces a hope that it is con-
structed on a just principle, and that the
views which have been taken by the Author
may not be unworthy of the public attention.
The first desire and delight of his heart is to
investigate and defend the truth, to remove
the occasions of offence, to ascertain the
principles and enforce the practice of pri-
vate virtue, and to assist in the promotion
of social improvement : but the experience
and observation of life have rendered him
not sanguine or precipitate in the anticipa-
tion of religious union or moral renovation ;
and in the slow and guarded process of
theological disquisition he has learned not
to ask or to give assent to any proposition
whicii does not rest on the arguments of
manly reason, or the dictates of inspired
authority.
It is not necessary to state the circum-
stances which engaged the Author's atten-
tion in the enquiry, in the prosecution of
which he first collected and weighed the
several texts of Scripture which speak of
VII
the doctrine of Marriage, and proceeded to
follow that doctrine through all the relics
of the three first centuries, observing the
diction as well as the opinions of the pri-
mitive writers, and taking advantage of the
light of various learning which Selden and
other authors have thrown upon the ques-
tion. The law has been collected chiefly
from the Commentaries of Blackstone, the
Parliamentary Debates, and the Term Re-
ports; and when other resources have failed,
the public journals have not been neglected.
No man has more occasion than the Author
to regret, that the doctrine which he has
undertaken to treat has not found a more
able and more competent advocate, nor can
any man be more sensible of the imperfection
of the present attempt. The vital import-
ance of a doctrine too generally neglected is
the best apology which he can offer for pre-
suming to intrude his sentiments on the
public, and for entreating that candid con-
sideration of the argument which is due to
the interest of the subject, and the censures
of such liberal criticism as may correct the
errors and supply the deficiencies of the exe-
cution.
b2
SYNOPSIS OF VOLUME I.
'/
INTRODUCTION.
Difficulty and importance of a right appreliension of the
doctrine of marriage. Different doctrines of the Church
and of the Law of England. P<igc ^-
CHAPTER I.
THE DIVINE INSTITUTION OF MARRIAGE.
Doctrine of the divine institution collected from Gen. ii.
24. (Tobit viii. 10.) Malachi ii. 5. Proofs of divine
interposition in respect of marriage. Argument from
Matt. xix. 4, 5, 6. and Mark x. 6 — 9. Ephes. v. 30, 31.
explained. Misapprehension of 1 Cor. vi. 16. removed.
Traditions of the Church. The wise and beneficent in-
tentions, and careful preservation of marriage, argue its
divine institution. The doctrine not liable to the imputa^
tion of popery, and not involving a sacramental character
in marriage. The doctrine of the merely civil contract
restricted under the English law. Inaccurate statements
of that doctrine. Practical inconveniences of admitting
that doctrine. Advantages of maintaining the divine in-
stitution. Page 19.
CHAPTER II.
THE RELIGIOUS RATIFICATION OF MARRIAGE.
SECTION I.
ExpedUnce and AnUqmty of the Religious Ratificatum.
Simplicity of the primary institution not infringed by
the public celebration of marriage. Necessity of mutual
and irrevocable a<rreenient before witnesses. Inlerenco
from the holiness of marriage in favour of its religious
ratification. Matrimonial rites common, with inconsider-
able exceptions, among the barbarous nations of antiquity ;
Greeks; Romans; Hindoos; Jews, ancient and modem.
Allusions in the New Testament explained by the practice
of the Christian Church, until the Council of Lateran,
A. D. 1216. Reasons for retaining the religious ratifica-
tion. Page 72.
SECTION II.
Religious Rotificafiofi in England.
Religious ratification unjustly imputed to the fourth
Council of Latcran. Distinction between the civil contract
and religious ratification held from the earliest periods in
the English law. Validity of the merely civil contract not
recognized before the Toleration Act, nor by the Tolera-
tion Act, nor after the Toleration Act ; and not disturbed
by the Marriage Act of 1754. Exemptions under that
Act. Objections of the Unitarians, and measures proposed
for their relief. Protests and conduct of the Freethinking
Christians. Dangers of abandoning the principle of the
religious ratification of marriage. Objections to the OflSce
for the Solemnization of Marriage, and suggestions for its
reviuon in respect of alleged indelicacy and obscurity of
expression ; and the celebration of marriage in the name of
the Father, and of the Son, and of the Holy Ghost.
Page 130.
CHAPTER III.
IMPEDIMENTS WHICH PRECLUDE AND VITIATE THE
CONTRACT OF MARRIAGE.
SECTION I.
Incestuous and Illicit Marriages.
Restrictions upon the general freedom of marriage,
agreeable to natural sense of propriety, and universally
admitted. Prohibitions of marringo among Greeks and
XI
Komans: not known among Egyptians and Canaanites:
expressly asserted in the Old Testament : how far recog-
nized in the New Testament, and by the primitive writers
before Constantine ; under the Christian Emperors and
Popes ; under the Mahometan law : rules of the Council
of Trent: Laws of Henry VII I. and Tables of Arch-
bishop Parker : civil disabihties under the law of England.
Page 199.
SECTION II.
Marriages of Minors without consent of Parents or
Guardians.
Moral necessity of obtaining consent. Objections to nul-
lity of marriage considered as a religious and voluntary
contract, and in respect of the woman and her issue. The
principles of nullity various, and that of the patria po^
testas necessarily restricted, and often impracticable ; not
sanctioned by any scriptural, primitive, or canonical autho-
rity, nor by universal practice; derived wholly from the
peculiar economy of the Roman law, and thence adopted
by the Christian Emperors. Doctrines of the Council of
Trent and Continental Reformers; of Henry VIII. and
the English Reformers. Construction of the Office of
Matrimony. Canons of 1603. Acts of William III. and
Aime. Lord Hardwicke'*s Bill. Injustice of that Bill,
and attempts to revise it. Speech of Doctor Phillimore,
and debates in the House of Lords. Exceptions in the
amended Act. Page 283.
SECTION III.
Marriages of the Royal Family,
Political inexpedience of the Royal Marriage Bill.
Page 380.
CHAPTER IV.
/ RECIPROCAL DUTIES OF HUSBANDS AND WIVES.
Relation of husband and of wife contracted in terms of
the most exact reciprocity. Golden rule of Christianity
XII
especially appropriated to parties legally incorporated, and
having a community of interests, secular and spiritual.
Mutual society of marriage ; distinct but cooperative du-
ties; education of common children; perpetuity of the
obligation ; inference from the doctrine of recrimination.
Page 893.
CHAPTER V.
THE SINFUL AND CRIMINAL CHARACTER OF ADULTERY.
Adultery, according to the Old Testament, a sin against
Grod, and liable to divine judgment. How classified and
denounced in the New Testament, and by the primitive
writers. Adultery, a complication of fraud, perjury, and
seduction, and the consummation of irreparable injury:
equally criminal in the man and the woman. Penalties of
adultery among the Jews, and among ancient and modem
nations. The offence inadequately treated by the English
law. Debates in Parliament on Lord Auckland's Bill,
with recognitions of the criminal character of adultery.
Suggestions for its criminal prosecution, and appropriate
penalties. Page 4^-
THE
DOCTRINE AND LAW
OF
MARRIAGE, ADULTERY, AND DIVORCE.
INTRODUCTION.
There is a passage in the Book of Wisdom, in
which the author of that apocryphal treatise enters
into a copious detail of the pernicious consequences
and effects of idolatry, which he concludes with
specifying ^^ changing of kind, disorder in marriages,
and shameless uncleanness^."
It would be one of the most useless and unsatis-
factory of labours, to insist upon the tendency of a
practice, which there is no temptation to commit, to
enforce the testimony of a writer, to whose authority
no deference is due, or to compile an elaborate com-
ment upon an expression which has perplexed the
commentators, but in the exposition of which no
man feels any interest or concern. The changing
of kind, and disorder in marriages, are phrases of
doubtful meaning and import. The change of kind
has been variously interpreted, of unnatural affec-
tions, of the counterfeiting of sex, which was usual
in some of the heathen superstitions, and of the
VOL. I.
* Wisdom xiv. 26.
B
introduction of a supposititious and illegitimate
issue, by adultery and illicit intercourse, especially
of Jews with Gentile women : the disorder in mar-
riages has been supposed to denote either incestuous
marriages contracted against the rules of the Leviti-
cal law, whether within the forbidden degrees, or
with the forbidden nations, or, according to the
translation of the Vulgate, unsettled marriages which
might be dissolved at the pleasure of the parties.
The latter exposition is grounded upon the former,
and comprehended under it: and it is the former
sense which is most agreeable to the original ex-
pression, {ara^ia, yafjuovy q. d. araxtoi yoLfMi, marriages
out of the prescribed order,) and which would most
naturally occur to the mind of a Jew, especially in
deducing that disorder from idolatry. In either
sense it suggests an important question ; What is
the order, and what is the permanent bond, of mar-
riage ? the want of which amounts to such disorder
in marriages, as a Jew would ascribe to idolatry,
and as is seen in the affairs of ordinary life to pro-
duce the most fatal and unhappy results.
This is a practical question, which is worthy at
all times to engage the attention of the moralist and
the divine, and of which, upon his own account, or for
the sake of those who are dear unto him, everv man
is concerned to possess a clear and distinct appre-
hension. As the first and most ancient covenant
for mutual good ; as the original foundation of all
human relations ; as the rock upon which the goodly
fabric of social happiness and social duty has been
constructed ; and from the roots of which issue the
salutary streams of public virtue and domestic bliss ;
3
marriage has a claim upon every man to understand
its doctrine and its law, and to be acquainted at
least with its primary principles and its essential
obligations. It was justly argued by Lord Mans-
field, that no reasonable man can contemplate the
state of marriage, and not be convinced that it is a
state in which all the amiable passions are engaged
and interested in the cause of virtue and truth ;
from which the best and most essential felicities of
life derive their origin ; which enhances the joys
and divides the unavoidable sorrows of humanity ;
which diffuses its beneficial influence alike through
the palace and the cottage ; and pours the balm of
consolation into the breast that is wounded by
affliction, whether resulting from sudden calamity
and change of fortune, or from personal pain and
individual infirmity*'.
It is the sound theory of another distinguished
and eloquent lawyer*^, that '' almost all the relative
duties of human life will be found more immediately,
or more remotely, to arise out of the two great
institutions of property and marriage: they
constitute, preserve, and improve society : upon
their gradual improvement depends the progressive
civilization of mankind: on them rests the whole
order of civil life. These two great institutions con-
vert the selfish, as well as the social, passions of our
nature into the firmest bands of a peaceable and
orderly intercourse : they change the sources of dis-
cord into the principles of quiet : they discipline the
^ See Woodfall's Parliamentary Reports, vol. vii. p. 11 .
' Sir James Mackintosh : " Discourse on the Study of the Law
of Nature and Nations/'
K '2
most ungovernable, they refine the grossest, and
exalt the most sordid propensities ; so that they
become the perpetual fountain of all that strengthens,
and preserves, and adorns society ; they sustain the
individual, and they perpetuate the race. Around
these institutions all our social duties will be found
at various distances to range themselves: some more
near, obviously essential to the good order of human
life ; others more remote, and of which the necessity
is not at first view so apparent; and some so distant,
that their importance has been sometimes doubted,
though upon more mature consideration they will be
found to be out-posts and advanced guards of these
fundamental principles ; that man should securely
enjoy the fruits of his labour, and that the society of
the sexes should be so wisely ordered, as to make it
a school of the kind affections, and a fit nursery for
the commonwealth/^
There is a feeling in the heart of every man which
immediately corresponds with these eloquent de-
scriptions, and under the influence of which it is
not unreasonable to suppose, that no man will be
indifferent in the search, or find any difficulty in the
acquirement, of the best and most accurate informa-
tion upon the doctrine and law of marriage. This
reasonable expectation however is more often dis-
appointed than fulfilled. In the intercourse of
ordinary life ; in the conversation of educated men,
informed on every other topic ; in the proceedings
of the courts of law and of parliament, which on all
other subjects abound with acuteness and practical
wisdom ; and in the marked and singular inaccuracy
with which these proceedings are reported by the
daily press ; there is evidence of a want of know-
ledge, of an absence of settled conviction, of a vacil-
lation of principle, which is not found to prevail on
any other question of moral duty. There is a laxity
of opinion on the nature of marriage, its divine
institution, and religious solemnization. Men have
affirmed the competence of human laws to multiply
the impediments of matrimony, and have not scru-
pled to deny the validity of marriages, contracted
under circumstappes which are by no means suffi-
cient to preclude or vitiate the contract. They have
thrown doubts on the obligation and perpetuity of
the bond of marriage; and the guilt of the adulterer,
the wrong of the injured husband, and all the sins of
impurity, are treated whh a levity which is not
applied to any other instance of private vice, or civil
injury. There is a facility in palliating and excus-
ing, if not in recommending and approving, the
voluntary separation of married persons; and there
is a precipitancy in asserting the rights of divorce,
and the dissolution of a lawful marriage. In all
these respects there is a disorder in marriages which
requires to be counteracted ; an apathy which needs
to be stimulated ; an ignorance which demands in-
struction ; or a misapprehension which deserves cor-
rection and restraint.
Whether it is that the pure doctrine of marriage
has been polluted by irrelevant disquisitions, in
which men of virtuous minds refuse to participate;
or whether its principles and laws " have been
deemed too evident to require the support of argu-
ment, and almost too sacred to admit the liberty
of discussion ;'' or whether the defence has been
b3
neglected because no man has liad the hardiliood to
open the assault ; it is certain, that while the Ubrary
of the English theolc^ian is crowded with volumes
of theological erudition on all other points, the doc-
trine of marriage has been singularly neglected.
Detached pieces have appeared, as different parts
of the doctrine have been called in question; but no
English writer, with the single exception of Selden,
has embraced the whole subject of marriage, adul-
tery, and divorce: and even the Uxor Ebraica is
always deficient in the moral application, has no
reference to the present state of English law, and is
often at least ambiguous in respect of the religious
principles and solemn sanctions, which constitute
the virtue of marriage, the sin of adultery, and the
awful hazard of divorce. The doctrine has been
more worthily treated upon the continent, and the
work of Gerhard, De Conjugio^ will remain a per-
petual monument of his learning, and his zeal for
virtue, piety, and truth. But the works of Gerhard
and of Selden are not accessible to the ordinary
reader, who is probably unacquainted with the very
title of the former, and who will hardly be invited to
study the embarrassed style of Selden, or to hear the
weight of his learned authority, unless he is drawn
by a peculiar motive to engage in the investigation.
The work of Comber on the Office of Matrimony,
as far he was conducted by the text, on which he
professed to comment, is of the highest value ; but
his works have ceased to command the attention to
which they will always be entitled by their intrinsic
merit. The eight treatises of Domestical Duties, by
William Gouge, the Puritan divine, are all but un-
known. The chapters in which Paley treats of the
public use of marriage institutions, of seduction, of
adultery, divorce, and marriage, in the midst of
many valuable observations, contain some principles
which it is not possible to approve, and which can-
not be recommended without exception and reserve.
The formulary for the solemnization of marriage is
regarded as a form for a particular occasion, although
if it were considered a manual of useful instruction,
irom which the ignorant might seek, and the wise
be confirmed in, the knowledge of practical duty; or
if married men would be persuaded to review the
vows of their marriage, as the clergy are instructed
to review the vows of their ordination; there would
be the less occasion of investigating the principles,
and maintaining the rules, of conjugal duty'as they
are untblded in the word of truth, and accommo-
dated to the practice of daily life.
No man can read the Office for the Solemnization
of Matrimony in the Church of England, without
observing that the general doctrine is exhibited in
terms clear, unambiguous, and calculated to preclude
the possibility of disorder in marriages. " Holy
matrimony^' is declared to be " an honourable estate,
instituted by God in the time of man^s innocency,
and therefore is not by any to be enterprized, nor
taken in hand, unadvisedly, lightly, or wantonly . . •
but reverently, discreetly, soberly, and in the fear of
God/^ It is pronounced to be " God's holy ordi-
nance.^' At the time of the celebration, the con-
gregation, supposed to be present, are required to
speak, " if any man can shew any just cause why
the two persons to be married may not be lawfully
B 4
joined together/^ and the parties themselves are
challenged in words of the most impressive so-
lemnity to confess, " if either of them know any
impediment why they may not be lawfully joined
together/' and they are assured, ^^ that so many as
are coupled together otherwise than God's word
doth allow, are not joined together by God, neither
is their matrimony lawful.'* To be coupled together
otherwise than God's word doth allow, is the only
case, contemplated by the Church, in which the
parties are not joined together by God, and in
which their matrimony is not lawful : all other mar-
riages are supposed to be valid, and on a just pre-
sumption, founded in the silence of all parties, that
there is no such impediment or contravention of
God's word, the mutual consent of the parties is
asked and declared: and upon this consent they
severally stipulate, that they will live together in
the discharge of their reciprocal duties, according to
God's holy ordinance, so long as they both shall
live, and until death shall part them. A ring, in
token of mutual trust and continual love, is then
given by the man to the woman, whom he weds
and contracts to himself in the name of the Father,
and the Son, and the Holy Ghost. The minister,
after a short prayer, joins their hands together, reciting
the impressive words in which our Lord hath laid
down the law of marriage : Those whom God hath
joined together, let no man put asunder: and he
pronounces them to be man and wife in the name of
the Father, and the Son, and the Holy Ghost. The
office concludes with benedictions, prayers, a psalm
of thanksgiving, and Scriptural instructions on the
duties of husbands towards their wives, and wives
towards their husbands.
This is the unequivocal doctrine of the Church of
England concerning marriage, that it is a divine
institution, and that being once, without lawful impe-
diment contrary to God's word, contracted, its duties
cannot cease, its obligations cannot be vitiated or
dissolved, but by the death of one of the parties.
As far as the Church is concerned there can be no
disorder of marriages ; and if the principle maintained
by the Church, and the chief expressions of her
ritual, be traced to the remotest period, they will be
found to coincide with the highest and most com-
manding authorities, with the clearest and most con-
tinuous current of opinion in favour of the permanent
validity and obligation of the bond of marriage.
It is not, however, the least difficulty which em-
barrasses the doctrine of marriage, that there is, or is
supposed to be, a marked and striking discrepancy
in the principles held by the Law and the Church
of England ; that while the Church maintains the
divine institution of marriage, and deduces all the
rules of marriage from divine authority, the Law is
content to hold that marriage is a civil contract, and
to argue upon the obligations of marriage, in refer-
ence only to the civil contract.
" Our Law,'* says Blackstone, "considers marriage
in no other light than as a civil contract"*.'' This
is the first distinction between the Church and the
Law: the Church affirms that marriage is God's
holy ordinance, a state instituted by God : the Law
<* Commentaries, vol. i. c. 15.
10
considers it to be a civil contract; at the same time
it accumulates upon this simple contract the neces-
sity of a religious ratification, without which, both
by the common law and by particular statutes, the
parties cannot contract as is required, ^^ in due form
of law/'
^^ In general all persons are able to contract them-
selves in marriage, unless they labour under some
particular disabilities and incapacities. These dis-
abilities are of two sorts : first, such as are canonical,
and therefore sufficient by the ecclesiastical law to
avoid the marriage in the spiritual court : but these,
in our law, only make the marriage voidable, and
not ipso facio void, until sentence of nullity be
obtained. Of this nature are pre-contract ; consan-
guinity or relation by blood ; affinity or relation by
marriage; and some particular corporal infirmities.
And these canonical disabilities are either grounded
upon the express words of the divine law, or are
consequences plainly deducible from thence: it
therefore being sinful in the persons who labour
under them, to attempt to contract matrimony to-
gether, they are properly the object of the ecclesi-
astical magistrate's coercion, in order to separate the
offenders, and inflict penance for the offende pro
salute animarum. But such marriages not being
void ah initio, but voidable only by sentence of
separation, they are esteemed valid to all civil pur-
poses, unless such separation is actually made during
the life of the parties. For after the death of either
of them, the courts of common law will not suffer
the spiritual courts to declare such marriages to
have been void, because such declaration cannot
11
now tend to the reformation of the parties. By
Statute 32 Hen. VIII. c. 38. it is declared, that
all persons may lawfully marry, but such as are
prohibited by God^s law, and that all marriages'
contracted by lawful persons in the face of the
Church and consummate with bodily knowledge
and fruit of children, shall be indissoluble. And
(because, in the times of popery, a great variety of
degrees of kindred were made impediments to mar-
riage, which impediments might, however, be bought
off for money,) it is declared by the same statute
that nothing (God's law except) shall impeach any
marriage without the Levitical degrees*.*'
There is a subtlety in this legal distinction be-
tween void and voidable marriages, which ordinary
minds are not prepared to entertain. From the
process of reasoning that it is sinful to attempt to
contract matrimony under- such circumstances, it
seems natural to expect that the contract should be
void, on the principle that no man may take benefit
of his own wrong, rather than that the marriage
should be voidable, i. e. that its validity should be
approved, at the same time that it is liable to a
restricted sentence of nullity. The same inference
might be thought justly deducible from the statute :
if marriages without the Levitical degrees are in-
dissoluble, it is not a remote conclusion that mar^
riages within those degrees, or otherwise contrary to
God's word, are void. The statute coincides with
the expression of the Liturgy, concerning those who
are joined together otherwise than God's word doth
"^ I Bl. Com. c. 15.
12
allow, and of whom the Church declares that they
are " not joined together by God, neither is their
matrimony lawful :'' and yet, in equal opposition to
the Liturgy and the statute, it is the received ex-
position of the law, that marriages within the Levi-
tical degrees are only voidable, not ipso facto void,
are not void ah initio^ but voidable only by sentence
of separation. It is also a singular arrangement
which includes infirmities in the same class with
disabilities grounded on divine prohibitions.
" The other sort of disabilities are those which are
created, or at least enforced, by the municipal laws.
And though some of them may be grounded upon
natural law, yet they are regarded by the laws of the
land, not so much in the light of any moral offence,
as on account of the civil inconveniences they draw
after them. These civil inconveniences make the
contract void ah initio^ and not merely voidable :
not that they dissolve a contract already formed,
but they render the parties incapable of forming any
contract at all. They do not put asunder those
who are joined together, but they previously hinder
the junction. And if any persons under these legal
incapacities come together, it is a meretricious and
not a matrimonial union ^'^
In the case of voidable marriages the Law affirms
what the Church disavows : in the case of marriages
legally void, it annuls what the Church approves :
for whatever may be these legal disabilities, with the
single exception of those who are coupled together
otherwise than God's word doth allow, the Church
f 1 BL Com. c. 15.
13
contemplates no nullity of marriage, no incapacity
of forming the contract, no meretricious union, but
pronounces the parties man and wife, bound to each
other until death shall part them, engaged to forsake
all other, and to keep only the one to the other, and
joined together by God in such manner that no man
may put them asunder.
"The first of these legal disabilities is a prior
marriage, or having another husband or wife liv-
ing^/^ Under such circumstances the parties would
be coupled together otherwise than God's word doth
allow ; and, whatever forms or words may be used,
their matrimony is not lawful ; they are not joined,
because they are not in a condition to be joined,
together by God, whose institution and law are
opposed to polygamy. The Church and the Law
are therefore agreed in recognizing this disability :
but if the disability is founded in the Scriptures,
and the divine law of marriage, and is not the mere
creation of municipal law, does it not fall under
the legal definition of voidable, rather than of void,
marriages ? Or does not analogy require that other
marriages, voidable because they are interdicted,
should be also void ? It is not pretended that the
law vitiates the marriage of the bigamist only on the
ground of its civil inconvenience.
" The next legal disability is want of age. There-
fore, if a boy under fourteen, or a girl under twelve,
years of age, marry, this marriage is only inchoate
and imperfect ; and when either of them comes to
the age of consent aforesaid, they may disagree, and
« 1 Bl. Com. c. 15.
14
declare the marriage void, without any divorce or
sentence of the spiritual court. In our law it is so
far a marriage, that if at the age of consent they
agree to continue together, they need not to be
married again **.*^
Marriages of persons of such tender years are in
this country of very rare occurrence : and the law of
inchoate or imperfect 'marriages, and the personal
right of voiding them, is appropriate to an age and
country in which the espousals and the marriage arc
separate and distinct. It is certain that the Church
of England contemplates nothing but a definitive so-
lemnization of marriage, independent of all contin-
gencies of agreement or disagreement, assent or
dissent, at a future period. The parties take each other
from this day forward, under every change of circum-
stances, until death shall part them.
Another incapacity is want of reason. "The
statute, 16 Geo. II. c. 30, has provided, that the
marriage of lunatics, and persons under frenzies,
shall be totally void*.''
The want of reason, as it implies a natural in-
capacity of entering into any contract, is a most just
and reasonable impediment of marriage ; and the
fraudulent collusion and concealment of this inca-
pacity, is a just ground of annulling the marriage,
which, by its primitive institution, and by the exist-
ing formulary, supposes a capacity and freedom in
both parties, to declare their assent. These and
other disabilities, which render the marriage voidable
or void, must be in existence at the time of the
"> 1 Bl. Com. c. 15. > Ibid.
i»
15
marriage, and cannot be inferred from circumstances
subsequent to the marriage.
The marked disagreement between the ecclesi-
astical and municipal laws, in respect of the contract
of marriage, is seen to pervade its rule as well as its
principle. Thus the Church, in conformity with
the divine institution, and with the great end of
mutual society, which matrimony was designed to
promote, forbids any man to put asunder those
whom God has joined together, and requires their
constant cohabitation, that they shall live together in
the discharge of their several duties, forsaking all
other, and cleaving the one to the other so long as
they both shall live. But the Law, interpreted by
the judgments of the courts, has been on many
occasions but too ready to give its sanction and
countenance to acts of private and mutual separa-
tion. Again, the Church, in the just but quaint
language of one of its Homilies, pronounces adul-
tery a filthy sin ; but the secular Law regards it
only in the light of a civil injury, for which the
husband may obtain satisfection by an action of
trespass vi et armis against the adulterer. The
intercourse of the sexes but of marriage is also left
to the feeble coercion of the spiritual courts, and
hardly recognized by the Law as a crime, except
with reference to the civil injury ; so that unless a
man can prove the value of his daughter's services,
he can procure no redress for her seduction : and a
woman is under no responsibility to the law of bas-
tardy so long as she can maintain the issue of an
illicit intrigue. So extraordinary is the impartiality
which the law displays in the administration of
s^"
16
justice, entitling the poor to redress, and exempting
the rich from punishment. In the law of divorce it
may be sufficient to allude to this most striking
difference in the ecclesiastical and parliamentary
practice ; the ecclesiastical courts holding the indis-
solubility of marriage, and looking prospectively to
the reconciliation of the parties, grant no divorce
a mensa ei thoroy without an express condition and
bond, that the parties shall not, during each other^s
life, contract matrimony with any other person ; the
practice of parliament requires the exhibition of this
sentence of restricted divorce, as a preliminary con-
dition of obtaining a bill of divorce a vinculo^
enabling the parties to proceed to a new marriage.
When there is such discrepancy between the ec-
clesiastical and municipal laws pervading the whole
doctrine and law of marriage, it is not unnatural
that the minds of men should be in doubt and per-
plexity on one of the most vital questions of moral
duty : and for the correction of the disorder which
prevails on the principle and rule of matrimony, and
in the absence of more comprehensive treatises, it is
proposed to collect, from the Scriptures, from the
writings of primitive antiquity, and from the various
authorities which throw light on the subject, a
theological and practical view of the divine insti-
tution of marriage, of the religious ratification of
marriage, of the impediments which preclude and
vitiate the contract of marriage, of the reciprocal
duties of husbands and wives, of the sinful and
criminal character of adultery, and of the difficulties
which embarrass the principle and practice of di-
vorce. In this enquiry into the true doctrine of
matrimony, it will be attempted to ascertain how (ar
the tenets of the Church are true and worthy to be
maintained, and in what respects the provisions of
the Law are in need of revision. The appeal is con-
fidently made to the authority of the Scriptures, on
which the doctrine of the Church is founded, and
with which the laws which regulate the social insti-
tutions of a Christian state ought in all things to
correspond. The following passage of the Gospel
of Saint Matthew compared with the parallel nar-
rative of Saint Mark, comprehends the Christian
doctrine and law of marriage, and is the basis of the
proposed investigation.
^* The Pharisees also came unto him, tempting
him, and saying unto him, Is it lawful for a man to
put away his wife for every cause? And he an-
swered and said unto them, Have ye not read, that
he which made them at the beginning, made them
male and female ; and said. For this cause shall a
man leave father and mother, and shall cleave to his
wife ; and thev two shall be one flesh ? Wherefore
they are no more twain, but one flesh. What there-
fore Grod hath joined together, let not man put
asunder. They say unto him, Why did Moses
then command to give a writing of divorcement, and
to put her away ? He said unto them, Moses, be-
cause of the hardness of your hearts, suffered you to
put away your wives ; but from the beginning it
was not s6. And I say unto you. Whosoever shall
put away his wife, except it be for fornication, and
shall marry another, committeth adultery : and whoso
marrieth her which is put away doth commit adul-
tery. His disciples say linto him, If the case of a
VOL. I. c
18
man be so with his wife, it is not good to marry.
But he said unto them, All men cannot receive this
saying, save they to whom it is given. For there
are some eunuchs that are so born from their
mother^s womb : and there are some eunuchs that
are made eunuchs of men ; and there be eunuchs,
which have made themselves eunuchs for the king*
dom of heaven^s sake. He that is able to receive it,
let him receive it^
k ff
*Matt.xix. 3— 12.
CHAPTER I.
THE DIVINE INSTITUTION OF MARRIAGE.
XHE principal sources of theological truth arc the
plain assertions of the Scriptures, understood in
connexion with the context, and with the scope and
object of the writer: unavoidable and necessary
inferences from one or more texts of Scripture, ju-
diciously interpreted and collated ; and the doctrine
universally held by the primitive Church, in unin-
terrupted tradition from the Apostles.
In the distinct and marked difference which pre-
vails between the supposed doctrine of the Law,
and the avowed doctrine of the Church of England,
concerning the nature of marriage, it is satisfactory
to know that the doctrine of the Church is sup-
ported by all the authority and proof of which a
theological proposition is susceptible ; and - that
the Scriptures and primitive antiquity agree, in
vindication of the assertions of the Liturgy, that
marriage is *' God's holy ordinance,^' that it was
" instituted by God," and that the " Almighty
God at the beginning did create our first pa-
rents, Adam and Eve, and did sanctify and join
them together in marriage." There is the same
authority in favour of the more distant and less
distinct allusions of the Homily, to this institution
of matrimony, ordained by God, and to God, the
author of marriage*^.
* Homily on the State of Matrimony.
C2
20
In the brief history of the creation it is expressly
recorded, that after Adam was put in possession of
paradise, and invested with authority over other
creatures, the Lord God said, It is not good that
the man should be alone ; I will make him an help
meet for bim^. This is the record of the divine
purpose concerning the institution of marriage : it
seemed not gpod to the Divine wisdom that the
man should be alone, without society, and without
the means, which the other animals possessed, for
the continuance of his kind : and it seemed good to
the same wisdom, that there should be provided an
help, meet and suitable for him, an auxiliary which
was required in the nurture and education of his
children, in the management of domestic affairs, in
the communication of reason, and the exercise of
piety ; a faithful and consolatory associate and
partner of evil and of good, connected with him in
the closest and most indissoluble union of conjugal
fidelity and affection. In execution of this divine
purpose of mercy, the Lord God made the woman,
and he brought her unto the man* : and when he had
thus made them male and female, or a male and a
female)*', appropriating one man to one woman, by a
law, which in the course of providence has never
failed, God blessed them, and God said unto them.
Be fruitful, and multiply, and replenish the earth,
and subdue it ; and have dominion over the fish of
the sea, and over the fowl of the air, and over every
living thing that moveth upon the earth. Thus, in
^ Gen. ii. 18. ' Geo. ii. 22. ^ Gen. i. 27. Ainsilorth
in loc.
21
the words of an ancient father of the Church) God
not only formed the woman, but united her with
the man, according to the law which still remains ;
he conducted her to the man, and himself became
the bridegroom, (at once the paranymph and the
priest,) and in giving her away he added his blessing
as a portion to the marriage. God, her builder,
says Ainsworth in the quaint language of his day,
was also her bringer, and so her conjoiner in her
marriage with the man"". When the woman was
thus introduced to him, Adam instantly exclaimed.
This is now bone of my bone, and flesh of my
flesh ; she shall be called Woman, because she was
taken out of man ^
The history of this part of the divine institution
of marriage, both in the design and in the effect, is
of obvious and easy interpretation. There is more
difficulty in appropriating the words which follow
Adam^s acknowledgment of his intimate union with
Eve, and which contain the primitive law of mar-
riage : Therefore shall a man leave his father and his
mother, and shall cleave unto his wife, and they
shall be one flesh ^. These words have been vari-
ously applied; to Adam, in conjunction with the
words immediately preceding, and to Moses, as a
casual remark of the historian in recording the in-
stitution of marriage : and as both Adam and Moses
* Theophylact. m^t ymfitv, apud Gerhard, Tractat. de Conjugio,
MC 44. Ainsworth in Gen. ii. 22.
^ Gen. ii. 23. See Gerhard, s. 44. who records the strange
conceit of Rabbi Abraham Ben Esra, that the Hebrew words
imply the divine presence with the married pair, and the with-
drawing of that presence^ on their disobedience.
* Gen. ii. 24.
c ;3
22
were divinely inspired, the words in this application
may be primarily referred to God, and shewn to
possess a divine force and authority^. The greatest
of all commentators has, however, ascertained and
defined their meaning and exclusive appropriation :
He who made them at the beginning, made them
male and female ; and said, For this cause shall a
man leave his father and mother, and cleave unto
his wife; and they two shall be one flesh'. In
dependence upon this divine comment, it has been
suggested, that the twenty-third verse should be
read in a parenthesis ; and thus the law of marriage
will be brought into immediate connexion with the
formation of the woman, and her introduction to the
man, which is only" interrupted by the eager and
passionate epithalamium of Adam^.
Thus, says Grerhard in the recapitulation of his
argument, we have seen how God consulted, as it
were, concerning the formation of woman, and the
institution of marriage ; how he gave effect to his
counsel and decree ; how he formed the woman as
it were with his own hands ; how, having formed
her, he conducted her t6 Adam in Paradise ; how
he himself united the first pair; how he blessed
them when they were united ; how he delivered the
law of marriage : and the result of the argument is,
that God was the author and primary cause of
marriage*.
The sentiments of the Jewish Church concerning
** See the Commentators in Poolers Synops.
* Matt. xix. 4, 5.
^ Gerhard, s. 45.
I Tbid. 8. 48.
23
the divine institution of marris^e, are explicitly de^
clared in the prayer of Tobias, on the night of his
marrii^ : Blessed art thou, O God of our fitthers,
and blessed is thy holy and glorious name for ever :
let the heavens bless thee, and all thy creatures:
thou bkssedst Adam^and gavest him Eve his wife for
an helper and stay : of them came mankind : thou
hast said, It is not good that man should be alone ;
let us make unto him an aid like unto himself. And
now, O Lord, I take not this my sister for lust, but
uprightly, therefore mercifully ordain, that we may
become aged together*".
There is an obscure and indistinct assertion of the
divine institution of marriage, and a secret allusion
to the text of Moses, in a perplexed and intricate
passage of the prophet Malachi, who, in reproving
the foreign marriages and multiplied divorces which
were common to the age, observes with indignation.
The Lord hath been witness between thee and the
wife of thy youth, against whom thou hast dealt
treacherously; yet she is thy companion, and the
wife of thy youth. And did he not make one ?
Yet had he the residue of the Spirit. And where-
fore one ? That he might seek a godly seed. There-
fore take heed to your spirit, and let none deal
treacherously against the wife of his youth". The
exposition which Lowth^ considers the most pro-
bable of various interpretations is, that the prophet
» Tobit yiii. 4—7.
* Malachi ii. 14, 15.
• Lowth in loc. See also the commentators in Poole's Synops.
Abarbinel in Pocock's Commentary. The marginal note in the
Bishops' Biblei ed. 1634. and in Annot. Tremellii et Junii.
C4
24
puts the Jews in mind of the first institution of
marriage in paradise, as Christ did afterwards upon
a like occasion p, and tells them that God made but
one man at first, and made the woman out of him,
\¥hen he could have created more women, if he had
pleased : to instruct them, that this was the true
pattern of marriage, ordained for true love and un-
divided affection, and best serving the chief end of
matrimony, viz. the religious education of children.
Other commentators agree in recognizing the allusion
to the divine institution of marriage, and to the of-
fensive nature of divorce considered as the violation
of that institution.
It would be a very contracted and imperfect view
of the evidence borne in the Jewish Scriptures to
the divine institution of marriage, which should be
restricted to the history of its primary institution.
Allusions are frequently made to the violation of the
law of marriage, as an offence against God. It is in
this spirit, that Malachi^ reproves the practice of
divorce, and exhorts the people to beware of violat-
ing the intention and purpose of the divine institu-
tion. Adultery is also represented to be a sin
against God, whose anger would not be provoked,
but by the transgression of his own institutions. It
is one of the chief motives which preserved the
chastity of Joseph, that he could not sin against
God*": and it was the aggravation of the complicated
crime of David, that he sinned against the Lord, and
despised the commandment of the Lord". The chief
f Matt. xix. 5. ^ Malachi ii. 14, 15. ' Gen. xxxix. 9.
* 2 Sam. xii. 9, 13.
25
offence of the adulteress is,^ that she disobeys the
law of the Most High^: and the wise man is sup*
posed to recognize the divine institution of marriage,
when he describes the adulteress as forsaking the
guide of her youth, and the covenant of her God";
that covenant, which is divine in respect of its pri-
mary institution and religious celebration, which is
contracted under the authority of God, not without
the intervention of his providence and the solemn in-
vocation of his name. The Lord also interfered upon
various occasions, and topk upon himself the direct
protection and vindication of his own institution':
and not only delivered generally a sentence of capital
punishment upon the adulterer and the adulteress ^
who should be convicted, but interposed his special
providence in the extraordinary operations of the
waters of jealousy ', suspending their power, or calling
it into action, as was due' to the innocence or guilt
of the accuser and the accused. In a variety of
precepts and prohibitions he also regulated the law
of marriage, and purified it among his chosen people
from the different pollutions which had been intro-
duced into the practice of the heathen. It is unrea-
sonable, it is not authorized by the sacred history,
it is an unworthy conception of the providence of
God, to suppose that there would have been this
frequent revision, this jealous care, of the purity of a
law which was not originally divine. The Jews,
^ Ecclus. xxiii. 23.
* Prov. ii. 17. See Geier. ia Poli Synops. in loc.
' GeD. xii. 17. xx. 18.
' Lev. XX. 10. Deut. xxii. 22.
* Numbers V. 11—31.
26
under the instruction of their inspired teachers, were
sensible, not only in general of the divine institution
of marriage, but of the particular interposition of the
Divine Providence in the affairs of marriage. Whoso
findeth a wife findeth a good thing, and obtaineth
i^vour of the Lord*^. House and riches are the
inheritance of fathers, and a prudent wife is from the
Lord**; or, according to the version of the Seventy,
It is from the Lord that a wife is fitted, is conjoined,
or betrothed, as by a parent to a husband : as Solo-
mon describes the special favour and peculiar pro-
vidence of God in marriage, in opposition to the
ordinary distribution of worldly good. The patri-
archs also acknowledged the same divine interpo-
sition in the arrangement of marriage, as it were by
the mediation of angels. It was Abraham^s instruc-
tion to his servant, that the Lord God of heaven
should send his angel before him, and that he should
take him a wife unto his son ; and the same Eleazar
in his prayer makes mention of the damsel, whom
the Lord had appointed, or destined, for his servant''.
The angel also advised Tobias, that Sara had been
prepared for him from the beginning**.
If there had been any defect in the evidence, or
any difficulty in the interpretation, of the Old Testa-
ment concerning the divine institution of marriage,
that difficulty would have been removed, and that
defect supplied, by the clear and expHcit manner in
* Prov. xvui. 23.
^ Prov. xix. 14. See BieL Lex. under M^fu^t^, Ainsworth on
Gen. ii. 22. Gerhard, sect* 48.
• Gen. xxiv. 7, 14.
<»Tobitvi. 17.
27
which the doctrine is renewed and enforced in the
New Testament. In refuting the perverse com-
ments of the Jews concerning the lawfulness of di*
vorce, our Lord refers them to the primary institution
of marriage, as to a record which could not be con-
tradicted: Have ye not read, that he who made
them at the beginning, made them male and female ;
and said, For this cause shall a man leave his father
and mother, and cleave unto his wife ; and they
twain shall be one flesh ? He then adds his own
irresistible inference. What therefore God hath joined
together, let not man put asunder"". Nothing can
be more decisive, than this reference to the primaBval
record and its divine authority, or more worthy to
bind the faith and practice of Christians, than the
comparison which is drawn between marriage as the
institution of God, and divorce as the unlawful
assumption of man. The antithesis, says a writer'
by no means disposed to support an unauthenticated
doctrine; the antithesis between God and man ex-
plains the reason of the interdict ; other contracts of
a merely civil nature may be contracted and dis-
solved by the mere consent of the parties ; but mar-
riage has in it something of a more sacred nature,
and dierefore, as if by the intervention of an autho-
rity not less than divine, it is celebrated in the
Church, and can only be dissolved by death.
The presence of our Lord at the marriage in Cana
• Matt. xix. 4—6. Mark x. 6—9.
' Beza in Poole's Synopt. in Mark x. 9. See also Grotius in
Matt. xix. 6. Theodotion understands the word man of Moses,
as if our Lord had meant, Mosis concessionem ordinationi divinae
nihil detrahere. Ibid.
28
of Galilees is frequently alleged by the ancient writers
in vindication of the dignity of marriage : and it is a
just and unanswerable inference, that if there had
been any thing impure in the celebration of the mar-
riage feast, or any thing in the state of marriage not
worthy of all honour, the offence would have been
marked by the censure of our Lord ; the marriage
would not have been sanctified and honoured,
adorned and beautified, with his presence; nor
would his first miracle have been wrought for sup-
plying the deficiencies of the nuptial entertainment.
The divine institution of marriage may also be
inferred from the argument drawn by Saint Paul in
favour of conjugal love and unity, from the unity
and love of Christ to his Church : Husbands, love
your wives, as Christ also loved the Church, and
gave himself for it. . . . So ought men to love their
wives as their own bodies : he that loveth his wife
loveth himself, for no man ever yet hated his own
flesh, but nourisheth and cherisheth it even as the
Lord the Church ; for we are members of his body,
of his flesh, and of his bones. For this cause shall
a man leave his father and mother, and shall be joined
unto his wife, and they two shall be one flesh. This
is a great mystery ; but I speak concerning Christ
and his Church^. From this passage, the Roman-
ists have collected the sacramental nature of mar-
riage, not observing that Saint Paul expressly af-
' See Gerhard, sect 28. who recites the authorities of Epipha-
nius, Haeres, 1. ii. 67. Augustin in qusest. Vet. et Nov. Test. q.
127. In Johan. tract 9. Bede in Johan. ii.
»> Ephei. V. 25, 28—32.
29
firms, that the great mystery, or sacrament, as it is
translated in the Vulgate, of which he speaks, re-
lates not to the marriage of the man with the
woman, but to the union of Christ with his Church^
The Church of England holds the more scriptural
language and doctrine, that God hath consecrated
the state of matrimony to such an excellent mys-
tery, that in it is signified and represented the
spiritual marriage and unity between Christ and his
Church. This unity, according to the Jews\ was
typified in the primitive institution of marriage: and
as the woman was originally taken out of Adam,
being bone taken out of his bone, and flesh taken
out of his flesh\ so Christians, in virtue of their
spiritual incorporation into the Church of Christ,
are members of his body, and in the power of that
relation, and of the infused life and strength which
th^ receive from their union with him, they are as
bone taken out of his bone, and flesh taken out of
his flesh. As Christ therefore for the sake of his
Church left the glories of his Father^s kingdom ^ so
the man and the woman forsake the dearest relations
of life, and are united in the indissoluble union of
marriage. The primary law of marriage is elevated
by this sacred application as a type of Christ and
his Church, which would be both incomplete and
' See Grotius in Poole's Synops. on Eph. v. 32. and compare
Pyle on the text, where he expresses a doubt of the antiquity of
the tradition: but would the type have been admitted by the
Jews after the coming of Christ and the allusion of the apostle ?
«vT«v. C£ Gen. ii. 23. and 2 Sam. xix. 12.
' See Origen, Com. in Matt. torn. xiv. sect. 17.
30
unworthy of the dignity of the Son of God, if mar-
riage itself was not of divine institution.
There is considerable difficulty in interpreting the
words of the primary institution of marriage, as they
are applied in the first Epistle to the Corinthians :
Know ye not that your bodies are members of
Christ ? Shall I then take the members of Christ
and make them the members of an harlot? God
forbid 1 What, know ye not that he who is joined
to an harlot is one body ? for two, saith he, shall be
One flesh. But he that is joined to the Lord is one
spirit °^. The objection which is inseparable from
the ordinary interpretation of these words is, that
the mere sexual intercourse, independent of the con-
jugal union, makes the man and the woman one
'flesh. This is certainly the tendency of the anno-
tation of Whitby and of other commentators", from
whom it might be deemed presumptuous to differ,
if any authority could justify the opinion, that Saint
Paul could in any case, and especially in an argu-
ment against fornication, as it is commonly under-
stood, recite a sacred authority in favour of an
intercourse, which, however it may in fact unite the
sexes, cannot unite them by right or authority, or in
conformity with the divine institution to which it is
directly opposed ^. It is necessary therefore to seek
another interpretation ; and a solution of the diffi-
culty will be found, either in the equivocal and un-
defined meaning of the words one body, or in the
« 1 Cor. vi. 15—17.
a See Whitby and Poole*8 Synopsis in loc.
^ Lucas Bnigensis in Poole's Synopsis on Matt. xix. 5.
31
peculiar and unusual sense of the word m^, trans-
lated harioi.
It will not be denied, that the apostle alludes to
the words of Moses, if he does not directly recite
tbeoi : and in the management of his argument con-
cerning things lawful and things expedient, he an-
ticipates- in the form of a dialogue the objections
which the Corinthians might allege against his doc*
trine. Having examined the case of food, he pro^
ceeds to the more difficult case, which he calls
fornication, and it becomes his principal proposition,
that the body is not for fornication, but the Lord,
which he enforces upon the Corinthians, concealing
the strongest affirmation in the form of a question :
Know ye not that your bodies are the members of
Christ ? This you cannot deny, and I therefore put
the question, Shall I then take the body, which, by
virtue of its acknowledged incorporation into the
Church, is one of the members of Christ, and make
his members the members of an harlot^ We shall
both exclaim against such profanation and say, God
forbid ! You will object, that the members of Christ
are not thus made the members of an harlot : I ask
again, therefore. Do ye not know, diat he who is
joined to an harlot is one body ? for two, saith he,
shall be one flesh : but he that is joined to the Lord
is one spirit. The authority in question is recited
between the two assertions, that he who is joined to
an harlot is one body, and he that is joined to the
Lord is one spirit. And the firist question which
arises concerns the sense in which the apostle uses
the words one body. If he means, that he who
unites himself with an harlot is one body with her.
32
as he who is joined to the Lord is one spirit with
himj and if in this parallelism the word harlot is to
be understood in its ordinary acceptation, then the
words in the parenthesis must be interpreted of the
meretricious union, and bear the awful sense which
is imputed to them. But if, as in other texts p, the
one body means, the one body of Christ, or his
Church, the text recited is no more than an authori-
tative reiteration of the preceding assertion ; and the
whole passage, being appropriated to the mystical
union of Christ with his Church, teaches, that
fornication, in whatever sense the word be inter-
preted, does make the members of Christ the mem-
bers of an harlot. The words may thus be para-
phrased : He who is joined to an harlot, sins in the
prostitution of that body in which he is incorporated
with Christ ; for Christ and |his Church are one,
in virtue of which he is also one Spirit with the
Lord. This interpretation, by which the passage is
recovered from the degraded sense which the com-
mentators have fastened upon it, and elevated to the
expression of a sacred mystery, has not only the
authority of the ancient expositors, but the advan-
tage of agreeing with the context. The body, which
is not for fornication, but the Lord, is not the human
body, but the mystical body of the Church, and in
the succeeding clause, a man is required to flee for-
nication, because every other sin that a man doeth
is without the bodv, but he that committeth forni-
>* Rom. xii. 4, 5. 1 Cor. x. 17. CoL iii. 15. 1 Cor. xii. 13.
£ph. ii. 16. iv. 4. In the three last texts there is mention of one
body and one spirit.
33
cation sinneth against his own body, against that
proper body of which he is the member, and Christ
18 the head 4.
The appropriation of the word one body to the
body of the Church, is not inconsistent with the
interpretation of the word translated harlot^ in a
sense remote indeed from ordinary apprehension,
and neglected by modern commentators, but fami-
liar to the ancient expositors, and agreeable to the
use of the Hellenistic writers, who understand by
vofMMty or fornication % not whoredom, commonly so
called, but alienation, or apostacy, and especially
alienation by marriage of the faithful with the un-
believing. In the first sense the apostle maintains,
that the body or church of Christ was not designed
for apostacy, but for devotion and faithfulness to the
Lord': in the second sense he adverts to the for«
bidden marriages of the believer with the unbeliever.
Shall I take the members of Christ, and make them
by marriage the members of an unbelieving woman?
God forbid ! The Corinthians might object, that, as
such marriages were unlawful, they could not have
the eflfect supposed : and the apostle in reply to the
objection would argue, Shall I not do this, if I
marry an unbelieving woman ; for he who is joined
to a woman in marriage is one body with her, ac-
cording to the authority of him who hath instituted
KA«rM0. Origen, c. CeUum, 1. vi. 8ect« 79. See also Clem. Rom.
Ep. ad Cor. i. b. 46. Clem. Alex. Strom. I. vii. c. 14. and other
authorities on the text, recited in Appendix* No. I.
' See Appendix, No. I.
' Clem. Alex, iibi supra.
TOL. I. D
34
marriage, and who hath said, The two shall be one
flesh. This respects my personal union with the
unbelieving wife, and my becoming one body with
her; and I am already by a spiritual union the
member of Christ ; for he that is joined to the Lord
18 one spirit. Flee therefore such forbidden mar-
riage. Every other sin that a man commits is with-
out the body, and does not defile the Church, but
he that marrieth an unbelieving wife sins against
that sacred body. This is called by Tertullian a
violation of the temple of God, a confusion of the
members of Christ with the members of a forbidden
wife: and by Cyprian, a joining of the bond of
marriage with the unbelieving, a prostitution of the
members of Christ to the heathen ; and he presses
the text as an authority for the proposition, that
marriage should not be contracted with the heathen ^
This exposition, while it gives even to a forbidden
marriage the authority of the divine institution, rests
not upon any tradition, however primitive, but is
demanded by the context, which cannot otherwise
he explained. Ifjbmication and the body both bear
their ordinary sense, it is difficult to conceive upon
what ground it is said of fornication, more than of
any other sensual indulgence, that the body is not
made for fornication ; that every other sin besides
fornication is without the body; and that he that
committeth fornication sinneth against his own body :
even if the body he understood of the Church, and
fornication retains its ordinary sense, still it may be
^ Tert ad Ux. 1. ii. s. 3. Cyprian Lib. de LajMis, Lib. Test. I. iii.
i. 62. See Appendix, No. I.
35
/
/
asked, how fornication, more than anr other sin, brings
scandal upon the Church. Bu^ hy the proposed
revival of the ancient interpretation the chief diffi-
culties are removed. The CM"^'^ ^s not made for
apostacy : and every disciph by making an unbe-
liever one with him in mai^age, offends against the
Church, of which he is •* member, by bringing the
unbeliever with whom ^^ is matrimonially incorpo-
rated into communion ^ith Christ, with whom he is
also united in a spiritual relation. The order in
which the apostlc" treats first of food offered to idols,
and then of foriication, interpreted of some specific
act of idolatry, is not unusual with the sacred
writers in other passages^*: and there is a striking
correspondence between the text thus interpreted
and the parallel passage % in which the apostle re-
verts to the same subject : and the making the mem-
bers of Christ the members of an alien coincides
with being unequally yoked together with unbe-
lievers ; the being joined to an ahen in one body,
and to the Lord in one spirit, with the concord
between Christ and Belial, and the portion possessed
in common between him that believeth and the un-
believer ; the knowledge that the body is the tem«\|e
of the Holy Ghost, with the agreement of the tem-
ple of God with idols ; and the conclusion of glori-
fying God in the body and in the spirit, with die
purification of all fikhiness of the flesh and spirit,
perfecting holiness in the fear of God. The coin-
■ lUv. u. 14, 20.
* 2 Cor. vL 14— IS. viL 1. See Leslie's Sermon concerning
in diflbrent communions, prosecuted by Dodwell, sect.
D 2
36
cidence between the two passages is such as the
most inattentive rt^ader can hardly overlook: the
context, the order of <he apostle's discourse, and the
parallel passage, all agHQse in demanding the exposi-
tion, which is justified b^y the primitive and aposto-
lical use of the words in cfiiestion : and whether the
text of Moses be applied, s^s in the Epistle to the
Ephesians, to the mystical union of Christ with his
Church, or, as the immediate context requires, to
the actual marriage of the man wjth the woman, it
is satisfactory to know, that the sacred text may be
vindicated from a very unworthy application, and
may be made to bear a clear and decisive testimony
to the divine institution of marriage.
To the authority of the Scriptures in favour of the
divine institution of marriage, should be added some
of the testimonies of the Church, received in un-
interrupted tradition from the apostles. In the first
century the apostolical father Ignatius thus instructs
the Church of Antioch; Let husbands love their
wives, remembering that at the creation one woman
was given to one man, not many to one man : let
wives honour their husbands as their own flesh, nor
let them venture to call them familiarly and by name,
or without acknowledgment of their preeminence :
let them also be chaste, considering those only to be
their consorts, to whom they have been united ac-
cording to the will or institution of God''.
In the second century Clemens of Alexandria
7 £p. ad Antiochen, sect. 9. mit« ywfuif Omv, q. d. secundum
ordinationem Dei. Vet. ver. apud Coteler. v. ii. p. 152. see not.
in loc.
37
calls marriage the appointment or ordinance of God'.
Tbeophilus, with a direct reference to the Mosaic
history, affirms, that Adam knew Eve his wife,
whom God made out of his side for his wife. . • •
He made her, and saidj The two shall be one flesh ;
and the same thing is shewn to be fulfilled in our-
sehres*. TertuUian also undertook the defence of
matrimony, when it was accused by an enemy under
the name of debauchery to the prejudice of the
Creator, who gave his blessing to marriage accord-
ing to its honour for the increase of mankind, and
generally for good and perfect uses. ... It is not
the institution, but the abuse, which requires reproof,
according to the sentence of him who instituted it,
who both said, Increase and multiply ; and, Thou
shalt not commit adultery. . . . Although bounds
must be set to marriage, which among us are de-
fended by spiritual reasons under the authority of
the Paraclete, prescribing one marriage to the faith-
ful, it must be for him who gave the liberty to fix
the limitation ... the end and the beginning belong
to the same power. . . . O heretical deity of Marcion,
you would be grateful if you had counteracted the
ordinance of the Creator, in uniting man and woman \
In the third century Origen expressly ascribes the
matrimonial union to the interposition and ordinance
of God : It is God who joineth the two together
* Strom. 1. iii. s. 12.
* Ad Autolyc. 1. ii. b. 28. If part of the passage be read in a
parenthesis, the primary law of marriage will be referred imme-
diately to God, and unintermptedly follow the creation of the
^ Adv. Marcion, 1. i. s. 29.
D 3
38
into one, so that they are no more two, by whom
the wife is betrothed to her husband : and since it is
Grod who joins them together, therefore there is a
gracious gift to them that are joined together by Grod ;
of which Paul being sensible, said, that in the same
manner as pure celibacy is a gift, so is marriage ac-
cording to the word of God a gift : and they who
are joined together by God, meditate and practise
the rule ; Husbands, love your wives, even as Christ
loved the Church. The Saviour therefore saith.
What God hath joined together let not roan put
asunder^. The author of the book De Singularitate
Clericonim**, annexed to the works of Cyprian, also
asserts, that our Lord foresaw the heretics who
should take away marriage, and labour in opposition
to the principle of nature, and to the Gospel, to
separate what the Lord hath joined. In the Con-
stitutions, which bear the name of Apostolical, and
which are ascribed to the third century, it is said.
Ye should know, that single marriages which are
according to law, are just, being according to the
will of God: for God at the creation gave one
woman to one man, for the two shall be one flesh.
Among other duties said to be prescribed by the
apostles, is lawful marriage; for such marriage is
blameless, because a woman is betrothed to a hus-
band by the Lord: and the Lord says, He that
made them at the beginning, &c. for the woman is
the partner of life, united in one body out of two by
God ; and he who divides this unity again into two,
is the enemy of the creation of God, and the rival of
* Com. in Matt. torn. xiv. s. 16. ** S. 25.
39
his providence*. In the Apostolical Canons an-
nexed to the Apostolical Constitutions it is or-
dained) If any bishop, priest, or deacon, or any
other of the sacerdotal body, abstain from marriage,
or the use of flesh or wine, not from discipline but
antipathy, forgetting that all things are very good,
and that God made man male and female, and
blasphemously accuse the creation of God, let him
amend, or be deposed and excommunicated. The
same rule applies to a laic'.
In the fourth century, Augustine argues, The
intention of our Lord in going to the marriage to
which he was invited, was to shew that he was the
author of marriage : for there are some, of whom the
apostle says. Forbidding to marry, and saying that
marriage is evil, and the invention of the devil;
whereas the Lord says in the Gospel, What the Lord
hath joined together, let not man put asunder. And
it is known to all who are instructed in the catholic
fiiith, that God made marriage, and that, as the
union is of God, divorce is of the devil *•
In the sixth century, Fulgentius represents mar-
riage to be not of the contagion of sin, but of the
institution of God**. Isidore* also, in his chapter
Of married persons, not only recites the history of
the institution of marriage, but speaks of the mar*
riage of one man to one woman, after the example
of the first union, which was divinely made : and he
* L. iii. c. 2. 1. vi. c. 14. ' Canon Apostol. (or Const.
Apott. 1. viii.) c. 43. ^ In Johan. tract. 9. apud Gerhard.
^ De Statu -Viduali, Ep. ii. Ibid. * De Off. Div. 1. U.
c. 19.
n 4
40
deduces the sacerdotal benediction from what was
done by God in the first conjunction of man.
In the eleventh century, Theophylact says, God
from the b^inning took especial care of marriage ;
tor he united Adam to his sister ; yea, rather to his
daughter ; or what shaH I say ? to his own flesh.
Afterwards, when men were multiplied, he extended
marriage more widely, that love might not be con-
fioed to kindred only^.
At the time of the Reformation the sacramental
character of marriage was not denied more stre-
nuously than the doctrine of its divine institution
was maintained. Calvin wrote, *^ of Matrimonie,
which as all men confesse to be ordained of God, so
no man, untill the time of Gregorie, ever saw that
it was given for a sacrament. It is a good and holy
ordinance of God*.'^ Beza** affirms, that God pro-
fesses himself the author of marriage, and again and
again admits the conciliation of marriage under his
authority, without which he denies its validity.
The contemporary confessions breathe the same doc-
trine : the Helvetic declaring marriage to be an
useful institution of God, and to be divinely in-
stituted for all men who are lit and not called to
another method of life": the Augustan referring to
the evangelical injunction of compliance with mar-
riage and the ordinance of God, who hath thus
constituted the nature of men, that there should be
' In. V. Eph. apud Gerhard. * Inst. 1. iv. c. 19. s. 34.
" De Repudiis. " Sylloge Confeisionum, p. 76, 112. • Ibid,
p. 181.
41
a perpetual society of the husband and the wife* :
the Saxon confession defining marriage to be the
lawful and indissoluble union of one man and one
woman, to be observed according to the command-
ment of Grod, who willed this method of association
for the human race. God in the beginning gave
sanction to this order, in the words, The two shall
be one: namely, one man and one woman, inse-
parably united : and this primary law was again'
sanctioned by Christ p. In the Apology for the
Confession of Wirtemberg it was also affirmed, that
marriage is a holy kind of life, divinely instituted
and recommended ^
Even in Scotland, where the practice rests on the
basis of a merely civil contract, the doctrine of the
divine institution is upheld by her most distin-
guished lawyers, by whom marriage is regarded as
antecedent to all civil society whatever, and founded
in the divine, institution. ^^ The first obligations,^^
says Lord Stair, " put upon man by God, were the
conjugal obligations, which arose fi'om the insti-
tution of marriage. Marriage itself, and the obli-
gations thence arising, are jure divino/* Lord
Bankton, in his observations on the rule of law,
nupiias non concubitus sed consensus Jacit^ says,
**Tbe law before us being from Ulpian, a Gentile
lawyer, who did not own marriage to be a divine con-
tract, must hold more strongly in Christian states,
who regard it as such; and particularly with us
marriage is esteemed a divine contract.^' And Mr.
Erskine observes, that " the character of perpetuity
P Sylloge Confessionam, p. 258. ^ Gerhard, s. 14.
43
seems to have been impressed on marriage by God
himself in its first institution, when he declared the
two common parents of all mankind to form one
flesh ; which was afterwards improved by our Savi-
our^ injunction, that no man should put asunder
those whom God had joined ^/^
The special care which has been manifested in
the universal prevalence of marriage, affords another
presumption in favour of its divine institution, and
it is a just argument, that the state which has in all
^es been preserved by the care of his providence,
must have had its origination with God. In the
beginning, and with an express view to the conjugal
union, God made a male and a female, and ordained
that a man should cleave unto his woman", and the
remarkable equality which has been seen to prevail
in the birth of the sexes, with a small preponde-
lanoe in favour of men, in proportion (o their more
hasardous employments, and other adventitious
causes which shorten the life of man, is utterly
irreconcileable with the laws of chance, and can
imly be ascribed to the immediate interposition and
control of the divine Providence. This general
equality in the birth of the sexes is sufficient to
justify the several inferences, that one man ought to
have but one wife: that every woman without
pdygamy may be married ; and that the Christian
religion, in prohibiting polygamy, is more agreeable
to the law of nature, that is, to the primary law of
mairiage, than Mahometanism and other forms of
' See Fergmeon's Reports of Recent Decisioiis in the Con-
•iitorial Court of Scotland, p. 92, 340.
* Gen. i. 27. Ainsworth in lee.
43
religion under which polygamy is allowed S The
succession of seasons hardly bears a stronger testi-
mony to the preserving power of the Creator, than is
borne in the perpetual proportion in the numbers
of men and women to the divine institution of
marriage.
One of the most ancient writers of the Church, in
undertaking the defence of marriage from the various
objections which were brought against it, pursues a
line of argument which justifies the conclusion, that
matrimony is of divine institution. He maintains,
that nature has formed man with a disposition to
marriage, as is clear from the structure of the body
of the man and the woman ; and, with an allusiOD
probably to the argument of Plato, who held that it
was the excellence of marriage to raise up a suc-
cession of servants unto God, he proceeds to argue
that the man who is childless is destitute of the
perfection of his nature, in having no substitute for
himself to succeed him in his country, and that he
is the most perfect, who sees his children's children
descending from him. Hence he infers the necessity
of marriage, for the sake of one's country, of the
succession of issue, and the consummation of the
peopling of the world. He contends that the dis-
eases and infirmities of the body also prove the ne-
cessity of marriage, since the affection of a wife,
and die earnestness of her care, exceed the assi-
duities of other fiiends and domestics, and she is
indeed, according to the Scripture, a necessary auxi-
* See EneyclopsBdia Brit. Art. Marriage, where these inferences
are auetained by appropriate oaiculations.
44
liary. He then meets the objection of some who
would detract from marriage, and shews the bene-
ficial influence of marriage upon those who are
advanced in years, in affording the care of a wife,
and in raising from her children for the support of
old age'. Are these energies of marriage, extending
from the consummation of the world to the decrepi-
tude of individuals, and supplying the wants of each
and of all, the effects of divine or human wisdom ?
And is it no proof of the providence which designed
and watches over the ends of marriage, that, under
all its cares and anxieties, all its labours and priva-
tions, all its peculiar pains and perils, there is ordi-
narily and actually given to wedded life a longer
duration than to a life of celibacy, and that the life
of married women especially exceeds that of single
women ? This is not the result of human policy ; it
is the blessing of God following his own institution,
the secret evidence of that power which is in con-
tinual operation for the benefit of mankind.
The perpetuation and universality of the conjugal
union, continuing with little deviation from its ori-
ginal law, bear the same testimony to its divine
origination and the providential care with which it
has been preserved. Marriage was instituted in the
person of our first parents in the state of innocence ;
and after the fall God repeated and confirmed his
ordinance, when he spake of the seed of the woman,
and of the sorrow and pain of childbirth, adding the
penalty of sin, but not rescinding the primary insti-
tution of his mercv* for the immediate consolation
» CI. Alex. Strom. 1. il i. 23.
45
of the parties, and for the perpetual propagation of
mankind, in virtue of which Adam calls Eve the
mother of all living'. So again, after the flood, the
Lord God reiterated the precept and the blessing
addressed to the first pair, renewing the primary law
to the sons of Noah, whose marriages had been
recognized by the preservation of them and their
wives in the ark: Be fruitful and multiply and re-
plenish the earth: and the fear of you, and the
dread of you, shall be upon every beast of the field,
and upon every fowl of the air, upon all that moveth
upon the earth, and upon all the fishes of the sea ;
into your hand are they delivered. . . . And you, be
fiiiitful and multiply ; bring forth abundantly in the
earth, and multiply therein^. From the issuing of
this benedictory commandment, there has been in all
ages, and in all countries, and under all dispensa-
tions of religion, such uninterrupted respect to mar-
riage as cannot be accounted for without the recog-
nition of a divine institution, and of a corresponding
impression on the hearts of men in conformity with
the will and ordinance of God. In marriage there
is nothing of the partial, the transitory, the fluc-
tuating, and perishable nature of human institutions;
the rules of dower and of settlement, and the forms '
of contracting marriage, which are confessedly of
human invention, have all been subject to change;
but marriage, both in its law and in its end and pur-
pose, has ever remained the same p^manent union
of a man with a woman, for mutual consolation and
' Qwk. iiL 16—20. Gerhard, sect. 48.
f Oen. ix. 1,2, 7. Gerhard, sect. 48. See Origen, Com. in
Gen. iri. 19.
4(i
the nurture of common children. The sentiments
of the ancient Jews have been collected from the
Old Testament, and their descendants, so far from
disparaging or being offended at the Christian doc-
trine of a divine institution, do not scruple to call
the rites of marriage by the name of conjugal sancti-
fication '. The best and wisest of the heathens de-
rived marriage from the institution of nature, not
only for the most pleasant, but the most useful
society of life*: they ascribed to it a divine and sa-
cred character, speaking of it as holy marriage^, a
holy conjunction^; and they called it by a name
which implies perfection, or sacred initiation '', plac-
ing it under the superintendence of the supreme
divinities, reserving the administration of the law of
marriage to the Pontifices% and not contracting it
without religioMs offices, without taking the auspices,
or without the invocation of a polytheism, multiplied
beyond all conception. Polygamy, wherever it has
prevailed, whether under the patriarchs, or under the
law of Mohammed, is confessedly the corruption of
an earlier and purer institution, and among the
* Hooker, Eccl. Pol. B. v. s. 73.
* Columella^ 1. xii c. 1. apud Hotman.
^ Dionys. Ant. 1. u. Hooker.
* Plutarch apud Dodwdl.
' '' TtXH and ymf&H are terms of the same signification, whence
yn/mi, to marry, is termed nXusthtm, to he made perfect. Mar-
ried persons are called vtAuM, and are laid to he ip /Sif nxuf. The
•ane epithet is commonly given to the gods that had the care of
marriage.'' Potter's Antiq. h. iv. c 1 1.
*Jas matrimeniOTum non mere cirQe, sed magna ex parte
pontifidum erat et' sanctum hahebatur. Fr. Hotman de Sponsa-
libus, c. 2.
47
Druses, who are not otherwise scrupulous in respect
of marriage, the licence is but seldom permitted.
Among tribes the most remote from the practice of
civilized life, among the Esquimaux of the North,
and the wandering hordes of the Western regions of
America, from Tartary to Caffraria, there is, with
less modification than might be conceived, a bond of
marriage, the virtue and the honour, the blessing
and the consolation, of savage as of polished life ;
the protection and instruction of infancy, the aid of
manhood, and the support of feebleness and decre-
pitude. All the forms of human association have
varied, and in the revolution of ages have been su-
perseded and renewed ; but marriage has never been
unknown : it has had the sanction of such universal
practice as proves its conformity with the very con-
stitution of human nature, and the best and kindliest
aflfections of the heart, and leaves the inference of its
origination with the Author and Creator of mankind.
'* That the holy state of matrimony was instituted
by God,^^ says Wheatly, ^' is evident from the two
first chapters of the Bible; whence it comes to pass,
that, amongst all the descendants from our first
parents, the numerous inhabitants of the different
nations of the world, there has been some religious
way of entering into this state, in consequence and
testimony of the divine institution ^''
If there be any force or value in the authorities or
die arguments which have been alleged in favour of
die divine institution of marriage, it will be hardly
neoessary to vindicate the doctrine from the imputa*
' Iflmtratkni of the Common Prayer, c. x. Introductioa.
48
tion of popery, which has been brought against it in
the following exhibitiqn in parallel columns of the
rituals of England and of Rome.
^' We have described the English marriage cere-
mony as ^popish institution, and protestants should
know, that the service is derived in great measure
from the popish mass-book and ritual. . . . The ca-
tholics, it is true, hold marriage to be a sacrament,
but the reformed Church appear to us, in substance
and in fact» to avow the same sentiment : this will
sufficiently appear by comparing the following ex-
tracts from the marriage service of the two Churches.
Catholic.
' Matrimony is a holy
state, originally instituted
by Almighty Grod between
our first parents, (Gen. ii.)
ratified and confirmed by the
^Son of GoA in the New Tes-
tament, (Matt. xix. 4, 5, 6.)
honoured by his first mira-
cle, (John ii.) and raised by
him to the dignity of a aor-
cramentf as a most holy sign
and mysterious representa-
tion of the indissoluble union
of Christ and his Church.''
Protestant,
^ Matrimony, which is an
honourable estate instituted
of God in the time of mane's
innocency, signifying unto
us the mystical union that
is betwixt Christ and his
Church.' And again : * O
God, who hast consecrated
the state of matrimony to
such an excellent mystery^
that in it is signified and re-
presented the spiritual mar-
riage and unity betwixt
Christ and his Church '."^
It is obvious to remark, that in this exhibition the
doctrine of the Church of Rome is substantiated by
reference to the Scriptures, except in that part of it
which treats of the sacramental nature of marriage,
Freethinking ChriiitiaDs' Quarterly Register, No. III. p. 269.
49
for. which no authority is produced, and which is
known to be founded- in a misrepresentation of the
meaning, and an ambiguous translation of the words,
of the apostle. Let similar references be annexed
to the words of the English ritual, and the scriptural
authority of its doctrine will immediately be seen : or
let a third column of scriptural authorities be inserted
between the recited formularies ; the Catholic, the
Scriptural, and the English doctrine will appear in
the following order.
1. Catholic.
^^ Matrimony is a holy state originally instituted
by Almighty God between our first parents, (Gen.
ii.) ratified and confirmed by the Son of God in the
New Testament, (Matt. xix. 4, 5, 6.) honoured by
his first miracle, (John ii.) and raised by him to the
dignity of a sacrament, as a most holy sign and
mysterious representation of the indissoluble union
of Christ and his Church.^'
2. Scriptural.
Marriage is honourable in all. Heb. xiii. 4.
He who made them at the beginning, made them
male and female, and said, For this cause shall a
man leave father and mother, and shall cleave to his
wife, and they, twain shall be one flesh : wherefore
they are no more twain, but one flesh. What there-
fore God hath joined together, let not man put
asunder. Matt. xix. 4, 5, 6. Mark x. 6 — 9. Gen. ii.
22, 23, 24.
We are members of his body, of his flesh, and of
E
50
bis bones. For tbis cause shall a man leave bis fatber
and motber, and sbail be joined unto bis wife, and
tbey two sbail be one flesb. Tbis is a great mys-
tery ; but I speak concerning Cbrist and bis Cburcb.
Epbes. V. 30, 31» 32.
3. Church of England.
^^ Matrimony is an bonourable estate, (Heb. xiii.
4.) instituted by God (Matt. xix. 4, 5, 6, &c.) in tbe
time of man's innocence, (Gen. ii. 20, 24.) signify.
ing unto us tbe mystical union tbat is betwixt Cbrist
and bis Cburcb; (Epb. v. 32.) wbicb boly estate
Cbrist adorned and beautified witb bis presence
and first miracle tbat be wrougbt in Cana of Galilee,
(Jobn ii.) and is commended of Saint Paul to be
honourable among all men. (Heb. xiii. 4.) God
has consecrated tbe state of matrimony to such an
excellent mystery, tbat in it is^ signified and re-
presented tbe spiritual marriage and unity betwixt
Cbrist and bis Church.'' (Epb. v. 31, 32.)
The result of tbis collation will be very different
firom tbe intention of tbe objector, proving, as far as
the two Churches agree, that tbe Church of Rome
is scriptural, not that the Church of England is
popish. It is however further objected, that the
two Churches agree " in attaching to marriage the
mystical notions which were introduced in the darker
ages ; the Catholic ritual calling marriage ' a sacra-
ment,^ 'a great sacrament:^ the Protestant ritual
denominating it an excellent mystery. A sacra-
ment then being a mystery^ the two Churches meet
51
in perfect concord on this point, the one having its
great f the other its excellenty mystery^.^^
If accurate distinction was not incooapatible with
rapid ratiocination, it might have been observed,
that the mystical notion of the sacramental nature
of marriage was introduced in the darker ages, but
the doctrine that marriage represents the union of
Christ with his Church has the high sanction of
St. Paul, and the continued and uninterrupted tradi-
tion of the Church from the apostolic age, and was
known to the writers of the Latin Church under the
name of SacramentumS before the origin of the
papal ascendancy, and many centuries before the
invention of the seven sacraments. The Churches
of £ngland and Rome therefore do not agree in the
mystical notions which they attach to marriage, the
one affirming marriage itself to be a sacrament, the
other, in her Articles, expressly denying that mar*
riage is a sacrament, and in her ritual, declaring it
to be the sign of a mystery of a different kind. In
the Homily against Swearing mention is indeed
made of the sacrament^ of matrimony : the old lan-
^ Freethinking Christians' Quarterly Register, No. III. p. 269.
' So Paulinas, in the fourth century, says,
Gnnde Sacrameatum, quo nubit Eclesia Christo :
Hie fot nectat amor, quo stringit Eclesia Christam.
Isidore, in the sixth century, uses the word for ordinary mar-
riage, of which he infers the indissolubility from the union of
Christ with hit Church. Div. Off. 1. ii. c. 19. And still the
propar sacrament of marriage was unknown.
^ The Apology for the confession of Wirtemberg, an unsus-
pected authority, uses the same language : " Quia conjugium
est sanctum vitse g^enus, divinitus institutum et commendatum,
libenter ei tribuimus nomen sacramenti." Gerhard, sect. 14.
E 2
52
guage was retained, while the doctrine was renounced
in the Articles and in the Catechism. Again : as a
Greek may be rendered by a Latin word, a sacra-
mien t may be equivalent to a mystery, but yet the
notion of a sacrament in the Church of Rome is so
entirely at variance with the notion of a mystery in
the Church of England, that it is the most childish
equivocation to affirm the perfect concord of the two
Churches, because " the one has its great sacrament,
the other its excellent mystery.^' Such is the ma-
gical influence of names upon weak and uninstructed
minds, that to some men it is a sufficient disparage-
ment of truth to call it popery, while others are
disposed to embrace an error, if it bears but the
name of catholic. The Christian who thinks, who
thinks for himself freely, independently, and with all
the energy of a pure and unsophisticated mind, will not
be deluded by the jingle of a name : he will examine
the authority and authenticity of the religious doc-
trine which he professes to receive; he will ascertain
by its conformity with the Scriptures the distinction
between truth and error; he will entertain a nianlv
^version from the apostacy of superstition and fana-
tical credulity, and a not less manly aversion from
the apostacy of infidelity, of an unreasonable, igno-
rant, and presuming scepticism, which mistakes
objections for arguments, and innovation for truth.
The religious enquirer knows that the doctrine of
the divine institution of marriage is not a doctrine of
Rome, but, in the best and fullest sense of the word,
a catholic doctrine, a doctrine of the universal Church.
Founded in the scriptures of both the Testaments,
it is held by Jews, and it is held by Christians; it
53
is held by Romanists, and it is held by the most
distinguished advocates of Protestant truth, of whom
it may be sufficient to name, Calvin, Beza, Grotius,
Gerhard, and Bishop Jewel, whose name is immor-
talized in the Apology of the Church of England
against the assumptions of the Church of Rome.
It will probably be objected, that, in the contem-
plation of the law of England, marriage is a civil
contract; and it will be readily admitted, that the
law, as explained by its luminous commentator, does
contemplate the civil contract of marriage, princi-
pally, but not merely, or exclusively, or without
such restrictions as are sufficient to sanction the
doctrine of the divine institution.
" Our law considers marriage in no other light
than as a civil contract. The holiness of the matri-
monial state is left entirely to the ecclesiastical law ;
the temporal courts not having jurisdiction to con-
sider unlawful marriage as a sin, but merely as a
civil inconvenience. The punishment, therefore, or
annuUing, of incestuous or other unscriptural mar-
riages, is the province of the spiritual courts, which
2LCt pro saiute animce . And taking it in this civil
light, the law treats it as it does all other contracts ;
allowing it to be good and valid in all cases, where
the parties at the time of making it were, in the first
place, willing to contract; secondly, able to con-
tract ; and, lastly, actually did contract in the proper
forms and solemnities required by law^''
There is no just objection to this state or state-
ment of the law, if it be understood with the limita-
» 1 Bl. Com. c. 15.
E 3
54
tion8 which are admitted and required. If by civil
contract be understood no more than the mutual
agreement of the parties, such an agreement is an
indispensable part of the divine institution, of which
the parties cadnot avail themselves withotit it. Since
the period of the first marriage, of which the terms
were dictated from above, the civil contract has been
engrafted upon the divine institution, and it is only
requisite that the conditions of tlie one shall cor-
respond with the conditions of the other, securing
the permanent union of one man with one woman,
in all cases not forbidden by the law of God. The
freedom of marriage is secured by statute (39 Hen.
VIII. c. 38.) in all cases not contrary to God^s law,
thus restricting the ordinance of man by the ordi-
nance of God; and all incestuous marriages are,
during the life of the parties, voidable in the eccle-
siastical courts. The forms and solemnities required
by law are a security for the religious celebration of
marriage, by a ritual which asserts the divine insti-
tution, and which prescribes conditions in con-
formity with that institution ; and with the only ex-
ception of the marriages of Jews and Quakers, all
marriages which are otherwise solemnized in Eng-
land are invalid. The doctrine of a merely civil
contract of marriage is further superseded by the
admission of the concurrent jurisdiction of the spi-
ritual and temporal .courts, by the reservation to the
former of the right of trying the validity of marriage,
and by the power which the ecclesiastical courts
possessed before the passing of the Marriage Act,
and both before and after the Reformation, of com-
pelling the celebration injacie ecclesias of marriages
56
entered into per verba de prcesenti^ i. e. by civil
contract, which are declared to be in themselves not
sufiicient to set aside a subsequent marriage, so-
lemnized in the ftce of the Church™. The Mar-
riage Act, which, under pretence of some informality
or defect in the mode of publishing banns or obtain-
ing licence, voided the marriage solemnized in the
face of the Church, was an anomalous innovation
on the general policy of the English law of mar-
riage, an extraordinary assumption of the power of
temporal law ; at once rescinding the civil contract,
and counteracting the divine institution of marriage,
limiting the power and the right of persons able and
willing to contract, and actually contracting in all
the forms required by law, except the arbitrary pro-
visions of a statute, which inflicted the same irre^
mediable penalties on those who ignorantly and
those who deliberately transgressed its enactments.
There is a singular want of precision in the vievirs
which Paley has exhibited of the nature of the con-
tract of marriage: "Whether it hath grown out of
■> 32 Henry VIII. c. 38. entitled, '^ An Act for marriages to
stand, notwithstanding precontracts," and providing that <' all
marriagesy heing contract and solemnized in the face of the
Church, and consummate with bodily knowledge or fruit of chil-
dren or child being had therein between the parties so married,
■hall be, by authority of this present Parliament aforesaid, deemed,
judged, and taken, to be lawful, good, just, and indissoluble,
notwithstanding any precontract." In the preamble it is affirmed
of marriages voidable by reason of precontract, that '' marriages
have been brought into such uncertainty thereby, that no mar-
riage could be so surely knit and bounden, but it should lie in
either of the parties' power and arbiter, casting away the fear of
God bj means and compasses to prove a precontract,^ &c.
£ 4
56
some tradition! of the divine appointment of marriagef
in the persons of our first parents, or merely from a
design to impress the obligation of the marriage
contract with. a solemnity suited to its importance,
the marriage rite, in almost all countries of the
worid, has been made a religious ceremony, although
marriage, in its own nature, and abstracted from the
rules and declarations which the Jewish and Chris-
tian Scriptures deliver concerning it, be properly a
civil contract and nothing more"/'
If this had been a correct statement of the doctrine
of the law of England, it would nevertheless have
been extraordinary that such a statement, unaccom-
panied with any qualifications, should have fallen from
the pen of an English theologian, arguing upon the
office of matrimony, and upon the state of ^^ mar-
riage, as it is established in this country/' The
plain drift of the statement is to account for the
religious celebration of marriage, which in its own
nature is affirmed to be, properly, a civil contract.
For this purpose the writer assumes the divine ap-
pointment or institution of marriage, and supposes
that the general tradition concerning that appoint-
ment has contributed to render the marriage rite a
religious ceremony. He appears at the same time
to recognize some peculiarity in the rules and de-
clarations of the Scriptures concerning it, which
gives to marriage another character than that which
it possesses abstractedly and in its own nature, in
which it is properly a civil contract and nothing
more. But is it possible, in a Christian country,
* PrincipleB of Moral and PoHt. Philos. b. iii. c. 8.
57
to take this abstract view of the nature of marriage^
and to throw out of the consideration all which the
Scriptures have taught concerning it, and the effect
which common tradition and the impress of the
divine institution have made upon the opinion and
practice of mankind ? The divine appointment of
marriage, in the person of our first parents, is a fact
which cannot be disputed. It is equally certain
that marriage was contemplated in the divine mind
when there was but one human being upon the
earth, and a civil contract or mutual agreement of
parties was impossible : and if there be truth in the
comment of our Lord, the rule of marriage was de-
livered by the Deity before the woman had spoken.
Marriage, therefore, in its primary origin, has no
nature of its own, which can be abstracted from the
rules and declarations which the Scriptures deliver
concerning it : and it is incompatible with the truth
of the sacred history to admit that marriage is '^ a
civil contract and nothing more/' A civil contract
implies the consent of two persons ; the intention of
marriage was conceived when there was but one,
and its original and perpetual law was prescribed
before man had any communication but with his
Maker. The mutual society, help, and comfort,
which is the great end of marriage, was devised, be-
cause it seemed not good unto God that man should
be alone ; and it was therefore resolved, not that man
in the first instance should contract an associate to
himself, which, under the existing circumstances, was
impossible, but that the Lord should make an help
meet for him, and should present her unto the man,
upon such terms that a civil contract or mutual con-
58
sent should be engrafted as the case permitted and
required upon the divine institution, and that in all
succeeding ages a man should be willing for this
cause to leave his father and mother, and to cleave
unto his wife, and they two should become one
flesh.
There is another inaccurate statement, which is
probably ascribed to higher authority than it de-
serves, and in which it is professed, that " before
man left his woods marriage was accidental ; in other
words, the intercourse of the sexes was chiefly re-
gulated by laws of instinct. Society changed the
condition of man, and marriage necessarily became
a civil contract. The progress of the social state, as
it led to important moral reforms, was to beget a
religious institution, and now the marriage contract
is rendered sacred by a vow, taken as it were in the
presence of God at the altar".**
No one will be more ready to admit than the
eminent lawyer to whom these sentiments are
ascribed, that not only when man left his woods, but
before he entered them, there was a bond of mar-
riage, first known in paradise, existing at the deluge,
confirmed and ratified when the sons of Noah left
the ark. The laws of human instinct, in respect of
marriage, were not a brutal passion, leading to pro-
miscuous or casual intercourse, but a divine impulse
directed to a permanent union for the care of a
common offspring. There never was a state of
society, in which marriage could be accidental, in
* Speech of Sir W. Scott^ on the Adultery Bill, Commons, May
30, 1800. Woodfall'i Pari. Reports, toI. xxiii. p. 142.
59
which a mutual agreement or civil contract between
the man and the woman was not also practicable.
The violation or the forcible abduction of women is
not the practice of the wilderness : the most untu-
tored tribes have their laws of marriage. The laws
of society, which alone could change the condition
of mankind* and are said to have produced a moral
reform, may have altered, but they could not ori-
ginate, the civil contract, for marriage, more or less
perfect in its kind, is found in the desert which
civilised man never trod, as well as in the city,
which is governed by his laws. The progress of the
social state, unaided by the light of religion, has
tended not to beget the '^ religious institution,'' but
to corrupt the simplicity of the divine ordinance of
marriage, which requires the permanent union of one
man with one woman, by the introduction of poly-
gamy and arbitrary divorces ; and whatever forms of
law it may have added to the vow of marriage, the
vow itself is of primordial origin and universal right.
The state of man in his native woods, is a state un-
known to real history, the fiction of the orator and
the poet, which, as suits their purpose, they make
the Pandemonium of all vice, or the Elysium of
every virtue and every grace. It is a sentence
worthy of a Christian judge, that ^^ marriage, in its
origin, is a contract of natural law ; it may exist be-
tween two individuals of different sexes, although no
third person existed in the world, as happened in the
case of the common ancestors of mankind. It is the
parent, not the child, of civil society. In civil so-
ciety it becomes a civil contract, regulated and pre-
scribed by law, and endowed with civil conse-
60
quences. In most civilized countries, acting under
a sense of the force of sacred obligations, it has had
the sanctions of religion superadded. It then becomes
a religious as well as a natural and civil contract :
for it is a great mistake to suppose that because it is
the one, therefore it may not likewise be the other.
Heaven itself is made a party to the contract, and
the consent of the individuals pledged to each other,
is ratified and consecrated by a vow to God. ... In
the . Christian Church marriage was elevated, in a
later age, to the dignity of a sacrament, in conse-
quence of its divine institution, and of some expres-
sions of high and mysterious import respecting it
contained in the sacred writings ^/^
The inaccuracy of the preceding statements is not
the only objection to the proposition, that marriage
is in its own nature a civil contract, and nothing
more. In the terms of civil contracts there is no-
thing fixed or definite, nothing which may not be
varied in accommodation to the law of states, or the
caprice of individuals. By the former, marriage has
been, and may be, prohibited, to numerous classes of
society, to the clergy, and to slaves : polygamy has
been sanctioned, divorces have been permitted at
pleasure. When marriage, as in the popular appre-
hension of Scotland, is regarded merely as a civil
contract, of which the terms are to be explained by
the secret understanding and intention of the con-
tracting parties, it is terminable like all other civil
contracts by. their mutual agreement and non-ad-
p Dodson's Report of Sir W. Scott*8 Judgment of Dalrymple
V. Dalrymple, p. 11.
61
herence. There is not only the extreme difficulty
of proving the contract, but each under certain cir-
cumstances is free to depart from his engagement : a
man may leave his wife, and a woman her husband,
with as little compunction and restraint as they leave
the house in which they have resided : in compli-
ance with their passions or their interest, they
may miarry, they may separate; they may form
marriages again and again; they may. do injury
without remonstrance in virtue of the uncertain
tenure of a mutual agreement and merely civil con-
tract. So when of old agreement was considered as
the essence of a contract, and marriage, regarded
apart from its religious character, merely as a con-
tract of a civil nature, it was thought to be dissolu-
ble by the consent, and at the mutual pleasure, of
both parties ">, and thus the principle of divorces ^oiia
gratia was established. It is recorded of the Abys-
sinians also, that although as a doctrine they admit
marriage to be of divine institution, the law puts no
restraint upon polygamy, and " upon the whole
marriage among them is no better than a firm bar-
gain or contract, by which both parties engage to
cohabit and join their stocks together as long as
they like each other, after which they shall be at
liberty to part'/' Marriage upon such conditions
is little better than constancy in willing concu-
binage: and although in England all the disadvan-
tages of marriage contracted upon such a principle
may. not be seen, and may be counteracted by a
^ Tebbs's Essay on the Scripture Doctrines of Adultery and
DiTorce, p. 236.
r Mod..Uiiiv. History, vol. xv. p. 80.
62
prevailing sense of the divine institution and the
divine law of marriage, men have not yet forgotten
the consequences of violating the Marriage Act of
17^4, of which the avoiding clauses must be ascribed
to the power assumed by the state to fix the terms
of the civil contract, and could not have been intro-
duced without the admission of that power. By
this Act a defect even in the forms of the civil con-
tract was made sufficient to supersede the religious
obligation : the civil contract, the chief point con-
templated by the law, was declared to be null and
void ; private caprice was allowed to take advantage
of the law, and unoffending truth could not escape
its penalties. The parties agreed to-day to be called
man and wife, to-morrow they agreed to renounce
the title ; and who can blame their decision who
maintains that marriage is in its own nature a civil
contract and nothing more ?
The writer who is most distinct in the assertion
that marriage, considered in its own nature, and
abstractedly from the rules of Scripture, is a civil
contract, and nothing more, admits, that there is
nothing in the nature of the contract in which it
differs firom other contracts, or which prevents arbi-
trary divorce, except the expedience and policy
which are involved in the care of children, and the
general happiness of married life: and no man, who
reflects how arbitrary are the rules of expedience,
that one sex is to judge of their application to the
circumstances of the other, and that the construction
of them may depend upon many private considera-
tions, will suffer the law of marriage to rest on the
unsettled basis of a merely civil contract. The
63
manner in which Paiey has argued the law of di-
vorce, with reference to marriages contracted upon
thia principle, comprehends without any comment
an insuperable objection to the doctrine.
'* If we say that arbitrary divorces are excluded
by the terms of the marriage contract, it may be
answered, that the contract might be so formed as
to admit of this condition.
'^ If we argue, with some moralists, that the obli-
gation of a contract naturally continues so long as
the purpose which the contracting parties had in
view requires its continuance, it will be difficult to
shew what purpose of the contract (the care of chil-
dren excepted) should confine a man to a woman
from whom he seeks to be loose.
'< If we contend, with others, that a contract can-
not by the law of nature be dissolved, unless the
parties be replaced in the situation which each pos-
sessed before the contract was entered into, we shall
be called upon to prove this to be an universal or
indispensable property of contracts.
'* I confess myself unable to assign any circum-
stance in the marriage contract which essentially
distinguishes it from other contracts, or to prove
that it contains what many have ascribed to it, a
natural incapacity of being dissolved by the consent
of the parties, at the option of one or either of
thern*.^^
Other writers, who have taken a juster and more
comprehensive view of the principle of marriage,
have come to a different conclusion in respect of its
* Moral Philosophy, b. iii. c. 7.
64
dissolution. " To the contract of marriage, besides
the man and wife/^ said the great English moralist,
" there is a third party — society : and if it be con-
sidered as a vow — God : and therefore it cannot be
dissolved by their consent alone*.'^
*' The first obligations,^^ says Lord Stair, " put
upon man by God were the conjugal obligations
which arose from the constitution of marriage.
Though marriage seems to be a voluntary contract
by engagement, because the application of it is and
ought to be of the most free consent, and because in
matters circumstantial it is voluntary, yet marriage
itself and the obligations thence arising are jure
divino. Obligations arising from voluntary engage-
ments take their rule and substance from the will of
man, and may be framed and composed at his plea-
sure ; but so cannot marriage, wherein it is not in
the power of the parties, though of common consent,
to alter any substantial ; as to make the marriage for
a time, and so of the rest, which evidently demon-
strateth that it is not a human but a divine con-
tract"/'
" The case of a marriage contract is essentially
different from other contracts : while with them it
has its origin in the will of the parties, who may
enter into it or not, as they choose, the rights and
duties flowing from it, as well as its endurance, does
not like them depend at all upon their pleasure.
The relation of marriage is a contract ^ttm gentium^
affecting the .personal status of the parties *." " This
* BosweD's Life of Johnson : the year 1 776. " Fergusson, 340.
« Ibid. 327.
65
personal state or condition, whether it be that of
marriage, or legitimacy, or whatever else, is something
above any mere contract or ordinary agreement. It
is attended with rights and consequences far more
general, more lasting, and more important. The
possessor of that character, wherever he goes, and in
whatever outward circumstances he is placed, has a
natural and just claim to have those rights which
are attached to the condition supported in their
greatest lawful extent and by all competent means.
Relations so formed are fundamental as society, and
universal as the human frame and constitution ; nor
are the obligations created by them peculiar to any
place or to any system of municipal law. They are
bounded under those systems, and distinguished in
them, only by views somewhat different of general
expediency : but wherever the possessors go they
are entitled to the utmost protection which the laws
of that place can afford. Not only therefore has
marrii^ when it is once constituted no longer any
local site or boundary, but it is in all respects dif-
ferent, both from contracts, which are the expressed
will, and from questions of intestate succession and
others, which are the presumed will of individuals.
Relations of this kind are indeed established by
positive agreement, but they cannot be dissolved,
nor altered, nor modified, by the will of the related
persons, nor, as to consequences, depend any how
on their pleasure ^.^'
: The last objection to the doctrine, that marriage is
a civil <!ontract and nothing more, is, that it changes
' Quarterly Review, No. XLIX. p. 251.
VOL. I. F
66
the character of adultery, and reduces the worst of
sins into a mere act of civil injury and inconvenience.
It is thus made the chief offence of the adulteress that
she violates the contract into which she has entered,
and the injury sustained by the husband, and for
which alone he is Entitled to compensation, is the
loss of his wife's society. It is a question from
which a virtuous mind recoils, but which has never-
theless been debated, whether under the cover of the
civil contract, and the power which a man possesses
over the person of his wife, adultery, committed by
the consent of both parties, and with a view to the
procreation of children, might not lose its character
of crime. The ancient practice of lending wives is
a similar instance of the abuse of marital power.
The doctrine of the divine institution of marriage
is not more worthy to be maintained as a theological
truth, than from its practical use and improvement in
the regulation of public law, and the elevation of
private duty. It alone affords an invariable standard
of the conjugal obligations. If it be admitted that
marriage is of divine institution, it is not in the
power or authority of man to impose restrictions or
regulations which shall counteract that institution.
Whatever was the primaeval law of marriage, deli-
vered with divine authority, the same should it re-
main in all its simplicity and integrity until the end
of time. If in the beginning it was free to all men,
it is still unrestricted : if it was originally a perma-
nent union of one man with one woman, it still
precludes all polygamy and all divorce : if its pri-
mary law imposed a voluntary and irrevocable en-
gagement, it is still opposed to force and to caprice :
67
if its ultimate end was mutual society and the care
of children, they are still its end and duty, and
should not be neglected. No restriction can be
properly laid upon a divine institution without the
authority of a divine revelation. It is this divine
institution which in all Christian countries has given
a general sanction and authority to the permanent
union of one man with one woman, which has pre-
vented the human corruptions of constrained and
involuntary celibacy, of polygamy, and arbitrary
divorce, and which, in the perpetuity of the union,
has provided a solace and support for infirmity and
decrepitude, under which passion subsides into friend-
ship, and the care of the woman, which is no more
required in the nurture of children, blesses and is
blessed in the mitigation of the sorrows of declining
life. The Mohammedan law of marriage* may be
accommodated to the unrestrained licentiousness of
a tropical climate, in which woman is made the
mere instrument of pleasure and of profit : but mar-
riage as divinely instituted is adapted to all men in
all ages and in all countries, the protection of his
in&ncy, the happiness of his manhood, and the
solace of his old age. It is wisely observed, that the
connexion of other animals subsists only so long as is
■ Monthly Review, vol. ciii. p. 299. Mohammedism '< is well
adapted to the senrile population of the tropics, for it is not
mecely the hereditary and traditional religion of the African
BladLS, but it opposes no obstacle to those frequent divorces,
whioh the early decay of females in warm climates tends to
nader irksome to the husband, and whioh the frequent transfer
of individual slaves to another plantation is calculated to make
desirable to the slave-owner.*'
F 9
68
necessary to the nurture of the offspring : but in
marriage the divine wisdom has provided a consola-
tion as constant as the trials of humanity, ordained
it the duty of filial piety to requite the cares of
parental affection, and made children for the support
of old age'.
The authority of a divine institution affords an ef-
fectual antidote to the ignorant insinuations ^ against
marriage and against women, which originated in
the licentiousness of the Epicurean philosophy, were
renewed in the heresies of the primitive Church,
were enforced by the papists, and have not wanted
advocates in the pride of modern infidelity, and the
humours of its twin-sister, modem fanaticism. These
unmanly sentiments will make no impression, they
will not fail of immediate refutation, in minds per-
suaded that marriage proceeded not fix>m the weak-
ness of man, but firom the wise and merciful provi-
dence of God, ever consulting the benefit of mankind.
It will also inspire the heart with new gratitude, to
contemplate the divine goodness in constituting the
happiness of wedded life, and making the best pro-
vision for the religious education of children, and
the care of his providence in preserving the purity
* rn^»IUnupt, Clem. Alex. Strom. 1. ii. s. 23.
^ The sentiments of the Philosophers, Heretics, and Romanists,
are collected by Gerhard,- s. 51, 52. The nineteenth century
has produced the assertion, that '< chastity is a monkish and
•▼angelical superstition, a greater foe to natural temperance
even than nnintelleetual sensuality : it strikes at the root of all
domestic happiness, and consigns more than half of the human
race to miseiy, that some few may monopolise according to law.
A system could not well have been devised more studiously hos-
tile to human happiness than marriage.*
69
of his institution from the fraud and frailty of men,
and blessiAg it in so many instances into the most
perfect friendship and unity which man can enjoy
upon the earth. It will call forth the spirit of prayer
and supplication, that the continual dew of his bless-
ing may be poured upon the state and upon all who
enter it, that, as they enter it in the faith of its
divine institution, they .may discharge its duties in
conformity with his will, and in humble hope of the
benefits which it was designed to produce, seeing
their children christianly and virtuously brought up,
and continuing in holy love unto their lives' end.
Even in the unhappy cases in which the marriage
has been contracted without thought, in which the
duties of the married state have been neglected, and
its appropriate happiness has failed, even here, the
necessary permanence of the union, which rests on
the sole authority of the divine institution, will con-
tribute to reconcile interests which cannot be sepa-^
rated, and mitigate evils which cannot be avoided ;
and men who are not entirely destitute of religious
principle will fulfil, in compliance with the ordinance
of God, what they would not attempt in conformity
with the law of man ^.
The authority of reason and religion in sustaining
the doctrine of the divine institution of marriage,
and the beneficial influence of that doctrine, consi*
dered in itself, and in comparison with the unau-
thenticated position that marriage is a civil contract
and nothing more, and the pernicious consequences
which are inseparable from that, position, may be
' Gerhard, lect. 48, 50, 52.
F 3
70
briefly recapitulated in the quaint but eloquent lan-
guage of Bishop Jewel, in his treatise of the sacra-
ments, in which he will not be suspected of main-
taining the sacramental nature of marriage, while he
affirms its divine institution and dignity.
** Of mariage I shall neede say the lesse, the
matter is so known and common. This fellowship
was first ordained by God himselfe in paradise.
God himselfe said, It is not good that man should
be himselfe alone : I will make him an helper meet
for him. God, which fashioned man, and breathed
in him the breath of life, and knoweth his very heart
and raines, said. It is not good, it is not fit, that
man should be himselfe alone. Although man were
in paradise, although he were in the perfection of
virtue, yet, saith God, he had need of a helper.
Christ disdained not to be at a mariage ; he ho-
nored it both by his presence and the working of a
miracle. Saint Paul saith, Mariage is honourable
in all men, and the bed undefiled. In all men, saith
he, in the patriarchs, in the prophets, in the apostles,
in martyrs^ in bishops.
« « «
..." If you marke these fewe words which I
delivered, it will easily appeare, how reverend an
accompt is to be made of that state of life. For if
you regard the necessity thereof, God found it good
to give man a wife ; if the antiquity, it was ordained
in the beginning of the world ; if the place, in para-
dise; if the time, in the innocency of man. If you
regard any thing the rather because of him that
ordained it, God was the author of mariage, even
God which made heaven and earth, and which is the
71
Father of our Lord Jesus Christ. \f you seek the
allowance, Christ approved it by his birth in man-
age and by his presence at mariage; if the dignity.
It is honourable ; if among whom, in all men, of all
estates, of all calUngs ; in prince, in subject, in min-
ister, in people. It is honourable in prophets, ho-
nourable in apostles, in martyrs, in bishops<^/'
* A Treatise of the Sacraments, gathered out of certaine Ser-
mons which the Reverend Father in God^ Bishop Jewel, preached
at Salisbury: published in (the third part of) his Works^ 1609,
p. 283, 284.
V4
CHAPTER II.
THE RELIGIOUS RATIFICATION OF MARRIAGE
SECTION I.
Expedience and Antiquity of the Religious Ratification,
XHE establishment of the divine institution of mar-
riage, and of the divine authority of the primary laiv
of marriage, affords a safe and solid ground for the
investigation of the nature and circumstances of
marriage. It is prescribed in the divine law : For
this cause shall a man leave his father and mother,
and cleave unto his wife, and they shall be one
flesh \ The terms of this law are plainly reciprocal :
a man shall leave his father and mother, and cleave
unto his wife or woman ; and a woman shall leave
her father and mother, and cleave unto her husband
or man : and thus, leaving the nearest and dearest of
their natural connexions, and cleaving unto each
other in the new relation of husband and wife, they
shall be indissolubly united in that union which is
represented as the unity of one flesh. The nature
of marriage, thus exhibited in the divine law, is the
permanent union of one man with one woman ; and
this nature of marriage is distinctly recognized in the
formularies of the national Church, in which the
parties engage severally, that they will live together
after God's ordinance, in the holv estate of matri-
■ Gen. ii. 24.
73
mony, and that, forsaking all other, they will, keep
each to the other, so long as they both shall live, and
until death shall part them.
This is the true nature of marriage ; the recipro-
city of the terms used in the divine law implies a
mutual agreement of the parties respectively, to for-
sake the dearest, and, with the dearest, all other re-
lations, and to form a permanent and indissoluble
union with each other. The first condition is the
mutual agreement, contract, or espousals of the
parties, and to this agreement must be added such a
ratification as shall render the agreement irrevocable,
and the contract indissoluble: and the interest of
the parties, the interest of the offspring, the interest
of their kindred, the interest of society, all agree in
requiring that the consent shall be pledged under
such circumstances, that the obligation shall not be
retracted. A private engagement of the parties upon
arbitrary terms, which they themselves shall settle
and interpret, and which they shall be at liberty to
alter or rescind, is not sufficient to constitute a mar-
riage contemplated by the light of Scripture, which
insists upon the permanence of the conjugal union,
and authorizes the inference of the necessity of a
public ratification, in the presence of witnesses who
may certify the terms of the consent, and by their
testimony enforce the fulfilment of the obligation.
The publicity of marriage does not infringe the
simplicity of the primary institution. The Almighty
God was himself witness of the first espousals. It was
at the time that the Lord God brought the woman unto
the man, and in his immediate presence, that Adam,
in acknowledgment of his intimate and inseparable
74
union with Eve, exclaimed, This is now bone of my
bone, and flesh of my flesh ; and that the law of
marriage was delivered, requiring, in correspondence
with the words of Adam and with the circumstances
under which the woman was created, that the man
should cleave unto his wife, and they should become
one flesh**. The example of the first marriage would
naturally recommend the presence of parents and
other relations at succeeding marriages ; and hence
may have proceeded the celebrity of the nuptial
feast, for the purpose of attesting and publishing the
marriage*. The barbarous practice of buying a wife
implies the presence of a seller; and the various
gifts, which under different names have from the re-
motest periods accompanied the marriage, have been
inanimate proofe and attestations of the engagement.
In the forms of ancient espousals the contract was
often made, not between the parties immediately in-
terested, but between the parents and other relations,
who thus became both parties and witnesses to the
covenant**. The writers who have ventured to con-
tend that the consent of parents is involved in the terms
of the primary institution, are necessarily opposed
to the clandestinity of marriage; nor can the doc-
trine, that marriage is a civil contract, be sustained,
without admitting the necessity of witnesses to prove
and confirm the contract. The argument is con-
firmed by the practice of Scotland, where all which
is necessary to the vaUdity of the contract, is a de-
claration of the consent of the parties : notwith-
^ Gen. u. 23, 24. Gerhard de Conj. s. 44, 45, 455.
^ Potter's Antiq. b. iv. c. 1 1. «* Ux. Ebr. 1. ii. c. 19.
75
standing the apparent simplicity of the contract, the
matrimonial law of Scotland is more intricate and
involved than it is easy to conceive, from the ex-
treme difficulty of proving whether there has or has
not been a marriage ; and even the evidence of the
fact may be counteracted by the allegation, that
there was a secret understanding between the parties,
and that it was not their intention to contract matri-
mony by the ostensible act.
There is nothing in the state of marriage, consi-
dered in its proper nature, and undertaken upon
worthy motives, of which a man should be ashamed,
or which a man can endeavour to disguise, or to take
upon himself clandestinely and without witnesses,
without incurring the suspicion of some vicious
principle, which actuates the desire of concealment,
and which suffers him, by disowning, to dishonour
his wife and children, and to place them in an equi-
vocal light before the world. Concubinage may
seek the shade and shelter of retirement, but mar-
riage has a public character, and demands a public
recognition. It is for the honour and interest of the
parties and of their respective families, that their
marriage should be known and undisputed. An ho-
nourable man does not blush to avow an honourable
conne^on ; he cannot suffer the honour of his wife
to be called in question, or that she should not be
acknowledged in the character which she is entitled
to sustain ; he is anxious that the line of his inherit-
ance should be undisturbed, and that all the offices
and all the immunities of wedded life should be s^
cured, by the public celebration of his marriage, in
conformity with the laws of the state in which he
76
lives, and which has a public interest in ascertaining
the marriage of the citizen, as it affects the rights
and privileges of him and his children, and a public
duty in preventing the evils and litigation which re-
sult from a doubtful and clandestine marriage.
It will be the object and endeavour of every
Christian community, to make the publicity of mar-
riage, and the presence of witnesses, subservient to
the great end of securing, in conformity with the
divine institution, the permanent union of a man
with, his wife, upon terms which shall not be liable
to misapprehension, by a form which shall be sanc-
tioned and enforced by the laws, and by the solem-
nity of a vow which shall bind the conscience. That
the ratification of the private agreement should not
only be public, but accompanied with religious offices,
is consistent with the nature of marriage, and agree-
able to the common sense of mankind, attested with
very few and inconsiderable exceptions in the prac-
tice of all countries, in which '^ the bond of wedlock
hath been always more or less esteemed of, as a
thing religious and sacred ^.^'
It would not be precipitate to assume the religious
ratification from the characteristic holiness of mar-
riage. Marriage is holy in its origin, which is the
ordinance of the holy God, whose institutions can-
not but be holy : it is holy in its celebration, or the
Son of God would not have honoured the nuptial
banquet with his presence, and the first fruits of his
miraculous power : it is holy also in its end, which
is the religious education of the oflbpring, the per-
' Hooker's Eocl. Pol. b. v. s. 73.
77
petuation of a godly seed, an end which called forth
the admiration of the heathen philosophers which
is distinctly asserted by the prophet MalachiS and
which is insinuated in the argument of Saint Paul,
in which he presses the sanctification of the children
as a prevailing motive against the separation of the
believing and the unbelieving consort^. Its typical
use and signification are also such as reflect the
strongest light upon the sanctity of marriage. The
prophets again and again represent the relation which
the Almighty God vouchsafed to bear to the Jewish
Church, under the name of a marriage, which has
also been considered in all ages a proper emblem of
the mysterious unity between Christ and the Church,
The Jews understood the marriage of Adam and
Eve to be typical of this divine union, which is also
represented in terms appropriate to marriage by
David', and by Solomon also in the Book of Can-
ticles, in which he expatiates upon the doctrine in
all the luxuriant imagery of the East. Saint Paul
makes the comparison at considerable length in re-
spect of the Church in general^, and he confesses
himself to be jealous over the Church of the Co-
rinthians in particular, with a godly jealousy, because
he had espoused her to one husband, that he might
present her a chaste virgin unto Christ^ He warns
the Romans of their being married unto Him who is
raised from the dead"". The Baptist also calls our
Lord the bridegroom, and himself the friend of the
' Plato quoted by Comber. « Mai. ii. 15. *• 1 Cor. vii. 14.
» Psalm xlv. " Ephes. v. 25—32. ' 2 Cor. xi. 2. » Rom.
vii. 4.
78
bridegroom ° ; and our Lord, in many of his parables
and discourses, appropriates the title to himself. The
Evangelical prophet uses the same metaphor of mar-
riage in describing the Church, in whose name he
says, I will rejoice in the Lord, my soul shall be
joyful in the Lord ; for he hath clothed me with the
garment of salvation, he hath covered me with the
robe of righteousness, as a bridegroom decketli him-
self with ornaments, and as a bride adorneth herself
with jewels. And again:. As the bridegroom re-
joiceth over the bride, so shall thy God rejoice over
thee"". The same allusions to marriage are found in
the Apocalypse, when the enraptured prophet saw
the heavenly city, the new Jerusalem, coming down
from heaven, as a bride adorned for her husband ;
when he was invited to see the bride, the Lamb's
wife, and when he unfolded the infinite joy and
glory which shall be consummated at the marriage
feast of the Lamb p.
It is the more necessary to insist upon this meta-
phorical representation of the unity of Christ with
his Church, under the name of marriage, and upon
the high authority of the holiness of marriage, as an
inference from that representation, because it has
been insinuated, with little knowledge of Scripture,
of primitive antiquity, and of the history of the doc-
trine of marriage and divorce, that the propagation
and maintenance of this opinion in the thirteenth
century, upon the authority of the Fathers, gave rise
to the notion of the indissolubility and sacramental
" John Hi. 29. See Ux. Ebr. 1. ii. c. 16. " Isa. Ixi. 10.
Ixii. 5. »* Rev.-xxi. 2, 9. xix. 7, 9.
79
character of marriage, and was the ground upon
which the religious ratification superseded what is
affirmed to be the more ancient doctrine, that mar-
riage is a civil contract in such a sense, that being
improperly contracted it may be annulled, notwith-
standing the religious ratification "i. It is more ne-
cessary to notice, than to refute, such a series of
assumptions, which have no foundation in fact, and
no power to disparage the truth. There are other
ailments of a more practical nature confirmatory
of the holiness of marriage, and contributing to jus-
tify the inference of its religious ratification.
It is one of the chief rules of Christian duty to do
all things decently and in order', and to do them in
the name of the Lord Jesus Christ, giving thanks to
God and the Father by him'. This rule is imme-
diately connected by the apostle with the duties of
husbands and wives ; and it appears consistent, that
a Christian man, in appropriating to himself the be-
nefits of the divine institution, should acknowledge
the ordinance and in treat the blessing of God. The
Christian is also required to marry in the LordS and
the community of feith prepares the way for a com-
munity of religious offices : and as marriage derives
its origin and authority from the institution of God,
it is but natural that the mutual vow, which is made
in virtue of his ordinance, should be confirmed and
made obligatory upon the conscience by an act of
solemn adjuration and invocation of his name. The
*> A. L. Schott. Accessiones Juridicsey ad Gerhard Tract, dc
Conj. ad sect. 63. sqq.
' 1 Cor. xiv. 40. • Coloss. iii. 17. • 1 Cor. vii. 39.
80
duties and the cares of marriage are of such a nature
as to demand all the advantage which can be derived
from the solemnity of a religious ratification, and all
the aid which can be obtained by public prayer and
intercession. In entering into a covenant which
death only can dissolve, in devoting his whole con-
fidence and love to the wife of his bosom, in resign-
ing the preferences of his own will to the duty and
upon the condition of mutual submission, in antici-
pating the anxieties which are inseparable from the
maintenance and education of children, and in re-
volving all the changes and chances of wedded life,
of richer and poorer, of better and worse, of sickness
and of health, until death shall determine them, the
pious man will not scruple to strengthen his heart
with a regulated faith in the ordinance and dispens-
ations of Grod, and with earnest prayer that his
goodness may bless, in the happiness of the indi-
vidual, what bis wisdom has provided for the benefit
of mankind : and in the solemn act of forsaking his
father and mother, with a grateful recollection of the
experience of his youth, and of cleaving unto his
wife, to become the head of a new farailv, he will
not think it enough to make even a public declara-
tion of his engagement, without at the same time
invoking the aid of Him, who is at once the author
of marriage, and the present witness between a man
and the wife of his youth — of Him who alone can
bless the fulfilment, and punish the violation, of the
conjugal vow.
Such considerations have operated in all ages and
in all countries to connect the ratification of mar-
riage with religious rites. The practice is not with-
81
out exception ; but the exceptions are of such a
nature as to give force and vahdity to the rule.
The form of Spartan marriages, as it is recorded by
Plutarch", is quite peculiar: but while it was con-
ducted secretly by the parties, and with an entire
neglect of religious ceremonies, there was the ap-
pearance rather of an intrigue than of a marriage,
which was so rigidly concealed, that the bride often
became a mother, not only before she was publicly
acknowledged, but before she was even seen by her
husband in the light of day. In other countries the
barbarous condition of the people abates the weight
and authority of the example, or the brief and im-
perfect record of their manners renders it hazardous
to draw any conclusion in favour or in prejudice of
the religious ratification. Thus among the ancient
Germans, the man sent to the woman whom he
proposed to marry a dower, and afterwards presented
her with a bridled horse, oxen, a shield, sword, and
arms*. Among the Rhodians the bride was sum-
moned to her husband^s house by a herald, and
upon his proclamation was conducted to the cham-
bery. The Boeotian bride was covered with aspa-
ragus, and afterwards crowned*. The Persians and
the Assyrians confirmed their espousals with joining
• In V. Lycurg. Potter's Antiq. b. iv. ell.
' Tac. de Mor. Germ. sect. 18. where he contrasts the simple
manners of the Germans with the customary ceremonies of his
own age and country, with reference to which he pronounces of
their nuptial g^fts» Hoc maximum vinculum, haec arcana sacra,
ho8 conjugales Deos arbitrantur.
^ Plutarch, in Problem, c 140. apud Gerhard, s. 458.
* Plutarch, in Prsecept. Connub. c. 2. Ibid.
VPL. I. G
82
of hands'^. A religious ratification appears to be
more distinctly insinuated in those forms in which
the participation of some libation or sacrifice may
be disguised under the ordinary acts of eating or
drinking. The splendour of the marriage feast among
the Persians is expressly recorded in the history of
Ahasuerus and Esther^. The Macedonians ate
bread which had been cut with a sword ^: the Gala-
tians drank out of the same cup in token of the
community of marriage^. In some places it was
the custom for the bride and bridegroom to pass
under a yoke; but the custom is no otherwise re-
markable, than as it gives the name to the conjugal
union, and as it attests the divine and sacred charac-
ter of marriage, by assigning the epithet oijugalis
to Juno*. In Scotland the practical inconvenience
more than compensates the theoretical simplicity of
* Arrian. de Gest. Alexandr. 1. iii. Ibid.
^ Esther ii. 18.
' Qu. Curtius, 1. iii. apud Gerkard.
^ Plutarch, lib. de CI. Mulieribus. Ibid. Similar rites prevail
among the Caffres, whose wives are sometimes courted, more
frequently bought, at the price of ten or more cows. The bride
is carried to the bridegroom's hut, and examined by the matrons
of the craal ; if she is approved, a number of oxen are killed,
and the whole party feast for four days running. On the fourth
day the bride is stripped naked, and carried by two of her compa-
nions round the whole circle ; she b then presented to the chief
of the clan, who exhorts her to be a good wife and mother, and
faithful to her husband. The bridegroom follows, and receives
the same injunctions. On his return to his party his relations
present a vessel of milk to the bride, reminding her whose cows
produced it. She drinks of it, and by that act becomes his
lawful wife. Enc. Metropol.
* Gerhard, sect. 458.
83
the, merely civil contract of marriage, confirmed
without a religious ratification.
Whatever may be thought of exceptions of a
character so entirely negative, they cannot be suf-
fered to counteract the positive evidence of the reli-
gious ratification of marriage which is derived from
the ordinary practice of the heathens and the Jews,
and, which is recommended in the allusions of Scrip-
ture, explained by the rites which have been used
in the Christian Church from the earliest periods,
which together form a cumulative argument in fa-
vour of die religious ratification, equivalent to an
universal tradition, corresponding with the common
sense and reason of mankind. The consecration
which Grod has given to marriage is, '^ by the sense
of all civilized nations, attested in their earliest writ-
ings : which are the only proofs that can in reason
be expected of a consecration of the state by God
himself in the first settlement of civil societies long
before the earliest writings ^"
The ancient Alexandrians required the presence
of a priest, and did not allow any marriage of which
the priest of the goddess Isis had not signed the
instruments with his own hand<^: and it is related of
the Egyptians in general, that their marriages were
anciently celebrated in the temple of Isis, and that
the man swore that he would love the woman
dearly; and the woman, that she would make the
man her husband, and lord of all that ^ she had^.
' Leslie's Sermon concerning marriages in different commu-
nioDSy proeecated by Dodwell, p. 30.
9 Ux. Ebr. 1. ii. c. 28.
** Shepherd's Elucid. of Com. Prayer, Form of Sol. of M atr.
G 2
84
Sacrifices at marriage were also customary among
the ancient Latins and the ancient Greeks in Italy,
as was the sacrifice of a victim on the day following
the marriage. In Hetruria, when the kings and
chief men contracted marriage, it was usual for the
bride and the bridegroom to slay a hog. The prac-
tice of the Thessalians was to celebrate sacred rites
before marriage under the name of yetfjLoiaKneu And
even in Mexico marriages were not contracted with-
out the use of incense'. It is a remark old and
true, that even the men whom the first origin of
society has scattered in the uninhabitable regions of
the earth do not contract matrimony without the
proper solemnities of marriage*^.
In countries of which the manners are more fully
known there is more clear and distinct evidence of
the religious ratification of marriage, and of the
sacerdotal benediction, either expressly asserted, or
implied in the oblation of prayers and sacrifices,
without which there was no celebration of marriage*.
Sufficient traces are preserved of the form of cele-
brating marriage among the Greeks to leave no
doubt of the use of religious rites. Among the
Locrians and Boeotians the bride and brides:room
usually ratified the marriage by a solemn libation "";
and before the marriage they offered sacrifice to
Euclia, who had an image in the market-place, and is
supposed to have been the same with Diana, the god-
dess of virginity. There is the most copious evidence
» Ux. Ebr. 1. ii. c. 21. » Araob. Adv. Gentes, 1. i. c. 2.
' Servius ad ^neid. iii. •» Plutarch, in v. Aristid. apud
Gerhard.
85
of the law and ceremonies of marriage among the
Athenians, which they ascribed to the Muse Erato,
and which were certainly of remote antiquity, and
had the sanction of the highest authority, that of
Plato, who recommended, in different treatises",
that the inauguration of marriage should be con-
ducted by the priests, with the oblation of prayers
and sacrifices, and that certain festive rites should be
appointed by the laws, in which the bridegroom and
the bride should make their covenant ; in which
sacrifices should be offered, and hymns be sung,
appropriate to the celebration of marriage. When
the Athenian girls attained the age of marriage, it
was usual, xavfj^o^eiy, to offer baskets full of curious
trifles to Diana, to deprecate the anger of the god-
dess, and to obtain her permission to quit her train,
and cease to be one of the aKuyis xoqou^ offering at the
same time the sacrifices of a calf or young heifer®,
which had never been joined or married^ to the yoke.
When the girl was betrothed, she was led by her
parents into the temple of Minerva in the citadel, to
take her leave of that virgin goddess, and sacrifices
were offered upon the occasion?: she was also pre-
sented t6 Diana before it was lawful for her to
marry, and that she might propitiate the favour of
the goddess with certain ceremonies. On the day
before the marriage, which was thence called y«jX)jA<«
xoujwyrij, or the day of the matrimonial tonsure, it
■ De leg. 1. V. De rep. 1. v. apud Gerhard.
A^n^^i. Eur. Iphig. in Aul. v. 11 12.
^ This day, according to Julius Pollux, Onomast. 1. iiL was
called w^nikim. Brisson de Jur. Con.
G 3
86
was usual to shave the head and to present a lock of
the hair to the goddess"*. Sacrifices were also offered
to Venus and the Graces for the past, to Juno, as
Pronuba, for the present, and to Lucina, or Mater*
familias, for the future; and, whether they were
offered to Diana or to Juno, these sacrifices and
the prayers which accompanied them were called
yajbujXioi fu%ai, ir^oyofAcia, irjoreXeioi wxeti or ^gorekeui. It
is known that marriage was called riXos^ to marry
rffXeiorfiiyai, married persons nxem, the gods who were
the chief patrons of marriage Jupiter reXeio^ and
Juno reXeia, the marriage, the day and the sacrifice
of marriage, TtXeiw, and the preparatory sacrifice
irgoTiXgut. It may be diflScult to ascertain the original
use and intention of these terms, which, although
they may contain an allusion to marriage, as a per*
feet state of life, proper to perfect men, may be more
distinctly and decisively referred to the religious
rites of marriage, and to the sacred initiation of the
persons to be married. The Athenians understood
by xgonXeta generally any acts or gifts preceding the
dedication of any thing which was offered to the
Deity, and especially the prayers and sacrifices
which accompanied marriage, which they called
TiXoj, because it was a sacred perfection of things
which concern human life. They held marriage to
*! Rous Archeeolog. Alt. 1. iv. c. 7. Potter represents this
ceremony with its appropriate titles to be peculiar to one«day of
the ceremony, called Apaturia, when fathers had their children
entered in the public reg^ters, and offered sacrifices for their
prosperity, with a particular respect to their marriages. Antiq.
b. iv. ell. from whence, and from the corresponding chapter of
Rous, this account of the Grecian marriages is chiefly taken.
87
be a mystery, and therefore they used terms denoting
the initiation and purification preparatory to the
mysteries'. The classical writers, in their frequent
allusions to the prayers and sacrifices of marriage,
convey the strongest proof of the ordinary practice
of the age».
Other gods, besides those which have been men-
tioned, were concerned in the nuptial solemnities.
The Spartan mothers, notwithstanding the secrecy
and clandestinity of their marriages, sacrificed to
Venus Juno when their daughters were married ;
and the most ancient Athenians paid the same
honours to heaven and earth, whose combined energy
in the production and maturity of all fruits was
esteemed a fit emblem of marriage. The Fates
were also propitiated, as were different deities at
different places : and religious honour was especially
shewn upon the occasion at Troezen, to Hippolytus,
who died to preserve his chastity ; at Megara, with
libations to Iphinoe, who died a virgin ; at Delos,
' Lycurgus apud Brisson de ju. Con. Dionysius Areop. £p. 7.
with the note of Maximus the Scholiast, apud A. Hotman de
Vet. Rit. Nupt. c. 1.
Itffi w(« rtf^jifv KM yeifmXidv nA«u(. ^sch. Eumen. v. 832.
ut Solenni more sacrorum
Perfecto, posset claro comitari HymenaBo. Lucr. 1. i. v. 97.
Inde ubi Sacrificans cum conjuge vemt ad aras
iEsonides, unaque adeunt, pariterque precah
Incipiunt; ignem Pollaz uadamque jugalem
Prstulit, ut dextmm paiiter vertantor in orbero .
Val. Fl. Argon. 1. 8. apud Brisson. ** Aristoteles in (Econ. 1. i.
c. 3. citat Pythagorae sententiam, quod maritus debeat uxori
beneficentiam et tutelam, quia sponsa ei ad aram, ut supplex,
commendatur." Gerhard.
G 4
88
to Hecaerge and Opis ; at Argine and Athens, to
Minerva.
Other preparatory ceremonies* were observed, and
care was taken by the parents and the relations to
consult^ the deities who superintended marriage,
especially Jupiter o/xoyvio^ and Juno o-u^uyMc, with
prayers and sacrifices. When the victim was opened
the gall was thrown behind the altar, because it was
the aversion of the gods of love, and the emblem of
anger, from which marriage should be free. The
entrails were carefully examined, and if any unfavour-
able omen appeared in them, or indeed in any other
way, the contract was dissolved, as displeasing to
the gods. The most favourable omen was a pair of
doves, denoting constant love, or of crows, whose
long life promised a perpetuity of happiness ; but
care was taken to prevent the appearance of a single
crow, which threatened separation, and the evil in-
fluence which its appearance might excite. Another
method of averting evil was, to inscribe on the door
of the house. Let no evil enter.
One principal end of the marriage feast was, to
pay the respect which was due to the gods of mar-
riage, who were invoked before the feast, in which
they had no common share, and in which they were
^ The order of the several ceremonies is preserved by Euripides,
Iphig. in Aul. v. 713.
KAv. ^'(•nAiMi y Si wtuhf w^m^ $m i
Ay». f$iXX» y §wi twvrif mu »M$9mifUf rv;^.
KXv. tmwurm imtntt rwi ymft§9f frvm^«v ;
Ay». IvfWf yt $vfmf mm^ f»* ^KC^ ivnu hut.
V Idque fecerunt sacrificio perfecto et consulto Deorum numine.
Alex, ab Alex, apud Comber.
89
especially honoured, with dancing, and music, and
and songs, addressed chiefly to Hymen.
The bride was conducted to her chamber with
torches, which it was the office of the mother' to
bear, and which are supposed to have been five,
according to the number of the gods of marriage,
Jupiter rvXeio^, Juno rffXeio, Venus, Suadela, Lucina.
Whatever may be thought of these practices of
ancient superstition, they leave no doubt of the re-
ligious ratification of marriage among the Greeks,
of whom none but the Lacedemonians contracted
marriage clandeslinely and without a religious ritual;
and even among them the piety of their mothers did
not neglect the intercession which was due upon the
marriage of their children. There is full evidence of
the same sacrificial rites in the celebration of mar-
riage among the Romans, nor is it necessary to
insist upon the ancient and ingenious but unau-
thorized and doubtful conjecture of Verrius Flaccus,
the Roman jurist, who derives the name of sponsus
and sponsa from the sacred rites and libations which
were common to the occasion^. It is more im-
portant to observe, that marriage, among the Romans,
m^ ir^iKTU futr^t fuutm^m, Eurip. Phoeniss. v. 339.
' Quod TWfiHi interpositis rebus divinis facerent. Brisson. de
Rit. Nupt. Selden, de Jure Nat. et Gen. 1. v. c. 7. obsenresi that
the name of uxor " a Grammaticis aliquot a sacro ungendi, in
solennibus nuptiarum, Inninis ritu peti, ideoque etiam unxorem
earn olim dici: perinde ac si absque sacris illis seu solennibus
nuptiamm etiam ex ipsa vocabuli vi, nulla propne i^^ nomine
foisiet indigitanda.**
90
was an affair, not merely of civil law, but chiefly
sacred and pontifical, and such as could not be con-
tracted without invoking the aid of the Divinity*.
It was in compliance with this prevailing opinion,
that when Augustus was desirous of marrying Livia,
he made a pretence of consulting the pontifices, and
of hesitating to marry without obtaining their con-
sent. In the most ancient periods the nuptial union
was ordinarily celebrated in Hetruria, with the sa-
crifice of a hog: nor was marriage ever contracted
without sacrifices, or without taking the auspices ;
and the Aruspices were so generally present at the
marriage, that an incestuous marriage is described by
Cicero, as one that was contracted without auspices,
without authority, and with omens unfavourable*:
and it was considered as a general mark of the de-
generacy of Roman manners, that their office, in
respect of marriage, fell into disuse, or was merely
nominal^, and that marriage was celebrated without
espousals, silently, and without rites, in a manner
foul, base, and disapproved^. There were three
principal kinds of marriage at Rome, that by use,
that by purchase, and that by con&rreation.
Marriage was contracted by use or possesion,
when a woman, under the advice of her guardians,
cohabited with a man for a whole year, without
being absent firom him for more than three nights.
Nothing is known of the form of contracting these
marriages, which derived their origin from the rape
■ Fr. Hotman de Sponsal. c. 2. Gerhard, s. 457. *• Orat.
pro Cluentio. ** Cic. de Divin. 1. ii. Plautus. Lucao. Juvenal,
apud Hotman. * Fr. Hotman de Sponsalibus, c. 7.
91
of the Sabine women ^, and of which the frequency
is reckoned among the signs of a degenerate age.
Cicero however maintains, that no marriage was ce-
lebrated without auspices ; and Selden^ conceives it
to be incredible, that even these marriages should be
deficient in the appropriate solemnities. He pro-
duces no authorities in favour of a religious celebra-
tion, but argues on the general notion of sanctity in
respect of marriage, which obtains among the Pagan
writers, and especially upon the allusion of Arnobius
to the marriage of the gods, according to the heathen
rites: The gods have wives and enter into matri-
monial treaties, upon conditions previously agreed
upon ; by use, by confarreation, by purchase, they
engage the sacred rites of the genial bed ; they have
the brides whom they desire, for whom they contract,
whom they attach to themselves by the stipulations
which are interposed; And what shall we say con-
cerniog these conjunctions ? You admit that upon
occasion some of the Gods have celebrated marriage,
and joined in the sacred choir in which the goddesses
have joined, and that because they did not parti-
cipate in the fescennine song, they have thrown all
things into confusion by their discord, and scattered
the varieties of evil among the human race^ The
same writer asks generally of the heathen. When
you contract marriage, do you not spread the genial
bed with a toga, and invoke the genii of husbands ?
Do you not offer the robes of the damsels to the
Fortune which presides over virgins^?
* Gerhard, s. 456. • Ux. Ebr. 1. ii. c 21. ' Arnob.
tdv. Gen* 1. i?. t. 20. > Ibid. 1. u. «• 67.
92
The second kind of marriage was by coemption or
purchase, and had its proper ceremonies of auguries,
auspices, sacrifices, and oblations '^ The form of
the contract was, that the man asked the woman
whether she would be the mother of a family ? She
assented, and asked in her turn whether he would be
the father of a femily. On the declaration of his
assent the woman passed into the hands of the man^
" Id a country where the women are universally re-
garded as the slaves of the other sex, it is natural to
expect that they should be bought and sold like any
other species of property. To marry a wife must
there be the same thing as to purchase a female
servant, who is to be intrusted under the husband^s
direction with a great part of the domestic eco-
nomy/* This has been the common practice of
savage nations, in which the wife is commonly
bought by the husband, and the conclusion of the
bargain, together with the payment of the price, is
the most usual form or solemnity in the celebration
of their marriages. So by the ancient law of the
Romans, a wife was considered as in every respect
the slave of her husband. She was bought by him,
*^ she might be sold by him, or she might be put to
death by an arbitrary exertion of his authority. From
the ceremonies which were used in the more solemn
and regular celebration of marriage, it seems probable
that in early times the wife was purchased with a
real price from her relations*".**
^ Vx. Ebr. 1. ii. c. 21. * Gerhard, s. 456.
^ Miller on the Origin of Ranks, p. 39 — 44. From this practice
of coemption he derives the custom of the husband's giving a
93
The most solemn and ancient mode of marriage
was, however, by confarreation, which has been
ascribed to Numa Pompilius, and was proper to the
priesthood, to whom it was an indispensable qualifi-
cation, and by whom alone it was conducted, and
consisted entirely of sacrifices, especially of bread
made of barley. The Pontifex Maximus and the
Flamen Dialis presided over the nuptial sacrifice, or
over the marriage, which was sacred in itself, and
they were themselves required to be married in this
form ; and none but children born of parents married
by confarreation, could hold the office of the Flamen
Dialis*. The method of these marriages was, that
by the use of certain words in the presence of ten
witnesses, and after a solemn sacrifice, conducted by
the priest, in which barley bread was chiefly used,
the woman was given to the man. In these mar-
riages the priest joined the hands of the parties, as
appears from a coin of Adrian, bearing the inscrip*
tion, coNJUG. AUG. in which the emperor is repre-
sented giving his hand to the empress, in the presence
of the priest, who is standing between them"". This
was the most religious form of marriage, nor was
any of the Roman rites more venerable than the
dowry to the wife or her relations, instead of the wife bringing
along with her a dowry to the husband.
» Ux. Ebr. 1. ii. c. 21. Brisson, deRit. Nupt. A. Hotman, de
Vet. Rit. Nupt. c. 20. Gerhard, s. 457, observes, that the velum
flammeum, which was worn by the bride, derives its name '' a Fla-
minica, id est, Flaminis uxore, ut de indissolubilitate conjugalis
vinculi novae nuptse admonerentur, quia Flamiai non erat per-
missum cum uxore divortium.'
"» Ux. Ebr. 1. ii. c. 28.
»>
94
bond of confarreation ", and it is with distinct refer-
ence to this form that the Romans called sacred and
lawful mamages Jarreaceoj and to be married, con-
farreare^.
Besides these solemn rites of marriages, there were
others conducted in a more private manner. There
was the prayer of the mother of the woman, in which
she entreated of Jupiter and all the Gods, that what-
ever Maijugeoa had prepared in the name of espousal
gifts might be publicly delivered, that the virgin
might never be destitute of the dowry, and that they
would then suffer the instruments of the Papian
and Poppean law to be recited p. There was the
sacred use of fire and virater, which were ordained of
old for the confirmation of marriage ; and the holy
influence attached to these elements was designed to
represent a sacrificial purification, a promise of issue,
and a conjugal community of goods**. There were
also the sacrifices which the woman offered, the day
after the marriage, in auspicious celebration of her
conjugal liberty'. The day of marriage was spent
in feasting, dancing, and sacrifice, especially of a
bog% in the oblation of which the parties pledged
themselves, in the presence of the gods, for the hap-
piness of the marriage, and the inviolability of the
vow. When the woman was conducted to the house
of her husband, the house was furnished with frank-
incense and other spices, and the nuptial supper was
" Plin. Nat. Hist. 1. xviii. e. 3. apud Comber. *" A. Hotman,
de Vet. Rit. Napt. c. 21. p Ibid. c. 2. <> Ibid. c. 18.
r Macrob. Satumal. 1. i. c. 15. apud Gerhard. * Varro apud
A. Hotman.
95
distinguished by a general acclamation of happiness,
Feliciter ! to the new married couple*. The chamber
was adorned with images of the gods, and there was
a dedication of the girdle to Juno and Diana, with
other rites anciently observed, which the refinements
or the corruptions of later times did not allow. There
were sacrifices to the god Jugatinus, that the man
and the woman might be yoked in marriage ; to the
god Domiducus, that the bride might be conducted
home without injury ; to the god Domicius, that the
bridegroom might be willing to remain in his house;
and to the goddess Maturna, that the bride might
wiUingly remain with her husband °. In Rome, as
in Greece, Jupiter and Juno were esteemed the pre-
sidents of marriage, and also the authors of marriage ;
nor was there any limit to the number or variety of
the deities that were appropriated, under the poly-
theism of ancient Rome, to the several offices of
marriage, or of the trifling, absurd, and unbecoming
superstitions, which polluted the ostensible sanctity
of the institution ; superstitions which could have no
origin but the feverish lasciviousness of their authors
and inventors, and justly challenged the strongest
and most indignant censures of die early writers of
the Church*.
Among the Hindoos, whose customs have de-
scended with little variation from remote antiquity,
marria8:e is contracted with sacred rites. The bride-
groom goes in procession to the house of the bride's
^ Gerhard, s. 456. Ux. Ebr. 1. ii. c. 21. Juvenal, Sat. ii. 119.
■ A. Hotman, de Vet. Rit. Nupt. c. 29, 30.
* Augustiii. de Civitat. Dei, 1. vi. c. 9.
96
father, from whom he receives the bride in tlie form
usual at every solemn donation : after certain pre-
paratory forms the bridegroom makes oblations to
fire, on which the bride also drops rice as an obla-
tion. The bridegroom then solemnly takes her hand
in marriage ; she treads on a stone and mullar^ they
walk round the fire ; the bride steps seven times,
conducted by the bridegroom, and he then dismisses
the spectators, the marriage being now complete and
irrevocable. The ceremonies attendant on the mar-
riage of two Brahmins are still more curious, and
bear evidence, not only of ^ sacrificial rites, but of the
sacerdotal presence and benediction. The day is
fixed by the family priest or Purohita, who also
accompanies the procession of the bridegroom to the
house of the bride. In the course of the marriage
rites, the Purohita recites verses to Vishnu and other
deities, praying them to watch over the destinies of
the contracting pair ; then the bride and bridegroom
pour handfuls of rice on each other's heads, and the
father of the bride, joining his daughter's hand with
that of the bridegroom, says, I give this virgin to
you for a wife. Upon this the Purohita, after in-
vesting the bridegroom with various ornaments, per-
forms a homam or burnt-ofiering before the pair,
putting grain into different pots. Other ceremonies
follow, figurative of the ends of marriage, intermixed
with muniras or prayers, addressed principally to
female divinities, for the happiness of the one in
question. At night another homam is performed,
and further ceremonies take place, which are repeated
with variations for five successive davs. On the last
day is performed the ceremony of dismissing the
^7
manes of their ancestors who had been invoked to
be present at the wedding^.
It is necessary to turn from these superstitions of
the heathen, to the purer and more simple rites
which ratified the marriages of the Jews, and which
possess the same sacred and sacrificial character.
There is the most ancient testimony that their mar-
riages were celebrated in pubHc; and there is distinct
and copious evidence, botli of history and in the
allusions of the prophets, and the parables of our
Lord, concerning the prdlonged ceremonies of the
nuptial banquet ; the dress of the bride and the
bridegroom ; the procession of the bridegroom to the
house of the bride ; and of the prayers and benedic-
tions which were usual upon the occasion'.
The espousals of the Jews were ordinarily ce-
lebrated with a sacred benediction in this form :
Blessed be the Lord God, the King of the world,
who hath sanctified us by his precepts, who hath
interdicted incest, and required abstinence in them
that are betrothed, but permitted the use of the wife,
with whom we are united, in the chamber and by
espousals. Blessed be He, who hath sanctified his
people Israel, both in the chamber and by espousals.
This form, which is ascribed to Ezra and the rulers
of the great synagogue, was ordinarily used by the
iN'idegroom, or some one in his name, before the
deeds or instruments of espousal were read, and it is
still retained in fhe Jewish rituals. This form was
accompanied with another ancient practice, of drinking
y Strange's Elements of Hindoo Law, vol. i. p. 43. vol. ii.
p. 54— 56. Monthly Review, Jan. 1826.
* Gerhard, s. 459.
VOL. I. H
98
wine or some other liquor, which had also its appro-
priate benediction : Blessed be the Lord our God,
who hath created the fruit of the vine. At the end
of this benediction the cup was given, by the person
who pronounced the blessing, to the persons
espoused, or to the bride by the bridegroom, who
in that case both blesses the wine, and is the first to
taste it. These benedictions were performed under
a canopy, which explains the Psalmist^s description^
of the sun going forth as a bridegroom from his
chamber or canopy, and rejoicing. In more recent
times the form of espousals was made or repeated
shortly before the marriage in the public synagogue,
as may be seen in the modern rituals^.
The Jews had two kinds of wives, whom they
distinguished into primary and secondary wives.
The primary wives were called Naschim, and being
betrothed with more soleipn forms, and married
•• with nuptial ceremonies and rites requisite,^' they
possessed si^perior authority in themselves, and con-
veyed a right of inheritance to the children ; which
privileges did not belong to the concubines or se*
condary wives^. The rites and ceremonies of their
marriages consisted chiefly of blessings and thanks-
givings unto God, whence the house was called the
house of praise, and the marriage song praises. The
principal benediction, as it is preserved by the Tal-
mudists, was in this form : Blessed be the Lord our
God, King of the world, Creator of man. Blessed
* Psalm zix. 5. See the Conunents of Grotius and Geijer in
Pdi Synops. in loc.
^ Ux. Ebr. 1. ii. c. 7. Godwyn's Moses and Aaron, 1. vi. c..4.
< Godw3(n's Moses and Aaron, 1. vi. e. 4.
99
be the Lord our God, vrho hath created man after
his own likeness, and the likeness of the image of his
own original, and hath prepared for hinnself an ever-
lasting building. Blessed be the Lord our God,
Creator of man: the barren shall rejoice and exult in
gathering her children into her bosom with joy.
Blessed be the Lord our God, who maketh Sion to
rejoice in her children. Make this pair to rejoice in
the joy which thou gavest to thy creature of old in
the garden of Eden. Blessed be the Lord our God,
who maketh the bridegroom and the bride to rejoice.
Blessed be the Lord our God, who maketh for the
bridegroom and the bride joy and gladness, exulta-
tion, singing, mirth, jubilee, love, the paternal re-
lation, peace and friendship. O Lord our God, let
there be immediately heard, in the cities of Judea,
and the streets of Jerusalem, the voice of joy and
gladness, the voice of the bridegroom and the bride,
the voice of mutual love from the bride-chamber, and
children from the choir of their harmony, {or the
voice of exultation in the bride-chamber is sweeter
than any feast, and children sweeter than the sweet-
ness of a song.) Blessed be the Lord our God, who
maketh the bridegroom to rejoice with the bride.
This formulary was accompanied with the same
benediction of wine as the celebration of the
espousals, to which is added, in the more modern
rituals, Blessed be the Lord our God, who gives joy
and prosperity to the bride and the bridegroom. We
confess unto the Lord that he is just, and that his
mercy endureth for ever. Let joy be multiplied in
Israel, and let sighing fly away"*.
* Ux. Ebr. 1. ii. c. 12. Godwyn's M. and A. 1. vi. c. 4.
H 3
100
The principal form which has been recited was
called the Blessing of the bride and bridegroom, or
the Blessing of the Marriage, and is, with the other
formularies, ascribed to Ezra*, by whom it may have
been compiled from the more ancient usages and
traditions of the Jewish Church, of which the ori-
ginal may be traced in the benediction of the elders
at the marriage of Ruth^ and in the history of the
marriage of Tobias, and the various versions of the
blessings contained in the latter history, which agree
in establishing the nuptial benediction^. The Book of
Canticles is also supposed to have been a nuptial song,
divided into seven parts, one of which was recited
upon each day of the nuptial feast*": and it has been
thought, "that the Psalm cxxviii. was a form pre-
scribed to be used at the blessing of their marriages,
when they wished the new married couple all manner
of happiness, especially a long life in peaceable
times*. ^' The Psalm xlv. was also a song of loves,
and most interpreters conclude that it was composed
upon the occasion of Solomon's marriage with the
daughter of Pharaoh*^, although in its principal aim
and direction its inspired author contemplated one
greater than Solomon. The expressions of Solomon,
in calling marriage a covenant of God', and of
Malachi, in affirming that God is witness between a
man and the wife of his youth", are indirect evi-
dences of a religious ratification, of an appeal to the
Deity in the solemnization of marriage.
• Ux. Ebr. 1. ii. c. 12. ' Ruth iv. 11, 12. « Tobit
▼ii. yiii. Ux. Ebr. 1. ii. c. 13. ^ Shepherd on Common
Prayer. * Patrick, Home in loc. '' Patrick in loc.
»Prov. ii. 17. «" Malachi ii. 14.
101
The nuptial benediction was not necessary, but it
was usually observed, in the marriage of a brother^s
widow". The history of the marriage of Ruth was
sufficient to establish a precedent, from which the
Jews required the presence of ten persons at the
nuptial benediction, which was first recited by the
eldest or most worthy, and was repeated during the
seven days of the marriage feast, as often as guests
arrived who were not present at a previous recitation®.
It is recorded by Gaudentius, bishop of Brixia',
(A. D. 400,) that when there was a marriage among
the Jews, one of the sacerdotal order attended at the
feast, to preserve regularity and decorum, and gene-
rally to direct the order of the entertainment, who
was therefore called the «j%iTgixAiyo^, or ruler of the
feast : and the only objection of Selden to this testi-
mony is not to the fact or the record, but that he
knew of no authority for supposing, that the ruler of
the feast was necessarily of the sacerdotal order. An-
other argument for the presence of a priest at the
Jewish marriages, and fpr the sacerdotal benediction
of the bride and bridegroom, is drawn from the use
of Psalm cxxviii. which is one of those Psalms
which are called Psalms of Degrees, and are so
called, in the judgment of some interpreters, because
they were recited by the priests from an elevated
situation, and adapted by them to the character or
condition of the persons to whom they were ad-
dressed^. It is a record, perhaps, of more difficulty
in the exposition than value in the application, that
» Ux. Ebr. I. i. c. 12. « Ibid. 1. ii. c. 12. p Tractat.
9. recited in Ux. Ebr. 1. ii. c. 1 1 . ^ Gerhard, s. 469.
H 3
102
the king Joasli had two wives, by a marriage which
the priest promo.ted, or which he ratified by an act
of sacerdotal benediction'. It is of more importance
that Josephus and Philo Judaeus make distinct men-
tion of a sacrifice at the marriage. Josephus, pro-
bably with a remote allusion to the hire of the harlot,
speaks of the interdicted marriage of the courtezan,
(interpreting the original word in its classical sense,)
the sacrifice at whose marriage' God would not
accept, on account of her previous prostitution : and
Philo speaks of the »joTiXg««, as affording a hope of
the sacrificial celebration of marriage^ It is difficult
to ascertain the exact meaning of these expressions,
or to exhibit the nature of the sacrifices intended ;
but such expressions occurring in contemporary
writers, must have a distinct and proper sense; they
must denote some peculiar ceremonies of marriage,
something more than the nuptial benediction, or the
celebration of the nuptial banquet with benedictions.
Our own expression of the solemnization of marriage
is of obvious signification : the Greek phrase of
8«Kreiv yayMvg^ has its specific allusion ; and the Hel-
lenistic phraseology of rou duo-fiy yofi^ovg cannot but de-
note a sacrificial ratification of marriage ; and does
not such ratification in itself imply the presence of a
priest ?
' hfTf fv M^z**V^f» <1UAS ®i locaverat Pontifex. Hudson.
coojugium conciliante Pontifice. Selden. Joseph. Ant. Jud. 1. ix.
c. 7. cf. 2 ChroD. xxiv. 3.
* Tus f«-i rm ym^ Ivtmk. Ant. Jud. 1. iv. c. 8. s. 23. Cf. s. 9.
' iXwtim iMi< r«ii $V9W r«v( y«^vf . in libr. m^t tiK m( r« T(«ir«i}ftf-
futrn rtnAv. Opera ed. Pfei£F. vol. iv. p. 146.
^ Eur. Iphig. in Aul. v. 715.
103
The modern Jews'' profess to derive their rites of
marriage from their remote progenitors, and especially
' A case of a singular description, connected with the Jewish
ikes of marriage, has been recently brought before the Lord
Mayor. The beadle of Aldgate applied for an order of filiation
against a Jew, whom he accused of deserting his bastard child.
When the father was brought up, the mother maintained that
the child was no bastard, as the defendant had married her
before consummation; and she produced the ring, and chal-
lenged the man to say whether he had not put it on her finger,
pronouncing those words which constituted them man and wife.
The validity of such a marriage was denied ; and it was asked,
whether such marriages were usual among the Jews. The
woman solemnly declared that a marriage in this form was
binding, until a divorce took place : if it were not, she had been
betrayed and seduced : she had acted in a conviction of the
stabili^ of the bond, which was the less doubtful, as one of the
Groldsmidts had lately been married in this form. The de-
fendant admitted that he had married the young woman as she
had described, but contended that the form was unavailing.
There were irregularities in the ceremony, under which it could
not be recognized by the Jewish law. He had been disap-
pointed in the young woman, or he would have completed the
ceremony before the High Priest, and have thus put the legality
of the marriage beyond all question. He now resisted all claim
but that of the child, which, whether a bastard or not, the
Jewish law obliged him to maintain. Under these circumstances
the question of the legality of the marriage was submitted to
the Hi^ Priest, from whom the following communication was
received : — " The solemnization of marriages among the Jews is
r^^lated by a code of laws, which impose certain ceremonies to
be performed, and blessings to be said under a canopy, by
a person properly qualified and authorized for this purpose.
Parties^ however, surreptitiously contract themselves, by the
man putting a ring on the finger of the woman in the presence
of witnesses, and declaring its purpose: but such marriage is
not only disreputable, but occasions much inconvenience, as its
wdidity may be questioned ; and the law considers the wife o1^
such formation in the same light as an unclean woman. Her
II 4
104
from the precedent of the marriage of Tobias. The
principal ceremonies are, the bathing of the bride on
claim to maintenance is likewise subject to much question,
although there is none for that of her children : and neither the
man nor the woman can marry any other person, unless a re-
gular divorce has been executed between them. Thus, though
the ceremony is incomplete, and liable to much dispute, they
must with respect to other connexions be considered as man and
wife." — Sir James Shaw, who sat with the Lord Mayor upon the
occasion, differed from the High Priest in his view of the case,
which he considered to" be analogous to the familiar case of mar-
riages in Scotland, where the mutual declaration of assent forms
an indissoluble bond; and he did not see how the defendant
could be called upon to maintain his bastard child, under such
circumstances as appeared to him sufficient evidence of legiti-
macy. The Lord Mayor also considered the ceremony that had
taken place to constitute a bona fide contract, which, whatever
might be the operation of the Jewish law, he could not disturb.
The parish should proceed against the defendant in the usual
way, for having deserted his wife and child; and measures
would speedily be taken to punish the father, for having at-
tempted so gross a deception. — See Times, Aug. 13, 18S4.
According to this statement, the validity of the Jewish marriages
depends not on the simple contract, which may be surreptitious,
incomplete, and subject to dispute, which conveys no right of
maintenance to the wife, and is contrary to the law of the Jews;
but it depends on certain ceremonies and blessings, performed
by a person properly qualified and authorized. Whether the
Jews will or will not acquiesce in this arbitrary interference of
the civic authorities in interpreting the operation of their law, it
18 certain that this flagitious case not only affirms the necessity
of an authorized solemnization of marriage among the Jews, but
suggests new ground of objection to the doctrine, that marriage
IS a civil contract and nothing more, and to the expedience of
extending the privilege of marrying by a form which is tiot
defined by the laws, which is liable to tiie misrepresentation of
<me party and the misapprehension of another, and of which the
proof is not facilitated by an authenticated registry.
105
the day before the marriage ; the mutual presents of
the bride and bridegroom; the delivery of the instru-
ments of rbarriage ; the adorning of the bride ; and
the solemn procession, with music and company, of
the bride and bridegroom to the place of union and
benediction, which is a canopy, of which the four
pillars are supported by four boys, and which is
called Chuppah. On the arrival of the bridegroom
under this canopy, there is a general acclamation, of
Blessed is he who cometh : and at the end of the
ceremony wheat is thrown upon the heads of the
bride and bridegroom, with a recitation of the primi-
tive blessing. Increase and multiply. The ceremony
of benediction proceeds in this form : The bride
stands on the right hand, with her face towards the
south, and the rabbi who officiates takes the end of
the tippet which the man has round his neck, and
places it on the head of the woman ; and afterwards,
taking in his hand a glass full of wine, he pronounces
the blessing of the bride and bridegroom, which has
been already recited, and offers to them the wine as
of old time. He then places a ring of gold of ap-
proved fineness on the finger of the bride ; and call-
ing for another cup of wine, pronounces the ancient
benediction of the marriage, and drinks to the parties
of the wine, directing the bridegroom to pour the
wine of the espousals upon the ground, in token of
the destruction of Jerusalem ; in commemoration of
which it is usual in some places to cast ashes upon
the bridegroom^s head, and to cover it with a piece
of black cloth. The marriage feast ensues, which is
protracted for eight days. In Italy, when any person
is invited to honour the marriage feast with his pre-
106
sence, he replies, Mazal Tob ; signifying that he
wishes a happy issue to the marriage ; and the same
words are engraved upon the wedding ring^.
The general celebration of marriage among the
Heathens and the Jews with religious rites, affords
a strong testimony of the sense and opinion of man-
kind in favour of the religious ratification of marriage:
and as those rites existed, and were in common use,
before the time of our Lord, the proper method of
ascertaining the authenticity of the Christian practice
will be, to enquire, not what our Lord commanded,
but what he did not forbid. He was himself present
at the solemnities of the nuptial feast, and gave to
them the sanction and authority of his sacred pre-
sence : he used, in his parables, various allusions to
the ritual of marriage, to the procession to conduct
the bride, the use of lamps, the approach of the
bridegroom, and the celebrity of the nuptial feast :
and while he condemned the common traditions and
superstitious practices of the age, he was so far from
making any exception to the rites of marriage, that
he gave to them new sanctity, in appropriating them
in the description of himself and his Church. His
apostle, St. Paul was earnest in upholding the va-
lidity and obligation of marriages which had been
celebrated with heathen rites, and suffered not the
dissolution of the bond' which had been thus con-
tracted, although be restricted the disciples, after their
conversion, from marrying with the unbelieving*,
y Gerhard, s. 460. Shepherd on Common Prayer. Godwyn's
Moses and Aaron, 1. vi. c. 4.
» 1 Cor. vii. 2, 10, 11.
• 1 Cor. vi. 15. 2 Cor. vi. 14.
107
and required them to marry only in the Lord^.
This rule is generally interpreted of marriage among
Christian believers; without, however, excluding
the rites which were proper to marriage, which have
been attributed to apostolic appointment and tra-
dition, and are known to have prevailed in the
Church in the second century"". It is the common
assertion of the writers who have detailed the forms
of the heathen marriages, that as they did nothing
without taking the auspices, so they especially ob-
served them in their marriages : and it appears to be
a just and necessary conclusion, that when Chris-
tians were required generally to do all which they
did to the glory of God, and in the name of the
Lord Jesus Christ^, or in the character of his dis-
ciples, they would hardly enter upon marriage with-
out some religious observance, in which the required
community of their faith enabled them to agree ; and
the conclusion is strengthened by the circumstance,
that the nations in their unconverted state were ac-
customed to a religious solemnity and ritual of mar-
riage.
It would be vain to pretend that it is a clear or un-
exceptionable argument, which the Scriptures alone
supply in favour of the rites of marriage, or indeed
of any rites, without reference to the previous and
the subsequent forms of celebration, of which the
proof must be collected from other authorities, and
the reason is approved by the primitive and catholic
practice. The Scriptures afford no evidence of the
^ 1 Cor. vif. 39. ' Comber on the Office of Matr. Intro-
dQCtioD. ' i Cor. x. 31. Col. iii. 17.
108
ritual celebration of Baptism or the Supper of the
Lord, which no man has had the temerity to censure
or deny. The opinion that the ratification of mar-
riage among Christians with religious rites is de-
rived wholly from the prevailing customs of the
heathen, should not be implicitly received, or allowed
to justify any inference prejudicial to the rites of
marriage, without mature consideration of the cir-
cumstances of the case, that there was nothing abso-
lutely unlawful in the rites themselves, and that it may
have been necessary to comply with them to secure
the civil advantages of the marriage, and prudent
to depart from them only by degrees, and with the
most cautious circumspection. It is thus that Ter-
tullian affirms at once the sacrificial forms of the
heathen marriage, and approves the compliance of
Christians with those forms : In respect of offices of
private and public solemnities . . as espousals, as
marriages . . I should think that no danger is con-
tracted from the breath of idolatry which occurs in
them. It is necessary to take into view the occasions
for which the office is required. I think that the
occasions are pure in themselves, because neither is
the ring nor the union of marriage descended from
the honour of any idol. . . And God does not pro-
hibit the celebration of marriage any more than the
imposition of a name. But sacrifices are accommo-
dated to marriage. If the nature of the office and
the discharge of my labour depends not on the sacri-
fice, but on the occasion upon which I am called,
what then ? Do as you please. I wish indeed that
we had power not even to see the things which it is
not lawful to do. But since the evil spirit of idolatry
109
encompasses the age, we are at liberty to be present
on occasions in which we render service, not to the
idol, but to man *. This may account for the mixed
character of the ceremonies which prevailed in the
primitive Church, of which some were chiefly of
heathen origin, and others had the better authority
of Scriptural allusion. The principal ceremonies
consisted in the dress and ornament of the bride and
bridegroom ; the lamps which they carried in the public
procession to the temple; the crowns which they wore
in token of their triumph over sinful passion, and
which were put on by a priest; the ring ; the veil ; the
procession to conduct the bride; and the form of
dower and the nuptial banquet^ The principal
point which it is necessary to ascertain is the sacer-
dotal benediction ; the use of sacred rites, and the
presence at the marriage of a minister of the Church,
of which the traditionary evidence is copious and
unbroken from the apostolic age, originating in
words of all but apostolic language.
It is the rule of the apostolic father, Ignatius, that
it becomes men and women that are marrying, to
form the union with consent of the bishop^, that the
marriage may be according to the Lord, and not in
compliance with passion. Selden objects that the
genuineness of the epistle is doubtful, and that it
proves only that the marriage should be contracted
in compliance with the divine law, of which the
bishop was the guardian and interpreter. The great
purpose of the appearance before the bishop, and of
• De Idolatr. s. 16. ' Gerhard, s. 461 . » furm yfitft^
•. Ad Polycarp.
no
obtaining his consent, was to prove that both the
parties were Christian : but it may be asked, whether
the bishop would have neglected so interesting an
occasion of praise and benediction in connexion with
the divine ordinance and rule of marriage ? Baronius
is bold in affirming that marriage was not then con-
tracted without the presence of a priest, and observes
the correspondence of the apostle's language, of
marrying only in the Lord, which he interprets of a
celebration of marriage in conformity with the laws
and rites of the Church delivered by the apostle *».
Is it impossible that this rule of Polycarp was the
remote origin of the publication of banns ?
In the Protevangelion of James, the early forgery
of an Hellenist, deeply acquainted with the rites of
the Jews, and bearing indirect testimony of the con-
temporary practice of the Christian Church, Joseph
is charged with a clandestine marriage, and not bow-
ing his head under the mighty hand, that his seed
might be blessed, as Fabricius interprets his words,
by a solemn and sacerdotal benediction'.
Soter, bishop of Rome, (A. D. 174.) ordained
that no wife should be esteemed lawful whom the
priest had not blessed according to the institution^.
Athenagoras (A.D. 178.) affirmed of the Chris-
tians, that each esteemed her to be his wife, whom
he married according to the laws established among
them^
* Ux. Ebr. 1. ii. c. 28. • Cod. Apocr. Nov. Test. P. I.
p. 101. ^ IMatina in Vit. Soter. apud Gerhard.
' vf* ifutf rthtfuv^uf >#ytv(. Legat. pro Christ s. 3d. Other
copies read vf ' vfutf, i. e. the Romans ; and hence is constructed
an argument for the validity of marriages contracted before con-
version.
Ill
Clemens of Alexandria, (A. D. 192.) in reflecting
upon the women^s use of false hair, asks. On whom
does the presbyter lay his hand ? Whom does he
bless ? Not the woman thus adorned, but the bor*
rowed hair, and, through that hair, the head of
another". This passage may or may not relate to
the nuptial benediction : the reflexion is upon mar-
ried women ; but the benediction may have been
received at other times than their marriage.
That the ancient Church in general, and the
African Church in particular, were always wont to
celebrate marriage by the solemn benediction of the
clergy, is the assertion of the learned Gothofred ° :
and Selden® admits that the use of the sacred priest-
hood in the celebration of Christian marriages, is
undoubtedly recognized in the following passage of
Tertullian, the first of the Latin fathers: (A.D. 209.)
Whence shall I find words to express the felicity of
that marriage, which the Church conciliates, and the
oblation confirms, and the benediction seals, and the
angels pubhsh, and the Father ratifies?. Selden
endeavours to explain away the obvious meaning of
this passage ; and argues, that the Church does not
mean the clergy, distinct from the laity ; that it does
not necessarily prove the necessary, or even the
customary, use of any minister, or any sacred rites at
the marriage, and that, although the oblation may
mean the Eucharist, it is not necessary to suppose
more than diat the Eucharist preceded or followed
the marriage. Gothofred on the contrary maintains,
** P^agog. 1. iii. c. 1 1. " Bingham's Aiitiq. b. xxiL c. 4.
o Ux. Ebr. 1. u. c. 28. p Ad Ux. 1. ii. s. 9.
112
that the Church promoted the marriage, inasmuch
as men commonly asked wives of the clergy, con-
sulted them upon their marriage, declared or avowed
their marriages before them, and ratified them by
their benediction. He proceeds to shew, that in this
passage there is a distinct allusion to the five rites of
heathen marriage, which may thus be compared with
those in use in the Christian Church, according to
the representation of Tertullian :
(The Proxenetae conciliating the marriage ;
' (The Church or clergy conciliating the marriage.
rThe offering of the kiss and gifts of espousal ;
' \The oblation of prayers with the Eucharist.
The signing of the instruments ;
The obligation of the sacerdotal benediction.
The testimony and presence of witnesses and
friends ;
.The publication, faith,and testimony, oftheangels.
j The consent of parents to the marriage ;
• (The ratification of the heavenly Father^.
The argument of Gothofred is confirmed by other
passages in the writings of Tertullian : he not only
calls marriage the blessed connexion, or the con-
nexion of blessing % but he says, that with the Chris-
tians, secret or clandestine marriages, which are not
publicly avowed before the Church, are liable to be
condemned as fornication and adultery* : and again,
in his treatise of Monogamy, he asks. Who art thou,
^ Bingham's Ant. b. xxii. c. 4. ' De Pud. s. 19. » Ibid,
fl. 4.
113
that demandest a second marriage of them to whom
such a marriage is unlawful ? For the bishops, the
presbyters, and the deacons, and the widows of the
Church, whose society thou art rejecting, are all
monogamists, and have been but once married : and
shall they give husbands and wives, openly as they
do morsels, to every one that asketh, and join you
together in the virgin Church, the only spouse of
the one Christ ^
Selden objects, that if this passage is to be under-
stood of the nuptial benediction, that benediction was
the act of the widows as well as of the clergy ; but
it is answered, that the widows only gave counsel in
conciliating the marriage, the clergy added their
benediction to ratify the marriage °. Selden recites
the exposition of Gabriel Albaspinus, Bishop of
Orleans, who, in his observation on the passage,
maintains, that nothing was required besides advice
on the propriety of the marriage, and the power of
carrying it into effect. Selden nevertheless admits,
that in the beginning of Christianity among the
Gentiles, Christian rites and ministers had their place,
and succeeded those of the Gentiles : but he con-
tends, that there is no evidence that such rites were
then generally received ; that the clergy had any
office beyond the benediction, and the administration
of the Eucharist ; that their presence was required
for the prevention of clandestinity, and according to
the common practice of attaching religious rites to
civil acts'. This is, in fact, to concede the point in
t Dtt MoDog. 1. 1 1 . " Bingham, b. xxii. c. 4. " Ux.
Ebr. 1. ii c. 28.
VOL. I. i
114
question, that there was, from the beginning of
Christianity, a religious ratification of marriage ; and
more than this could not be expected in the second
century, of the rites of which the evidence is brief
and obscure, and when the validity and civil effect
of marriage depended on the law of the empire, not
on the law of the Church, and when the feeble dis-
cipline of persecuted Christianity could only betray
itself in censures of transgression which it could not
punish, and canons of discipline which it could not
enforce.
There are numerous testimonies of the practice of
the fourth century.
Sylvester (A.D. 320.) ordained, that every clergy-
man should be the husband of one wife, who had
received sacerdotal benediction y.
Lactantius (A. D. 303.) bears testimony to the
ancient institution of ratifying covenants of marriage,
by the sacrament of fire and water : alleging, as a
reason of the practice, that the offspring of animals
are by heat and moisture formed into bodies, and
quickened into life'.
Ambrose (A.D. 374.) records the practice of the
Churches of Italy: When marriage ought to be
sanctified by the nuptial veil and benediction, how
can that be called a marriage where there is no har-
mony of faith*.
Gregory of Nazianzum, (A.D. 370.) in describing
the marriage of Olympias, says, that a great number
of bishops attended, and that he himself was present
7 Damasus in ejas vita, apud Selden. * De Grig. Err. 1. ii.
c. 10. • Ep. 70. apud Bingham.
115
in heart and will, celebrating the festival, and joining
the right hands of the young couple together, and
both of them to the hand of God. The joining to
the hand of God can only mean the benediction ^.
Augustin (A.D. 398.) thought that the priest
should not be a procurator or solicitor of marriages ;
but that when the parties themselves had agreed
upon the marriage, the priest should at their request
attend to confirm the contract and pronounce the
benediction^. He makes mention also of the nuptial
tables,, which have been interpreted of offices of mar-
riage^.
Basil (A. D. 370.) calls marriage, the yoke or
bond which men take upon themselves by sacerdotal
benediction^.'
Chrysostom (A.D. 398.) pronounces it necessary
to call for the priest, and with prayers and benedic-
tions to bind the unanimity of marriage ; and after
the example of Abraham^s steward, who used the
mediation of God, to fly when a wife is sought unto
God, who is not ashamed to be the maker of the
marriage^
Siricius (A. D. 390.) considered that there was a
kind of sacrilege in the violation of that benediction
which the priest gives to the woman who is about to
marry'. Selden admits that this is a record, that
the sacerdotal benediction of the espousals was then
a common practice ; and is it probable, that the
^ Ep. 57. apud Bingham. * Possid. vit. Augustin. c. 27,
Ibid. * Comber*s Off. of Matr. ^ i^mmt tvX^ymt ^vy^.
Horn. 7. in Hexaemer. apud Bingham. ' Horn. 48. in Gen.
a|HHl Bingham. 0pp. torn. viii. Ser. 15. apud Comber. > Ep.
I. ad Himer. apud Bingham.
I 2
11«
espousals should be blessed, and that the more im^
portant business of the marriage should be passed
over without benediction ? Or may not the benedic-
tion of the espousals have been a ritual ratification of
the marriage? This was the common practice of
the age.
It was the rule of the fourth council of Carthage,
(A.D. 398.) When the bridegroom and the bride are
to be blessed by the priest, let them be presented by
the parents and the paranymphs*".
In the fifth century the Decretals of Innocent I.
(A.D. 410.) speak of the sacerdotal benediction of
the espousals as a common practice*; and Synesius,
bis contemporary, in the account of his own mar-
riage, says, that God, and the laws, and the sacred
hand of Theophilus, gave to him his wife ; and he
therefore declares before all men, that he will not
desert her*'. In this century also appeared an ano-
nymous refutation of the heresy of the Praedestinatr,
of which the author, in arguing upon concupiscence,
remarks. Choose onie of two things ; either the birth
of man is good and concupiscence is good, or mar-
riage is evil and concupiscence is evil. Amend,
therefore, the rules of the Church ; condemn the
priests throughout the world, who bless the begin-
nings of marriage, consecrating the parties, and
uniting them in the mysteries of God. Selden
admits this to be a clear testimony of the nuptial
benediction, and of the sacred rites attached to
marriage in the use of Christians. He only con-
^ Apud Gerhard. ^ Ux. Ebr. 1. ii. c. 28. ^ Niceph.
Hist. Eccl. 1. xiy. c. 55. apud Gerhard.
117
tends, that the priest was not necessarily present at
the contract of marriage : the present argument seeks
no more, than to establish the continual prevalence
of the religious ratification of marriage : and from
this period Selden allows the frequent and distinct
mention of a sacred ritual of marriage : Ugoxoyias nj^
TtXttas sive Tijf yofwxjjj'.
In the beginning of the sixth century appeared
the decree of Hormisdas, the pope: (A.D. 510.)
Let none of the faithful, of whatever condition he
may be, contract marriage clandestinely, but let him
marry publicly in the Lord, receiving the benediction
of the priest. There are writers of eminence, who
understand the nuptial vow, which is mentioned in
this age, in the writings of Justinian, of the sacer-
dotal benediction of marriage™; but Selden is so far
from coinciding in their opinion, that he strenuously
labours ° to disprove the evidence contained in the
Novel of Justinian, of the ratification of marriage
with sacred rites. He admits the mention of the
church as the place, and the clergy as the witnesses,
of marriage, but he restricts the necessary testimony
to any of the clergy, and to the marriage of men in
the middle ranks of life. In the higher ranks the
Novel requires the dowry, with all other things ap-
propriate to honourable station. In the middle
ranks it requires that the parties should come to the
house of prayer, should communicate with the guar-;
dian of the most holy Church, should obtain the
testimonv of two or three of the most reverend
> Vx. Ebr. 1. ii. c. 28. «" Bingham, b. xxii. c. 4. ■ Ux.
Ebr. 1. ii. c. 29.
I 3
118
clergy, that they, the bridegroom and bride, were
married at a specified time in the house of prayer,
and that the record should be preserved in the
archives of the Church. It requires some subtlety
to dispute so plain a testimony ; a testimony as
plain as a modern register of marriage, and implying
in the place, the witnesses and the registry a sacred
act. The same form is not required where there is
a dowry ; and a more simple form of contract is
allowed to the lowest class of the people, which at
the time was so degraded, that no particular rule for
the celebration of their marriages could be expected
from the imperial legislators. In respect of the
highest class there is the testimony, not of legal
provisions, but of historical narrative, that their mar-
riage^ were usually celebrated by the clergy. John,
the patriarch of Constantinople, gave the crowns,
and administered the sacred rites, at the marriage of
the emperor Mauricius to Constantina; (A.D. 580.)
as was usual® in the case of those who held the pure
and uncorrupted faith. His successor, Cyriacus,
also married Theodosius, the son of the emperor
Mauricius, to the daughter of Germanus, a patrician ;
and in the following century his successor, Sergius,
married the emperor Heraclius to Eudoxia.
In the sixth and seventh centuries flourished
Isidore of Seville^ who labours under the imputation
of forging the Decretal Epistles and other writings,
to which he ascribes a primitive name and authority.
On the supposition of the fact, that these writings
* iif ^vmhf, Theophyl. Simocet. Hist. 1. i. c. 10. Ux. £b. 1* ii.
c. 24. Comber, 0£Bce of Matr.
119
were forged by Isidore, they will be at least allowed
to describe the practice of his age, and of that imme*
diately preceding, or the fraud would have been
iostandy and directly exposed. In the Epistle which
bears the name of EvaristusP, bishop of Rome,
(A.D. 97.) it is prescribed among other requisites
of marriage. As we have received by tradition from
the fathers and the holy apostles, and their sue*
cessors, there is no lawful marriage, unless the bride
at the proper time, be sacerdotally blessed, as is the
custom, with prayers and oblations by the priest,
and attended and accompanied by the paranymphs,
as is the custom ; otherwise it is not a marriage, but
adultery and concubinage, and rather whoredom and
fornication than lawful matrimony. This Epistle is
recited in various writings of the ninth century ; and
upon its authority. Evaristus has sometimes the re-
putation of being the first to pronounce the marriage
incestuous which the priest was not present to con-
secrate, of requiring marriages to be publicly and
lawfully made, and of interdicting cohabitation before
the sacerdotal benediction. But the same or similar
rules are found in the decrees of the pope Soler, and
of the first council of Carthage, which have been
already recited, and with the spirit of which, the
letter of Evaristus exactly coincides. The Decretal
Epistle of Callistus I.^ also affirms, that there is no
lawful marriage, without the deed of dower and the
benediction of the priest. If these are indeed the
inventions of Isidore, they are valuable testimonies
of the practice of the sixth century : if they are the
» Apud Gerhard. *« Ux. Ebr. 1. ii. c. 29.
14
120
writings of an earlier age, they confirm the evidence
of the sacerdotal benediction of marriage. Isidore
himself, in his authentic writings, does not scruple
to assert the tradition of this practice from the very
original institution of marriage: That persons are
blessed by the priest in the union of marriage, he
says, was done by God, in the very first union of
man ; for thus it is written : God made man ; in the
image of God made he him ; male and female made
he them ; and blessed tliem, saying. Increase and
multiply. This is now done in the Church, after
the example of what was then done in paradise. He
afterwards speaks of the use of bridemaids and veils
during the ceremony, of the benediqtion, of chaplets,
and the use of the ring ; and makes the three nuptial
benefits to consist of issue, fidelity, and the sacra-
ment ; understanding under the latter term, the in-
dissolubility of the union, and the apostolical repre-
sentation of the mysterious unity of Christ with his
Church''. It is of importance to add, that Isidore
probably adverts to the words of Augustin, concern-
ing the nuptial tables, which he calls, the sacerdotal
tables ; and from a collation of the passages, it is
reasonable to infer, that Augustin understood by the
nuptial tables, not any civil instruments between
man and wife, but the office of matrimony in use
among Christians, celebrated by the priest, and con-
tained in the ecclesiastical tables'. Such a form is
extant in the Sacramentary of Saint Gregory, which
professes to have been written in the seventh cen-
' Div. Off. 1. iL c. 19. • Comber, Off. of Matr. General
Exhorlatioo.
121
tury, and which, as there is just reason for believ-
ing, was compiled from offices of a inore ancient
dateS It was in this century also, that Theodore,
Archbishop of Canterbury, (A.D. 680.) ordered how
the bride and bridegroom should be blessed ; viz.
that they should receive benediction from the priest,
with prayers and oblations".
In the eighth century, Egbert% Archbishop of
York, (A.D. 740.) published the decree of the
fourth council of Carthage, concerning marriage ;
and at this period, and at the instance of the kings,
Pepin and Charlemagne, Hittorpius judges the Ordo
Romanus to have been compiled, which contains an
express and excellent formulary for blessing the
bride y.
In the ninth century, Hincmar, Archbishop of
Rheims, (A.D. 860.) and with him all the bishops
of France and Germany, in a letter addressed to the
emperor, condemn the opinion, that marri&ge might
proceed fix)m impious concubinage; and, adverting to
the divine benediction on the first marriage, they de-
clare, In imitation of that marriage, the holy Church
has anciently, solemnly, and reverently, taken care
of those who are in the Church, as in the paradise
of God, and are to be joined together in marriage,
uniting them with the divine benediction and the
celebration of mass : and this honourable and reli-
gious union, commencing under the authority of
God, and confirmed by his benediction, has been
preserved in a just order, even by natural law, and
* Comber, Off. of Matr. Introduct. See Appendix, No. III.
« Ux. Ebr. U ii. c. 28. ' Ibid, y See Appendix, No. III.
122
among the Gentiles, who have not received the law,
and possess not the knowledge of God. It was
about the same period, that Pope Nicolas, in his
Epistle addressed to the Bulgarians, distinctly de^
scribes the Romish forms of espousals and of mar-
riage. Of the latter he says. The bride and bride-
groom enter the Church of the Lord with the
oblations, which they should offer unto God, by the
hand of the priest ; and thus they receive the bene-
diction and the celestial veil. It was in this century
also that the laws of Charlemagne and Lewis the
Pious, not only ordained the use of the sacred
benediction, but required that the very form of the
contract should be made in the Church, under the
administration of a presbyter. In conformity with
this law, Ethelwolf, king of England, was married to
Judith, daughter of Charles the Bald; and the
practice thus, according to Selden, received into the
Western empire, was spread abroad in the neigh-
bouring states'.
The tenth century produced the constitution of
Leo the Philosopher, requiring the same religious
ceremonies to be observed in marriage as in adop-
tion : As antiquity was negligent of the ceremonies
of adoption, it appears also to have been negligent of
the perfect constitution of marriage, and to have
suffered it to be contracted without the benediction
now received. The reason of this dispensation may
have been known to the ancients ; but it does not
become us to be so negligent, since, by the divine
grace, affairs are now directed to a more honourable
» Ux. Ebr. 1. ii. c. 29.
123
^nd boly state of life. Therefore, as we have or-
dained that adoption be celebrated with sacred
prayers, we now command, that matrimony be
ratified by the testimony of a sacred benediction ;
and we wish it to be understood, that nothing which
shall be contracted without it shall be called matri-
mony, and that no persons otherwise united shall
enjoy the rights of matrimony*. The negligence of
antiquity may be understood of heathen antiquity,
which is most naturally opposed to the better state
introduced by the divine grace. The laws of the
Saxon king, Edmund, were coeval with the imperial
law of the East, and ordained that a priest should be
present at the making of espousals, who, by giving
to the parties the divine blessing, might assist their
sacred confederation in all holiness*'.
In the eleventh century, the patriarch of Constan-
tinople refused to administer the sacred rites at the
marriage of Constantine and Zoe, (A. D. 1036.)
because it was the third marriage of the empress ;
and they were performed by an ordinary priest*^. In
the latter part of the century, Alexius Comnenus
ordained, that those espousals only should have the
force and effect of matrimony, which were ratified
by the sacred benediction ; for it is absurd to
suppose that there is no value in the consecration of
marriage, and the accompanying prayers, and that
God is not present with the peraons who are united.
That only is true marriage, and has the power of true
marriage, which is completed with the sacred bene*
• Gerhard, s. 400. Ux. Ebr. 1. ii. c. 29. *» Comber, Oflf.
of Matr. tntrod. * it^TtXfrm yttfuiui, Zonaras apud Gerhard.
124
diction, and the presence of God with the persons
who are united, and in confirmation of their union.
Other espousals have only the effect of espousals.
It was also the will of Justinian, that marriage
should be contracted with an attestation before the
guardian of the Church**. The law of the West in
this century again was conformable with the law of
the East: and in the council of Winchester (A. D.
1076.) it was declared to be no less than prostituting
a daughter, to give her in marriage without the
blessing of the priest^.
In the twelfth century Peter Lombard introduced
the doctrine of the seven Sacraments, in which mar-
riage was included ; and in the council of Lateran,
under Alexander III. (A.D. 1 179.) the general prac-
tice of the age is recognized in the prohibition to exact
any fee for the sacred benediction ^ It was at this
period also that the learned Balsamon, (A. D. 1 180.)
left his record of the custom of the Eastern Church,
that, after the example of the first marriage, the re-
presentatives of God come forth unto the persons
who are to be joined together, and ratify their sacred
covenant by the offering up of holy prayers^.
The general admission, that the celebration of
* Nov. 74. c. 4. apud Gerhard. This imperial rule confirms
the observation which has been made on the practice of the
fourth and fifth centuries, that the benediction of espousals was
equivalent to the ratification of marriage. In the constitutions
of Alexius, patriarch of Constantinople, (A.D. 1030.) « fv>«y«nr
yumum, u 9»Kty$v9fH tt(Ui, • T#»f hwn^§v$ ymfupg tvX§ym ii^vf, are
common expressions for the celebration of marriage. See Ux.
Ebr. 1. iii. c 32.
• Comber, Off. of Matr. Introd. ' Gerhard, s. 46l.
s Comber, Off. of Matr.
125
marriage in the Church was ordained by Innocent
III. in the fourth council of Lateran, (A. D. 1S15.)
supersedes the necessity of any further prosecution of
the history of the religious ratification of marriage.
In the view which has been taken of the practice
of the Church for the first twelve centuries, it would
be vain to pretend, that all the several testimonies
are equally clear and distinct; but taken together,
and explained in dependence upon each other, they
form a strong and conclusive argument. They leave
no period for the introduction of religious rites, no
period in which the religious ratification of marriage
was unknown. The Jewish rites were retained by
the Jews ; and the heathen rites, purified from what
was properly heathen, or celebrated for a civil pur-
pose, in compliance with the existing law^\ were
adopted by the converts from heathenism, eventually
obtained the sanction of Constantine, and in the use
of the ring and the bridecake, have not yet been
superseded^ The writers of the first ages were
too usefully occupied to dwell upon circumstances,
which were ^miliar to their contemporaries, but
of which it is difficult, in the present day, to form
a just conception. There was then a distinction
between the espousals and the marriage, which no
more prevails ; and the benediction of the espousals
became in process of time, equivalent to the ratifi-
cation of marriage, to the offices of which, in the
primitive liturgies, it gave the name and title^. The
opinions of many of the early fathers were too
» TertuU. De Idol. s. 16. ' Ux. Ebr. 1. ii. c. 24, 25, 28.
^ See Appendix, No. III.
126
friendly to monastic life to albw them to expatiate
upon the ratification of marriage, the solemnities of
which were ofiea precluded by the disputed lawful-
nesa of second marriages'. For a certain period the
empire was heathen, and the validity of marriage
depended on the imperial law, not on religious rites
or ecclesiastical canons. Of the marriage of the
heathen the Church could take no cognizance ; the
marriages of the believing with the unbelieving it
could not sanction and it could not dissolve: and in
many parts the Church itself was so imperfectly
settled, that the ratification of marriage, as in the
remote colonies of the present day, was obviously,
and firom the necessity of the case, impracticable.
Notwithstanding these difficulties, there is a body of
traditional evidence, which, taken together, leaves no
doubt that marriage was usually, if not universally,
celebrated with religious rites ; which proves the
general practice, if it fails of establishing the absolute
necessity, of the sacerdotal benediction, to which the
captious, and negative objecticuis of Selden are prin«-
ctpally directed ">• When the empire became Chris-
tian, the law of marriage, as a pontifical privilege,
was committed to the Church; and in the ignorance
' See the Canon of the Council of Neocaesarea, which was to
this e£fect, in Bingham's Antiq. b. xxiL c. 4. s. 2.
^ The cciiiauon practice of this learned man is to recite an an-
tiiorityy to •which he annexes a comment: Nee tamen inde
omnino erincitur, ipsi contrahendi actui, necessario interAiisse
ministmm. Cf. de Jure Nat. et Gent. 1. v. c. 7. where he admits
upon the authority of Tertullian, which, in the Ux. Ebr. he
labours to elude, vetustum etiam in Christianismo morem de
solennibus conjugiorum quorumcunque sacrisque benedictionibus.
127
aod barbarism which succeeded, the rites which
wanted the authority of civil law gradually fell into
disuse, until the more zealous emperors undertook
to reform the abuses which had crept into the dis-
cipline of the Church, and especially in the contract
of marriage without sacerdotal benediction. It was
Charlemagne who enacted in the West, that mar-
riage should not be celebrated without sacerdotal
benediction, accompanied with prayers and oblations;
and Leo the Wise revived the ancient practice in the
East, which has never been superseded. Selden and
Gothofred are agreed, that from this period the ne*
cessity of the sacerdotal benediction was established
by law. The point on which they differ is, that Selden
affirms that this was the primary and original establish-
ment; Gothofred maintains that it was the revival of
the ancient practice*^. The evidence which has been
dinned, proves that there was nothing new in the.
constitution of Leo : it agrees with the rules of the
Ushops of France and Grermany, of the pope, and of
the king of France, in the ninth century : it agrees
with the papal and imperial law of the sixth century,
and the usual practice of the imperial court : it agrees
with the very numerous testimonies of the fourth
century ; and with the doctrines of TertuUian in the
third, of Athenagoras in the second, and of Ignatius
in the first and apostolic age.
If there is anv value in the authorities which have
been recited, the religious ratification of marriage has
the most ancient and the most continuous evidence
of tradition in its favour, and is authenticated by the
* Bingham's Aiitk|«-b. zzii. c. 4. t. 3.
128
use of all men, in all ages, and in all places. In the
patriarchal age, among the barbarous and polished
nations of antiquity, among Greeks and Romans,
Jews and Christians, marriage has been always rati-
fied by ceremonies, more or less distinct, of religious
reverence: and while this general concurrence proves
the assent of man^s reason to the propriety of the
practice, there is nothing in the whole volume of the
Scriptures, by which it is opposed ; there is much by
which it is authorized and approved. The appeal
to the Deity, which is implied in the religious ratifi-
cation, agrees with the doctrine of the divine insti-
tution of marriage; and it is the most convenient
form of securing in practice the public and irrevoc-
able consent of the parties. The reasons which
Gerhard^ assigns for retaining the practice, are wor-
thy of all attention. These reasons are, 1. the
example of God in the institution of marriage:
9. the apostolical precepts, both general, to do all
things decently and in order, in the name of Christ,
and to the glory of God ; and particular, to marry
only in the Lord : 3. the opportunity of instructing
the parties in the dignity and the duties of marriage:
4. the advantages resulting from the ratification of
the marriage, in the presence of God and of his
Church, and from public prayer, in hope of the
divine benediction : 5. the antiquity of the insti-
tution, and the practice of all ages, without except-
ing, 6, the suffrages of the heathen. The first' of
these reasons, the divine example in the primary in-
stitution of marriage, is a point, upon which ancient
• S. 462.
129
and Lutheran writers frequently insist ; and it is
reasonably supposed i* to be the original of a tradition,
than which none is more ancient ; of a practice, than
whidi none can be more properly called universal ;
of a tradition so coextensive with the reason of man,
and with his natural sense and feeling of propriety, as
to have no exception but in nations the most bar-
barous, and as can be traced to no source but the
Author of our being, our affections, and our under-
standing, who hath formed our hearts in correspond-
ence with his will, that there shall be a religious
ratification of marriage, a public acknowledgment of
his benevolent provision for the good of mankind.
' Comber, Off. of Matr. Introd.
VOL. I.
SECTION II.
The' Religious RatifijooHion of Marriage in England.
It ha^ been the common error of writers who
xnaintau), that marriage is a civil contract and no-
thing more, to misrepresent the true origin of its
religions :. ratification ; asserting that marriage was
originally a civil contract, and that a sacred cha-
racter and a religious solemnization were surrep-
titiously engrafted upon this civil contract, by an
ascendant hierarchy, but not universally or authori-
tatively prescribed before the fourth council of
Lateran, held under Innocent III. A.D. 1S13. In
opposition to this assertion, it has been shewn, that
marriage originated in the divine institution, and not
a civil contract ; that it is called in the Scriptures of
the Old Testament, a covenant of God ; that certain
of the Psalms, and the Song of Solomon, were in
fact nuptial songs; and that marriage was celebrated
with sacrifices among the Jews ; that rites of mar-
riage were common among the heathens ; that the
New Testament attaches a peculiar sanctity to mar-
riage, and delivers rules, which do not oppose, if
they do not command, its religious celebration ; and
that, from the earliest ages of Christianity, as far as
a just judgment can be formed from the scanty
records of those ages, marriage has been always
solemnized in the Christian Church with sacerdotal
benediction. There is such a perpetual and catholic
tradition of its religious character, as may justify the
conclusion that it is agreeable to the natural sense
131
and reason and religion of mankind, to acknowledge
a oertain hdineas and dignity in the state of mar-
riage, and not to enter upon it without public and
solemn prayer for die aid and blessing of God*
The opinion has, from time immemorial, been
established in England, that the civil contract re-
quires to be ratified and made efiectual by a religious
ceremony. On this principle deeds of settlement
are valid^ not in themselves, but in contemplation of
a marriage to be celebrated, without which they are
void and of no efiect : the contracts of a former age
per verba de prassenti^ were not only liable, to the
compulsory celebration, but derived in many re*
spects their chief validity from the actual celebration
in the face of the Church : and in the time when
espousals were distinct from marriage, they also
were a religious act; and it was customary to
receive the dower*, in the presence of the priest, at
the door of the Church, as is plain from Chaucer's
relation of the Wife of Bath, that
Husbands at the church door she had five.
The minds of men have thus been trained into a
voluntary and habitual conformity with these pro-
visions of religion and of law ; and the practical use
of a merely civil contract has been almost or alto-
* Ux. EInt. 1. it. c. 27- Although the espousals and marriage
are now combined in one office^ is there not a vestige of the
ancient custoin retained in the neglected direction of the rubric,
requiring that part of the service which relates to the mutual
ilipilbitiafn or espousals to be celebrated in the body of the
Clunpdii fnnn which the parties are to proceed to the Lord's
Tabfe. f efnting.tbe nuj^Ual Psalm ?
K 2
132
getber rejected or unknown. The great body of the
people have no conception of marriage which is not
celebrated in the Church ; and all conditions of men
agree in declaring their respect for the institution;
the rich by their liberal remuneration of the service
of the minister, the poor by their humble thanks for
his ministration. In the extravagant passion for
clandestinity, which called for the provisions of the
Marriage Act, the form and semblance of a religious
ceremony were observed : in the time of the Usurp-
ation that ceremony was superseded, not by the will
of the people, but by the order of the usurping
power: at the time of the Reformation the Romish
missal was succeeded, without any interval or inter-
mission, by the revised office of the Protestant
Church. The minds of our forefathers were always
impressed, and they have from age to age impressed
the minds of their children, with a sense of the pro-
priety of the religious celebration of marriage, as one
grand distinction between the virtue of matrimony
and the vice of concubinage. There are but few
men who have entertained, or been able to appre-
hend, a doubt upon the subject : and even the few
who have been most zealous in contending for the
merely civil contract, have been restrained by a
sense of propriety from the practical application of
their own principles, under circumstances, which
involve no right of inheritance, and under which the
civil advantages of marriage might be secured by
civil bonds: and thev have deferred so far to the
public opinion, as to seek no other redress of their
alleged grievances, than a modification of the exist-
ing formulary, or a licence to ratify the marriage.
133
tinder a minister, and with forms agreeable to their
private notions of religious doctrine and discipline.
It has been strongly urged, that the religious cele-
bration of marriage is as congenial to the common
sense of Englishmen as the trial by jury ; that no
father would consent to the marriage of his daughter,
that no woman who respects herself would submit
to be married, without a religious ceremony ; and
that, if under any change of the law the necessity of
marrying in the Church should cease, the religious
service would not be abolished but transferred^.
It is asserted by Blackstone, that ^^ it is held to be
essential to a marriage, that it be performed by a
person in orders, though the intervention of a priest
to solemnize this contract is merely juris positivi^
and not Juris naiuraiis aut divini: it being said,
that Pope Innocent III. was the first who ordained
the celebration of marriage in the Church, before
which it was totally a civil contract^.^^ It is obvious
to remark, that the learned commentator states the
fact on the authority, not of his own investigation,
but of general report, which, it has been remarked ^^
that he has so far invalidated, as to acknowledge in
another place the earlier practice of the dos ad
ostium ^cc/eWcF, which was the ecclesiastical recog-
nition of the espousals. It is but a disputable fact,
therefore, which is the origin- of the opinion, that the
intervention of a priest in the celebration of marriage
is juris posiiivi : the universal use of at least some
form of religious ratification seems to justify the
** Chr. Remembrancer, vd. iv. p. StQ^. * 1 BL Gmd. c 15.
' Shepherd's Elucidatioo of the Common Prayer j Office of
Sdemnijsation of Matrimony.
K 3
134
opinion that it is juris naiuralis : and it was the
doctrine of the Church, affirmed by Isidore of Se-
ville*, long before the existence of any thing which
bears the name of common law of £ngland, that it
was juris divini. The doctrine that it is essential
to marriage that it be performed by a person in
orders, is founded, not on the statute, but the
common law, the unwritten, unrepealed law of the
remotest antiquity, and applies equally to the pre-
sent form of solemnization, which is undisputed ; to
the celebration in the face of the Church or the con-
gregation, under the law of Henry YIII. and the
ritual of Edward VI. and to the ancient dos ad
ostium ecclesioe. The publication of banns, which
might be as reasonably attributed to the council of
Trent as the solemnization of marriage to the council
of Lateran, has made marriage always an ecclesiasti-
cal act. Lord Hard wickers bill' makes no mention
of orders, because the practice was too common to
require a declaration of the law. The last Act does
only not set aside the marriage which is contracted '
in good ^ith of the orders of the ttiinister.
• It is nevertheless necessary to distinguish the civil
* De Div. 0£ L ii. c. 19. Qaod in ipsa ecHyiinctione con-
nnbii a Mcerdote benedicuntur, hoc est a Deo In ipsa prima
oonjunctione hominis fiustum ... Hac ergo similitudine fit nunc
in Ecdesia qua tunc factum est in Paradiso.'
' Blackstone (Com. 4b. I. c. 15.) calls^ this Act, ''an innovation
upon our ancient laws and Gon8titution«'\trith manifest allusion
to the nullifying powor given to guardians ^md the court of
chancery. In Dalrjrmple v. Daliymple the description is most
inaccuhiteiy applied to the wbj^ot-of irregular marriages^ and
the rie^essity of resorting to a public and regular form, which
was no innovation. . . • i
135
effects of marriage from its divine origin and religious
ratification, and to admit, that under the provisions
of national lawj the one may be obtained without the
intervention of the other. In Scotland and ia France
marriage is a merely civil contract, conveying civil
rights, arid regulating the legitimacy of children and
the descent of property, without a religious celebra-
tion. In; England also, under the Marriage Act, the
religious ratification was nullified by tiie neglect or
contravention of the forms prescribed by the law :
and there is also an intermission of the customary
office in the case of the Quakers and the Jews, with
a legal reservation of their civil rights : but these are
exceptions to the general tenour of English law and
of English feeling, traditionally delivered from the
remotest periods of English history. It is acknow-
ledged, that by the laws of France, so early as the.
beginning of the ninth century, (A. D.- 820.) the
use of the sacerdotal benediction, and the contract
of marriage in the Church in the presence of the
priest, was not only common, but that no other mar-
riage was d^med legitimate, and that under this
customary form of nuptial benediction^ the ^cond
of our English sovereigns, Ethel wolf, was married
to the daughter of Charles the Bald. The practice
of out Anglo-Saxon ancestors is further: explained
by the laws of king Edmund, in the following cen- ,
tury, (A; D. 940.) requiring the presence of a priest
at the espousals, who, by delivering the blessing of
God, might promote the union of the parties in all
sapctity, s^id in all fulness of happiness : .and the
council of Winchester, in the next century, (A. D.
1076.) declares it to b^'no less fhan the prostitution
K 4
\
136
of a daughter, to give her in marriage without the
benediction of the priest. Other councils of the
same age require the celebration in the face of the
Church, and prohibit the celebration in private and
unhallowed places'. In a great council held in
Ireland, (A. D. ll?!*) it was ordered, that the laity,
who wished to have wives, should unite them to
themselves by the ecclesiastical law : for many of
them had as many wives as they liked, and were
accustomed to take wives of their relations, and even
their sisters, if germanas is here to be so under-
stood^. The rule of this council recognizes the
ecclesiastical law as a known and settled rule : and
the neglect of that law resulted in the prevalence of
polygamy, and probably of incest. The marriages
which were contracted without the sanction of that
law may be supposed to have been of the same
nature, as the union of slaves in feudal times, which
was not solemnized by any religious ceremony or
sacerdotal benediction, and was not called nuptios or
matrimonium^ but cantubemiumK
These synodal authorities were all previous to the
council of Lateran, and may be alleged in proof of
the antiquity and necessity of the religious ratifica-
tion of marriage. The same necessity was en-
forced in the Act, 32 Hen. VIII. c. 38. requiring
the celebration of marriage in the fece of the Church ;
and the revised Office of Matrimony, concerted in
« Uz. Ebr. ]. ii. c 29. Comber, Intr. Office of Matr.
^ Gent. Mag. vol. 9^ pt iL p. 427* tram the Decern Scrip-
tores, cd. I071*
^ Robertson's Charles V. vol. 1. note ix.
137
the reign of his son, and reestablished in the reign
of Elizabeth, speaks of the ministration of the priest
and the curate, and of the assembly of the parties in
the presence of God and of the congregation . The
constant effect of the religious ratification is thus
expressed in the quaint language of a lawyer^, in the
reign of James I. in shewing ^^ how baron and fS^me
are said to be one person. If Titus and Sempronia,
by words de prcesenii^ in a lawful consent contract
marriage, they are man and wife before God. But
they cannot do all that married persons may: ye
know my meaning : id possumus^ quod de jure pos^
sumus: but they may, saith Parkins, infeoffe one
another : for they are not yet una persona in the eye
of the law. If it fall out, that the woman chance to
die before nuptials celebrated, he which is no more
but betrothed, shall not have her goods, except it be
by her last will and testament, which she might,
without craving licence of any body, have ordained
according to her pleasure. . . . Public celebration,
therefore, according to law, is that which maketh
man and wife. In plain view of law, consensus non
concuhitus Jacit matrimonium. But one naile keep-
eth put another, and a firm betrothing forbiddeth
any new contract ; yet they which dare play man
and wife only in the view of heaven and closet of
conscience, let them be advised how they shall take
the advantages or the emoluments of marriage, in
conscience or in heaven : for on earth, if the priest
^ The Woman's Lawyer, written about l63S, as is supposed
bj Justice Lawrence, and recited by Mr. Shadwell, in Beer v.
Ward, as rqpoited in Times, Nov. 95L, 1823.
136
see no celebrated marriage, the judge saith no legiti-
mate jssuei nor the law any reasonable or constituted
dower/*
The doctrine of this ancient lawyer agrees with
the cumulative argument of Mr. Serjeant Bosanquet*,
* In Beer ▼. Ward, in Chancery, reported in Times, Nov. 18,
18^. In this case application was made to set aside a second
verdict in the coiirt of King*s Bench, on the ground that the
Chief Ju8tioe# in iiis charge to the jury, had mistaken the law
when he said, that a marriage, without religious solemnization
or the presence of a priest, and merely with consent of parties,
admitted before sufficient witnesses, and followed by cohabita-
tion, was, befbrc the passing of Lord Hardwicke's Act, a valid
marriage, for all purposes whatsoever, according to the then
known law of the land, as was the case with the law of Scotland
to this day. In support of this application no less than six
counsel were heard; viz. Mr. Scarlett, .Gaselee, Wetherell,
Bosanquet, Denman, and Phillips. (Times, Apr. 30, 1824.)
Tlie Lord Chancellor commented upon that part of the Chief
Justice's charge* which related to the law of marriage in this
country, before the passing of Lord Hardwicke's Act. It was
not accurate to state that our law was the same as the law of
Scotland : it had never been so loose. It was difficult to deny
that a marriage might be celebrated without the presence of a
ctorgyinan, with some qualification ; that was when the person
p^r&nniDg the ceremony was supposed to be a clergyman.
The case was different where a fraud was intended by one of
the parties. The Chief Justice's charge went on to say, that a
contract between the parties, followed by cohabitation, and
accompanied by a declaration in the presence of witnesses,
constituted a good and legal marriage at that period of our
hiitory, as it would in Scotland at this day. There was no
doubt that it would constitute a good marriage in Scotland, a
valid but irregular marriage. It was contended in the present
oaier> that the attention of th& jury ought to have been called to
tbe qveatiDU, Ai^ ytm sufe, according to the evidence, that such
a contract had been so made between dhe parties .> And it was
139
affirming that there is a long stream of authorities in
support of the principle, that to constitute a valid
marriage, so as to make the issue capable of inherit*
ing, there must be a priest, a church, and a religious
ceremony. In all cases in which the question has
arisen, whether in real or personal actions, in writs
of right or dower, the distinction has always been
recognized between ipsum matrimonium and a legal
marriage. The passages in the records and books
may be found under the proper heads in the abridg-
ments of Bell, Shepherd, Baker, and Viner, the
most-ancientof the cases being noted in those books
from the open rolls of Edw. I. Edw. IIL Hen. III.
from Bracton, and the decretals of Gratian, and
from most of the eminent reporters. Among the
cases in the time of Henry III. is that of a man
who had contracted marriage with a woman, and
afterwards married another woman injacieecclesice:
the second marriage was dissolved, and he was di-
said, that the principles laid down by the Chief Justice were
btd in law. Cases were cited to shew, that although a contract
of marriage per tftrba de prasserUi before the year 1756, was a
good oontracty to use the Solicitor General's phrase, quoad, hoc,
yet it was not a legal and valid marriage of itself, that is* that
the issue of such marriage, if the parties were not afterwards
oompeHed to celebrate it tit fade ecclesias, were illegitimate.
Times^ May 6. His final opinion was* that the best thing he
could do in this case was to direct a trial at bar, and thereby
have the opinion of all the judges of the court upon the law.
Times, May 8. The parties afterwards retired from the suit,
which had been carried oh for taore than fifty years. The chief
quettim i* issue was, whether the issue of a pretended private
mmari^gt oouM inherit in preference to the issue of a subsequent
pqUicmanriage.
140
reeled by the ecclesiastical court to celebrate the
first marriage in facie ecclesias; before doing which
he aliened his land. At his death his wife brought
her suit of dower, and it was held that he was
capable to alien, because at the time they were not
man and wife in the legal sense, although they were
contracted. There are passages in Bracton which
may seem to favour the opposite opinion ; but if the
station and character of the writer be considered
according to the suggestions in the preface to his
book, it will be seen that he was strongly inclined to
support the pretensions of the civil and pontifical
over the common law jurisdictions, when the con-
test between them was at the highest. The statute
of Merton, which signalized the defeat of the church-
men in their endeavour to assimilate the law of
England respecting bastards to the Roman eccle-
siastical law, afforded much more manifest proof of
the real state of the law between marriage and
legitimacy. In the address to Cromwell, after the
ordinance l^alizing marriages made before justices
of the peace, it was distinctly said, that before the
period of the Usurpation a marriage to be valid as to
the legitimacy of the issue must be solemnized by a
priest in orders, and although a church or chapel
and the whole marriage ceremony were not neces-
sary, yet they were meet and comely to be observed
also. And to shew further how undeviating the
impression had been, in the first year of the Restora-
tion an Act was passed to render these marriages
before justices of the peace valid, which care must
have been useless if contract and cohabitation could
have created a marriag^ valid for all purj)oses what-
141
soever/ Looser contracts might indeed be good for
many purposes, but in any action where the legi-
timacy of the heir, or the validity of the marriage,
was in dispute, the jurisdiction was reserved to the
bishop. In regard to the civil marriages under the
Usurpation the Act of the Restoration particularly
withdrew all the question of legitimacy which might
arise under it from the bishop's jurisdiction, because
it was well understood with what sort of feelings the
clergy and ecclesiastical lawyers were likely to look
upon them. There are also particular expressions
in the Marriage Acts of William III. and Anne,
which intimate that the statute and common law
always contemplate the necessity of a priest in
orders solemnizing a legitimate marriage. In times
more recent is the case of- General Fielding, who
Mras married to a woman representing herself to be a
Mrs. Duloe, by a priest in one of the embassies.
When the general discovered the mistake he con-
sidered himself released from the marriage, and was
afterwards married to the celebrated Duchess of
Cleveland, whose sons indicted him for bigamy, of
which he was convicted. On the trial the whole
strength of the charge fell upon the consideration of
the priest's orders, without a firm belief in which it
was clearly understood that the jury must have
acquitted him.
Tt^ese authorities are of the highest value in
obviating a bold opinion which has been recently
advanced, that '* before the Marriage Act the mar-
riage of dissenters in the face of their own congre-
gations was good in law. Of this fact there is no
doubt. Whatever grievances they have to complain
142
of originated at that period. Their claim, or, if that
18 a more palatable word, their petition, is, to be
restored to the situation they were in, as far as
marriage is concerned, before the passing of that
statute"*/' This is the language of an advocate
more zealous than candid or judicious; and the fact
upon which he principally relies is certainly too
undoubted to call for any remark: and there is
another fact also too important to be overlooked,
that in the recent revisions of the Marriage Act the
Unitarians made' but a very faint attempt to bef
placed in the same condition as the Quakers and
the Jews, or to be merely exempted from the pro-
visions of the Act. In the measures also which •
they themselves have proposed for their relief they
have sought either a curtailment of the liturgy or a
licence to celebrate marriage in their own forms,
with the privilege of having those marriages re-
corded in the registers of the Church. In these
practical attempts to obtain something more than
mere exemption they have tacitly contradicted their
advocate, and admitted the insufficiency of the mere
exemption, which he represents them to solicit. In
the very petition upon which this ignorant or dis^
ingenuous remark was founded the Unitarians them-
selves have affirmed, that '* the marriages of dis-
senters celebrated in the face of their own congrega-
tions were ^considered valid in our courts of .law,
although some attempts made to disturb such mar«
riages in the ecclesiastical courts served to dispose
the ma^rity of the dissenters, between whom and
in
Edinburgh Rentw, Ixix. art. iii.
143
die established Church there was then no essential
difference in points of doctrine, to conform in that
particular to the ritual of the Church '^Z'
The avowed principle upon which the dissenters
profess , to conform, and upon which they justify
themselves under the charge of: inconsistency in
conforming^ with the prescribed ritual of the Church
is, that ^* they consider marriage as a civil affair, and
therefore can subcpit to the will of the magistrate in
regard to the place "" as well as other circumstances
of this rite/' It might not be^ unreasonable to en*
quire, how many marriages of dissenters are con*
tracted in entire ignorance of this principle, and on
considerations perfectly distinct; but it is sufficient
for the present occasion to know, that this principle
is very different from the motive alleged by Unita-
rians for the acquiescence of dissenters, and that if it
does not expressly admit the legal necessity, it offers
* Ibid. See Appendix, No. II.
* Nonoonfonnisto' Catechism, pt. ii. qu. 84. ** The marriage
ceremony is performed at the altar ; an evident relic of popery,
which makes matrimony one of the seven sacraments. If it be
objected that dissenters are inconsistent in submitting to be
married at the altar, it is answered, they consider marriage," &c«
The rubric requires but a very small part of the service to be
pwibnned at the Lord's table, and practical • convenience only
has led to the alteration. The word altar, which was retained
only in the first Book of Edward VI. was succeeded in the second
Book by the word the Lord's table, (see Appendix, No. III.) and
the ofibnsive word does not now occur in any of the rubrics^
prayers, or exhortations of the Church of England. It is noto-
rious that mapy of the. Romish sacraments were not performed
at the altar. Such insinuations would justify the most! rigid
severity in examining the validity of the excuse.
144
do objection to the use of the religious ratification of
marriage.
The principal position of the Unitarians, that after
the Toleration Act and before the Marriage Act the
marriages of dissenters in the face of their own con-
gregations were considered valid in the courts of
law, seems to limit the investigation which is re-
quired, and may be sufficiently refuted, if it can be
shewn that the supposed validity was unknown
before the Toleration Act; that it was not esta-
blished by the Toleration Act; that it was not
recognized in the interval between that Act and the
Marriage Act ; and that the Marriage Act did not
interfere with any existing privileges of the dissenters.
Under the ordinance of the Usurpation the liturgy
was proscribed, the religious celebration of marriage
was made a penal offence, and a legal character was
given to marriages contracted before a justice of the
peace, who was to declare the parties husband and
wife, and it was ordained that such marriage should
be good and effectual in law. The last provision
was unnecessary if the 1^1 validity of the civil
contract had been the previous doctrine of the law.
The Act of the Restoration (12 Charles II. c. 33.)
gives additional force and perspicuity to this argu-
ment, by enacting that any marriage had and so-
lemnized, since the first day of May 1 649, under
colour of certain ordinances in some other manner
than hath been formerly used and accustomed, shall
be of the same and of no other force and effect, as if
such marriages had been solemnized according to
the rites and ceremonies in the Church and kingdom
of England, any law, custom, or usage, to the con-
145
frary notwithstanding. The Act records at once
the ancient practice and the recent innovation in
respect of marriages had in some other manner than
hath been formerly accustomed : it implies, that by
law, custom, and usage, these marriages were liable
to be disputed; and it gives to them the validity
which was wanting by the neglect of the ancient
law. It is puerile to argue that these marriages
" were declared legal without any fresh solemniza^
Hom^j'^ for in many cases the solemnization must
have been rendered impracticable by the decease of
the parties ; in many more it must have been retro-
spective in reference to the issue ; and in all it must
have contracted the grace of the Act, which alone
^lispensed with the necessity of the solemnization.
To the positive argument may be added the negative
proof, which is implied in the omission of all notice
of marriages celebrated according to the suspended
ritual of the Church, and which did not want any
new confirmation, because they were originally valid
in themselves. The Act proceeds to provide, that
the issue upon the lawfulness of these marriages
contracted during the Usurpation shall be tried by
jury at the common law, any law, usage, or statute,
to the contrary notwithstanding, thus particularly
exempting them from the jurisdiction of the ecclesi-
asticsS courts, to which they ordinarily and properly
belonged, and in which as religious acts they would
have been tried without this exceptive provision.
It 18 conceived, that this is an irrefragable proof of
the invalidity of the merely civil contract in the
* Fraethinking Christians' Quarterly Register, No. iii. p. 273.
TOL. I. L
146
beginning of the reign of Charles II. in which was
also passed the Act of Uniformity confirming all the
liturgical provisions which had previously existed in
respect of marriage, and particularly the trine pub-
lication of banns in the church, which alone gives
a certain connexion between religion and marriage^
and which had been suspended during the Usurpa-
tion, when by a very consistent practice banns were
published in the market place on the market day,
and the marriage was contracted before a justice of
the peace.
It is not pretended that any other Act of Charles
IL or any Act of James IL counteracted these
legal provisions for the religious celebration of mar-
riage and the prevention of the merely civil contract:
but an argument, which it may be proper to notice,
has been drawn fix>m a passage in the life of Judge
Hale, recorded by Bishop Burnet, in which that
good man is said to have shewn his moderation
towards dissenters ^* in the care he took of preserv*
ing the quakers from that mischief that was like to
fell on them by declaring their marriages void, and
so bastarding their children : but he considered mar^
riage and succession a right of nature^ from which
none ought to be barred, what mistake soever they
might be under in the points of revealed religion.
And therefore in a trial that was before him, when
a quaker was sued for some debts owing by his wife
before he married her, and the quaker's counsel
pretended that it was no marriage that had passed
between them, since it was not solemnized according
to the rules of the Church of England, he declared
he was not willing on his own opinion to make their
147
children bastards, and gave directions to the jury to
find it special. It was a reflexion on the whole
party, that one of them, to avoid an inconvenience
he had fellen in, thought to have preserved himself
by a defence that, if it had been allowed in law,
must have made their whole issue bastards and in-
capable- of succession . . . because he would have
thought it a hardship, not without cruelty, if among
papists all marriages were nulled which had not
been made with all the ceremonies of the Roman
ritual, so he, applying this to the case of the secta-
ries, thought all marriages made according to the
several persuasions of men ought to have their
effects in law/*
It will not be denied that the pica of the de-
fendant was most flagitious, and worthy of the most
adverse interpretation which the law would allow ;
but how cautious and deliberate under such circum-
stances was the conduct of the judge ? he could act
upon his own principles only by avowing them :
but, notwithstanding the natural bias of his mind in
favour of moderation towards the dissenters, con-
firmed by his experience of the validity of the civil
contract under the Usurpation, and by the flagi-
tiousness of the case before him^ he only directed
the jury to find it special ; he did not take upon
himself, he had not the perfect conviction in his
own mi nil, he had not the authority of precedents
to justify him in giving a construction to the law
according to his private opinion and desire, and he
therefore reserved the point for further argument and
a more competent jurisdiction than his individual
judgment, and was willing to give the plaintiff* the
l2
148
benefit of any doubt which might arise in the inter*
pretation of the law. The act of the quaker, the
plea of his counsel, and the direction of the judge,
all agree in proving that the law was at least not
decided in favour of the civil contract; and it is
obvious to remark, that Burnet has reported only
the case of the defendant, and given to that report
his own partial colouring. T[)is was also a case of
marriage de facto ^ which the temporal courts allow
to be sufficient to give title to a personal estate,
because the lawfulness of marriage is not the point
to be tried, as in a writ of dower**, and therefore any
decision of the suit would not have produced those
effects of bastarding the issue, which were more
probably apprehended by Burnet than by Hale.
It is an equivocal inference which is drawn from
this statement, that ^^ quaker marriages are now
good in law, although since the days of Judge Hale
no statute has been passed which declares them to
be so^.*' If in the days of Judge Hale they were
valid, no statutory declaration of their validity was
required, and any doubt of the necessity of the
declaration is an impeachment of their validity : but
if no statute has declared them valid, there is a
statute (6 William and Mary, c. 6.) which has
declared them doubtful, laying a duty upon Jews
and Quakers, cohabiting as man and wife, although
not married according to the law of England, and
adding a proviso that nothing therein contained
shall be construed to make good or effectual in law
^ Bum'g Ecclesiastical Law ; Art. Marriage. ' Freethinking
Christians'^ Quarterly Register, No. iii. p. 275.
149
any such marriage, or pretended jnarriage, but that
they should be of the same force, and no other, as if
the said Act had not been made*.
. If then the validity of the civil contract, inde-
pendent of the religious ratification, was unauthor-
ized or doubtful before the Toleration Act, can that
Act be shewn to convey to the dissenter any new
privilege in respect of marriage, of which he was not
before possessed ? The Act itself exhibits no signs
of such conveyance, not in its title of" An Act for
exempting their Majesties' Protestant subjects dis-
senting from the Church of England from the penal-
ties of certain laws ;'^ not in reference to the Acts
which it restricts or counteracts; not in the dis-
charge from penalties incurred ; not in the allowance
of deputies; not in the extent of the exemption;
not in the registry or administration of the oaths ;
not in the relief of the Quakers; nor in any other of
its clauses. The sole design of the Act is to exempt
dissenters from penalties, which would otherwise
have been incurred, not to convey privileges which
were not otherwise possessed.
. In the interval between the Toleration Act and
the Marriage Act there are many authorities very
unfavourable. to the validity of marriages contracted
without a religious ratification. The Act of
6 William and Mary, c. 6, has been already recited,
in which Jews and Quakers not married according
to the law of England are described as cohabiting
together as man and wife, and which is not to be
construed to make good in law such marriage, or
* Burn's Ecclesiastical Law.
L 3
150
pretended marriagfe. But *' the Act 7 and 8 Wil-
liam III. c. 9^, seems to put this matter out of all
doubt, by laying a penalty on clergymen if they
celebrate marriage in a clandestine manner ; for if
the same privileges and advantages attended mar-
riages solemnized by the dissenters as those cele-
brated according to the Church of England, how
easily would that Act be evaded and rendered of no
effect ? There would then be no occasion for licence
or banns ; for making oath, or giving security, that
there were no legal impediments ; but every one
might do what was right in his own eyes, who
should get himself admitted of a dissenting congre*
gation^*^ Neither this Act nor the other Acts,
6 and 7 William III. and 10 Anne c. ly, contem-
plate the celebration of marriage by any but "a
person in holy orders, beneficed or not beneficed :**
complaint is only made of the offences of ^' parsons,
vicars, and curates, who substitute and employ, and
Icnowingly and wittingly suffer and {permit, divers
other ministers to marry great numbers of persons
in their respective churches and chapels without
publication of banns, or Hcence of marriage first had
and obtained ; many of which ministers have no
settled habitations, and cannot easily be discovered
and convicted -y complaint is also made, that ^' di-
vers ministers, being in prison for debt, or otherwise,
do marry in the said prisons tfaany persons resorting
thither for the purpose aforesaid, and in other places,
for lucre or gain to themselves, by all which means
the duties and impositions upon licences of marriage
' * Burn*8 Ecclesiastical Law.
151
are greatly diminished, and many other great incon-
veniences do arise/^ It is a melancholy picture
which these Acts present, both of the state of
the clergy and of the irregular solemnization of
marriage, through their connivance and neglect : but
although they record the celebration of marriages
in prisons and other places, they indirectly assert the
necessity of orders in the minister of marriage, with-
out which the people would not have resorted to
their ministration in such places. For the correction
of these abuses, and, at the same time, for the pre-
servation of the revenue, a penalty of jEiOO was
imposed upon any ^^ parson, vicar, or curate, who
should marry any persons in any church or chapel,
exempt or not exempt, or in any other place what-
ever, without publication of banns or licence,^* a
clause which could have been of no avail, but on
the supposition that marriage could only be cele-
brated by " a parson, vicar, or curate/^ A penalty
of ^10 was also levied upon every man who should
be married without licence or publication of banns ;
whence arose a curious question, which will be
mentioned hereafter : and a yet further penalty of
<£5, which more distinctly shews that marriage was
considered an ecclesiastical act, was levied upon every
sexton or parish clerk, or other person acting as
sexton or parish clerk, who should knowingly and
wittingly aid, proniote, and assist at such marriages
so celebrated without banns or licence. The Act
of Anne restricts the character of the persons on
whom the penalty was imposed, by an express
reservation to all archbishops and others of ^^full
power of inflicting all such pains and censures for
L 4
152
this or any other cripie or crimes, as they mighi
have done if this Act had .not passed.^' In these
Acts no mention is made of the offences of persons
not in orders : the publication of banns, or the pos-
session of licence, both acts of ecclesiastical admin-
istration, are required under a penalty : Scotland,
where a different law prevailed, is exempted under
the statute of Anne: and if the penalty only is
levied, and nothing is said of the validity or invali-
dity of the marriage itself, may not the omission be
construed to declare the state of the law, under
which such marriages were in their very nature
liable to dispute, and were in fact disputed? The
nullity afterwards expressed in the Marriage Act
was the consequence of a new offence created by
the law, and requiring a distinct enactment. Under
William and Anne the law required the intervention
of a person in orders, and the provision of the
common law was affirmed, inasmuch as it was not
restricted or superseded by any positive statute.
It is nevertheless certain, that marriages were con-
tracted without the intervention of a person in
orders ; and it is admitted, with a certain ambiguity
of language, that ^^ attempts were made to disturb
such marriages in the ecclesiastical courts/* It
should be remembered, that the ecclesiastical courts
are the courts to which the common law hath
assigned the trial of the validity of marriage, and
that the attempts to disturb these irregular marriages
were made by the parties immediately interested,
and not by the interposition of any ecclesiastical
authority. There are three cases recited by Burn ;
1. Wigmore's case, 5 Anne; where the wife sued
153
in the spiritual court for alimony, being married to
an anabaptist, according to the forms of their reli-
gion,*although with licence from the bishop to marry.
In prohibition, Holt, Chief Justice, held that the
canon law admitted the validity of the contract per
verba de prcesenii : the marriage was therefore ad-
mitted so iar, that the parties could not be punished
for fornication, but for not solemnizing the marriage
according to the forms prescribed by .law, but not so
as to declare the marriage void. This appears to be
a most favourable case ; but it is nevertheless liable
to the objection, that the contract was subject to a
compulsory celebration in facie ecclesioe^ without
which it was not valid to all purposes ; that, as the
licence was obtained, the penalty incurred for not
solemnizing the marriage was different from that
imposed by 7 and 8 William III. and that the action
was on the fact, not on the law, instituted for
alimony, and involving only the question of wife or
no wife. If the action had been on the higher ground
of dower, a different decision might have been ex-
pected. S. In the case of Haydon and Gould,
before the delegates; Haydon and his wife were
Sabbatarians, and had been married, in a Sabbata-
rian congregation, by one of their ministers, using
the ritual of the Church, with the omission only of
the ceremony of the ring. On the woman's death,
Haydon, as her husband, took out letters of admin-
istration ; to which her sister objected that they
were never married ; and as it appeared that the
minister. who married them was a mere layman, and
not in orders, the letters of administration, granted
to Haydon as the husband, were revoked, and a new
154
tidministration granted to the sister. This sentence
clearly proved the invalidity of marriages not cele*
brated by the intervention of a person in orders, on
which the question principally turned : and the
sentence, upon appeal, was confirmed by the dele-
gates, upon the argument, that as Haydon de-
manded a right to himself as husband by the ecclesi-
astical law, he ought to prove himself a husband by
that law. A case was also cited out of Swinburn,
where such a marriage had been ruled to be void,
as to the privileges attending legal marriages. 3.
The case of Middleton v. Croft, which was for
marrying without the canonical hours, is very im-
portant, on account of the judgment of the court
delivered by Lord Hardwicke after several argu-
ments at the bar. The plaintiff pleaded the statute
of 7 and 8 William III. c. 35, imposing a penalty
of ten pounds on every man marrying without banns
or licence ; notwithstanding which, he and his wife
had been cited in the spiritual court for an offence
against the canon, by which, as lay-persons, they
were not bound. The court agreed that lay-persons
were not within the words of the canons of 160S ;
that the spiritual court had a well-founded jurisdic-
tion under the former canon law, to proceed against
the plaintiffs for a clandestine marriage : and on the
question, whether the statute of 7 and 8 William III.
had, by inflicting that penalty, taken away the juris-
diction of the spiritual court, it was to be observed,
that as to the woman, she indisputably remains
subject to the ecclesiastical jurisdiction, for the
penalty is only upon the man : but as to the man
likewise, the court was unanimously of opinion, that
155
the ecclesiastical jurisdiction is not taken away by
the statute, but that both the jurisdictions do stand
well together.
The admission that the ^^ attempts made to dis-
turb such marriages in the ecclesiastical courts served
to dispose the majority of dissenters . • • to conform
in that particular to the ritual of the Church/^ tacitly
proves the efficacy of those attempts, and the pre-
vailing opinion of the state of the law at the time.
If these attempts had been defeated, they would
have failed of producing the result which is imputed
to them ; if the decisions had been unjust, or op-
posed to the known spirit of the law, they would
have been disputed and overruled ; the body of the
dissenters, always active in resisting oppression, and
in maintaining their civil rights and privileges, would
not, in justice to themselves or to public right, have
acquiesced in a series of unjust decisions ; and it
would have been a stigma on the pure and equal
administration of English law, if such injuries had
passed without redress. If there had been but a
single case, in which the force of the civil contract
had been weakened by the want or the irregularity
of the religious ratification, it had been sufficient to
prove the necessity of that ratification to the validity
of the marriage.
It is not therefore true that " before the Marriage
Act, the marriage of dissenters in the face of their
own congregations was good in law,^^ or that they
possessed " the right of marrying at their own meet-
ings, and agreeably to their own forms :" nor was
the Act, whatever were its other faults, designed to
destroy the validity of these marriages, or in any
156
wise to ^^ abridge the religious rights and privileges'!
of the dissenters. The declared purpose of the Act
is " the better preventing of clandestine marriages:"
and without insisting on the proper and technical
use of the word clandestinity, to denote marriages
celebrated out of the Church ; without giving any
undue force to the prohibition to solemnize matri-
mony in any other place than a church or public
chapel, where banns have been usually published ;
without dwelling upon the negative evidence of the
Act, in not making the faintest allusion to marriages
celebrated without the intervention of a person in
orders ; it is proper to observe, that the measures by
which the Act accomplishes its purposes, are, by
enforcing the provisions for the due publication of
banns, and the legal attainment of a licence. The
immediate occasion of the Bill was the abuse of the
law of precontracts ; and the ultimate object was,
to prevent the recurrence of those irregular mar-
riages which were prevalent at the time, under the
name of." Fleet marriages," from their celebration
in the Fleet prison : and there was " no ceremony ^
or solemnity required by the Bill, but what was
absolutely necessary for ascertaining the marriage,
and rendering it public"." It is in vain to interpret
this of the compulsory use of the office of matri-
mony, which had ever been in use, and which, alone
had been found ineffective: it evidently relates to
the new provisions, which had been introduced in
respect of the banns and licence, in reference to
' * Speech of Ryder; Att. Gen. Haniard's Pari. Hist. xv. p. 1 1.
recited in Freethinking Christiuis' Quasterly Register.
which the Bill was free from the charge of ^^ inflicting
any penalties upon the innocent, or any more severe
penalties upon the guilty than they deserve';'' and
upon the neglect or misuse of which all the suits of
nullity of marriage instituted under the Act have
eventually been found to turn. This was the object and
method of the Bill, which was not designed either to,
remove or " to establish a ceremony contrary to the
conscientious scruples of any who might be called
upon to submit to it^,'' and whose scruples could
only have been violated by anticipation, since the
dissenters of the day confessedly ^^ conformed, by
choice, to the form of marriage as practised in the
Church,'' with the only exception of Jews and
Quakers, and they were exempted.
The Act contains but two clauses which can be
construed to interfere with the religious principles
of the dissenters. By sect. 8. it is enacted, that
'* whereas many persons do solemnize matrimony in
prisons and other places, without publication of
banns or licence of marriage first had and obtained ;
therefore, for the prevention thereof, be it enacted,
that if any person . . . shall solemnize matrimony in
any other place than a church or public chapel,
where banns have been usually published, unless by
special licence . . . every person knowingly and
wittingly so offending, and being lawfully convicted
thereof, shall be deemed and adjudged to be guilty of
felony • • . and all marriages celebrated in any other
place than a church or such public chapel, unless by
" Speech of Ryder : Alt. Gen. Hansard^s Pari. Hist. xy. p. 1 1.
redted in Freethinking Christians' Quarterly Register.
' Freethinking Christians' Quarterly Register, No. iii. p. 281,
158
special licence, shall be null and void/' By sect.
13. it is further enacted, that "in no case whatso-
ever shall any suit or proceeding be had in any
ecclesiastical court, to compel a celebration of any
marriage in facie ecclesioe^ by reason of any contract
of matrimony whatsoever, whether per verba de
prcesenti or per verba de Juturo . . . any law or
usage to the contrary notwithstanding/'
If either of these clauses had been intended to
take away the allied right of the dissenters, to con-
tract valid marriage in the fece of their own congre-
gations, it might have been expected that the alleged
right would have been as distinctly recognized as
the compulsory enforcements of contracts of mar-
riage, and that it would not have been rescinded
without some grave apology or excuse, without the
imputation of some offence calling for the restriction,
without something more definite than the allusion
to many persons solemnizing marriage in prisons
and other places ; an allusion which, on comparison
with the history of the time as well as with the Act
of 7 and 8 William III. evidently applies to the
clergy, whose offence it was designed to correct.
The thirteenth section tacitly recognizes the imper-
fection and invalidity of the contract per verba de
proesentiy or per verba de Juturo^ which the Chief
Justice Holt pronounced to be the authority for the
marriage of dissenters, and the abuse of which was
the occasion of the Bill, by superseding the com-
pulsory jcelebration of such contracts in facie eccle-
sice which was necessary to their consummation.
It is known that no Bill ever excited more angry
debate than the Marriage Act: but is it credible.
159
•
that among the many objections brought against the
measure, no mention should have been made of the
infringement of the rights of dissenters, if there had
been either an avowed or a secret design of infring-
ing those rights? It is described by Lord Orford'
as a measure " breathing the very spirit of aristo-
cracy and insolent nobility ;^' as an invention for
extending the power of the Chancellor : but if it
interfered with the liberty of the dissenters, was it
not equally liable to the charge of extending the
power of the Church, and would not the charge
have been recorded by the memorialist, who de-
lighted in the collection of insinuations and ex-
ceptions, and who has certainly shewn no favour to
the bishops in the account of its progress through
Parliament? Is it credible, that the dissenters at
the time should have offered no objection to the
measure, have made no effort to maintain their sup-
posed rights, or that, in the consciousness of recent
decisions in the courts against them, they should
have sought no review of these decisions, no means
of preventing their recurrence, no removal of any
doubts or ambiguities, in which their case was in-
volved? Or is it credible, that their successors, for
nearly sixty yea]*s% should have consented to bear
of the last Ten Years of the Reign of George IT,
vol. L p. 293^304.
• *' We have seen it asserted, that when the district meetings
of the United Dissenters took place in England, in the year
1789, in order to obtain the repeal of the Test and Corporation
Acts, it was also designed to move for an emendation of the
Blarriage Act; the object however of these meetings was
qpeedilj abandoned, and the design of moving for any alteration
160
th^ burthen which the apathy of their forefathers had
laid upon them ; to make little or no effort for the
recovery of a lost privilege, and in the end have
suffered the Unitarians alone, by themselves, and
for themselves, without any sympathy or coopera*
tion from the dissenting body, to seek relief from
the imputed oppressions of the statute ?
' There is the report of a speech of Lord Barrington
in defending the Bill against the charge of innova-
tion : ^' If gentlemen will but attend to the laws we
have now in being, they must see, that all these
things have been by them already in a great measure
taken care of. No marriage can be good unless it
has been solemnized according to that religious cere-
mony prescribed by that sect of religion to which
the contracting parties belong^." The Parliamentary
Reports of this period are at least of doubtful au-
thenticity, and there is no very clear consistency in
these consecutive assertions. The laws then in
being did not provide for the validity of marriages
celebrated according to the rites of different sects,
which is claimed only under the common law, that
law which provided for no dissent from the Catholic
religion. It is remarkable also, that Lord Orford, in
the captious account which he has left of the Bill,
m the Marriage Act, if ever entertained, was never proceeded
in.** Freethinking Christians' Quarterly Register, No. iii.
p. 287- In the same journal complaint is made of the supine-
ness of the Unitarians, before they were stimulated by the
Freethinking Christians : and there appears now to be but little
concert between the two parties in their opinions or projects of
rdief.
^ Hansard's ParL Hist. vol. zv. p. 25. Ibid.
161
takes no notice of the speech of Lord Barrington,
and, 80 far from insinuating that there was a tendency
in the Biil to abridge the freedom of dissenters, he
dwells with manifest pleasure on the clauses which
it contains for the restriction of ecclesiastical power*.
It is true, that the Protestant dissenters of Ireland
are allowed to marry by their own forms: but as
they derive that privilege under a special statute,
their privilege rather invalidates than confirms the
supposed right of the English dissenters to the same
privilege.
It is contended, that " the Marriage Act was
never intended as an abridgment of religious free-
dom ; the only two sects who asked for the ex-
emption had it :" and that " a burthen on conscience
. . . was not intended by the legislature, as may be
■ " The new Bill enjoined indispensable publication of banni,
yet took away their validity, if parents, nay, if even guardians,
lignified their diasent, when the parties were under age: a very
novel power!" (it was not granted in thia caseO "but guar-
dians are a limb of chancery 1 The archbiehop'a licence was
mdeed reserved to him. A more arbitrary spirit was still be-
hind: persons solemnizing marriage without these previous
steps were sentenced to transportation, and the marriage was to
be effectually null. So close did congenial law clip the wings
of the prostrate priesthood. And as if such rigour did not suffi-
ciently describe its fountain and its destination, it was expressly
specified, that when a mother or a guardian should be non
compoa, resort might be had to the ChanceUor himself for licence.
Contracts and precontracts, other flowers of ecclesiastical prero-
gative, were to be totally invalid, and their obligations abo-
liahed^ and the gentle iostitudon was wound up with the
petult; of death for all foi^ries in breach of this sUtute of the
nraderD Draco. Quakers, Jews, and the Royal Family had the
only ttdentim." Memoirs, vol. i. p. 296.
VOL. I. M
162
fairly inferred from the exemption in the Act of the
two classes of persons against whose religious feel-
ings and discipline it seemed particularly to militate."
Whether it was or was not intended, there was in
fact an abridgment of religious freedom, if dissenters,
who before were free to contract marriage in their
own conventicles, were amerced of that privilege:
and there was at the same time a burthen thrown
upon conscience, if dissenters, who before had a
choice of preference, were afterwards obliged to
conform with a particular ritual. These are effects
which no legislature could have produced without
intention and design : if they were not intended,
they were not produced ; if they were produced,
they were intended. The speculative agreement of
the dissenters of the day in the doctrinal opinions
of the Church did not alleviate the burthen of a
compulsory conformity with the ritual.
It does not appear that the Jews and Quakers
sought the exemption which was made in their
favour. The exemption was not new. It was co-
pied from the Act 6 and 7 Will. Ill- c. 6. And
Burn notes a peculiar distinction in tlie two Acts,
that in the former Act Quakers and Jews are said
to cohabit as man and wife, although not married
according to the law of England, and that the Act
shall not be construed to make good and effectual
such marriage, or pretended marriage ; but that the
latter Act contains no similar clause, but proceeds
on the supposition that such marriages are good and
valid. Whether this distinction can or cann6t be
sustained ; whether the validity of these marriages
rests on this particular statute ; or whether a doubt
163
which has been thrown upon these marriages can be
justified ; the particular exemptions rest on parti-
cular grounds: and whether the Marriage Act be
regarded as a matter merely of civil regulation and
policy, or, as is by some maintained, an act of
religious restraint, the wisdom and justice of the
exceptions are approved by the peculiar character
and circumstances of the parties excepted, of which
the courts might require the exhibition of proof,
under any suspicion of a fraudulent evasion of the
jaw.
It would be the excess of absurdity to require the
Jew to conform with the Christian ritual : the ad-
ministration of no Christian offices can be supposed
to have an influence upon his conscience, or to
excite in him any feelings but those of exasperated
prejudice. The ritual of the English Church must
be especially offensive to a Jew, who denies the
mystical union between Christ and the Christian
Church, represented in marriage; who can be bound
by no engagement contracted in the name of the
Father, of the Son, and of the Holy Ghost ; who
can receive no instruction in the duties of marriage
upon the authority of the apostles. It would have
been vain to insist on such impracticable and nuga-
tory conformity : and at the same time there was no
civil danger in making the exception. The Jews
are altogether a distinct and peculiar people : their
manners cannot be counterfeited or assumed. The
rabbi knows who is and who is not a Jew, and
there was no reason to apprehend that he would
cdebrate marriage with any who were not of the
Jewish persuasion. There was also an ancient ritual
M 2
164
peculiar to the Jews, and from their care in the
preservation of pedigree there was no doubt of a
sufficient record of every thing connected with their
marriages.
The exemption of the Quakers was equally proper
and expedient. The Quakers are also an isolated
body ; less zealous than any other sect of making or
receiving proselytes ; disposed to excommunicate
any of their own body who may marry out of the
communion of the Friends ; and securing the iden-
tity of their several members by the practice of
giving and demanding certificates on any removal
of a member from one part of the kingdom to an-
other. The exemption of Quakers was therefore an
exemption of Quakers exclusively : it was an ex-
emption not liable to abuse: there was no danger of
its fraudulent extension. The Quakers also have
a formulary of marriage, peculiar to themselves,
celebrated in the face of their congregations, and
duly attested. Experience of their pertinacious ad-
herence to their own manners had shewn, that to
require the Quakers to conform with the ritual of
the Church would have been equivalent to an inter-
diction of their marriages, and a dissolution of their
body. '
In these two cases of exemption it was required
that the man and the woman should both be Quakers
or Jews. If one only was a Quaker or a Jew, the
ritual of the Church was not to be dispensed with.
There is another class of Christians whose religious
feelings and discipline were particularly opposed by
the Marriage Act, and if it had been the design of
the legislature in that Act not to impose a burthen
165
upon conscience, the case of the Roman Catholics
could not have been overlooked. They professed
no agreement in the doctrines of the English Church.
They, more than any other Christian body, had
reason to complain, if the Marriage Act was an
innovation upon any privileges previously possessed
by nonconformists. They are taught to consider
marriage as a sacrament, u^hich none but a Romish
priest is competent to administer. Although there-
fore in England the civil benefits of marriage cannot
be obtained without a conformity with the ritual, it
18 to the Romanist nothing but a form ; and it is
distressing, that under any circumstances a religious
administration should be nothing but a form. To
the Romanist it is worse than a form : it is an
heretical administration, exciting the worst of all
feelings, a feeling of religious antipathy. Nor is it
an unimportant consideration, that the Protestant
Church admits the validity of all Catholic admin-
istrations, the reality of Catholic orders, and that
before the Reformation, and under the aera of the
common law, it was the Catholic priest alone whose
administration could confer the requisite validity
upon marriage. There can be no doubt therefore
of the competence of the Catholic priest ; and in
Ireland the Catholic priest, as well as the dissenting
minister, is legally authorized to celebrate marriage
between the members of his own communion. In
Ireland the Irish Catholic peasantry may be law-
fully married by the Catholic priest ; but in Eng-
land the Irish labourers, not aware of the variations
of the law in the two countries, apply ^to the priest,
who has the imprudence to marry them^ and their
M S
166
marriage is not good in law. They nevertheless
deem themselves married, but their marriage, how-
ever it may bind the conscience, has no legal vali-
dity without the interposition of the office of the
established Church. . This is a state of law than
which nothing, since the recent revision of the
Marriage Act, is more revolting to a religious mind.
But the case admits of yet further aggravation. By
a late law, the Irish poor, being destitute of relief,
are liable to be removed to their own country, by a
summary process, and the cruel operation of the
law is thus consummated. The parents, being
Irish, may be removed ; the children, being ille-
gitimate, the offspring of an illicit intercourse, or
illegal marriage, cannot be removed, but have a legal
settlement in the parish in which they were born,
and are separated from their natural parents. Such
practical injustice demands immediate redress, by
restricting under a penalty the administration of the
Catholic priest, without the certificate of a previous
marriage according to the forms of the established
Church, or by the simpler and more generous pro-
cess of a legal recognition of the validity of mar-
riages celebrated by a Catholic priest, where both
parties are known to be Catholics. This concession
would not prejudice the great principle of the reli-
gious ratification of marriage.
It has been now seen, that the perfect validity of
marriage has always been dependent on the admin-
istration of a person in orders ; that marriages con-
tracted without the religious ratification were not
valid before the Toleration Act ; that the Toleration
Act did not render them valid ; that their validity
167
was not approved in the interval between the To-
leration Act and the Marriage Act ; that the Mar»
riage Act did not therefore render them invalid ;
and that the only exceptions under that Act were of
a peculiar cast and character. The grievance there-
fore recently alleged by the Unitarians and by the
Freethinking Christians, and their petition for re-
dress, must rest upon their own ground, viz. *' that
the marriage service required by the existing law is
inconsistent in several points with the religious belief
which the petitioners conscientiously entertain,'* and
that ** toleration is in their case necessarily incomplete
while they are obliged by the marriage law to join
in a service repugnant in many parts to their reli-
gious feelings and principles.*' This is the general
statement of their case: the particular objections of
the Unitarians, or rather of the Freethinking Chris-
tians, are more distinctly exhibited in various pro-
tests* against the use of the ritual. The substance
of these objections is,
1. That it makes, marriage a religious instead of a
civil act, and that submission to a ceremony per-
formed by a person in holy orders, or pretended
holy orders, is painful and humiliating to the feel-,
ings of persons knowing nothing of a priesthood in
Christianity.
2. That parts of the service are highly indelicate
and offensive.
3. That it requires the man to worship the woman.
4. That it implies a recognition of the doctrine of
the Trinity.
* See Appendix, No. II.
M 4
1G8
6. That the interference of any human institution
with matters which concern their faith and con-
science, cannot receive the sanction of Protestant
dissenters.
It has been the aim of this and the preceding
chapters, to refute the first and principal of these
objections: and it is with no intention of depreciating
the just weight and value of the other objections,
that the immediate consideration of them is deferred
and postponed to a brief review of the measures by
which the relief of the alleged grievance has been
sought ; namely, petitions to the two Houses of
Parliament ; bills brought in by their advocates, in
conformity with these petitions; and protests de-
livered by the Freethinkirig Christians to the clergy-
men officiating at their marriages.
To the exercise of the right of petition, in their
case, no just objection can be made. It is the
common privilege of Englishmen who think them-
selves aggrieved, to make their grievances known to
the legislature, and to seek the redress which the
case admits and requires. It is requisite for their
own interest and the public good, that the peti-
tioners shall state the fact, and nothing but the fact.
Exaggerated statements of fictitious wrongs will
hardly conciliate the favour of an enlightened senate.
In the Bill introduced by Mr. William Smith into
the House of Commons, it was proposed, under
specified circumstances, to curtail the Office of Ma-
trimony ; retaining only the exhortation, beginning,
" I require and charge you both,'' &c. with the form
of mutual stipulation immediately succeeding. The
author of the Bill perceived the objections to the
169
measure, which he had the candour to withdraw,
and which no attempt will be probably made to
renew. The clergy would have scrupulously ob-
jected to a religious form, in which there was not a
word of prayer or supplication : and the supporters
of other measures of relief have had no hesitation in
approving the resolution of the bishops, to withhold
their consent from any such curtailment of the
service. To such of the Freethinking Christians as
embrace the full extent of the objections alleged
against the present office for the solemnization of
matrimony, it is not probable that any service,
performed in a church, by a person in orders, or
accompanied with any act of social prayer, will be
acceptable.
Another measure has therefore been proposed, for
allowing the Unitarians, under certain modifications,
to celebrate their marriages in their private con-
venticles. It is very doubtful whether the principle
of this measure has not been conceded with an
unwise and inconsiderate facility, when the conces-
sion involves no less than an abandonment of the
sacred character of marriage, and of the immemorial
and truly catholic doctrine of the sacerdotal benedic-
tion, with the recognition of marriage merely as a civil
contract, and of the validity of that contract without
a religious ratification. The principle is equally
new in English law and in English theology, and
demands the gravest consideration. An age of
luxury and refinement is not the time for weakening
the impression which may be made by the religious
solemnization, or rejecting the beneficial influence
which may flow from the prayers and supplications
170
which are proper to the occasion ; and the history of
imperial Rome has left a memorable record of the
danger of relaxing the principle, the law, and the
religion, of marriage. The ejSects of the meditated
compliance are probably more extensive than they
appear to be, and may be of such mischievous
operation, as to require more than the provisions of
another Marriage Act to correct them. If this con-
cession be made, the Unitarians will be entirely
separated from the offices of the Church ; and no
man who has formed a judgment of the doctrinal or
practical evils of religious separation, will acquiesce
with pleasure in this primary result, or contemplate
without regret, the absolute and irrevocable, although
voluntary, excommunication of an erring brother-
hood. It will be an ambiguous benefit, which,
under the name of a favour, reduces the Unitarians,
in respect of marriage, to a level with the Jews ; and
it will be an anomaly in ecclesiastical policy, to
confer a privilege on the most hostile, which is not
conceded to the most friendly of the sects. If the
concession is limited to the Unitarians, it will have
the eJSect of offering a bounty on the Unitarian
doctrine ; and any man who may take olBTence at the
ritual of the Church, may be free to avoid con-
formity by the profession of Unitarian tenets. If
however the principle is conceded to the Unitarians,
it will be impossible to withhold it from other
classes of dissenters, who will all naturally plead
their respective grievances and claims of relief: and
when the infinite modifications of dissent are con-
sidered, especially in the metropolis and in the
populous and remote districts of the country, it will
171
not be easy to secure the registration of marriage, or
to prevent the abuses of the licence, and the revived
practice of clandestinity. Boys and girls, by be-
coming fanatics, will overcome all difficulties in the
contract of marriage. It is true, that the possible or
even the probable abuse is not a fair objection to a
principle : but when the principle is originally bad,
it is not excused by the probable fault of its practice.
The effects and details of the measure are of far less
consequence than the principle ; but even these
are not inconsiderable. It may be very doubtful,
whether the measure will be acceptable to all who
profess Unitarian principles ; and whether many
who now take an interest in its success, will not
continue to prefer the ritual of the established
Church, for the sake of the increased security af-
forded by the registration of marriages ; and whether,
when the principle has been extorted by a claim of
right, the practice will not be confined to a few of
the most sanguine and enthusiastical of its sup.
pwters. It is not a matter which deserves a mo-
ment's consideration, that the measure has a tendency
to reduce the fees and emoluments of the clergy. A
matter so entirely secular may be fairiy overlooked,
in contemplating the greater evils, which threaten to
accompany the success of the experiment. It may
never be extensively adopted, and the pecuniary
injury may be but trivial. If the religious principle
is abandoned, the Church will be insulted by a
precautionary clause for protecting its little fees, in a
Bill which cancels its solemn offices. Marriage, it
should be remembered, was originally a sacrament,
and, as a sacrament, no fee could be due for its ad-
1/2
ministration. Marriage fees must be of right subse-
quent to the Reformation, or rather the title to the
demand is dependent upon special custom, and in-
volves the actual performance of the duty*: and where
the religious solemnization of the marriage is super-
seded, there is no ground on which the fees can be
protected. The Church asks not the gifts of Uni-
tarian bounty ; the poor Unitarian will be olBTended
by the demand, which he will not scruple to de-
nounce as an act of ecclesiastical extortion. It has
been proposed with some address that the fees shall
be retained, and that the retention shall be vindicated
in consideration of a service to be performed, which
is no other than the record of the marriage in the
Parochial Registers. The Registers now in use
cannot be accommodated to this suggestion : they
are adapted to the use of persons married in the
church, and by the clergyman, recording the act ;
and it is incompatible with the whole scheme of
parochial registration for a clergyman to attest or
record any act which he has not himself performed.
If this difficulty could be arranged, the marriage of
Unitarians would stand on grounds very different
from those of the Quakers and the Jews.
Whether the alleged grievances of the Unitarians
may or may not be redressed by the wisdom of
the legislature, it is certain that under the present
state of the law there is but one form for the legal
ratification of marriage in England. The Unitarian
is free to avail himself of a foreign marriage, but a
legal marriage cannot be contracted in England, but
* Burn's Ecclesiastical Law.
173
in conformity with the ritual of the Church. It isi
more than idle therefore to pretend to consult the
clergyman, or to argue with him the difficulties of
the case : he is bound by his oath of canonical obe-
dience to administer the rites of the Church, which
he has no authority or discretion to alter or curtail,
and which if he should venture to alter, the marriage
might be of doubtful and disputable validity, and
the parties would have the prudence to refuse a
privilege which they have now the temerity to so-
licit. It is more than idle to offer what the parties
call a protest, which is to the clergyman no more
than so much blank paper, of which he can take no
notice, and which can bind him to no sort of action.
It is more than idle to accuse the unaccommodating
intolerance of the clergyman, whose presence might
or might not be demanded, but whose presence can
only be required for the performance of specific
duties in a specific form. It is more than idle to
interrupt the public service by expressions of hos-
tility, which can operate in nothing but the aggra-
vation of evil. The office is not sensible of the
contempt ; the officer has given no cause of offence,
and is gratuitously insulted. Freethinking Chris-
tians might have been expected to allow others to
think as freely as themselves, and unless they lay an
exclusive claim to infallibility, as well as freedom of
thought, it would be no extraordinary effort of libe-
rality to conceive, that others may be as sincere in
believing as they are in disbelieving a particular
doctrine. They complain of injury in respect of
the compulsory use of the office; but can they
expect to be believed in their plea, .when they volun-
174
tarily appear as the witnesses of ceremonies which
they profess to hold in abhorrence? And is there
not a secret mind and spirit of persecution in pre-
tending an official interference, in assuming a right
and authority to make objections which cannot be
removed, of offering protests which cannot but be
impertinent and unmeaning, and in recording offences
which nothing but their own folly has provoked.
The man who draws down injury upon himself has
the redress in his own power, because he may avoid
it. If the Freethinking Christian has reason to
complain of a grievance in the necessity of his own
marriage, he has not the same plea, the fault is ex-
clusively his own, when he is the mere witness of
the marriage of another. When it is urged, that if
certain expressions are " read before young females
and children they are extremely revolting,*^ is it not
obvious to ask. Is there any occasion for their being
read before them ? May not their presence be dis-.
pensed with ? And is not the fault chiefly with those
who do not keep them away ? The rudeness of
turning the back upon the ceremony ; the suspension
of the voice, and the declaration of dissent between
certain words ; the occasional refusal to repeat those
words ; the frequent appearance at a ritual which is
not approved ; the paltry advantage which is taken
in recording the perplexities, the hesitations, the
scruples, the remarks, the occupations, the defects
of temper or of manners, in the clergy with whom it
is professed to confer; all which the Freethinking
Christians have recorded' of their own conduct, is
' Freethinking Christians' Quarterly Register, No. iii.
175
calculated only to exasperate and offend ; can be
read only with a blush of shame by the moderate
men of their own party ; and should abate the zeal
of any but a partial or interested advocate, as it will
assuredly increase and confirm the honest objections
of their adversaries.
The religious ratification of marriage has been
shewn to be part of the ancient and common law of
England, firom which none but Jews and Quakers
have ever been exempted ; and it is conceived, that
the further extension of this licence would be highly
inexpedient, as involving the concession of a valu-
able principle, introductory of many and great in-
conveniences, and not calculated to satisfy the wants
of any but the most inconsiderate of those who
profess to desire it. In the general ignorance of the
true merits of the question the importunity of the
petitioners may nevertheless prevail ; and if a com-
promise can be made, without betraying the great
principle of the religious ratification of marriage, it
is the interest of all parties that it should be con-
certed. If all sects are required to comply with a
particular ritual for the solemnization of marriage, it
is certainly desirable, that that ritual should be of
the simplest and most unexceptionable form : and if
in the present circumstances of religious division in
England, a formulary of marriage was now to be
constructed for the general use, there can be no
doubt, that it would be constructed on the most
general principles, and that, as it would also be
required for the use of all classes, the educated and
the uneducated, it would be expressed in terms the
most plain and easy to be understood. It was the
176
objection of Doctor Johnson, that ^^ our marriage
service is too refined ; it is calculated only for the
best kind of marriages, whereas we should have a
form for matches of convenience, of which there are
many^/' This was the fault of its origin in an age
when but little attention was paid to the wants of
the great body of the people, and they were hardly
admitted to the rights of marriage : and there are
but few who will contend that the existing ritual is
marked by a character of comprehensive simplicity,
or that it is so excellent in itself as not to require
and not to admit improvement. The rejection of
such a curtailment of the ritual as should leave
nothing which might be called a religious ratification
of marriage has been generally and justly approved ;
but a wish has at the same time been expressed,
that certain parts of the service should be amended
or suppressed. It is objected, that there are parts
in which the sentiment is indelicate ; in which the
expression is obsolete or obscure : and, so far as the
particular objections of the Unitarians are worthy of
attention, there is a necessity of entering upon the
very delicate question. How far the recognition of
the doctrine of the Trinity is requisite to the so-
lemnization of matrimony ? How far it is necessary
that marriage should be solemnized in the name of
the Father, and of the Son, and of the Holy Ghost?
The candour of the reader is especially intreated in
the discussion of these questions, which involves the
expedience of a review of the Office for the So-
lemnization of Matrimony, with suggestions for its
9 BoswelPs Life; tho year 1769.
177
amendment, the results of frequent and serious
meditation.
It 18 objected, and can hardly be denied, that
there is an offensive indelicacy of expression in the
introductory sentences of the Office of Matrimony,
which are usually defended with tiie equivocal and
evasive apology, that where the mind is not cor-,
rupted improper ideas will not be entertained, and
that at the time in which the office was compiled
there was no such offence in the language as is
imputed by the fastidious refinement of the present
day. It is not improbable that the real purity of
our manners has not corresponded with the studied
purity of our oral conversation ; and there may have
been as much modesty in the age of Congreve and
of Dry den as in that of Cumberland : but the true
question at issue is, Whether the language of the
Office of Matrimony is such as it becomes a holy
man to address to a modest and virtuous woman ?
And It is difficult to answer this question without
qualification or reserve. It is not necessary upon
all occasions and without discrimination to affirm
that marriage should not be taken in hand wantonly,
to satisfy men's carnal lusts and appetites, like brute
beasts that have no understanding ; or that marriage
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 unde-
filed members of Christ's body. In some cases the
admonition is too late; in others it is not demanded,
it is not justified by the circumstances. In the case
of many young persons there are pure motives of
marriage ; and the assertions are irrelevant in the
VOL. I. N
17«
case of persons of advanced years, when a certain
prayer is ordered to be omitted, and the reference to
what is called the^first end of marriage is altogether
inappropriate. The allusion to the gift of conti-
nency is more worthy of the Romish doctrine of
celibacy, than of any view of marriage maintained
in a Protestant Church, or exhibited in the Scrip-
tures, in which the apostle^ speaks only of an actual
state of incontinence, for which he recommends the
remedy of marriage, which he would otherwise have
discountenanced as unsuitable to the circumstances
of the age in which he wrote ; and it is a just argu-
ment against the Romanists that marriage was or*
dained in the state of innocence, and can therefore
be only casually, not primarily, intended as a remedy
against sin. The general assertion of the remedial
use of marriage is founded in an inveterate miscon-
ception of the words of the apostle' in referring to
the case of the heathen who had been married before
.their conversion to the truth, and whom he instructs
not to take wives to themselves, but to have, to
retain, and keep possession of the respective con-
sorts to whom they had been previously married.
The Freethinking Christians have put their opinions
upon the indelicacy of the service upon record, and
the truth of their representation is but too strongly
confirmed by the conduct of many clergymen, who
blush to recite the whole of the introductory sen-
tences, which they take upon themselves to omit.
It is a very critical situation in which the clergy are
placed, when they cannot use the public offices of
>■ 1 Cor. vii. 9. * 1 Cor. vii. 2.
179
the Church without offence, without exciting, even
where it might be least expected, a blush or a smile,
and when they are tempted to avoid the offence, to
resort to practices which are unlawiul and cannot be
defended. The frequent omission of certain pas^
sages in the Office for the Solemnization of Matri*
mony, the general misapprehension or neglect of the
instructions of the rubric, in respect of the different
places of the church in which the different parts of
the office should be performed, and the occasional
disuse of the concluding sentences, are all matters of
common notoriety, and offer a strong argument for
the public and authoritative revision of the office,
without which they suggest and seem to justify the
claim for private omissions and comphances. If the
indelicate passages are omitted in deference to the
feelings of one party, it is argued, that the doctrine
may be compromised to the scruples of another, and
thus the offices of the Church will be varied in
accommodation to the arbitrary humours of indivi-
duals. The order in which the causes of matrimony
are arranged in the public ritual is singularly inverted.
The mutual society, help, and comfort, which is
unquestionably the primary motive .of marriage, is
stated to be the third ; and the religious education
of children, which is dependent on the matrimonial
union of the parents, is described to be the first.
The casual benefit occupies the intermediate place.
In the American liturgy*", the Gordian knot is
cut by the omission of the objectionable passages :
if any revision of the English formulary should be
*^ See Appendix, No. III.
n2
180
judged expedient, it is suggested that a compilation
might be formed of the principal sentences of Scrip-
ture which relate to the ends and duties of marriage,
on. the mode] of the admirable exhortation in the
Commination Office, in the use of which all ob-
jections would be suppressed, and the recitation of
the final sentences, which in their present form are
subject to the charge of redundance, would be un-
necessary, and might be superseded.
Another objection, on the ground of indelicacy,
is commonly made to the second prayer after the
psalm, in which the allusion is more distinct than
the occasion may seem to require. This prayer is
also omitted in the American liturgy, and not un-
frequently abridged or disused in the administrations
of the Church of England. It is a cause of deep
regret, that the attention of the Reformers of the
Office was not in this respect directed to the Greek
liturgy, in which an elegant and unexceptionable
allusion is made to Psalm cxxvii. S,' and the end is
adequately prayed for without any reference to the
means. Might not the difficulty be removed by an
alteration, in the form of invocation, founded on
Malachi ii. 15, and Psalm cxxvii. 3, with a brief
omission ; O God, who hast ordained matrimony
for the continuance of a godly seed, and of whom
children and the fruit of the womb are the gift and
heritage, grant to these thy servants that they may
live together, &c.
A second ground of objections to the existing
' Xm^irm avr§*f itM^$f iftXt^t, ivriftyMK awXmvrtv, See Appendix,
No. III.
181
Office of Matrimony is the obscurity of the terms
which the man is directed to use in giving the ring
to the woman. In the old Romish missals of Sarum
and of York, which were anciently in use in the
northern and southern parts of the kingdom, the
mutual stipulation of the parties, and the words used
in giving the ring, were in English, while all the rest
of the service was in Latin. There cannot be a
clearer proof of the acknowledged expedience of
giving the utmost perspicuity to the vow of mar-
riage ; and from these missals, with the omission of
various superstitions, our present forms are collected.
With the exception of the word troths commonly'
mistaken for truths the form of interrogation by the
curate, and of mutual stipulation between the par-
ties, is perfectly clear and unexceptionable. The
words of the man in giving the ring are liable to.
various objections. The form of tl}e ancient missal
of York was, " With this ring 1 wedde the : and with
this gold and silver I honour the: and with this gift
I honour the : In the name,^^ &c. In the Salisbury
missal, which is the principal model of our own, the
form was, "With this ring I the wed : and this gold
and silver I the give: and with my body I the
worshipe: and with all my worldly chatel I the
endowe: In the name,^^ &c. With the exception of
the omission of the words. And this gold and silver
I the give, which were appropriated to the gift of
** other tokens of spousage'^ beside the ring, of the
substitution of the word goods for chattel^ and the
disuse of various crossings, this ancient formulary,
as it was revised in the books of Edward VI. is
retained in the present day.
N 3
182
The first objection applies to the words, ^^ Witfi
my body I thee worship.*' Worship, as in other
writings of the age"*, is unquestionably used in the
sense, not of religious adoration, but of civil honour
and respect. It retains the same sense in the fami-
liar phrases of Your Worship, the Right Worshipful,
in the use of which no man entertains, or is suspected
of entertaining, an idea of religious apostacy, or of
detracting from the worship which is due to the only
God. The objection is nevertheless as old as the
revision of the liturgy at the Restoration, when it
was agreed, but the agreement was not fulfilled, that
the word honour should be substituted for worship.
Still even under this interpretation it is not easy to
conceive, what meaning ever was or ever can be
attached to the words, " With my body I thee wor-
ship, or honour :** and the general ignorance of the
people and the objections of the adversary are hardly
counteracted by the subtle exposition of ritualists.
It cannot be meant, that the man accompanies the
words with an inclination of the head, or that, in a
"' Shepherd notices the old version of 1 Sam. ii. 30, *' Him
that worships me I will worship." So in the authorized version,
Luke xiv. 10, Then shalt thou have worship in the presence of
them that sit at meat with thee. In the Bishops' Bible, Psalm
viii. 5, Thou shalt crown him with glory and worship, is changed
in the authorized version into glory and honour. So '' I, accord-
ing to the word of God, will worship, honour, maintain, and
govern thee," as* Godwin translates the Bill of dowry. Moses
and Aaron, 1. vi. c. 4. Can it then be in mere ignorance that it
is objected^ that ^' the man is required to worship the woman,
though the divine Founder of Christianity has declared, that
God is the only object for the Christian to worship ?*'
183
sCyle of inverted adulation, he proposes to honour
the woman by offering himself to her as her hus-
band. Wheally" affirms, that "the design of it is
to express that the woman by virtue of this marriage
has a share in all the honours and titles which are
due or belong to the person of her husband/' This
is a periphrasis, which the words will hardly bear,
which will occur to none but a professed student in
theology ; and even if its meaning could be esta-
blished it is implied in the subsequent clause, for
these personal honours are but a part of the worldly
goods with which the man endows the woman.
Hooker labours to interpret the words in three dif*
ferent senses ; 1 . by contrasting the honour of lawful
marriage with ** the stain, blemish, or disgrace,^' of
unlawful intercourse; 2. as "the imparting of that
interest in the body unto another, which none had
before save only ourselves :'' but to this sense he
himself objects that the words should, under this
interpretation, be used by both parties : 3. " in pro-
fessing that his intent was to add by his person
worship and honour unto hers, he took her plainly
and clearly unto wife. . . . The worship that grew
imto her being taken with declaration of this intent
was, that her children became by this means legi-
timate and free ; herself was made a mother over his
femily ; last of all, she received such advancement
of state as things annexed unto his person might
augment her with : yea, a right of participation was
thereby given her both in him and in all things that
were his. This does somewhat more plainly appear
* lllustratioD of Common Prayer.
N 4
184
by adding also that other clause, With all my
worldly goods I thee endow. The former branch
having granted the principle, the latter granteth that
which is annexed thereunto"/^ But does not the
term <'all my worldly goods'^ include all possible
advantages which may arise from the marriage?
And is any of these meanings so clearly and de-
finitely expressed as to Ml within the apprehension
of all persons who are required to use the words ?
Selden translates them, " Corpore meo te dignor:^^
the American liturgy resolves the difficulty by
omitting the clause; and until the words shall be
more distinctly explained than they hitherto have
been, this concise example may not be unworthy of
imitation.
The succeeding clause, " And with all my worldly
goods I thee endow,'^ is highly inappropriate in a
very vast majority of marriages. Among the poor,
and among those who marry with equal fortunes, a
very numerous class, the gift and the receipt of
worldly goods is either negative or mutual : there is
nothing given which is not received ; there is but
the union of private or the participation of common
interests. In the marriage of a widow, or in a
marriage without settlements, the man seems to take
to himself the worldly goods of the woman ; and
there is no case in which he alienates to her his own
right of property. By a legal arrangement, indeed,
the woman, in contemplation of the marriage, either
by herself or her guardians, makes over her whole
property, with or without reservation, to the man ;
•» Eccl. Pol. b. V. 8. 73.
185
and the man, in the act of marriage, admits her to a
participation in all his worldly goods, as well those
which were originally his own, as those which were
formerly hers, but devolved upon him by the pre«
vious settlements. If in reference to this case the
primary and final clauses be coupled together, with*
out the intervention of the second, and with a right
apprehension of the word wed in the sense of cove-
nanting or contracting, a very adequate sense will
result t I wed and form a covenant with thee with
this ring, which is the sign and token that I endow
thee and admit thee to the free use, and to a common
share, of all my worldly goods. Blackstone thus com-
pares the ancient practice with the modern ritual :
" When special endowments were made at the door of
the church, the husband, after affiance made and troth
plighted, used to declare with what specific lands he
meant to endow his wife. When the wife was en-
dowed generally, he seems to have said. With all
my lands and tenements I thee endow: and then
they all became liable to her dower. When he
endowed her with personalty only he used to say.
With all my worldly goods (or, as the Salisbury
ritual has it, with all my worldly chattel) I thee
endow: which entitled the wife to her thirds, or pars
rationabiliSi of his personal estate . . . the retaining
this last expression in our modern liturgy, if of any
meaning at all, can now refer only to the right of
maintenance, which she acquires during coverture
out of her husband^s personalty®.'*
The ancient notion, that the ring was placed on
" 2 Bl. Com. c. 8. n. p. ' ,
186
the fourth finger of the left hand, because a vein
proceeded from that finger to the hearty has been
superseded by the more exact discoyeries of ana-
tomy. The ring has nevertheless its use and mean-
ing, derived from remote antiquity. It is not im-
probably the remains of the ancient form of marriage
by coemption, in which the arrha, or earnest and
pledge, given at the time of the espousals, commonly
consisted of a ring, thence called pronubus annulus^
sometimes of iron, and without a gem, according to
Pliny, but more frequently of gold, according to
Tertullian ; and Clemens of Alexandria affirms, that
it was given, not for ornament only, but to signify
the domestic possessions, which were worthy of care
and the superintendence of the household 4. Hence
to espouse was sometimes called subarrho^ which is
the word used by Selden, as the translation of to
wed; as is also the word a^paSowifyfieu in the Greek
Liturgy : and with reference to this ancient custom,
it may signify in the present use of the Church, that
the woman, in consideration of a certain dowry,
contracted for by the man, of which the ring is the
earnest and pledge, espouses and makes herself over
to him as his wife ; and the ring, thus given and
received, is called a token and pledge of the vow
and covenant betwixt them made.
It is known that the Romans used the ring in
contracts, instead of a bill or bond ; and its use
might be introduced into the marriage contract.
' Isidor. de Div. Off. 1. ii. c. 19.
<> CL Alex. PsBd. 1. iii. c. 2. Fr. Hotman de Vet Rit. Nupt.
c. 10. A. Hotman de Sponsalibus, c. 3.
187
i^ifiom the ancient way of expressing esteem for any
person by giving him a ring. The ring was ori*
finally used for a signet or seal ; and the act of
Idivering a ring to another, denoted that the re-
^eiyer was considered by the giver as the confidant
)f bis secrets, the partner in his counsels, and some-
limes the sharer of his property. The giving of a
Jog. was likewise the ordinary rite or pledge of
ovesting any one with honour or power ^^^ The
ring, which was anciently crowned with a seal, may
illjas denote the seal of the covenant, which is com-
[deled in marriage with the admission of the woman
tQ the counsels of her husband, and. to a partici-
(tation of bis honour and estate ; and by its circular
Sbrm it may denote the uninterrupted continuity and
BODStuncy of affection, with which married persons
ibould be inspired, whose conjugal love should
never have an end'. **The ring,*^ saith Hooker,
'^l^th been always used as a special pledge of feith
104 fidelity ; nothing more fit to serve as a token of
3ur purposed endless continuance in that which we
>ugbt never to revoke. . . . The cause why the
Christians use it, as some of the ancient fathers
thiok, is either to testify mutual love, or rather to
lerve as a pledge of conjunction in heart and mind
igreed upon between them^'^ The public use of
the ring is also a convenient distinction* between the
(Darried and the unmarried woman ; a distinction
which may be violated, but which no virtuous
QMiden will venture to assume, and which no mo-
fest matron will not scorn to disuse.
' Shepherd's Elucidation. ' Wheatly's lUnetrfttioii.
Eccl. Pol. b. V. 8. 73.
188
In the use of the Church of Rome, the gift of
the ring is preceded by various superstitious rites ;
a benediction is prayed upon it, and it is again and
again crossed by the priest. It was also anciently
accompanied by a gift of gold and silver" ; and, as
appears from the first book of Edward VI. it was
usual to give a purse of money, which was probably
superseded because the gift was not in all cases con-
venient, and the intention was fulfilled by the ring
alone. . The declaration of endowment with all
worldly goods is but a more full avowal of the true
meaning of the ring, in virtue of which the woman
becomes entitled, from the moment of stipulation,
to maintenance during her life, and to a third or
larger portion of the goods of her husband after his
decease. The full meaning of the man, in his words
and in the act of giving the ring, may thus be para-
phrased : I wed thee with this ring, which is the
pledge of a covenant between thee and me, of un-
broken love and confidence; and from henceforth, as
we are made one in marriage, and have but one
interest in all worldly goods, I pray that we may be
joined together in one heart and one mind, and have
the same affection in all things. The most ancient
of rituahsts' concurs in this exposition, when he
says that a ring was given by the bridegroom
to the bride, either as a sign of mutual faith, or
" There is no. end of conceits. /* in sonoritate argenti desig-
natur interna dilectio quse semper inter eos debet esse recens."
Manuale sec usum Samnu So when the ring was of iron, then
was " the metal hard and durable, signifying the durance and
perpetuity of the contract/' Swinbum in Bum.
« Isidor. de Diy. Off. 1. ii. c. 19.
189
because their hearts are joined together by the same
pledge.
The contract of marriage is ratified in the name of
the Father, and of the Son, and of the Holy Ghost :
the priest pronounces the parties to be man and wife
in the same name; and a blessing is pronounced
upon them in terms founded on that grand, sub-
lime, and mysterious doctrine. Centuries have passed
away, without any objection to this solemn adjur-
ation and appeal, and the novelty of the discussion
might seem alone to suggest the necessity of the
utmost temper and discretion in approaching it.
When the Freethinking Christians, therefore, in
protesting against the office of matrimony, take
occasion to declare, that they not only disbelieve but
'^ abominate the doctrine of the Trinity, in whose
name the marriage ceremony is performed," and to
represent it " as one of the many lamentable cor-
ruptions of Christianity, alike repugnant to reason
and contrary to Scripture ;*' they not only betray
their own indiscretion, but they multiply the sub-
jects in dispute, at the same time that they preclude
a favourable issue of the controversy, and supply the
means of evading the principal question ; because
the clergy of the Church of England cannot ac-
quiesce in the imputation of absurdity, falsehood,
and corruption, to doctrines which they have learned
to believe, in as perfect sincerity, upon as diligent
and patient investigation, and with as full conviction,
as the body of Unitarians have been persuaded to
deny them. If therefore the truth and authenticity
of the doctrine of the Trinity are called in question,
there can be no compromise ; that doctrine must be
190
maintained in its full extent ; and no concession can
he made which involves the shadow of a doubt or
dereliction of that fundamental truth.
It is very true, that the office of matrimony
implies a recognition of the doctrine of the Trinity,
in whose name it is performed ; but it is not im«
material to observe, that that recognition, as it is
recited by the man, is expressed in the very words
of Scripture. The man does not take the woman,
as it is familiarly but not accurately observed, in the
name of the Trinity, but in the name of the Father,
and of the Son, and of the Holy Ghost. In the
former case the man might at once deny the doc-
trine, and pretend that it was an unauthorized infer-
ence from Scripture: but in respect of the actual
formulary, although there may be some ambiguity,
and an appearance of disingenuousness, in the min-
ister's dictating the words in one sense, and the
man's repeating them in another, yet are they words
of authentic Scripture, which both parties may in-
terpret according to their respective rules of exposi-
tion. " If conscience had any share in the ob-
jections which Unitarians make to the language of
the marriage service, they must equally object to the
Scriptures themselves ; for the obnoxious terms are
the express words of the New Testament, and are
retained by the Unitarians in their translation of the
New Testament; and, incredible as such incon-
sistency may appear, they are the very words of
their own baptismal office, and are there introduced
as the foundation of the Christian faith. Whatever
meaning, therefore, they may be accustomed to at-
tach to the words in one service, they may equally
191
retaiD in the other^.'^ In their objections to thifc
formulary in the office of marriage, the Unitarians
expose themselves to the charge of singular incon-
sistency. If they admit, as. they profess to admit,
the authority of the Scriptures, without disputing
the authenticity of the words of our Lord, Matt^
xxTiii.. 19» and nevertheless object to the use of those
words because the use of them implies a recognition
of the doctrine of the Trinity, (and the objection of the
Freethinking Christians is unquestionably founded
on the use of those words,) do they not virtually,
although unintentionally, acknowledge, that the doc-
trine of the Trinity is contained in those words, at
the same time that they affirm of that doctrine, that
\t is contrary to Scripture ? And are they not also
liable to the charge of insincerity to themselves, in
professing to uphold the authority of the Scriptures,
and denying the doctrine which it confessedly recog-
nizes and implies ? and of disingenuousness to the
public, in claiming relief from an imputed grievance,
on the pretext that it implies the recognition of a
doctrine which they profess to be at once implied in
the Scriptures and contrary to the Scriptures ?
There is nevertheless a question, a highly delicate
question, which is worthy of the most serious dis-
cussion, and probably, if it be treated with candour
and forbearance, not incapable of eventual adjust-
ment. That question is. Whether the solemnization
of marriage necessarily requires a recognition of the
doctrine of the Trinity ? Whether it is essential to
y Speech of the Bishop (Burgess) of St. David's, on the Unita-
rian Bill.
192
the nature of marriage that it be ratified in the name
of the Father, and of the Son, and of the Holy
Ghost? Baptism, it is conceived, can be admin-
istered in no other name : it is the formulary divinely
appointed for the administration of that sacrament,
in alt nations, and until the end of time ; which no
human being is at liberty to alter or disuse. But
the application to other rites of the mysterious name,
which is divinely appropriated to baptism, is but the
ordinance of man, and may be su[>erseded by the
authority of man. There is the most ancient, the most
constant, and the most uninterrupted tradition of the
use of this name in the administration of baptism,
while the origin of its improper use is uncertain and
obscure. One of the earliest instances which has been
discovered after some inquiry, is on occasion of the
infusion of the bread into the wine of the Eucharist,
upon which this name is recited in the Liturgy of
Saint James: but the work is certainly not au-
thentic, and in its present state not more ancient
than the time of Constantine. The same name is
used by Cyprian, in an act of excommunication ;
and it occurs in the same sense in the apostolical
history of James the Great, a work comparatively
modern, and of no value or authority. There is no
trace of its use in respect of marriage, in any of the
writings of the three first centuries ; nor in the
Summary of the writings of Augustin, pubhshed by
the Jesuit, Hieronymus Torrensis; nor in the ac-
count which Isidore of Seville* has left of the rites of
marriage in his time ; nor in the form of blessing the
•
* De Div. Off. 1. ii. c. 19.
193
bride in the Ordo RomaDus, and the ancient liturgies
of the Latin Church, publishcrl by Muratori ; all of
which are supposed to have been compiled before
the ninth century, and which consist chiefly of
prayers subsequent to the espousals*; and although
marriage has been since celebrated in this name in
the Greek and Latin Churches, in the Lutheran
Churches of the continent, and in the Episcopal
Churches of Scotland and of America, there is no
trace of the time or the occasion of its introduction.
Men appear not prepared to investigate the origin of
its misuse ; they are surprised by the novelty of the
question, and unable to resolve it any further, than
by suggesting the probability that the celebration of
marriage in this name was coeval with its elevation
to the character of a sacrament.
It has been said, that the Church of England^
rests on the doctrine of the Trinity ; and the saying
18 just, because the Church of England rests on the
Scriptures, which admit no harmonious interpreta-
tion from which the doctrine of the Trinity is
excluded. With the exception, however, of the
offices of baptism, to which it is indispensable, and
to which, as it is humbly conceived, its strict re-
servation would be most agreeable to the divine
institution, thefre is no office of the Church, in
which this divine formulary occurs, besides the office
for the solemnization of marriage, to which it is less
necessary and appropriate, and in which its place
might be easily supplied by an unexceptionable
allusion to the Words of Scripture : The Lord hath
* See Appendix, No. III.
VOL. I. O
194
been witness between thee and the wife of thy
youth ^. If the name of the Father, and of the Son,
and of the Holy Ghost, should thus be removed
from the man's avowal of the covenant, the declara*
tion of the marriage by the minister might be
positively affirmed, and there would be no difficulty
in arranging the form of the nuptial benediction^.
The final benediction in the present office, in which
it is singular that there is no allusion to the doctrine
of the Trinity, nor even to the mediation of Christ,
might immediately follow the publication of the
marriage, as in the American liturgy, from which
the benediction, " Grod the Father,'' &c. is ex-
punged, without throwing any suspicion on the
/faith of the American Church, which explicitly
maintains the doctrine of the Trinity. It is sug*
gested also, whether the Psalm which ought to
accompany the procession from the body of the
Church to the Lord's Table, might not be conve-
niently transferred to the end of the prayers, and
precede the final blessing, which might consist of
the sublime benediction of the Apostle, Heb. xiii.
21, 22.
In adopting from the Romish missals the words
used in the delivery of the ring, the compilers of the
liturgy were not servile copyists of the ancient su-*
perstitions. Formerly the ring was placed upon the
thumb and the three adjoining fingers, and the man
was directed to say, as he touched the thumb with
^ Mai. ii. 14.
^ The ancient form was, Benedict! 4- sitis a Domino, qui mun-
dum fecit ex nihilo. See Appendix, No. III.
195
the ring, In the name of the Father ; and to make a
cross : as he touched the forefinger with the ring, he
proceeded, and of the Son ; and made another cross :
as he touched the third finger he added, and of the
Holy Ghost ; with another cross : and as he de-
posited the ring on the fourth finger he said. Amen ;
making another cross. A prayer aiul benediction
were also delivered over the ring, .before it was given
by the priest to the man. It would be analogous to
the disuse of these pmyers, that the man should
deliver the ring directly to the woman.
The old superstitions were not unworthy to be
called " the mummery of the ring,^' and were very
properly abolished : and no Unitarian, however he
may object to the office now in use, can fail of
observing, that the only words which he is required
to repeat, are words of canonical Scripture. He
may disapprove the use of the Triune name upon
the occasion, and allege the appearance of disin-
genuousness and equivocation, under which the
words are dictated by the minister in one sense, and
repeated by the bridegroom in another; but they
are nevertheless scriptural words, and admit, accord-
ing to the principles of each, a scriptural interpreta-
tion. It is suggested to the temperate, candid, and
honest Unitarian, not without hope, that he may see
that there is the most imminent danger in granting
to him a licence to marry in his private conventicle,
which will afterwards be claimed by every fanatic in
credulity and unbelief: that even the existing ritual,
in the words which he is required to use, lays no
burthen upon conscience, which is not founded in
Scripture, and may be so revised as to satisfy his
o 2
196
most sensitive and delicate scruples. The case of
the Freethinking Christians, as stated by themselves,
is more desperate ; and the difficulty of accommo-
dation to a sceptical frenzy only increases the danger
of concession. The registration of marriage would
be as just a grievance as an act of social prayer; and
it is worthy of remark, that the advocates of the
Unitarians do not profess to offer relief to the Free-
thinking Christians. The best proof, however, of
the irrelevance of the objection to " the interference
of any human institution with matters which con-
cern their faith and conscience,^' is derived from the
principles and practice of the great body of dis-
senters, who, treating marriage as a civil affair,
submit to the will of the magistrate in regard to the
circumstances of the rite, without complaining of
oppression or soliciting redress.
To such as would concede, and are offended with
those who scruple to concede, to Unitarians in par-
ticular or to dissenters in general, the privilege of
marrying in their several conventicles, it is sub-
mitted, that the concession involves no less than the
abandonment of the religious ratification of marriage,
and the degradation of marriage to a merely civil
contract. Such concession cannot be made without
violating the common law of England, which has
always upheld the religious ratification, and the esta-
blished practice of the Church, in which it has pre-
vailed from time immemorial: and the effect of a
general concession, unavoidably resulting from a
particular concession, may be the means of renewing
the fiicilities of clandestine marriage to an extent,
and with a force, which it may be difficult to re-
197
strain. The acquiesceDce of the great body of dis-
senters, under the existing law and ritual, is an
unexceptionable proof of the inexpedience of the
proposed concession.
It has not been concealed, that the ritual of the
Church is liable to many and just objections : and
an attempt has been made to shew that they may all
be removed by a judicious revision, without the
compromise of any necessary doctrine, and as is
humbly conceived, to the improvement, and therefore
to the confirmed stability, of the English liturgy.
The proposition has been conceiyed in secret, and
matured in solitary meditation ; it is not adapted to
the views of the bigot or the partizan ; and it is
submitted, not in the mere love of innovation, or the
idle ambition of inconsiderate reform, but in all
humble earnestness and zeal for the purity of Chris-
tian doctrine and worship, to the scholar, the gen-
tleman, the Christian, the wise and enlightened
governors of the national Church. The revision of
an unexceptionable formulary is a debt which the
Church owes to her own character, which requires
the removal of every offence, and the administration
of all her offices in apostolic decency and order : it
is an act of appropriate sympathy with the delicate
feelings of many clergymen, who are equally averse
from the use and the disuse of the authorized form :
it is a work of wisdom and address, which will
restore uniformity in the celebration of the office,
and by removing objections^ of whatever value, will
uphold the continuance of the reUgious ratification
of marriage ; and will exhibit a new proof of the
tolerance and moderation of the Church, and of her
o 3
\i)S
concern for the welfare of all who profess and call
themselves Ciiristians : it is an office of the largest
and most unbounded charity, not to give counte-
nance to the errors, not to justify the objections, not
to exasperate the prejudices, not to promote the
entire separation, of any sectarian body, but to seek,
in the divisions which unhappily prevail under the
name of religion, the reunion of the Christian body,
and to persuade each and every member of it to
perceive and acknowledge, through the perfection of
her ritual, that the beauty of holiness is manifest in
all the offices of the Church of England,
CHAPTER III.
IMPEDIMENTS WHICH PRECLUDE AND VITIATE
THE CONTRACT OF MARRIAGE.
SECTION I.
Incesttums and Illicit Marriages.
The acknowledgment of the divine institution of
marriage combined with a just view of the compre-
hensive terms in which that institution is delivered,
and of the indissoluble nature of the relation which
is contracted in conformity with that institution,
imposes the necessity of the most rigid and scru-
pulous care in respect of the circumstances under
which the celebration of marriage shall be prohi-
bited, and the ratification of marriage shall be super-
seded and annulled by the provisions of human laws.
The history of the divine institution is recorded in
terms the most comprehensive and unlimited. It
was not good in the judgment of the divine wisdom
that man should be alone ; woman was created to
be an help meet for him: and when they were
brought together it was ordained, that for this cause
a man should leave his father and mother, and cleave
unto his woman, or wife, and they should be one
flesh '^. It will not be denied, that the words man
* Geo. ii. 24. Ainsworth in loc.
O 4
200
and a^omaii are here used reciprocally, that the man
should leave his parents and the woman should leave
her parents, and that they should mutually cleave to
each other : neither will it be denied, that the words
man and woman are also used distributively in the
widest and most indefinite sense for the freedom and
power possessed by each and every man to enter
into the state of matrimony. The nature of marriage
exhibited in the primary law is, that the parties shall
cleave to each other in such permanent and indisso-
luble union, that they two shall become one flesh.
It is an unavoidable conclusion from this view of
the divine institution, that all laws which have been
enacted at various periods for the purpose of pro-
hibiting marriage among particular classes or orders
of mankind, as of slaves and of the priesthood, or of
annulling the marriages which have been contracted
in opposition to any arbitrary restrictions, are at
once an unjust infringement of human liberty, and a
daring contravention of divine authority.
It would at the same time be vain to assert, thdt
the primary law of marriage admits no exception
^ or qualification. It is easy to conceive, that a mar-
riage may be contracted in opposition to the divine
institution ; that it may frustrate the proposed ends
of marriage; that it may be interdicted by some
particular restrictions of divine authority, which form
a case of exception to the general law and liberty of
marriage. Marriages contracted under any of these
circumstances would want the authority of divine
institution, which is the grand principle of valid
marriage, and being contrary to the ordinance of
201
God, they could not b^ ratified in his name and
with a religious and solemn invocation of his bless-
ing. The union would depend upon terms so dif-
fefent from those which Grod's word doth allow as
to justify the assertion, that the parties were not
joined together by God, and that their marriage was
not lawful.
It is of importance to ascertain what are these
characters of invalidity and prohibition, not only as
they are unfolded in the divine institution, but as
they are found to prevail, with various modifications,
in all ages, in all countries, and under all dispensa-
tions of religion, with a frequency and concurrence
which almost argues and implies some universal,
primeval, and divine prohibition, from which the
restrictions of men have been collected and deduced.
•An instinct, almost innate and universal, appears to
prohibit the incestuous marriage of parents and chil-
dren, and the evils inseparable from the necessary
disparity of years, the difference of tempers and
pursuits, and the probabilities of an early widowhood
and orphanage, are alone sufficient to form the rea-
sonableness of the prohibition. The prohibition also
corresponds with the natural sense of propriety, and
is necessary to maintain the distinct relations of
society, and the duties appropriate to those relations.
The reverence which the child owes to the parent
would be immediately inverted by the marriage of a
son with a mother, or a daughter with a father : and
it would be a strange confusion of kindred, under
which a woman should be the wife of her son, or the
mother of her husband, and a man be the brother of
202
bis own children^. The easy iamiliarity, the mutual
confideuce, and the delicate forbearance, wbicb form
tbe cbarm of domestic life, would be immediately
destroyed, as among the Druses they are in fact
destroyed, by tbe possibility of such marriages ; and
in their stead would be introduced the malignant
influence and unnatural restraint of jealousy, suspi-
cion, and distrust. That purest love which a father
is said to feel towards a daughter must be restrained
from degenerating into a less holy passion : the heart
of a mother must not be distracted with continual
anxiety ; and the tenderness of a sister^s affections
must be protected from the generous attentions of a
brother. The many opportunities of early associa-
tion, and the natural approximations in the disposi-
tions of youth, would produce a prevalence of such
marrii^s, and families would be isolated and de-
tached from the great body of society, which by the
force of the existing restrictions is consolidated, and
in a condition to be more and more consolidated,
by the union of one family with another, gradually
extending the primary connexion of marriage, and
'strengthening the bonds of civil society, by repeated
and enlarged affinities. There are reason therefore,
and nature and necessity, and the interests of peace
and virtue, both in public and in private, all pleading
ifurw^H Ti urn ^4fWf. Soph. (Ed. Tyr. v. 457.
IK fMir^H <|A^ mf rmXmwif^w ^*X^
wmihH r mhkp9Vi irvMr. Eur. PhoeDiss. ▼. 1603.
203
together, for the establishment of some restrictions
upon marriage, for restrictions which all the wise and
good have approved, and which have been violated
by none but the most unhappy, the most barbarous,
or the most depraved*.
These restrictions have been classed^ under the
two general heads; 1. of proximity in respect of
natural relation ; and 9. of disparity in respect of
religious and civil distinction, of personal condition,
and of age. When marriages are contracted in op-
position to the restrictions of human law they are
called illicit : when the restriction is founded in the
Scriptures they are called incestuous or nefarious:
incestuous, because they are unchaste, {incestce,) or
more properly in allusion to the cestus^ or girdle, of
Venus, which in a lawful marriage was worn by the
woman, and loosed by the husband, as an auspicious
omen of conjugal and parental happiness, and the
disuse of which, in an unlawful marriage, rendered it
incestuous, or ungirdled : and nefarious, either be-
cause they were without right, {fas^) or because
those who contracted them were unworthy of the
corn, {Jar^) which is the bread of life, or, if the con-
jecture may be allowed, because they were not con-
tracted with the offering of corn, [Jarre^ which was
usual in the most solemn marriages. It is a common
and just distinction, that the power of human laws
extends to the prohibition of illicit marriages, but
"^ Gibbon's Roman Empire, c. 44. Wheatly on tlie Common
Prayer, c. x. s. 2. Gerhard de Conjug. s. 322, 323. Cic. de
Off. 1. i. 8. 17.
* Gerhard, s. 238.
204
that none but incestuous marriages can be dissolved
and rendered void after the ratification, which can
only be counteracted or superseded by the authority
of a divine prohibition'.
The primary law of marriage requires, that the
man shall cleave unto his wife, so that they two
shall become one flesh : and thus it precludes every
kind and description of adultery, of polygamy, and
of community of wives: in the abandonment of the
filial, and the preference of the conjugal, relation it
supposes a voluntary agreement of the parties, and a
capacity of fulfilling the duties of marriage, and thus
precludes the marriage of children, of idiots, and of
madmen, who are not capable of entering into this
agreement, and whose union would disappoint the
great ends of marriage, the mutual consolation of
the parties, and the religious education of the pro-
geny. The Jewish doctors have drawn a further
inference from that sentence of the institution which
the Chaldee paraphrase translates. He shall leave the
bed of his father and mother; which they appre-
hend, not without reason, to be the primary and
universal prohibition of all incestuous marriages,
comprehended under the specific interdiction of
marriage with a mother, and with a father's wife or
mother-in-law ^
From the terms of the divine institution of mar-
riage, the Jewish doctors collect five kinds of in-
cestuous commerce; 1. with a mother; 2. with a
mother-in-law or fether^s wife; 3. with a neighbour's
• Wheatly, c. x. s. 2. Gerhard, s. 289, 292, 361. ' Ains-
worth in Gen. ii. 24.
205
wife; 4, 5. by unnatural passion. To these they
add connexion with a sister by the motlier's side,
which they infer from the words of Abraham, who,
in speaking of Sarah his wife, and excusing bis pre-
tence that she was his sister, admitted that she was
the daughter of his father, but not the daughter of
his mother^. These restrictions, with five other
principal laws against idolatry, against blasphemy,
against shedding of blood, against robbery, and con-
cerning the punishment of malefactors, which, as
they contend, were in force from the time of Adam,
with a sixth, especially delivered to Noah, concern-
ing the eating of blood with the flesh thereof, they
conceive to be of universal obligation, and to com-
prehend all the posterity of Noah. Any man, who
would not comply with these, rules, was judged
worthy to be slain with the sword ; and any of the
heathens, who would submit to these moral laws,
although they rejected circumcision and the other
ordinances of the Jews, were permitted to dwell in
the land, even in the priests' houses, but restricted
from the use of sacred things, and were called by
the name of sojourners among them, or of strangers
within the gates ^. It was a disputed point among
the Jewish writers, how far the Grentiles were bound
to observe the restrictions imposed upon marriage in
the Levitical law : but it was the general opinion of
the Talmudists, that the Gentiles were only required
to conform with such restrictions as were of natural
law, and obligatory upon all mankind, and that,
* Oen. XX. 12. See Aiiuiworth on Gen. ix. 4. ^ Aiosworth
oa Gen. ix. 4. Exod. xii. 45.
206
although these restrictions were introduced, in com-
pany with other restrictions peculiarly appropriated
to the Jews, they were under no obligation to com-
ply with any of those particular interdictions which
were not founded in the law of nature. The Israelite
was bound by all the Levitical restrictions : the pro-
selyte, or stranger within the gate, was restricted
only by the six precepts of natural and universal
law. The Gentiles were restricted, says Maimo-
nides, from marrying their mothers, their fathers'
wives, their sisters by the mothers' side, from adul-
tery, and from unnatural lusts: other marriages,
otherwise forbidden under the name of incest, were
permitted and lawful to the Gentiles'.
There are plain and obvious traces of the original
prohibition in the practice of the two principal na-
tions of antiquity, and of their incorporation under
various modifications in the laws of Greece and
Rome.
The Grecian laws of marriage were very simple,
and comprised but few exceptions or restrictions.
The multiplied and incestuous marriages of their
fabled deities, which afforded to the primitive apolo-
gists^ abundant matter of sarcasm and invective on
the prevailing idolatry, were not allowed to influence
the conduct of individuals. That the gods had their
own laws, and that it was not for man to force
human rites to covenants that were celestial and
entirely different, was the ingenuous argument of a
sister in contending with her own unlawful passion
* Selden. De Jure Nat. et Gen. 1. v. c. 11.
kTheophil. ad Autolyc. 1. iii. s. 8. Min. Felix, s. 21, 22.
Clementin. Hom. iv. s. 16. Cf. s. 24. Horn. vi. s. 18.
207
for ber brother. The Grecian laws required a com-
petent age in the parties to be married, and they
restricted polygamy, and marriages within certain
d^ees of consanguinity, and with aliens.
The laws of Sparta, without defining the exact
age, required, that both men and women should
maintain the full maturity of their strength before
their marriage. The legislators, philosophers, and
poets, of Athens were divided in their opinions of
the age of marriage, which was left to men from the
thirtieth to the thirty-seventh, and to women from
the sixteenth to the thirtieth, year of their age\
Polygamy was so far from being tolerated in
Greece, that the Greek word for marriage is sup-
posed to be derived, in a singular conformity with
its primitive nature and institution, from the union
of two persons together, (yaf^^ «afa to Svo dfM bwm,)
Anaxandrides of Sparta, in taking a second wife,
compromised his own judgment to the will of the
Ephori, and the necessity of preserving the race of
Eurysthenes ; and it is recorded of him by Pau->
sanias, that he was the only Spartan who had two
wives ; and by Herodotus, that in having two wives
he acted by no means in a Spartan manner'". Nor
was there any thing peculiar in this practice of
Spaita. The other Grecian states agreed with the
Lacedemonians in restricting polygamy, except upon
particular emergencies, especially of a want of men
arising from famine or from war, which were thought
to justify, with permission of the magistrates and the
'Pottei^s ^ntiq. b. iv. c. 11. "^ Ov^i^f Ssw^ritriM.
Herod. Terps. s. 39, 40.
208
people, a more unrestricted liceDce. Euripides is
indeed supposed to have imbibed his hatred of the
sex from the persecution which he sustained under
two wives : but the imputation upon Socrates, that
he was married at the same time to Myrto and
Xantippe, has been disputed, and in the judgment
of Plutarch satisfactorily disproved".
Marriage was not contracted without offence within
certain degrees of consanguinity**. The Pytha-
goreansP affirmed, that the discipline of the Grecian
states required the interdiction of marriage with a
mother, a daughter, and a sister. Socrates % from
its universal prevalence, assigned the prohibition of
marriage between parents and children to a natural
and divine institution, of which the violation wrought
its own penalty : and Plato' took up the argument
of his master, and maintained the inexpedience of
these marriages, in consideration of the evils which
are inseparable from the disparity of age. Aristotle'
also condemned the community of wives, on the
ground of its tendency to produce matrimonial in-
tercourse between parents and children, and between
brothers and sisters. The common feeling of Greece
upon this subject may be inferred from the history
of (Edipus, which forms the most affecting tragedy
of the Grecian theatre, resulting in a yofu)^ ayo/xo^, an
incestuous marriage which ought not to have been
" Potter y b. iv. c 1 1. "* Potter. Selden de J. Nat. et Gent.
1. V. c. 1 1. P Jamblich. de v. Pythag. apud Selden. ^ Xen.
Mem. Socr. 1. iv. c. 4. ' De Leg. 1. iv. apud Gerhard.
* Politic. 1. ii. apud Gerhard.
209
celebrated, and was in fact no marriage'. Euripides
makes Hertnione" to speak of the intermarriage of
brothers with sisters, and of parents with children,
as the practice of barbarians, which their laws did
not restrain, but which, according to Plato, were in-
terdicted by the unwritten law of the conscience*.
The story of Phaedra and Hippolylus disproves the
lawfulness of marriage with a step-mother. The
Lacedemonians were forbidden to marry any of their
kindred in the direct line of ascent and descent: and the
samerestriction was admitted by Plato, in hisimaginary
republic'; in which he allowed marriage in all cases,
with the only exception of children and children's
children, of parents and the parents of parents.
The marriage of collateral relations, as of uncles
and nieces, aunts and nephews, was not interdicted ;
and thus Anaxandrides married his niece, the daugh-
ter of his sister; and Dionysius gave to Dion his
daughter Arete, who was the niece of Dion, the
daughter of his sister Aristomache'. The marriage
of brothers and sisters was utterly unlawful, and the
common example of the Gods was not permitted to
justify an incestuous passion. The marriage of half
sisters was regulated by different laws. The Spartan
law of Lycurgus allowed the marriage of those who
had the same mother but different fathers ; the
Athenians were forbidden by Solon to marry sisters
by the same mother, but not those by the same
9««{u ni m^»ftti yafut wmXat
rMMvrr* luu mnvfunr. Soph. (Ed. TyT. V. 1214.
Cf. V. 1256, where Jocaata is called yviMn* r tv yvMsu*.
** In Androm. *. 173. * nywr <iy(«fn. apud Gerhard.
> De Republica, 1. v. apud Selden. ■ Corn- Nep. in v. Dion.
VOL. 1. P
210
father: nor was a man permitted to approach the
apartment of his step-mother or her children, though
living in the same house ; which is the reason given
by Mr. Hume, why, by the Athenian laws, one
might marry his half sister by the father ; for as
these relations had no more intercourse than the
men and women of different families, there was no
greater danger of any criminal correspondence be-
tween them^. Under this law Archeptolis, the son
of Themistocles, married his sister Mnesiptoleme ;
and Cimon married his sister Elpinice. Such mar-
riages were entirely approved by the laws and cus-
toms of Athens; they were celebrated in public, and
in undisputed conformity with the manners of the
country. Cornelius Nepos^* expressly relates, that
Cimon, in marrying his sister, was influenced, not
aiore by love than by the practice of his country, for
it is the law of Athens, that a brother may marry
his sister, the daughter of his father. At Syracuse
also, Dionysius the elder gave to his son Dionysius
his daughter Aristomache, who was the sister of her
husband on the father's side"^.
The Athenian laws contained a singular exceptioft
to the prohibition of marriages upon the ground of
consanguinity, which was probably derived from the
Jewish law^ of inheritance, and which not only
permitted but required the orphan heiress to marry
her nearest relation. Terence* has more than once
recited the substance of this law, which ordained,
that women who were orphans should marry such
z Millar on the Origin of Ranks, p. 95. '' In Cimone.
^ Ibid, in Dione. ^ Niunk xxxvi. 6, 7, 8. ^ In Adelph.
act iy. K. 5. Phormione> act i. ac 2.
211
as were nearest of kin, and that their nearest of kin
should many them. The- law did not permit the
heiress to marry out of her kindred, but obliged her
to resign herself and her fortune to the nearest re-
lation, whose claims were examined by judges who
sat for the purpose every month, and rejected such
as were not able to give sufficient credentials of their
consanguinity ^
The Grecian states did not allow their citizens to
many with any who were not citizens', and they
enforced the law under various and heavy penalties,
condemning the issue of a' prohibited marriage with
a foreigner to perpetual slavery ; ordering the of-
fender to be summoned before the Thesmothetae,
and, upon hia conviction, adjudging him to be sold
for a slave, and his goods to be confiscated ; he was
also liable to a penalty of a thousand drachmae.
If a person should impose upon a citizen of Athens
a foreign woman, under pretence that she vras bis
daughter, he was liable to a sentence of ignominy,
by which he was deprived of a voice in the public
assembly, and of other privileges of a citizen. These
laws were not always in force ; when they fell into
disuse they were successively revived and super-
seded at the instance of Pericles ; and it was ulti-
' Fr. Hntman d« Rit. Nupl. el Matr. c. vi. Potter, b. i
■ n y, » TUfit, UEi ytftun in vAvif
{■■Mm ft If^uim <xt»,
AjufTTt makMiytiw
YMfii' tinum f(T«t. Eur. Phoen. v. 34().
p2
212
mately enacted, that no persons should be citizens
of Athens, either of whose parents was not free.
Lawful marriage at Athens could only be celebrated
between free citizens ; and none but the issue of
lawful marriage could inherit the father's estate.
The Athenian bastard was born either of a stranger
or a harlot: the characters of the legitimate son
were, that he was born of a woman that was a
citizen, a wife; that is, born in lawful matrimony^.
The Roman law of marriage was embarrassed
with many restrictions and prohibitions ; of which
some were agreeable to the primary institution, but
the larger portion was founded on arbitrary prin-
ciples of political expedience, very remote from the
simplicity of the original rule. A cursory and su*
perficial view of these restrictions will exhibit many
curious instances of the presumption and imbecility
of Roman legislation in particular, and generally of
any human interference in the law of marriage.
Among the Romans the validity of marriage was
dependent on the several circumstances, 1. of age;
2. of country ; S. of state or condition ; 4. office or
power, civil or natural ; 5. consanguinity .and af-
finity, including adoption.
A certain age was necessary to the validity of
marriage; but espousals were permitted at an age
when marriage was not lawful. Infents under the
age of seven years, being incapable of assent, could
not be espoused : but after that age they might,
with the sanction of their parents, contract espousals ;
ymfins n is n/ufun ymfutf. Horn. Schol. Jul. Pollux, in Potter,
b. i. c. 9.
213
but when they attained the proper age their own
consent would be also necessary to the contract of
marriage. For the purpose of obtaining the rewards
proposed to husbands by Augustus^ in the Papian
and Poppean laws, " pretended marriages were con-
tracted with children or females under age, and the
completion of course inde^nitely deferred ; and to
prevent such evasions and frauds, it was enacted,
that no marriage could be legally contracted with
any female under ten years of age, nor the com-
pletion of any marriage be delayed above two years
after the date of the supposed contract*/* The
principal restriction upon the age of marriage re-
spected the capacity of giving birth to children,
without which no marriage was lawful. This was
generally defined to be fourteen in the male, and
twelve in the female : and the law upon this point
ordained, that if a girl under the age of twelve years
should be contracted in marriage, she should not be
esteemed a just and lawful wife^, nor possess the
privileges of a wife before she had completed her
twelfth year. The lawfulness of marriage was cir-
cumscribed by the capacity in which it originated.
The Julian and Papian laws declared the marriage of
a man of sixty, with a woman of the age of fifty
' Ferguson's Rom. Republ. c. xxxviii. Fr. Hotman de Spon-
sal. c 2.
^ Fr. Hotman de Rit. Nupt. et Matr. c. 2. Hence arose a
questioD, whether, as this was not a perfect marriage, it was a
lawful betrothing; which some affirmed, on the ground that the
Act was not altogether inyalld ; and others denied, maintaining
that the essence of espousals consisted in the promise of a future
miurriage.
P 3
214
years, invalid, because it could Dot produce what
was supposed to he the true end of nmrriage, and
because it defeated the design of Augustus, who in
the construction of these laws contemplated the re«
newal of the population of the city, which had been
wasted by the civil wars : he was also influenced by
the petition of the Trachalli, whose mother had in
her old age married an old man ; but A ugustus
restored the maternal inheritance to the sons, and
took away the dower, because the marriage was not
contracted upon a proper motive and principle. This
part of the Pa plan law was rescinded by the Em*
peror Claudius, who procured a decree of the senate,
that if a man of more than sixty should marry a
woman of less than fifty years, the marriage should
be as valid as if the man had been less than sixty :
but if a woman of more than fifty should marry a
man of less than sixty, the marriage should be un-
lawful, and convey no right to inheritance or dower^
This contemptible trifling was at least worthy of its
imperial author.
Country formed another requisite qualification in
the Roman marriages, which could not be lawdilly
contracted but between Roman citizens. The chil-
dren of a foreigner by a Roman, whether man or
woman, were foreigners, inheriting the condition of
the inferior parent ; they were accounted' spurious,
they were called hybridoe, or mongrels, and their
condition was little better than that of slaves*".
They who were not Roman citizens could not ob-
' Briison de Juro Connub. *" Seoecai Ben. iv. 35. Adam s
Rom. Antiq. p. 462.
215
taio the right of marriage witliout first obtaining the
freedom of the city : even the Latins could not in-
termarry with the Romans upon any other condi-
tion ; and it is recorded as an especial favour which
was granted to the Caropanians, that, after they had
obtained the freedom of the city, and were cocQpre-
hei]ded in the roll and muster of the censors, they
sohcited and obtained permission to 'marry Koman
women, or to retain the wives whom they had pre-
viously married, with a recognition of the legitimacy
of the children who had been born to them". Antony
excited the greatest odium at Rome by his marriage
with Cleopatra, against the laws and customs of the
countiy"; and the people were so indignant at the
marriage of Titus with Berenice of Egypt, that he
was constrained to divorce her**. But when, by the
decree of Antoninus, all the people of the Roman
empire were declared to be citizens, marriage with
barbarians only was interdicted ; and even this re-
striction eventually wore ofT before the time of
Prudentius, when foreigners were admitted to the
rights of marriage*).
* Liv. Hilt. 1. xxjtrii.
* " Yet I much question, for I c&nnot atay to enquire, whether
the triumTir ever dared to celebrate his marriage either with
Roman or Egyptian rites." Gibbon, Rom. Emp. c. liii. n. 59.
" InvituB invitam dimiail. Suet, in Tito. " To -dismiss with
reluctance the reluctant Berenice." Gibbon.
* BriMon de Jure Con. Pr. Hotman de Hit, Nupt. et Matr.
C> 2. Prudentius contra Symmachum, 1. ii.
nniK per i^mtlit folcr*.
Eitsrai id ju coanubii ; a«m Murine mUlo
Texim sllcmi* ex g«Dlibiu una proptgo.
216
Difference of state, quality, or condition, consti«
tuted a third restriction upon Roman marriages.
Children were not permitted to marry without
consent of their fathers. This restriction has re^
cently formed the subject of a practical question,
and its details are therefore reserved for separate
discussion.
By the law 6f the Twelve Tables " the distinction
of Patrician and Plebeian was so great that persons
of these different orders were not permitted to inter-
marry;'' and the reason assigned for this prohibition
was, "lest the sexes, from passion, forgetting the
distinction of ranks, should in this manner unite
their families together';" and especially lest from the
ambiguity of their progeny the right of taking the
auspices, which had been hitherto appropriated to
the patricians, should be disturbed and claimed by
those who were not properly of Patrician rank, and
who could not claim to be the heirs of a noble
parentage*. It was not, long before this partial law
was repealed and superseded, at the instance of
Quintus Canuleius, who proposed to legalize the
marriages of Patricians with Plebeians. The fathers
were offended at the proposition, alleging, that their
blood was contaminated, and the rights of families
confounded ; that an attempt was made to bring
forwards the dregs of the people, and to effect the
confusion of public and private auspices ; that there
would no more be any thing pure and uncorrupt ;
that all distinctions would be removed ; that no man
would any more know himself or his posterity ; and
r Ferguson's Rom. Rep. c. 2. * Brisson de Jure Connub.
217
that, by the permission of these promiscuous mar«
riages, the intercourse of Patricians and Plebeians
would be as unrestrained as that of the beasts of the
field. It was justly answered by Canuleius, that
the people asked no law of marriage which was not
already given to neighbouring and to foreign states ;
that their conquered enemies possessed the right of
the city, which was more than the right of marriage ;
that the law was but a recent innovation of the
decemvirs, carried by the worst precedent, and with
the highest injury to the people, who could suffer
no greater reproach than to be rejected, as contami-
nated and unworthy of marriage ; that the nobility,
which the law sought to preserve, was itself of
foreign extraction, or of royal gift, or of popular
election ; and might be sustained by a private reso^
lution, not to marry, and not to suffer their daughters
or sisters to marry, into Plebeian families, without the
insult and contumely of a public law, by which the
society of the city was divided and distracted. There
would be equal justice in interdicting the Patricians
and Plebeians from the use of the same neighbour-
hood, the same entertainments, the same road and
forum. They asked but the right of citizens, nor
could their petition be rejected without meditated
insult and indignity, nor could the union of the city
be revived, unless the right of marriage was restored,
and the people were again permitted to coalesce, to
be joined and consolidated in the familiar union of
domestic life^
The laws which were passed by the management
' Lit. Hist. 1. iv. t. 1-^.
218
of Augustus, under the titles of the Julian law de
mariiandis ordinibusy and of the Papian and Pop-
pean laws, comprised many prohibitions of marriage,
which as they directly militated against the em-
peror's design of encouraging marriage, and restor-
mg the population of the city, can only be supposed
to have been so deeply incorporated in the prevailing
laws, customs, and principles of the age, that even
the last necessity of the state, and the will of the
sovereign, could not remove them.
The principal provision of the Julian law was,
that senators and the sons and daughters of senators
should not marry the sons and daughters of freed*
men, nor any persons, who, themselves or whose
parents, had used the art of a player. The law
included the children of senators by adoption, as
well as by birth ; the latter interminably, the former
until the time of their emancipation : it included
also their grandchildren, who were not permitted to
marry into the family of the freedmen, with the
exception probably of the iiberti aureis annulis.
The alleged principle of this law was, that the dig-
nity of the highest rank should not be compromised
by matrimonial connexions with an inferior rank ;
and the effects of violating the law, and indeed of
invalid marriages in general, were, 1. that there
could be no dowry, for dowry implies the validity
of the marriage, but the dowry was not forfeited to
the treasury, which was peculiar to incestuous mar-
riages; 9. that the daughter of a freedman, who
ishould impose herself for an ingenuous woman on
one of senatorian family, would be liable to an
action ; 3. that the children born of such marriages
219
would not be legitimate ; 4. that the action ref*um
amotarum could not be brought by persons thus
united ; 5. that no action for adultery could be
brought, as by the husband against the wife ; 6. that
the presents which they should make to each other
would be forfeited to the treasury. There were
neverthdess exceptions to this law. If a man of
senatorian rank should marrv a woman of libertine
condition, she would not be his wife while he re-
tained his dignity, but she would nevertheless be in
a condition to become his wife, if he should lose it.
With the pennission of the emperor, a senator might
lawfully marry a woman of libertine family; and
Augustus, when ^' objections were made to women
of high condition, permitted the nobles to marry
emancipated slaves".^^ It was an old question,
whether the marriage of a man with a woman of
libertine family was vitiated by his elevation to the
senatorian rank, which was the opinion of the an-
cient lawyers, but most justly superseded by Justi-
nian. If the daughter of a senator should be married
to a freedman, her marriage would not be disturbed
by her father's degradation from the senatorian rank.
If a senator^s daughter should degrade herself by
acting, or by prostitution, or should be publicly
condemned, she would be firee to marry into a freed-
man's family ; and the widow of a senator, who was
not herself born of senatorian family, might marry a
fieedman, because the prohibition extended only to
the children and descendants of senators '.
* Ferguion s Rom. Rep. c. xxxviii. " Briason de Jure
Connubii.
220
These restrictions were confined to persons of
senatorian rank, with the exception of whom the
Papian law permitted other ingenuous persons to
marry the daughters of freedmen, and affirmed the
legitimacy of their issue. Even to these however it
proliibited the marriage of the actress, the bawd, the
prostitute, and the adulteress, and the woman who
had been condemned upon public trial. It was
indeed a general rule, that between persons of free
and persons of servile condition there could be no
valid marriage. If a free woman should marry a
slave, the marriage would be null, and the issue
would be slaves : and if the woman should persist in
the marriage, after three proclamations by the master
of the slave, she was herself liable to be sold for a
slave ^. If a slave should marry a freeman, the
dower could not become the property of the hus-
band, but by right of possession for the prescribed
period : but if she should obtain her liberty, while
she was living with her husband, the marriage would
be confirmed, and the dower might be reclaimed on
the dissolution of the marriage. Slaves attached to
the soil could not marry with free women, even with
consent of their masters: their children would how-
ever be free. Free men on the contrary might marry
with slaves attached to the soil, but their children
would inherit the condition of their mother*. These
are some of the subtle distinctions of the Roman law.
The Julian law rescinded the oath imposed on
freedmen and freed women, that they should not
' See TertulL ad Ux. I. ii. s. 8. * Fr. Hotman de Rit. Nu.
et Matr. c. 2.
221
marry, provided that they were disposed to contract
marriage lawfully. At the same time, it restricted
the freedwoman who should be married to her pa-
tron from marrying to any other without his con«
sent, so long as he was willing to consider her as
bill wife, and acted towards her in the capacity of a
wife\
' Thus the Roman law, in respect of diflFerence of
txuidition, interdicted the marriage of persons of
free with persons of servile condition : it restricted
the senatorial rank from marrying with the libertine
rank ; and it prohibited in all cases the marriage of
persons of ingenuous condition with persons of
licentious character and occupation.
The possession of certain offices formed a fourth
impediment, or restriction, upon marriage.
Marriage with the Vestal virgins was pronounced
iiicestuous and nefarious ; and it is one of the cha-
racteristic anecdotes of Heliogabalus, that he com-
mitted incest in most impiously defiling a virgin
who was consecrated to Vesta**.
Persons holding any office in the provinces were
forbidden to marry the barbarian women, the women
that were either born or resident in the provinces,
under the apprehension that they might abuse their
power, and rather force than conciliate these mar-
riages, which were therefore pronounced to be null,
Bnd liable to all the penalties of nullity. These
provisions of the old law were extended by the later
emperors to the children, relations, companions,
counsellors, and domestics, of the provincial officers.
de Jure Con. ^ Xiphilin. apud Brisson.
222
who were condemned to the loss of the arrhce spoi^
saliticB^ with this singular distinction, that if the
marriage had been completed contrary to law, the
woman was entitled to keep them ; but if espousals
only had been contracted, as these were not unlaw-
ful, she was bound to return them, unless she should
afterwards assent to the marriage. The provmcial
officer was also at liberty to marry a provincial
woman, to whom he had been espoused before he
proceeded to the province : and if he should marry
a provincial woman during his administration, and
at the expiration of his office both should assent to
confirm the marriage, the marriage would then be*
come lawful, and the issue legitimate. The pn>
vincial officers might also consent to the marriage of
their daughters, but not to the marriage of their
sons, with provincials ; and the reasons assigned for
this distinction are, the danger of delaying a daugh-
ter's marriage, and the greater interest which a father
may be supposed to take in the marriage of his son^.
A decree of the senate, in the time of Antoninus
and Commodus, prohibited guardians from marrying
their wards, and giving them in marriage to their
sons. The pretence for this prohibition was, that
guardians, under cover of marriage, might evade a
just account of their guardianship, and therefore the
law only extended until the woman should attain
her twenty-fifth year, when she had the power of
demanding the account. Until the woman attained
this age the interdict was extended to all persons of
whom' the account might in any wise be demanded.
« Brisson de Jure Con. Fr. Hotman. de Sponsai. c. 2.
223
The law did not however extend to a daugliter of
the ward, or restrain the guardian from marrying his
daughter to a male ward : and the guardian was
himself at liberty to marry a ward to whom he had
been betrothed, or destined by her father's will ; or
who was more than twenty-five years of age, or
whose account had been rendered: and if he was
already married to her, or had been appointed
guardian without his privity, the law did not super-
sede the marriage. In all other cases, the conse-
quences of violating this law were, besides the other
penalties of forbidden marriage, infamy, fine, im-
prisooment, and banishment"^.
The Roman law, contemplating their natural in-
capacity of consent, did not admit the marriage of
persons that were mad at the time of their marriage :
it authorized the marriage of persons that were deaf
or dumb*.
In respect of consanguinit}' and affinity including
adoption the Roman law was more simple, and
conformable with the primeval rule.
It restricted every kind of polygamy. It was
never Jawful at Rome to have more than one wife,
and a sentence of infamy was pronounced on the
offender who should enter even into a second
espousals. The tribune Caccina indeed, at the in-
stigation of Caesar, prepared a law that the Romans
should be permitted to multiply wives at their plea-
sure, but the law was never brought forward ; and it
is one of the many vices imputed to Antony, that
* BriMOD de Jure Con. Fr. Hotman de Rit. Nu. et Matr. c. 3.
* Briston. de Jure Con.
224
he was the Brst Roman who had two wives. His
bad example was followed by the Emperor Valen-
tinian, who, to cover his own offence, proposed a
law giving the same liberty to others, but the law
was not accepted. The infamy of the proposed
licence was recognized in the decrees of Valerian
and Gallienus, and of Diocletian and Maximianus,
and was only superseded by the capital penalty
enacted in the Constitutions of Constantine^
It was part of the ancient law of Rome, even from
the time of Numa, that a woman should not marry
within ten months of her husband's decease ; and
when, for the purpose of consolidating the union
between Antony and Octavius, it was proposed, that
Antony should marry Octavia, the sister of Octavius,
and the widow of Marcellus then recently deceased,
the marriage, in itself unlawful, was only sanctioned
by an especial decree of the senate. Ten months
constituted the ancient year of Romulus, and the
Emperors Gratian, Valerian, and Theodosius, added
two months to the time of the widow's mourning,
so as to make it again a complete year, within
which she was not permitted to marry, without
being branded with infamy, and degraded from the
honour and privilege of an honourable and noble
woman. Caligula, in dedicating the temple of
Augustus, gave permission to widows who were
not pregnant to marry within the limited period :
and it is recorded, that both Heliogabalus and
Anastasius married widows shortly after the decease
of their husbands. The restriction which was laid
' BriflsoD. de Jure Con.
225
upon widows was also laid upon women that were
divorced. In case of a divorce bond gratia, as it
was called, or with mutual consent, the woman was
not permitted by the constitution of Anastasius to
marry within the year : if she divorced herself with-
out just and sufficient cause, she was not permitted
to marry within five years ?.
The severity of the ancient law, in prescribing a
certain period of widowhood, prevented the inde-
cency of a widow's marriage while she was preg-
nant by a former husband. The chief instance of
such a marriage is that of Augustus with Livia, the
wife of Drusus, who, under the influence of his
passion, affected to consult the Pontifices, and they
consented to the sovereign's will, with the subtle
distinction, that if there was any doubt concerning
the father the marriage should be delayed, if there
was no doubt delay was unnecessary^'. Augustus
therefore married Livia, who within three months
became the mother of Claudius Drusus Nero, whose
birth was celebrated with sarcastic raillery on the
peculiar happiness of the emperor\ Similar mar-
riages are imputed to Hortensius with Martia, the
wife of Cato Uticensis\ and to Caligula with Mi-
* Brisson. de Jure Con.
^ Tac. Ann. I. i. s. 10. Dio xlviii. apud Brotier.
^ Plat, in Cato. Uticens. Such marriages resembled the prac-
tice not uncommon among the Greeks and Romans of lending a
wife : a practice which calls forth the just indignation of Ter-
tullian, Apologet. s. 39, where he eloquently contrasts the purity
and reserve of the Christian marriages with the licentious indif-
ference of the Roman and the Grecian marriages.
VOL. I. Q
226
Ionia Csesonia, with whom be had previously com-
mitted adultery ^
These restrictions upon polygamy were designed
to ascertain the legitimacy of the issue, and to up-
hold the reverence which is due from the wife to the
husband, and from the husband to the wife. In
respect of consanguinity, affinity, and even of
adoption, there could be none but invalid and in-
cestuous marriages in the right line of relations,
whether ascending or descending. It was incestuous
by the law of nations ; it was a violation of the
law of nature, divinely written and engraven on the
heart; it had been a corruption of common humanity
to sanction marriage between any who occupied the
relation of parents and children, between the father
and the daughter, the mother and the son, the
grandfather and the granddaughter, the grandmother
and the grandson. This was the Roman law, to
which none objected, but such as the Romans ac-
counted barbarous. The same provision was justly
extended to the issue of unlawful and servile mar-
riages ; and it was rightly judged to be contrary to
natural law and modesty, that a father should, under
any circumstances, marry his daughter". The vio-
lation of these restrictions was, under the ancient
law of Rome, a capital ofTejice, to be punished by
the Pontifices".
Neither did the Roman law give validity to mar-
riages between persons related by affinity. It was
not lawful to marry a Other's wife, nor a grand-
' Briison de Ju. Con. Fr. Hotman de Rit. Nu. et Matr. c. 5.
» Ibid. " Beza de Divortiis.
227
fttber's wife, nor a wife^s mother, grandmother, or
great grandmother. In language of indignation,
nearly resembling that of the apostle, Cicero in*
yeighs against a woman who had married her son-
in-law, without auspices, without authority, with
omens unpropitious. Ob ! the incredible wicked-
ness of the woman, wickedness unheard of but in
this single instance ! Oh ! the unbridled and unre-
strained passion ! Oh ! the extraordinary boldness !
The Emperor Antoninus Caracalla is the only re-
corded example of this inauspicious marriage, in
which he made his will the law, and gave the sanc-
tion to a practice which his authority should have
restrained, marrying his mother and adding incest to
parricide. Nor might the son's wife or the grand-
son's wife marry the father or grandfather of her
husband. Both of these marriages, of the mother-in-
law with her son-in-law and of the daughter-in-law
with her father-in-law, were confessedly incestuous,
and contrary to modesty, chastity, natural delicacy,
and reserve, and to public honour^.
The Roman law still further restricted the mar-
riage of a father with a woman betrothed to his son,
and of a son with a woman betrothed to his father ;
although they were not married, ^nd therefore not
property in the relation of daughter-iurlaw and mo-
ther-in-law. The decree of the Emperor Alexander,
also interdicted the marriage of children with the
concubines of their fathers?.
Persons related by adoption, in the degrees of
parent and child, were not permitted to marry even
® Brisson. de Jure Con. ^ Ibid.
<l2
228
after the emancipation of the adopted party, which
might otherwise have been effected for the purpose *<«
In respect of the collateral or transverse line of
relation the Roman law was very scrupulous, and
strictly prohibited the marriage of brothers and sis-
ters, whether they were bora of- the same father and
mother, or only of the same father or the same
mother'^. Cornelius Nepos, in recording the mar-
riage of Cimon with his sister, observes, that such
marriages were not permitted by the Roman laws,
and in truth the just provisions of these laws were
never violated but by such monsters as Caligula and
Otho. In the earlier and severer ages of the republic,
when one Papyrius had debauched his sister, the
father sent a sword to his daughter, with which she
destroyed herself, and the son also expiated his crime
by suicide. In collateral relations adoption was not
an impediment to marriage. When the adoption
was dissolved, a man might marry a woman who
was his sister by adoption : he might also marry the
mother, aunt, or granddaughter, of his adopting
fether ; but not his wife, because there had been
between them the relation of son-in-law and mother-
in-law: withoiit emancipation he might also marry
the daughter of his sister by adoption, and, under
certain limitations, the daughter of his own father by
adoption. Thus Maximinus gave his daughter in
marriage to Constantine, who was his grandson by
adoption": so Claudius gave his daughter Octavia
to Nero, who was his adopted son, previously trans-
« Fr. Hotman de Rit Nu. et Matr. c. 4. ' Ibid. c. 5.
•Ibid.c. 4.
229
ferring his daughter into another family by adoption,
that it might not be said that the brother had mar-
ried the sister^
The marriage of an uncle with a niece was also
interdicted by the Roman law, and unknown before
the reign of Claudius, whose passion for Agrippina,
the daughter of his brother Germanicus, led him to
procure a decree of the senate to justify the marriage
of uncles with their brothers' daughters*^, which be-
fore that time had been held unjust, and to which
there was afterwards such a natural repugnance that
they were celebrated in very few instances, although
the law and licence remained until it was repealed
by Nerva. Constans and Constantius annexed a
capital punishment to the offence, and their consti-
tution was confirmed by Zeno'^. It was not per-
mitted to have a brother's daughter for a concubine,
although she was the daughter of a freedman, with-
out the imputation of incest : but Domitian was not
ashamed to live in open debauchery with Julia his
niece, and the pernicious precedent was followed by
Heraclius^.
The will of Claudius was the occasion of intro-
ducing a singular distinction into the Roman law,
which now permitted the marriage of an uncle with
bis brother's daughter, but still restricted the mar-
riage of an uncle with his sister's daughter, to whom
*
* Brisson de Jure Con.
' See Tac. Ann. 1. xii. 8. 5, 6. Beza, de Dirortiis, considers
this restriction one of the laws, ab ipsa natura parente, vel ab
ipso Deo potius cordibus humanis insculptse.
' Fr. Hotman de Rit, Na. et Matr. c. 5.
f Brisson de Jure Con«
Q 3
230
he bore the very same relation, marriage with whom
was pronounced incestuous by the civil law, and
called not marriage but contubernium, and expressly
interdicted by the decrees of the Emperors Maxi-
milian and Diocletian'.
If uncles were not permitted to marry their nieces,
it seems to follow by analogy that nephews should
not marry their aunts ; and the incestuous nature of
these marriages may be further inferred from the
plea of Nero, in imputing to Silvanus the crime of
incest, committed with Lepida his aunt, the wife of
Cassius. These marriages were expressly prohi-
bited in the Roman laws, on the ground that aunts
participated in the parental relation.
The marriage of cousins can hardly be said to
have been regulated by Roman law, and was never
prohibited. Livy has preserved the speech of one
Ligustinus, who had been married to his cousin, the
daughter of his father's brother: and similar mar-
riages were contracted by Brutus with the daughter
of his uncle Cato ; by Melinus with his cousin, the
sister of Cluentius ; and by Antoninus with Annia
Faustina. Quintilian also, in deploring the prema-
ture death of his son, declares, that it had been his
intention to give him in marriage to his cousin, the
daughter of his father's brother. Tacitus however,
or rather Vitellius, whose artful speech he is record-
ing, affirms, that these marriages were for a long
time unknown at Rome ; and Plutarch relates, that
it was only by a late constitution that they were
allowed, when a man charged with the offence of
* Fr. Hotman de Kit. Nu. et Matr. c. 5.
it
231
marrying bis cousin was acquitted by the people,
who passed a law on the occasion, giving sanction
to the marriage of cousins, but forbidding the mar-
riage of nearer relations. The infrequency of these
marriages before the time of Plutarch and Tacitus,
depended more upon the private will and opinion of
individuals than upon the provisions of any public
law. After this time these marriages became more
frequent ; and indeed the whole law of marriage was
revised under the Christian emperors.
The profane legislators of Rome/' says Gibbon,
were never tempted, by interest or superstition, to
multiply the forbidden degrees : but they inflexibly
condemned the marriage of brothers and sisters ;
hesitated whether iirst-cousins should be touched by
the same interdict ; revered the parental character of
aunts and uncles ; and treated affinity and adoption
as a just imitation of the ties of blood ^.'' They
were also resolute in the interdiction of all poly-
gamy, and in insisting on the nullity of all marriages
between persons of inadequate age; persons who
were not citizens of Rome ; who were of different
ranks ; or who held certain offices, whether public
or private, which they might be under temptation to
abuse. The general penalty of these unjust mar-
riages, with variations adapted to particular circum-
stances, was the illegitimacy and consequent disin-
heritance of the children, and the forfeiture of all
conjugal privileges, whether for the redress of in-
juries or the establishment of lawful rights. In
many of these restrictions upon matrimony, there is
* Rom. Erop. c. 44.
Q 4
21V2
a striking conformity in the institution of the two
great nations of antiquity.
The general prevalence of these restrictions, and
the general abhorrence of the incest which they are
intended to prevent, have been ascribed to a law of
nature and an innate sense of propriety ; and the
supposition is rather confirmed than weakened by
the exceptions which are alleged. The incestuous
marriage of parents with children was contrary to
the ancient^ law of Persia as well as of Greece : and
it was only in the corruption of Persian manners,
and under the pretence of preserving the purity of
the royal blood, that these marriages were at first
admitted, and eventually obtained such sanction and-
authority, that none but the issue of a mother by
her son was worthy of the Magian priesthoods It
is especially recorded, that the passion of Cambyses
for his own sister introduced the marriage of brothers
with sisters, which had been previously unknown ;
and when the king consulted the judges upon the
question, it was subtly resolved, that there was no
law which forbade the marriage, and that there was
a law which suffered kings to do as they would ^.
The prevalence of these incestuous marriages in
succeeding ages was a subject, to which the primi-
tive writers* frequently advert, in exposing the evils
of the popular idolatry.
It is not necessary to dwell on the perverted
^ Gerhard, s. 302. * Catullus in Gell.
^ Gerhard, 8. 303. Herodot. Thalia. Cyrus is said to ha?e
married his mother's sister. See Cyropsed. 1. viii. c. 5. s. 28.
* Tertull. Apologet. s. 9. Mia. Felix, s. 31. Recog. S. Clem.
1. ix. c. 20, 27, 29. Orac. SibyH. p. 660. ed. Amst. 1689.
233
philosophy or the rude barbarism, which authorized
unnatural passion and polygamy, and permitted a
community of wives ^ These excesses also pro-
voked the just reprehension of the primitive writers.
The same incestuous commerce with which the
Persians were stigmatized, prevailed very generally
in the East, and especially among the Magusaei,
Medians, Galatians, Phrygians, and Egyptians. It
is not improbable that the Phoenicians used some
reserve in favour of the uterine sister, to which
Abraham may have alluded when he called Sarah
the daughter of his father, and which he may have
intended to contrast with the common practice of
the Egyptians, who married their sisters without
any discrimination, even if they were born of the
same father and mother, or the same father, or the
same mother, or whether they were twins. The
Canaanites were guilty of transgressing all the parts
f Lactantius, Div. Inst. 1. iii. c. 22. Cf. 1. iv. c. 3. exposes
Plato's doctrine of the community of wives. Caesar, de Bell.
Gall. 1. y. 8. 14. has recorded the practice of the ancient Britons*
In the Himala mountains there prevails a community of hus.
bands; and it is not unusual for four or Bve brothers to marry
and possess the same woman at the same time. On the coast of
Malabar a woman is not allowed to have more than twelve
husbands : in the neighbourhood of Calicut a woman is permitted
by the laws to have several husbands : the practice is especially
prevalent among the noble castes, and some of these ladies
have had ten of these husbands at the same time. In the an-
cient Median empire also it was customary for women to enter-
tain a number of husbands. See Monthly Review, vol. 95. p. 234.
Among the Omawhaws, a North American tribe, numbers of the
females are betrothed in infancy, and the individual who marries
the eldest daughter espouses all the sisters as they come of age.
Ibid. vol. 101. p. 347.
234
of the law of the Noachids, especially the original
prohibition of incestuous marriage ; for in respect of
marriage within the degrees prohibited by the Levi-
tical law, no guilt could be incurred before the
publication of that law*. These offences of the
Canaanites were called abominations and abomin-
able customs, and as many other provisions of the
Levitical law were principally or entirely remedial, and
introduced for the counteraction of abuses which
prevailed among the heathen, so the Levitical pro-
hibitions were especially designed to obviate the
abominations of marriage, which were usual at the
time among the Canaanites and the Egyptians.
The law was introduced with a manifest allusion to
these practices : ** Speak unto the children of Israel,
and say unto them, I am the Lord your Grod.
After the doings of the land of Egypt, wherein ye
dwelt, shall ye not do: and after the doings of the
land of Canaan shall ye not do; neither shall ye
walk in their ordinances'^.^^ After prohibiting access
generally to any who is near of kin, the divine
Legislator proceeds to specify different persons, with
whom there should be no intermarriage. Fifteen
persons are expressly mentioned in Leviticus and
Deuteronomy, besides the wife of another man
whom the Israelites were forbidden to marry, of
whom they were related to six by consanguinity,
and nine by affinity*.
' Selden de Jure Nat. et Gen. L v. c. 11.
* Lev. xviii. 2, 3.
' Nata, ioror, neptis, matertera, patrig et uxor '
Et patrui conjux, mater privigna, noverca,
235
By Consanguiniiy.
1. Mother.
8. Sister, whether the daugh-
ter of father or mother,
or of both.
8. Son^s daughter.
4. Daughter's daughter.
5. Father's sister.
6. Mother^s sister.
By Affinity.
1. Father's wife.
2. Father's brother's wife.
3. Son's wife.
4. Brother's wife.
5. Wife's son^s daughter.
6. Wife^s daughter's daugh-
ter.
7. Wife's sister.
8. Wife's mother.
9. Wife'*s daughter.
To these are added, as it is said, by necessary in-
ference, three other persons: viz. 1. daughter; 2.
wife's father's mother; 3. wife's mother's mother.
The daughter is added by inference; for if the
daughter's daughter is interdicted, much more the
daughter herself: and indeed the prohibition is ex-
pressed in the interdiction of commerce with a wo-
man and her daughter. It is from this latter pro-
hibition, by a less obvious inference, that the wife's
grandmother on either side is interdicted. It will
be observed^ that in this table of prohibitions, the
extreine points are, the grandmother on one side and
the granddaughter on the other.
The force of the prohibitions which are specified
was reciprocal, and what is expressed of the one sex
is implied of the other. Thus, if the son is for-
Uxorisque soror, privigni nata, nurusque
Atque soror patris, conjungi lege vetantur.
The neptis and the soror must be understood each of two rela-
tions, because the nata is added : Gerhard, s. 260. makes the
number of persons sixteen, taking the sister twice as bom ex
utroque vel ex altero tantum parente.
236
bidden to marry the mother, the mother is by the
same rule forbidden to marry the son ; and if a
woman is forbidden to marry a son, a man is for-
bidden to marry a daughter^.
From the unity of the man and wife in marriage,
it is held to be a general rule in cases of affinity,
that a man is interdicted from marrying his wife^s
relations, as his own in the same degree. Philo
held that the law was so severe, as to prohibit the
son-in-law, even after his father^s death, from marry-
ing his mother-in-law ; partly from the reverence
which was due to the father, and partly from the
maternal relation which had been held by the mother*
in-law : nor did it allow a man to marry his daugh-
ter-in-law, whether in her widowhood or virginity,
either during the life or after the decease of his wife,
her mother. For the father-in-law, holding the
paternal relation, was bound to respect his daughter-
in-law as his own daughter^
According to the exposition of Jewish comment-
ators, the mother, step-mother, daughter-in-law, fa-
ther's own brother's wife, and the brother's wife,
except in a particular case, whether legitimately or
illegitimately born, are interdicted : the aunt also and
the wife's daughter are properly interdicted, if there
is any relation by blood. The wife's relations might
not be married during her life, or after her decease or
divorce, with the only exception of the wife's sister,
upon whom the restriction was limited to the life of
the existing wife. In the interdiction upon the
* Fr. Hotman de Rit. Nupt. et Matr. c. 7. Gerhard, s. 261,
275.
* Fr. Hotman de Kit. Nupt. et Matr. c. 8.
237
wife^s relations, the law took no notice of any inter**
course before the marriage ; but the tradition of the
elders supplied the deficiency, and pronounced it
unlawful for a man to marry, during the woman's
life, the relations of any woman with whom he had
lived in adultery or prostitution, not so unlawful,
however, as to vitiate the marriage, but only to
render the oflPender worthy of corporal punishment :
and the sentence was not unwisely designed, to cut
off all temptation to a renewal of the intercourse,
which after ihe marriage would be incestuous. It
should be remembered, that the notion of incest
atnong the Jews was confined to marriage, and that
no incest would be imputed to any meretricious
intercourse which a man might hold with two sisters,
or even with a mother and a daughter, or even to a
marriage with a woman whom his father had de-
bauched. There was also no incest in marrying the
mother or daughter of a father *s wife ; or a brother's
son's wife ; or a niece, whether born of a brother or
a sister. The reasons assigned by the Jews for the
prohibition of incestuous marriage, were, the danger
arising in the familiar intercourse of domestic life,
and the impropriety of uniting the branch with the
root".
The Talmudists however were not content without
an almost indefinite extension of the restrictions of
the sacred law, and under the pretence of precluding
the violations of that law, and under the name of
secondary wives, they expressly interdicted the mar-
riage of twenty other relations, and by consequence
"^ Selden de Jure Nat. et Gent. 1. v. c. 10.
238
of many more; viz. 1, 9. The grandmother, on the
father's and the mother's side, and all their mothers
in ascent before them ; 3, 4. the mothers of the
paternal and maternal grandfathers ; 6. the wife of
the paternal grandfather, and all ancestors in per-
perpetual ascent, so that no Hebrew could marry
the wife of the patriarch Jacob ; 6. the wife of the
maternal grandfather; 7* the wife of the Other's
brother by the same mother; 8. the wife of the
mother's brother ; 9^ the son's daughter-in-law, and
all descended from her ; 10. the daughter s daughter-
in-law ; 11, IS, IS, 14, 15, 16. the granddaughters
by a son's or daughter's son, or daughter, or son or
daughter-in-law; 17^ 18, 19i 20. the two grand-
mothers of the father-in-law, and the two grand-
mothers of the mother-in-law".
The Karaites adopted a different rule, and inter-
preting the general interdiction of any that is near of
kin as a root or principle from which the prohibitory
law of incest is to be collected, and considering the
specified instances rather as examples than compris-
ing the whole body of the law, they proceeded to
form a complicated law of prohibitions of incest.
From the alleged unity of the man and the wife
they inferred, that the kindred of the husband are
the kindred of the wife, and therefore if a woman
should be divorced by three husbands in succession,
and married to a fourth, they interdicted the mar-
riage of any of these husbands with the kindred of
any of the other husbands, restricting however the
notion of kindred to the six principal relations, of
■ Ux. Ebr. 1. i. c. 2.
239
father and mother, brother and sister, son and daugh-
ter. Thus they restricted the husband of Sarah from
marrying the mother-in-law, the mother, the wife of
a brother, the sister, the daughter, and the daughter-
in-law, of any second, third, or fourth husband,
whom Sarah might have after her divorce from her
husband^.
The modern Karaites, rejecting the arbitrary infer-
ence from the conjugal unity, but still interpreting
the interdiction of kindred as a genus of the widest
sense, introduced under five principal rules a copious
code of matrimonial restrictions, which they derived
by remote inference from the Levitical law, pro-
hibiting a man to marry, 1. his kindred; 2. the
kindred of his kin ; 3. two persons akin to each
othej, as a mother and daughter ; 4. the kindred of
a wife^s kindred, as her brother's daughter ; 6. two
persons that are akin may not marry two others that
are akin, as a father and a son may not marry a
woman and her daughter^.
To these five rules has been added a sixth, yet
more complex, interdicting the marriage of two
kinsmen with any person, and the kin of the kin of
that person. Thus a mother and daughter being
akin to each other may not marry Reuben and
Reuben's son's son^.
Although these rules were generally received, they
were not received without exception ; and an ex-
ception was especially made to the extension of the
impediment from the wife to the husband, and a
new system was exhibited in five rules, in which
• Ux. Ebr. 1. i. c. 3. • p Ibid. c. 4. ^ Ibid. c. 5.
240
both sexes are distinctly specified . 1 . a man may
not marry his own kin, mother, sister, daughter;
nor a woman her kin, father, son, brother : S. a man
may not marry the kin of his kin, grandmother,
aunt, granddaughter, niece ; nor a woman in the
same manner: S. a man may not marry two rela-
tions, as mother and daughter ; nor a woman, father
and son: 4. a man may not marry a woman and the
kin of the kin of that woman, as Mary, and her
grandmother, or aunt, or niece, &c. 5. two relations
may not marry two persons related collaterally or by
descent, as John and John's son may not marry
Mary and Mary's daughter or sister. In case of
descent the rule is to be observed without any
limitation from generation to generation.
These different opinions, which are detailed at
considerable length by Selden, were fiercely debated
between the Talmudists and the Karaites, and the
contention was increased by the penal consequences
which each imputed to the violation of the prohibi-
tory law which he maintained, viz. excision, with
exclusion from the right of entering the congregation
of the Lord'. Other and more severe penalties were
originally annexed to the violation of the Levitical
prohibitions*. Incest with the mother-in-law or
daughter-in-law was to be punished in both parties
with death, as it is interpreted, by stoning. If a
man married a woman and her mother, the several
parties, if they consented to the offence, were con-
demned to be burned. If a man married his sister,
both parties were to be put to death, publicly and
' Ux. Ebr. 1. i. c. 6. • Levit. xx, Ainsworth in loc.
241
ill the presence of the congregation. If a nephew
niarried an aunt, both were to bear their iniquity*
The penalty of marrying an uncle's or a brother's
wife was, that the parties should be childless, that
they should have no issue ; or that they should be
grieved by the untimely death of their children ; or
that the children should be reckoned illegitimate,
and incapable of succeeding to the inheritance of
their fether^ In all violations of the Levitical pro-
hibitions, where the offence was not followed by
immediate and capital punishment, it was a received
rule, that no marriage could be contracted, or that,
if it was contracted, it was utterly void and of no
effect".
While the Jews restricted the notion of incest to -
marriage, they extended it beyond the prohibited
cases which depended on consanguinity and affinity;
and marriage with the heathen generally, and with
the seven nations of Canaan in particular, was ex-
pressly forbidden and reputed incestuous; and the
issue of these marriages has been demonstratively
shewn to be the bastard, who should not enter into
the congregation of the Lord*. Marriage out of
the chosen people was always criminal ; it was an
offence before the flood ; it was avoided, discoun-
tenanced, and condemned, in the patriarchal age ; it
was expressly forbidden in the law of Moses ; the
history of Solomon exhibits the effects of its viola-
tion ; the marriage of the strange wives, during the
•
« Gerhard, s. 269. " Ux. Ebr. 1. i. c. 12. * DeuU xxiii. 2.
Spencer de Leg. Hebr. I. i. c. 6. s. 3.
VOL. I. R
242
captivity at Babylon, was, in the judgment of their
great reformers 7, a sin which the people could not
expiate without divorcing them: and it was a state
which was scrupulously avoided by the piety of
Tobit. Such marriages were forbidden ; they were
punished by the separation of the issue from the
congr^tion of the Lord ; and were in themselves
null and liable to be dissolved. The rule was how-
ever strictly confined to native Jews: proselytes
from among the Grentiles were permitted to marry
proselytes of their own or any other nation, without
any discrimination upon the account of birth, of
which the condition was destroyed upon their rege-
neration and admission into the Jewish covenant, so
that they might marry even their nearest relations
without any imputation of incest, even although
they were admitted together into Judaism, and
although they were children of the same parents,
but bom the one before and the other after regene-
ration. From the offence which this promiscuous
y Ezra X.3. ** That which was done contrary to the law of God
was looked upon as null, and therefore these were accounted no
marriages, and their children were no better than those we call
bastards, and were not to be a part of the family, but to be put
away with their mothers ... it was unlawful to marry with the
children of these women, for they were reputed unclean, though
their &thers were Israelites. Thus Maimonides reports the sense
of the law to be ; A son begot of a Gentile by an Israelite is not
to be accounted for a son. If a son indeed were begot by a
Gentile of an Israelitish woman the child was an Israelite for
partus sequitur ventrem." Patrick in loc. See also Leslie and
Dodwell on Marriages in different Communions ; where the case
of marriages with the heathen, or out of the peculium, is dis-
cussed at length.
243
intercourse gave to the Gentiles', it was abridged,
and, to prevent the exceptions of the proselyte, the
provisions of the law of the Noachidee were enforced,
and marriage with a mother or an uterine sister was
forbidden to be contracted, and dissolved if it was
contracted. Any other marriage, however forbidden
by the Levitical law, was approved and confirmed ;
as was marriage, subsequent to the regeneration,
with persons related on the father^s side, even with
two sisters, the daughters of a common father ; while
the marriage with those on the mother^s side was
disallowed, as with^a mother's daughter and a mo-
ther's sister, and also with the wife of the uterine
brother, if that brother was a proselyte. If a man
bad married two uterine sisters, or a mother and a
daughter, he was required to divorce the one, but if
he survived his wife, and she was a proselyte, he
was free to marry her mother or daughter*.
The law of consanguinity was not without other
exceptions among the native Jews. If a man died
without children his brother or brothers in succession
were required to marry her, and if they rejected her,
the right and obligation devolved upon the next of
kin*'. The heiress also was required to marry one
of the family of the tribe of her father, that there
might be no disturbance of the inheritance originally
appropriated to the several tribes*.
A just and reasonable impediment to marriage
was founded in certain imperfections and impurities,
* Tacitus, Hist. 1. v. s. 5. alludes to the practice of the
proselytes, and to the refusal of marriages with the heathen.
* Selden de Jure Nat. et Gen. 1. v. c. 18. ^ Deut. xxv. 5.
• Numb, xxxvi. 6, 7.
244
which are specified in the Law^; and it was a bu-*-
mane and moral provision which prohibited a man
fix>m marrying a second time the woman whom he
bad once divorced ^'.
If the Levitical law contained no express prohi-
bition of polygamy, it cannot be charged with giving
any licence or encouragement to the prevailing prac-
tice, which was in immediate opposition to the
record of the divine institution of marriage. The
conduct of the patriarchs has been usually vindi-
cated^ upon the necessity of multiplying the human
race, and upon the strong desire of giving birth to
the promised Messiah ; but the patriarchal example,
instead of being used as a precedent, might have
been powerfully counteracted by the restrictions
which were laid upon the assumed licence of di-
vorce, and by the judgments which the prophet
pronounced upon the practice, with reference to the
primitive unity of marriage^. The great model of
Jewish sanctity, the High Priest, was permitted to
have but one wife, and required upon his elevation
to divorce any other wife : he was also supposed to
be exempted from the obligation of marrying the
widow of his brother. It was expressly ordained in
the lav^, that he should marry none but a virgin of
his own people, and that he should not profane his
seed by any matrimonial impurity, which would
* Lev. xviii. 19. xx. 19. Deut. xxiiL 1. * Deut xxiv. 4.
' Brisson de Jure Con. See also Tertull. de Exhort. Castitat.
8. 6. Compare Ad Ux. I. i. s. 2. CI. Alex. Strom. 1. ii. s. 19.
1. iii. 8. 12.
' Malachi ii. 14, 15.
245
contaminate his offspring, or by any transgression
of the general rule of the priesthood, who were
restricted from marrying a widow, or a divorced
woman, or any that was profene, or a whore, which
was interpreted of any woman not of the .house of
Israel*. The plurality even of the king^s wives was
limited, and they were not allowed to have more
than eighteen wives, a limitation as curious as the
argument on which it proceeded, that. when David
was reproached with the gift of his master^s wives,
it was said, that if they had not been enough, he
might have had, as the words may be rendered, so
many and so many : but Saul had six wives, and
6+6+6=18. If any of these royal wives were di-
vorced, or left in widowhood, it was not lawful for
a subject to marry them*. The polygamy of the
people was governed by their means of supporting
their wives, who were not allowed to exceed the
number of four, and even this number might be
abridged by local circumstances ; nor was it allowed
to have different wives in distant residences, because
the children might thus be unknown to each other,
and involved in incestuous marriages.
The evidence of the New Testament upon the
doctrine of incestuous marriages is less copious than
important. If the view of our Lord's clause of
exception in the law of divorce which is maintained
in the Appendix be approved, and his words be
interpreted of that peculiar kind of incest which the
b Lev. xxi. 7, 13, 14. Ezek. xliv. 22. Tert. Exhort. Castitat.
s. 7. Ux. Ebr. 1. i. c. 7.
* 2 Sam. xii. 8. Ux. Ebr. 1. i. c. 8.
R 3
946
Jew8 imputed to marriage with the heathen, there
will be the highest authority for proscribing the mar-
riage of the faithful with the unbelieving, and for
declaring such marriages invalid and liable to be
dissolved. Such marriages are clearly forbidden in
the precepts of the apostle to marry only in the
Lord^, and to be not unequally yoked together
with unbelievers', and, as is contended in the more
difficult text, of making the members of Christ
the members of an a/ten"; and it is in respect
of these marriages that Esau" is proposed as an
admonitory example to the Christian Church. The
word of our Lord may, however, without violence
to the context, be also understood of incestuous mar-
riages in general, implied under a term denoting in-
cest generally, or incest of a particular kind.
It was the great offence of the Baptist that he
condemned the marriage of Herod with his brother's
wife : It is not lawful for thee to have her®. Thus
the Baptist, who was the great means of connecting
the Old and the New Testaments, may be thought
to affirm, by the allegation of a specific rule, the
continuance and perpetuity of the Levitical restric-
tions p.
The case of the incestuous Corinthian confirms
the inference by another example : It is commonly
reported that there is fornication among you, and
such fornication as is not so much as named among
* 1 Cor. vii. 39. " 2 Cor. vi. 14. "» 1 Cor. vi. 15.
" Heb. xii. 16. • Matt. xiv. 4. Orig. Com. in Matt. torn. x.
s. 22. Homil. in Luc. xxvii. ^ Gerhard, s. 299.
247
the Gentiles, that one should have his father's wife^i.
Hammpnd explains the fornication in this text, of
sins of uncleanness, and marriage within the pro-
hibited degrees, of that disclosing of nakedness which
comprehends all the marriages Within the prohibited
degrees. It is defined by the context of bavipg a
father's wife ; not of taking her away, or committing
adultery with her, but of having matrimonial pos-
session of her, and being married to her. This crime
was such, '^^ quod vei Gentiles nejandum putani;^*
such as the Gentiles deemed impious and unworthy
of mention ; such as was expressly, and under a
capital penalty, forbidden to the Jews; and such
that, in the apostle's judgment, the offender was
unworthy of the communion of the faithful, and
therefore made the first example of excommunica-
tion. The allusion of the apostle to the opinion of
the Gentiles will go far to justify the prohibition of
all marriages not approved among the heathen, and
to establish by implication the authority of a strict
and cpmprehensive code of matrimonial purity in the
Christian Church. The examples alleged in the
New Testament are cases of affinity : the prohibi-
tion of marriage within the degrees of consanguinity
is of necessity included.
The early writers of the Christian Church take
but little notice of these prohibited marriages, except
in refuting the pernicious heresies of their contem-
poraries, by whom the purity of marriage was de-
praved ; or in exposing the incest which was common
*» 1 Cor. V. 1. Hammond in loc. Cf. Poli Synops. See Appen-
dix, No. I.
R 4
248
among the heathen, and from which both the law
and the practice of the Church were free. There
appears however to have been a general agreement,
that there could be no intermarriage of the faithful
with heathens or with Jews. This was a common
interpretation of the Apostle's words concerning
marrying only in the Lord, and being unequally
yoked together with unbelievers. Tertullian*^ ap-
pears to give the same sense to the clause of ex«
ception in our Lord's prohibition of divorce, as if no
marriages were invalid, but such as were contracted
with heathens: and Cyprian' puts the same inter-
pretation on the Apostle's argument of making the
members of Christ the members of an harlot. Ter-
tullian affirms, that the law of the Creator every
where takes away the nAarriage of the Allophyli S or
persons not in the communion of the faithful ; and
Cyprian teaches, that marriage is not to be cele<
brated with the heathen". The expositions and
assertions of these distinguished fathers are confirmed
by a long succession of decrees of councils. The
first council of Aries (A.D. 314.) forbids any Chris-
tians to marry Gentiles, under pain of excommuni-
cation, as does the council of Eliberis, (A. D. 305.)
under pain of excommunication to the parents. The
council of Laodicea, (A. D. 361.) and of Agde,
(A.D. 506.) prohibit marriage generally with heretics.
The third council of Carthage, (A.D. 397.) forbids
the marriage of the sons and daughters of the bishops
and clergy, with heathens, heretics, and schismatics.
' Ad Ux. ii. 8. 2. See Appendix, No. I. • Lib. Test. iii.
s. 62. ' Adv. Marcion, s. 7. " Lib. Test, iii. s. 62.
I
\
249
The council of Chalcedon, (A. D. 451.) forbids the
marriage of readers with Jews, Gentiles, or heretics,
under pain of canonical censure. The second council
of Orleans, (A.D. 533.) forbids the marriage of Jews,
pronouncing it unlawful ; and if any man upon
admonition refuse to dissolve such marriage, he was
to be denied all benefit of communion. " Nor was
the civil law wanting to confirm the ecclesiastical
with its sanction ; for by an Edict published by
Valentinian and Theodosius, which is twice repeated
in the Theodosian code, and stands still as law in
the Justinian code, it was ordained ; If any Jew
presumes to marry a Christian woman, or a Chris-
tian lakes to wife a Jewish woman, their crime is
put into the same class with adultery, that is, made
a capital crime ; and not only relations, but any one
has liberty to accuse and prosecute them upon such
transgression. Constantius before this had made it
a capital crime for a Jew to marry a Christian
woman, but laid no penalty upon the Christian
marrying a Jew, But this being thought a defect
by Theodosius, he supplied it by that new law,
which more expressly made it capital for them both.
And so all possible restraint was laid upon such
marriages, that the civil power could think of *.^*
When the empire became Christian, although the
fathers were more busily employed in promoting
celibacy than in devising just laws of matrimony,
the emperors zealously concurred with them in re-
vising the laws which regulated matrimony, and in
enforcing or enlarging the restrictions which pre-
' Bingham's Eccl. Antiq. b. xxii. c. 2. s. 1.
250
viously prevailed. It was in conformity with the
old laws of Rome, that Basil pronounced the mar-
riage of slaves, without consent of masters, and of
children, without consent of parents, not marriage
but fornication. It was also in conformity with
the ancient law, that Constantine, Valentinian, and
Marcian, forbade senators, provincial governors, city
magistrates, and high priests of provinces, to marry
slaves, freedwomen, actresses, innkeepers, or daugh*
ters of innkeepers, of pimps, and gladiators, or
sellers of small wares, without incurring the penalty
of infamy and outlawry, with illegitimacy and disin-
heritance of the issue ; and even the Curialis might
not marry a slave, without condemnation of the
woman to the mines, and of the man to perpetual
banishment, with confiscation of goods. It was
a received rule, that the parties should be of equal
rank and condition, and that a person of ingenuous
rank should not marry with a person of servile state
or mean occupation. The laws of Theodosius con-
tinued the inhibition of marriage between provincial
governors and the women of the province, and ex-
tended the period of widowhood to a full year. If
the wife of an absent husband should marry, without
certain information of her husband^s death, she was
declared by the canons of Basil, repeated by the
council in TruUo, to be guilty of adultery; and
even the soldier's wife, notwithstanding the privilege
granted by the law of Constantine, was by the same
canons liable to be claimed by the original husband,
and the second marriage would of course be of no
effect. Constantine so far mitigated the prohibition
of the Qfuardian to marry the ward, as to permit the
251
former to marry the latter when she should come
of age, if he had not defiled her during the minority,
of which the penalty would be banishment with con-
fiscation of goods y.
In respect of marriages more properly incestuous,
the imperial laws interdicted and rendered invalid
the marriage of more than one wife, the marriage of
a widow within a certain period, the marriage of a
brother's widow and a wife's sister, and the marriage
of uncles and aunts with nephews and nieces : they
also interfered with the marriage of cousins.
Polygamy, tvev infamous and unlawful at Rome,
was made a capital offence by the law of Constan-
tine. It was also expressly forbidden by the ern^
perors Theodosius, Arcadius, and Honorius ; and
by Justinian, who decreed ; No man who is lawfully
married may bring in other wives while the former
marriage subsists, or have lawful children by them.
An opinion appears to have prevailed at one time at
Rome, that a husband who fell into captivity fell
into a servile condition, and lost his marital rights,
so that his wife was at liberty to marry again.
Quintilian contended that the marriage could only
be dissolved by death or divorce, and that marriage,
contracted without certain information of the hus-
band's decease, was no better than adultery. The
later emperors fell into this opinion, affirming the
continuance of the marriage, and disallowing the
woman's right to marry again, unless she obtained a
divorce or waited for a period of five years, (with
y Bingham's Eccl. Antiq. b. xxii. c. 2. s, 6,7,
252
the exception of the soldier's wife, whom Constan-*
tine's law permitted to marry again, after she had
not heard of her husband for four years,) so that the
marriage might have the appearance of being dis*
solved bona gratia^ or by mutual consent. The
parties would otherwise be liable to the penalties of
an unjust divorce ; viz. the woman to the forfeiture
of the dower, and the man to the loss of gifts before
the marriage*.
The law of Constantine allowed the right of mar-
riage after divorce, only when the woman was an
adulteress, a sorcerer, or a pander. It was objected
to this licence, that it was contrary to the sense of
Scripture*; but the objection was not suffered to
prevail. Others held a middle opinion, that such
marriages were not lawful, and should be prevented
by private admonition and reproof; but that as the
authority of Scripture might be disputed on the
point, they did not call for ecclesiastical censure or
excommunication. The law underwent various mo-
difications, but the principal ecclesiastics were ge-
nerally unfavourable to the licence which it con-
veyed **.
As adultery, under the imperial law, was a capital
offence, it allowed no question of the marriage of the
* Brisson de Jure Con.
a 1 Cor. vii. 39. from whence it was justly argued, that the
bond'of marriage continued during the life of hoth parties, and
was dissolved by the death of either of them. The Monogamists
contended that the contract was indissoluble even in death, and
therefore objected to any marriage but the first.
^ Bingham, b. xxii. c. 2. s. 12.
253
adulterer with the adulteress, which was permitted
by the discipline of the Church, after the decease of
the unoffending consort"^.
The marriage of a brother^s widow was not un-
lawful in ancient Rome. The impiety imputed to
the marriage of Tarquin with the elder Tullia, is
founded in the circumstances under which it was
celebrated, rather than in the incestuous character of
the marriage. The marriage of Marcus Crassus
with his brother^s widow is pronounced by Plutarch
to be irreproachable. Titus indeed upon his death*
bed is said to have repented of but one thing, which
is supposed to have been his intercourse with the
wife of his brother Domitian. The Imperial Con*
stitutions, however, and the Canons of the Council
of Neocjesarea, (A. D. 314.) interdicted these mar-
riages ; and when certain Egyptians had married
the wives of their deceased brothers, under pre-
tence that they were virgins, the emperor Zeno
inflicted the penalties gf incestuous marriages upon
the parties who contracted them, and upon their
issue"*.
The emperors Valentinian, Theodosius, and Ar-
isadius, superseded the liberty of marrying the wife^s
sister, and thus forming an union with two sisters.
The emperor Honorius nevertheless married the two
[laughters of Stilicho in succession ; and when neither
3f them had issue, and both of them were taken
iway prematurely, it was remarked by Paulus, that
they were both cut off by the judgment of God, by
^ Bingham, b. xxii. c. 2. s. 13. . ^ Brisson de Jure Con.
254
an unexpected death, and departed from this life in
their virginity ^
The marriage of the uncle with the niece and the
aunt with the nephew, to which the conduct of some
of the emperors had given a certain sanction and
authority, was prohibited by the imperial Constitu-
tions, and pronounced incestuous and liable to capital
punishment by Constantine and Constans ; and
when their constitution fell into neglect, the restric-
tion was renewed by Zeno and Anastasius, with the
entire concurrence of Ambrose : You are preparing,
said that father, to marry your son to your grand-
daughter : in other words, that your son may marry
the daughter of his sister. Is there any occasion of
doubt, when the divine law prohibits the marriage of
cousins by the father^s side, who are related but in
the fourth degree ; while the marriage of the uncle
with the niece is in the third degree, in which the
civil law does not permit the union of marriage.
The marriage of cousins,, which was left indif-
ferent under the ancient law, received authority from
the conduct of Constantius, in giving his sister in
marriage to her cousin Julian. Theodosius the elder
was the first who restricted the marriage of cousins,
on which he imposed* the penalty of confiscation and
* Briflaon de Jure Con. The ecclesiastical laws pronounced
such marriages incestuous, and liable to penance from five to
fifiteen years. If a woman married two brothers, she was to be
excommunicated until the day of her death ; and then only to be
reconciled to the Church upon condition of dissolving the mar-
riage, and submitting to solemn penance if she should recover.
Bingham, b. xvi, c. 1 1 . s. 3.
/
255
burning ; in which he was actuated by the advice of
Ambrose, and was supported by Paulus Diaconus.
The severity of the penalty was gradually mitigated
by Honorius and Arcadius ; and the latter eventu-
ally revoked the restriction, and legalized the mar-
riage of cousins; making the children legitimate and
entitled to inherit. Theodosius the younger also
gave an express sanction to these marriages: the
opinion of Justinian was uncertain, but was probably
fevourable to them^ The law of Theodosius was in
direct opposition to the judgment of Athanasius, and
was so little in unison with the spirit of the age, that
•ne of his principal eulc^ists^ argued against them
with peculiar elegance of sentiment and expression,
that in respect of the marriage of cousins, custom
bad seldom allowed what was permitted by law,
what the divine law had not prohibited, and what no
human law had before restricted. It had been the
religious care of the ancient fathers, lest propinquity,
gradually wasting itself in the orders of die offspring,
should recede too far and lose its nature, to recover
it by the bond of matrimony before it was too widely
separated, and to recall it, as it were, before it fled
away. In the form preserved by Cassiodorus, of
obtaining the emperor's licence for the marriage of
cousins, it is admitted, that the law which proscribes
these marriages is not of God but of man, who had
extended this modest observance farther than the law
of God required.
' Brisson de Jure Con. Fr. Hotman de Rit. Nu. et Matr. c. 5.
Bingham, b. xvi. c. 1 1 . s. 4. See also the note of Fabricius Cod.
Apocr. N. T. p. 470.
* Augustin. apud Gerhard.
256
Justiuian was the author of another impedimetit
of marriage, which he prohibited, where there was
any spiritual relation between the parties, not allow->
ing any man to marry the woman for whom he had
been sponsor, alleging, that nothing produces a more
paternal affection, or a juster prohibition of marriage,
than this tie, by which their souls are in a divine
manner united. The Council in Trullo, (A. D. 692,)
enlarged this prohibitory rule, forbidding the sponsor
to marry the mother of the infant for whom he was
surety, under pain of separation, and afterwards of
doing the penance of fornicators. In the progress
of ecclesiastical arrogance and domination the canon
law extended this relation to the person baptizing
and the person baptized, and to the catechist and
the catechumen, and insisted upon other degrees of
spiritual kindred which might be extended to an
absolute prohibition of marriage among Christians,
who, by baptism and other ties, are united in a
spiritual brotherhood '^
The law of the empire and the practice of the
Eastern Church could not fail to have a considerable
influence in the construction of the Mahometan law
of marriage, which was compiled from Jewish,
Roman, and Christiaii rules, with the addition of
some few original precepts, and interdicted the mar-
riage of persons with whom the parents had been
united ; of mothers, of daughters, sisters, aunts, and
nieces ; of nurses and foster-sisters ; of a wife's mo-
ther and daughters ; of a son's wife, of a wife's
sister, or of two sisters*. It was not long before the
^ Bingham. * Selden de Jure Nat. et Gent. 1. v. c. 11.
257
founder of the sect of the Druses relaxed even these
simple restrictions, permitting the marriage of bro-
thers and sisters, if not of parents and children
also^.
•; In the Eastern Church marriage was interdicted
perpetually in the direct line of ascent and descent,
but in the transverse line, or collaterally, it was
permitted cautiously and with reserve in the sixth
degree according to the civil law, which is the third
degree of the canonical law, and admitted without
any scruple or hesitation in the eighth degree of the
civil, or the fourth degree of the canonical, law. Of
marriage in the seventh or intermediate degree it
was declared, that it was neither expressly forbidden
nor expressly allowed, and that therefore such mar-
riages are not permitted before they are contracted,
but not dissolved afterwards. In the year 1055 this
doubtful degree was declared unlawful under Mi-
chael, Patriarch of Constantinople. In respect of
affinity the determinations of the Eastern Church
* Enc. Brit. Art. Druses; taken from Volney. *'The ties of
blood and friendship have no power among the Druses. . . .
Examples are not wanting of their assailing the chastity of their
mothers ; and towards their sisters such conduct is so frequent,
that a father never allows a full grown son to remain alone with
any of the females of his family. Their own religion allows them
to take their sisters in marriage, but they are restrained from
indulging in the connexion on account of its repugnance to the
Mahometan laws." Burckhardt*s Travels in Syria. " The pagan
Arabs for the most part abstained from marry h)g their mothers,
daughters, aunts, both on the fathers' side and the mothers', two
sisters, and their fathers* wives ; though the Magians were fre-
quently guilty of such incestuous marriages, which were allowed
them by their prophet Zerdusht." Mod. Univ. Hist. v. i. p. '369.
VOL, I. S
258
are embarrassed and involved, and such as it is not
easy to develope'.
The rule of the Western Church cannot be un-
derstood without observing the different methods
of computing the degrees by the civil and the
canonical law. In the direct line of ascent and
descent they are nearly agreed, counting so many
degrees as there are generations, or as there are per-
sons, exclusive of the forefather. Thus Abraham,
Isaac, Jacob, Dinah : Dinah is in the third degree
from Abraham, being the third person besides Abra-
ham, or in the third generation from Abraham ex-
clusively. In the transverse or collateral line there
IS a different mode of computation '". The civil law
requires that the several generations arranged in sepa-
rate columns shall be counted
through the common parent, Thara
and determines that there are I' ^^^^' ^- Abraham
1 .1 . 2. Betfauel 2. Isaac
as many degrees as there are ^^^^^ 3 j^^^
generations ° exclusive of the 4, Rachel.
common parent. Thus from
Jacob to Thara 4liere are three generations, and from
Thara to Laban there are three generations ; there-
fore Laban by the civil law is removed six degrees
from Laban in the lined coUaterali cequali: (3 — 3.)
but by the canon law in the same line each is re^
moved from the other as many degrees as both are
removed from the common parent : thus Jacob and
1 S^den de Jure Nat et Geo. 1. v. c 11.
■* Per rectomfilum concordant utraque jura;
Per transversalem superant legalia jura.
" Numera generationes et gradns numeraveris. Beza.
259
Laban are both removed three degrees from Thara,
and therefore only three degrees from each other.
Again, in the lined collaterali inc&quaii, (3—4.) by
the canon law each is distant from the other only so
many degrees as the more remote is distant from th6
common stock^: thus Rachel is distant four degrees
fix)m Thara, and therefore four degrees from Jacob :
but by the civil law the whole number of generations
on either side is reckoned, and 3+4=7? so that Jacob
is removed seven degrees from Rachel p.
The synodal decrees of the Western Church have
been distributed into seven principal classes : 1. those
which restrict the prohibitions by the rule of Scrip-
ture ; 2. those which extend the prohibition to the
second degree in lined cequali^ (9 — 9.) or to first
cousins ; 3. those which extend the prohibition to
the third degree in lined inoequali; (9 — 3.) 4. those
which extend the prohibition to the third degree in
lined cequali^ (3 — 3.) or to second cousins ; 5. those
which prohibit marriage so long as there are any
remains of consanguinity ; 6. those which prohibit
marriage in the sixth degree ; 7. those which pro-
hibit marriage in the seventh degree^. Those ex-
tensions of the Levitical restrictions of marriage
with any one that is near of kin > to a degree whi<ih
comprehends all consanguinity, or at least all such
consanguinity as was supposed to be recognized in
* The rule deserves to be recited as an exquisite specimen of
legal Bttbtlety: Quee persons srqualiter a stipite distant, toto
gradu distant, quanto qusslibet a stipite distat: vel in ocdiue
transverso, si duse personse seque distant a stipite, tot gradibus
distare dicuntur, quot a stipite, queelibet illarum distat.
P Gerhard, s. 250, 251. '•Ibid. s. SSl , 332.
s 2
260
the civil law, and to regulate the descent of inherit-
ance, and the consequent limitation of the restriction
of marriage to the seventh degree, proceeded on a
series of errors : for, in fact, consanguinity does not
cease in the seventh or any other degree, but flows
in perpetuity, as the stream from the fountain : the
relation and the law of inheritance is recognized
under the name of consanguinei ; and the computa-
tion of the canonical and civil law is so different,
that the seventh degree of the one would be the
fourteenth of the other*^.
A concise summary of the prohibitions of mar-
riage in the Western Church is contained in a canon
of the Council of Agde, (A. D. 506.) which is re-
peated by the Councils of Epone (A. D. 5170 ^"^
of Tours, (A.D. 813.) and therefore may be con-
sidered as the settled law of the Church for a consi-
derable period. " Concerning incestuous conjunc-
tions, we allow them no pardon, unless the offending
parties cure the adultery by separation from each
other. We reckon incestuous persons unworthy of
any name of marriage, and dreadful to be mentioned ;
for they are such as these : If any one pollutes his
brother^s relict, who was almost his own sister, by
carnal knowledge ; if any one takes to wife his own
sister ; if any one marries his stepmother, or father's
wife ; if any one joins himself to his cousin-german;
if a man marries any one who is nearly allied to him
by consanguinity, or one whom his near kinsman
had married before ; if any one marries the daughter
of his uncle by the mother's or the father's side, or
' Selden de Jure Nat. et Gent 1. y. c. 11.
261
bis daughter-in-law, that is, bis wife's daughter by a
former husband. All which, both heretofore and
now under this constitution, we doubt not to be
incestuous ; and we enjoin thein to abide and pray
with the catechumens, till they make lawful satisfac-
tion ; but we prohibit these things in such manner
for the present time as not to dissolve or cancel any
thing that has been done before ; and they who are
forbidden such unlawful conjunctions shall have
liberty to marry more agreeably to the law*.'*
By this canon it appears, that these incestuous
unions were perfectly void and null ; that the parties
were not only required to separate, but forbidden to
continue their union, and at free liberty to marry
again. In a succeeding age the Pope Alexander II.
extended the restrictions of marriage tothe seventh
degree', with an anathema upon any who should
' Cone. Agathen. can. 16. Bingham^ b. xxii. c. 2. s. 3.
* Human ingenuity may discover a reason for every thing,
but is it possible^ that any man should for a moment be con-
Tinced by the reasons alleged for these restrictions of marriage
to the fourth and the seventh degree. The argume)it of Inno-
cent was^ '* Quia sint in humano corpore quatuor humores ideo
ad quartum usque gradum^ convenienter prohibitio extendatur ;"
whiph Bellarmine improves by the observation^ " Esse tantum
eongruentiam quandam, non tamen ineptam, sed plane physi-
cam. Quia enim homo ex quatuor elementis constat, coUige
admodum probabiliter, in quarto gradu penitus deficere vim
illam sanguinis ejusdem, quae a primo stipite trahitur.** There
was a reason also assigned by Bonaventura for the restriction to
the seventh degree : *' Quia corpus habet quatuor humores et
anima tres potentias, quse conjuncta fadunt septem^ ideo in
sqptimo demum gradu vim illam sanguinis deficere.** Gerhard,
8. 338. Another equally relevant reason was alleged by Gratian :
'' Quoniam sicut sex aetatibus finitur mundi generatio et hominis
status, ita propioquitas generis tot gradibos terminatur." Beztu
S3
262
attempt to revise the law, which was boldly incurred
both by lonoceot III. and Gregory IX. of whom
the former in the Council of Lateran abrogated the
rule of Alexander, and restricted the prohibition of
marriage to the fourth degree of consanguinity and
affinity, observing, that to prohibit marriage within
the second and third degrees of affinity, and to re-
strain the issue of second marriages from intermarry-
ing with the relations of the first, was a cause of
perplexity, and prejudicial to the safety of the soul".
The discipline of the Church introduced other
restrictions upon marriage, in respect of the time
at which it should be celebrated. In the second
Council of Aries (A. D. 251.) it was provided, that
penitents should not marry during the time of their
penance, under pain of not being permitted to enter
under the roof of the Church*. In the Council of
Laodicea (A.D. 361.) marriage was forbidden in
Lent; and the Council of Salegunstade, (A.D. 103S.)
under Benedict VIII. and the Emperor Henry IL
made an order that no Christian should marry from
Advent to the Octaves of Epiphany, nor in fourteen
days before the festival of John the Baptist, nor
upon fast-days, nor the vigils of solemn festivals.
And from that time these were prohibited times of
marriage in most countries y.
The discipline of the Church had also interdicted
** Selden de Jure Nat. et Gen. L v. c. 11. Fr. Hotman de Rit.
Nu. et Matr. c. 6. Compare Bingham, b. xvl. c. 11. 8. 3.
' Bingham, b. xviii. c 2. s. 8.
y Ibid. b. xxiL c d. s. 14. Similar prohibitions^ including all
Sundays, Wednesdays* and Fridays, were adopted in the Col-
lections of Egbert, Archbishop of York, (A.D. 750.) and in
Concil. iBnham,;( A. D. IOO9.) Comber, Intr. Office of Matr. s. 4.
263
the marriage of the clergy. It is sufficient in this
place to assert the direct opposition between this
interdict and the plain rule of the Scriptures, which
require both the Christian bishop and the Jewish
priest to be the husbands of one wife, thus prohibit^
ing polygamy, and giving sanction to the marriage
of the clergy. Even the Pontifex Maximus' of the
Romans, the very type of the sovereign pontiff, was
not only to be married, but to be bound in an indis*
soluble bond of marriage : and the constrained ce-
libacy of the Roman clergy can plead no better
apology than the misapprehension of the writings of
Saint Paul, the vagaries of the ancient heretics, and
the precedent which is exhibited in the law of the
Vestal Virgins, and the superseded rule of the
Pythian Priestess*.
While the Church constrained the clergy, the
municipal law, in conformity with the arbitrary le-
gislation of republican and imperial Rome, inhibited,
or refused to sanction, the marriage of the slave ;
and it is the reproach of another age, and another
country, that the record of the historian, concerning
the condition of the feudal slave in respect of mar-
riage, can hardly now be read without the con-
* Regem Seculi, Pontificem Maximum rursus nubere nefas est
Tert ad Ux. 1. i. 8. 7-
^ There Is another example. '^ One of the conditions upon
n^hich a female is admitted into the order of the priesthood/' in
the kingdom of Dahomy in AfHca, " is that of leadmg a life of
celibacy, and renouncing the pleasures of the world, and but
few are permitted to enter it at all; for during a residence
of many months at Grewhe, one ceremony of the kind only was
perfcnnned, at which I was present" Adams on the Country
about Cape Palmas.
s 4
264
sciousness of perpetuated wrong. " They were not
originally permitted to marry. Male and female slaves
were allowed and even encouraged to cohabit toge-
ther. But the union was not considered as a mar-
riage: it was called conttfbernium^ not nuptice^ or
matrifnonium. This notion was so much established,,
that, during several centuries after the barbarous na-
tions embraced the Christian religion, slaves, who
lived as husband and wife, were not joined to-
gether by any religious ceremony, and did not
receive the nuptial benediction firom a priest. When
this conjunction between slaves came to be consi-
dered as a lawful marriage, they were not permitted
to marry without the consent of their master, and
such as ventured to do so without obtaining that
were punished with great severity, and sometimes
were put to death. When the manners of the
European nations became more gende, and their
ideas more liberal, slaves, who married without their
master's consent, were subject only to a fine^.^'
The restrictions upon marriage had now reached
their consummation ; the primary liberty had been
only not abolished ; and the original restrictions had
been carried far beyond all the wholesome purposes
which they were intended to produce, to an extent
which might seem to justify the suspicion that the
rule was invented in anticipation of the profits of
the dispensation. Of the dispensation itself it is
obvious to remark, that if the rule were just, founded
on a competent authority, and directed to a legiti-
** Robertsons Hist. Charles V. vol. i. Proofs and lllustraiioiui,
note ix.
265
mate object, reason and religion should have agreed
in maintaining the law, and denying the right and
power of the dispensation : or, if the dispensation
was just, the rule was vicious, and such as should
never have been published or enforced : they did not
admit .of a common and simultaneous vindication.
The law of man should never have been put in com-
petition with the law of God, either in the imposi-
tion or removal of restrictions ; it was not fitting, that
man should justify or sanction what the Deity had
pronounced to be sinful and void ; or that he should
restrain the free institution of God, or pretend to
appeal to his name in confirmation of an union
which was contrary to his commandments. But
the 8era had arrived in which the prohibition and re-
striction of marriage, and all the other abuses of a
corrupt and insolent hierarchy, called for reform
with a voice which could not be unheard, which the
most interested could not suppress, and the most in-
different could not disobey.
The temper in which the Church of Rome en-
tered in the council of Trent upon the ostensible
work of reforming the rule of matrimony, may be
conceived, from the presumption with which she
proceeded to pronounce a curse upon men, and to
place her own power on a level with the divine
institutions; affirming, with an anathema upon those
who should dispute the position, that the Church
may dispense with the Levitical prohibitions of mar-
riage in cases of consanguinity and affinity, and may
also constitute other impediments of matrimony ;
that marriage not consummated may be annulled by
the religious profession of either of the parties ; that
266
priests may not marry, and that their marriage is null ;
that marriage may be interdicted at certain seasons ;
that marriage celebrated without the presence of the
priest or some one having his licence or the Ucence
of the ordinary, and without the presence of two or
three witnesses, is void and null^. The same Council
justly deplores the evils arising from the multiplicity
of prohibitions, and that marriage, contracted in
ignorance of these prohibitions, cannot be upheld
without sin, nor dissolved without offence: but
instead of abolishing the pretence of a spiritual
relation, it only limited the number of sponsors to one,
or at the most to one godfather and one godmother,
and restricted the spiritual relation which should
impede matrimony to these sponsors and the persona
baptized, and the father and mother of the person
baptized ; to the person confirming, and the person
confirmed ; the father and mother of the person con«
firmed, and the person holding him. All other
degrees of spiritual relation are abolished. The im^
pediments founded in affinity acquired by forni-
cation, are restricted to those who are related in the
first and second degrees. If any man should marry
within the prohibited degrees, they were to be sepa-
rated without hope of dispensation ; especially if
they presumed to consummate the marriage, or to
contract it, without the required solemnities. Dis*
pensations of marriage were to be granted but sel-
dom, and never in the second degree, except among
great princes, and for public causes. Marriage be*
* Cone Trident. Sese. xxiy. De Refonnatkme Matrimonii* Can.
3, 4, 6, 9f 11. Decret cap. 10. 1.
267
tween the ravisher and the ravished is prohibited,
until the woman shall have free power of choice^
Penalties are pronounced upon the ravisher and ail
his abettors ; and he is required, whether he marries
the woman or not, to provide for her a suitable
dowry. The marriage of vagrants was not to be
solemnized without diligent enquiry and express
licence from the ordinary^.
The opinions of the continental Reformers were
naturally opposed to those of the Church of Rome.
Luther and Martin Bucer contended for the sole
authority of the Levitical law, without which there
was no impediment of marriage upon the ground of
consanguinity ; within which there could be no mar-
riage, and which could on no account be dispensed
with : affirming the validity of marriage in all other
cases, notwithstanding any law or custom to the
contrary ; and alleging, that God was the best judge
of what ought or ought not to be prohibited. Me-'
lancthon and Chemnitz also agreed in upholding the
authority of the Levitical degrees; but they per-
mitted other prohibitions in respect of degrees, pro-
vided, in the enforcement of those prohibitions, there
was no infringement of the liberty or the integrity of
conscience^. Beza, in the midst of many objections
to the canonical computation, and to the papal re-
strictions upon marriage, constantly affirms the di-*
' Decret. cap. 2, 4, 5, 6, 7. It was quite gratuitous to pro-
hibit the marriage of the person confirming and the person con-
firmed, when the former with all the clergy was incapable of
marrying at all.
•Gerhard, s. 291,293.
268
vine authority of the Levitical prohibitioDS, the ne-^
cessity of adhering to them, with an earnest wish'
that all Christian magistrates would be content to
follow this only rule, instead of pretending to a
wisdom beyond that of the Deity and the ancient
civil laws. Some of these prohibitions he supposes
to be divinely engraven on the heart, and to be
maintained by a divine interposition : and he holds
the distinction between marriages contracted in op-
position to divine prohibition, which he pronounces
to be null, and never to possess the character of
matrimony, and those contracted in opposition to
human authority, which he judges to be worthy of
civil penalties, but nevertheless to be utterly in-
dissoluble^ In the Constitutions of the electors of
Saxony, of Maurice, (A.D. 1543.) and of Augustus,
(A. D. 1^80.) marriage is indefinitely restricted in
the direct line of consanguinity; in the collateral
line as far as the third degree in lined imeguali in-
clusively : and whatever degrees are forbidden in
consanguinity, are also forbidden in affinity, properly
and primarily understood, so that the husband shall
not marry with the consanguinei of the wife, nor the
wife with the consanguinei of the husband. Penalties
are annexed, modified according to the proximity
which is violated, and to the infringement of divine
or human law by that violation : and it was also
ordained, that the eighteenth chapter of Leviticus,
and the scheme of prohibitions founded upon that
chapter, should be annually recited from the pulpit.
^ Beza de Repudiis et Divortiis.
269
In some few places a severer rule was adopted, and
marriage was prohibited to the third degree in iined
csquali^.
The firm spirit which resisted other encroachments
of papal dominion, delayed the establishment in
England of the canonical restrictions upon marriage;
and Gregory the Great, in a letter to Augustin the
Monk, which is still extant, admitted the policy and
expedience of suffering the Anglo-Saxons to marry
within the fourth degree, against the received rule of
the age ; and although the laws of Canute prohibited
marriage within the sixth degree of relationship, as
also with a godmother, a nun, and a divorced woman»
and with more than one wife, still, in Scotland, the
marriage of the step-mother and the brother^s widow,
and other customs contrary to the prevailing dis-
cipline were sanctioned, till they were abolished by
Malcolm III.**
By the ancient law of England, marriage between
Christians and Jews was declared to be felony ; and
the punishment was, that the parties should be
burned or buried alive: and in the Reformatio
Legum^ proposed by Cranmer, the rule was retained,
but mitigated : retained, by prohibiting the marriage
of Christians with such as were not Christians, on
the ground that such marriages must be prejudicial
to the issue; and mitigated, by a reservation in
' Gerhard, s. 344, 345.
** Selden de Jure Nat. et Gent. 1. v. c. 11. Christian Remem-
brancer, vol. iv. p. 721. In the council of London, A. D. 1102,
secret marriages were declard invalid, and marriage within the
seventh degree was pronounced illegal and incestuous. Ibid,
vol. V. p. 137.
270
favour of such marriages as had been already con-
tracted, that they should not be dissolved ; because
the apostle had ruled, that ^ while the unbeliever was
willing the contract should continued
As the Reformation in England originated in a
question upon the lawfulness of marrying a brother's
widow, which involved the legitimacy of both Mary
and Elizabeth, the attention of the Reformers was
forcibly drawn to the state of the matrimonial law,
in respect of consanguinity and affinity : and the
statutes 25 Henry VIIL c. 22. and 28 Henry VIH.
c. 7. advert in the preamble to the " many inconve-
niences which have fallen by reason of marrying
within the degrees of marriage prohibited by God's
laws,'' which marriages, although they be prohibited
by the laws of God, " yet nevertheless at some time
have proceeded, under colour of dispensation, by
man's power," but are by these statutes prohibited
for the time to coine ; and the meaning of the pro-
hibition is defined by carnal knowledge both in and
out of marriage ; that ^^ if it chance any man to
know carnally any woman, that then all and singular
persons, being in any degree of consanguinity Gt
affinity to any of the parties so carnally offending,
shall be deemed to be within the cases and limits of
such prohibitions of marriage." There are fifteen
degrees recited in these statutes ; viz. I . mother :
2. step-mother: 3. sister: 4. son's daughter: 5.
daughter's daughter : 6. father's daughter by a step-
mother: 7. father's sister: 8. mother's sister: 9-
unck's wife. 10. son's wife: 11. brother's wife:
* Burn^s Eccl. Law, Art. Marriages, i. 3.
271
19. wife^s daughter: 13. wife's son'd daughter: 14.
wife's dai^hter's daughter: 15. wife's sister. There
are also fifteen degrees prohibited in the Leviticid
law : but the father's daughter by a step-mother is
not included in the Levitical prohibitions ; and the
wife's modier, interdicted m Leviticus, is omitted in
the statute.
The statute 32 Henry VIII. c. 38. which under-
went many modifications, declared '^ all persons to
be lawful, that be not prohibited by God's law to
marry . . . , and no reservation or prohibition, God's
law except, shall trouble or impeach any marriage
without the Levitical degrees."
In reference to these statutes, it is again observed
in the Reformatio Legum, This in the Levitical
degrees is to be observed, that all the degrees by
name are not expressly set down ; for the Holy
Ghost there did only declare, plainly and clearly,
such d^rees, from whence the rest might evidently
be deduced. As, for example, where it is prohibited
that the son shall not marry his mother, it followeth
also that the daughter shall not marry her father.
And by enjoining that a woman shall not marry her
father's brother, the like reason requireth that she
shall not marry her mother's brother. To which the
same book adds two particular rules for our direction
in the matter: 1. that the degrees which are laid
down as to men, will hold equally as to women in
the same proximity : 2. that the husband and wife
are but one flesh ; so that he who is related to the
one by consanguinity, is related to the other by
affinity in the same degree'^.
^ " Gibson, 412." in Burn.
272
This parity of reasoning led to the exhibition of a
more copious table of prohibitions of marriage, which
was set out by Archbishop Parker, in 1563, of
which the substance is annexed to the Book of
Common Prayer, and which, with the omission of
the Latin names, may be reduced to the following
form, in which the first column represents the nature
of the relation, whether by consanguinity or affinity.
'^ An Admonition to aU such as shall intend hereafter to
enter the State of Matrimony godly and agreeably to
laws.
*• First, That they con-
tract not with such persons
as be hereafter expressed,
nor with any of like de-
gree, against the law of God
and the laws of the realm.
" Secondly, That they
make no secret contracts
without consent or counsel
of their parents or elders,
under whose authority they
be, contrary to Grod's laws
and man's ordinances.
" Thirdly, That they con-
tract not anew with any
other, upon divorce and se-
paration made by the judge
for a time, the laws yet
standing to the contrary.
Marriage is. honourable
among all men, and the bed
undefiled; but whoremon-
gers and adulterers God will
judge. Heb. xiii. 4.
To avoid fornication, let
every man have his wife,
and let every woman have
her husband. He that can-
not contain let him marry:
for better it is to marry than
to bum. 1 Cor. vii. 2, 9-
Unto the married, I com-
mand, not I, but the Lord.
Let not the wife depart from
her husband ; but if she de-
part let her remain immar-
ried, or be reconciled to her
husband; and let not the
husband put away his wife.
1 Cor. vii. 10, 11.
(€
I. It is to be noted, that those persons which be
in the direct line ascendant and descendant cannot
273
marry together, aithougii they be never so far asun-
der in degree.
^^ II. It is also to be noted, that consanguinity
and affinity (letting and dissolving matrimony) is
contracted as well in them and by them which be
of kindred by the one side, as in and by them that
be of kindred by both sides.
'' III. That by the laws consanguinity and affi-
nity (letting and dissolving matrimony) is contracted
as well by unlawful company of man and woman,
as by lawful marriage.
" IV. Item. In contracting betwixt persons
doubtful, which be not expressed in this table, it
is most sure first to consult with men learned in the
. laws, to understand what is lawful, what is honest,
and expedient, before the finishing of their contracts.
" V. Item. That no parson, vicar, or curate,
shall solemnize matrimony out of his or their cure,
or parish church, or chapel, and shall not solemnize
the same in private houses, nor lawless or exempt
churches, under the pains of the law forbidding the
same. And that the curate have their certificates
when the parties dwell in divers parishes.
" VI. Item. The banns of matrimony ought to
be openly denounced in the church by the minister
three several Sundays, or festival days, to the end
that who will and can allege any impediment may
be heard, and that stay may be made till further
trial, if any exception be made then against it, upon
sufficient caution.
" VII. Item. Who shall object a frivolous im-
pediment against a lawful matrimony, to disturb the
same, is subject to the pains of the law.
VOL. I. T
274
^< VIII. Item. Who shall presume to contract
in the degrees prohibited, (though he do it igno-
rantly,) besides that the fruit of such copulation may
be judged unlawful, is also punishable at the ordi-
nary ^s discretion.
*^ IX. If any minister shall conjoin any such, or
shall be present at such contracts-making, he ought
to be suspended from his ministry for three years,
and otherwise to be punished according to the
laws.
*' X. Item. It is further ordained, that no parson,
vicar, nor curate, do preach, treat, or expound, of
his own voluntary invention, any matter of contro-
versy in the Scriptures, if he be under the degree of
a Master of Arts, except he be licensed by his ordi-
nary thereunto, but only for the instruction of the
people read the Homilies already set forth, and such
other form of doctrine as shall be hereafter by autho-
rity published, and shall not innovate nor alter any
thing in the Church, or use any old rite or cere-
mony, which be not set forth by public authority.
" None shall come near to any of the kindred of
his flesh, to uncover their shame. I am the Lord.
Levit. xviii. 6.
*' A man may not marry his A woman may not marry her
^^ (Secundus gradus in lineft recti ascendente.)
Cons. 1. Grandmother, 1. Grandfather,*
AflT. 2. Grandfather's Wife, 2. Grandmother'sHusband,
Aff. 3. Wife'sGrandmother. 3. Husband's Grandfather.
^* Secundus gradus ineequalisin lineA transversali ascendente.
Cons. 4. Father's Sister, 4. Father's Brother,
Cons. 5. Mother's Sister, 5. Mother's Brother,
275
Aff. 6. Father's Brother's 6. Father's SUter's Hus-
Wife, band,
AfF. 7. Mother's Brother's 7. Mother's Sister's Hus-
Wife, band,
Aff. 8. Wife's Father's Sis- 8. Husband's Father's Bro-
ter, ther,
Aff. 9. Wife's Mother's Sis- 9. Husband's Mother's
ter. Brother.
^^ Primus gradus in line& rect& ascendente.
Cons. 10. Mother, 10. Father,
Aff. 11. Stepmother, 11. Stepfather,
Aff. 12. Wife's Mother. 12. Husband's Father.
^^ Primus gradus in lineft rectk descendente.
Ck>ns. 13. Daughter, 13. Son,
Aff. 14. Wife's Daughter, 14. Husband's Son,
Aff. 16. Son's Wife. 15. Daughter's Husband.
i<
Primus gradus sequalis in Imek transversaU.
Cons. 16. Sister, 16. Brother,
Aff. 17. Wife's Sister, 17. Husband's Brother,
Aff. 18. Brother's Wife. 18. Sister's Husband.
it
Secundus gradus in hnek recti descendente.
Cons. 19. Son's Daughter, 19. Son's Son,
Cons. 20. Daughter's Daugh- 20. Daughter's Son,
ter,
Aff. 21. Son's Son's Wife, 21. Son's Daughter's Hus-
band,
Aff. 22. Daughter's Son's 22. Daughter's Daughter's
Wife, Husband,
Aff. 23. Wife's Son's Daugh- 23. Husband's Son's Son,
ter,
Aff. 24. Wife's Daughter's 24. Husband's Daughter's
Daughter. Son.
t2
>-/•
276
'^ Secundus gradus insequalis in line& transversali
descendente.
Cons. S5. Brother'^8 Daughter, S5. Brother's Son,
Cons. 26. Sister's Daughter, S6. Sister's Son,
Aff. 27. Brother's Son'sWife, 27. Brother's Daughter's
Husband,
Aff. 28. Sister's Son's Wife, 28. Sister's Daughter's
Husband,
Aff. 29. Wife's Brother's 29. Husband's Brother's
Daughter, Son,
Aff. 80. Wife's Sister's 80. Husband's Sister s
Daughter. Son."
Upon the review of this Table it is obvious to
approve its method of explaining the cases in which
the marriage is forbidden, with such clearness and
distinctness that no man can misapprehend or pre-
tend to be ignorant of the prohibition, and with such
fuln^s as to leave the doubtful cases of very rare
occurrence. It is impossible also not to approve
its approximation to a scriptural standard, its esta-
blishment on a scriptural basis, not indeed with the
brevity which marked the earlier statutes, or with
the precision of Luther and Bucer, but nevertheless
without any deviation from the Levitical law, ex-
cept in useful redundance or unavoidable inference.
It is true, that the Table contains many more names
of relations than are expressed in the Levitical law,
which are however rightly added from parity of
reasoning, and are marked on each side of the
Table, 1, 2, 3, 7, 8, 9, 13, 21, 22, 25, 26, 27, 28,
29, 30, The prohibition of some of these marriages
is necessarily implied in the interdicts which are
expressly delivered. Thus if a man is forbidden to
277
merry his granddaughter, and a woman her grand-
son, (19, SO.) the grandson and the granddaughter
are forbidden to marry their grandfather and grand-
mother, (1, 2.) and the expression of these prohi-
bitions has therefore no fault but repetition and
redundance. Again ; a nian is forbidden to marry
his father's brother's wife ; (6.) his mother's bro-
ther's wife (7.) is related to him in th^ very same
degree, and is added by necessary inference. "Though
marrying a wife's sister be not expressly forbid in
the eighteenth of Leviticus, yet by parity of reason-
ing it is virtually implied. For when God there
commands that a man shall not marry his brother^s
wife, which is the same as^ forbidding the woman to
be married to her husband's brother, it follows of
course, that a man is also forbid to marry his wife^s
sister. For between one man and two sisters and
one woman and two brothers there is the same
analogy and proportion. Thus again ; though we
are not forbid in terms to marry the daughter of a
wife's sister, yet by the like parity of reasoning the
same is implied in the prohibition of marrying one's
father's brother's wife, which is the same as to for-
bid the being married to a husband's brother's son.
For between a man and his wife's niece is the same
relation as between a woman and her husband's
nephew: and therefore these also have been declared
incapable of marrying by our courts of judicature.
And if this be granted, it can much less be doubted
whether the Hke rule from parity of reasoning doth
not forbid the uncle to marry his niece, which,
though not expressly forbidden, is to be sure vir-
tually prohibited in the precept that forbids the
T 3
278
nephew to marry his aunt. Nor is it of any mo-
ment to all^e, that the first is a more favourable
case, because the natural superiority is preserved,
since the parity of reasoning, which is the proper
rule of judging, is the very same in both.
Nor do these rules hold only in lawful marriages,
but are equally binding in unlawful conjunctions ;
for by the same rule that a man may not marry bis
father's wife, he ought not to take his father's con-
cubine. . . . Nor are bastard children any more at
liberty to marry within the degrees of the Levitical
law than those which are legitimate. In this case
legitimacy or illegitimacy makes no difference ; for
if it did, a mother might marry her bastard son,
which is shocking to think of."
It is of marriages contracted in opposition to these
restrictions, that the words in the Office of Matri*
mony will be most appropriately interpreted, which
relate to the " cause or impediment why the parties
may not be lawfully joined together," and to the
circumstances "contrary to God's word," under
which they " are not joined together by God, neither
is their matrimony lawful." Such marriages are by
the ninety-ninth canon "adjudged incestuous and
unlawful, and consequently shall be dissolved as void
^ Wheatly's Ulustration of the Common Prayer, chap. x. sect,
iii. s* 2. See also Burn^s Eccl. Law, with cases in point. Bat
does the Scripture or the English law recognize such incorporation
of the man with the woman, as to make the cansanguinei of the
one the affines of the other, and to give to the hastard any re-
lations by affinity P The Jewish and the Lutheran interpreters
restrict the incest, precluding marria^, to matrimonial inter-
course.
279
from the beginning ; and the parties so married shall
by.:cburse of law be separated/' Such marriages
are Dot» however, necessarily followed by the nullity,
which is the ordinary penalty of incest; and the
English law, which is scrupulous in defining the
oifence, takes no active part in demanding the pu-
nishment, but leaves to the ecclesiastical magistrate
the separation of the offenders, and the infliction of
punishment for the offence /^ro salute animarum. But
such marriages, although absolutely unlawful, not
being void ab initio^ but voidable only by sentence
of nullity and separation, are esteemed valid to all
civil purposes, unless such separation is actually
made during the life of the parties. For after the
death of either of them, the courts of common law
Will not suffer the spiritual courts to declare such
marriages to have been void : because such declara-
tion cannot now tend to the reformation of the
parties"^. It is only when the marriage is thus
entirely dissolved, that the issue are bastards. It
has been often supposed, that the avoidance of
such marri^iges may be prevented by a fictitious
suit, at the instance of either of the parties, which
by the law's delay may never be brought to issue :
but they may also be avoided at the suit of third
persons, whose interests may be prejudiced or likely
to be prejudiced by such a connexion, and who shall
exhibit satisfactory proof of the interest on which
they ground the right of interference. The parties
are also liable to ecclesiastical punishment, for the
crime of incest, on the presentment of the persons
^ Black8toDe*8 Com. b. i. c. 15.
T 4
280
lawfully authorized to notice the offence ; so that in
a proceeding of this nature, technically called a Cause
of Office, the nullity of the marriage becomes an in*
cidental question, necessarily proved by the evidence
which establishes the offence, and is disposed of by
a declaration of its nullity, before the parties are
pronounced guilty of the incest".
It is a difficulty which has perplexed many inge-
nuous minds, and which has been sometimes argued
with considerable flippancy, that first cousins may,
and that second cousins may not, marry. The diffi-
culty has probably arisen from the different pro-
visions of the civil and canonical laws, of which the
former permitted the marriage of first, as the latter,
extending its prohibitions to the fourth degree, pre-
cluded the marriage of second cousins^. In Eng-
land, however, " no cousins whatsoever, whether in
the first, second, or third descent, are prohibited
marriage, either by the laws of God or of the land.
The more ancient prohibition of the canon law was
to the seventh generation ; and the same was for.
merly the law of the Church of England, as appears
by the canons of two different councils. But in the
fourth council of Lateran, which was held A. D.
1315, the prohibition was reduced to the fourth
degree ; as appears, not only by a statute in the
thirty -second of Henry VIII. but also by the fre-
quent dispensations for the fourth degree and no
° t^oynter*8 View of the Doctrine and Practice of the Eccl.
Courts, c. 7.
0 Burn's Eccl. Law. '' It is observable, that neither uncles
and nieces, nor even cousins, are permitted to marry" among the
Caffres. Enc. Metr.
281
farther, which we meet with in our ecclesiastical
records, as granted by special authority from Rome.
But now this was only for the increase and augment-
ation of the pope^s revenue, who always took care
to be well paid for his licence or dispensation. And
therefore, at the Reformation, when we got free from
our bondage and subjection to him, no marriages
were permitted but within the third degree, which
' are. expressly prohibited by the laws of God, as well
as by the dictates of right reason, and which, there-
fore, no power or authority can dispense with. But
now none that we call cousins are within the third
degree of kindred : even first-cousins or cousin-ger-
mans are four removes distant?.^'
There are other civil disabilities, created or en-
forced by the municipal laws of England, which
render the marriage thus contracted, not voidable
but void ; and if any persons under these circum-
stances come together, it is by a meretricious, not a
conjugal union. These disabilities are, 1. a prior
marriage, which necessarily precludes any other mar-
riage : 2. want of age : 3. want of reason, without
which no lawful contract can be formed ; and, 4. want
of legal solemnization to ratify the contract. No
just exception can be made to these disabilities, or
the nullity which they imply. There is another im-
pediment, which is but rarely agitated, and of which
the proof and the discussion are so offensive, that
public morals should prevail over private inconve-
nience in some method of silently effecting its sup-
pression. In the marriage of a dumb person a sign
^ Wheatly, ubi supra.
282
is a suflScient evidence of assent. Mwriage is not
restricted at any season of the year ; nor is a woman,
although it was the law before the conquest, prohi-
bited from marrying at any time after her husband's
death "1.
The tedious prolixity of this discussion of in-
cestuous and illicit marriages, admits the addition
only of a very brief recapitulation ; that in all ages,
in all countries, and under all dispensations of reli-
gion, various restrictions have been laid upon mar-
riage ; that these restrictions have been carried to an
extent which is not required by any moral pplicy, or
justified by any religious authority; and that in
England these restrictions are explicit and distinct,
and established upon a Scriptural foundation.
^ Blackatone and Burn.
SECTION II.
Marriage of Minora without consent of parents or guardians.
IT is a subject of anxious and delicate enquiry,
which respects the necessity and force of the consent
of parents to the marriage of minors, and the validity
of marriages contracted without that consent. The
question has been debated upon various occasions,
especially at the time of the Reformation between
the Romanists and the Lutherans, and at the time
of the enactment and the revision of the English
Marriage Act of 17^4. The most offensive provi-
sions of that statute have now been repealed, but it
may nevertheless be permitted to examine the grounds
upon which they were made to rest, and without
disputing the wisdom of laws which prohibit the
marriage of minors without consent, by penalties
short of nullity, to shew that the consent of parents
or guardians is not so necessary, that the want of it
annulls the vow of the parties; and that the marriage
of minors without consent is not a marriage con-
tracted otherwise than God's word doth allow, and
is not therefore intrinsically void, and should not be
avoided by the statute.
There can be no question of the moral necessity
of a parentis consent to the marriage of his children,
or of the moral duty of soliciting and obtaining that
consent. Reason and Scripture, precepts and pre-
cedents, laws civil and canonical, all agree in con-
firming the obligation of children to defer to the
284
advice and experience of their parents, as in all other
cases, so in the most important concern of their
marriage. The natural anxiety of the parent, which
never ceases to watch for the welfere of the children,
will be jealous of the tendency of their affections,
and win them from objects, on which they ought
not to rest, without offering an unwise and unavail-
ing opposition to a prudent and honourable inclina-
tion. The wisdom of the primitive Church* re-
quired of parents 'to make early provision for the
marriage of their children, that they might not be
tempted to fall into vicious connexions ; and it is no
part of the duty of parents to throw impediments in
the way of marriages, to which there is no moral
objection ; in which there is a promise that the
duties of marriage will be adequately performed;
and the great ends of marriage, the mutual comfort
of the parties, and the religious instruction of the
offspring, will be fulfilled. But it is an ill requital
of parental love, and it is unworthy of the ingenu-
ousness of youth, to conceal or disguise the first im-
pression : and it is the plain duty of children, to
seek the consent of their parents, to listen to the
suggestions of experience, to comply with the will
of affection, and to conceive that the opposition to
young desires may arise from better motives than
churlish apathy or designing interest. The reluc-
tance of the parent should always be met by the
most conciliatory submission on the part of the
* Const. Apostol. ]. iv. c. 11. The Julian law contained a
similar provision^ obliging the parents to give their children in
marriage when they unjustly restrained them. Brisson de Jure
Con.
285
child ; and the strongest passion should be subdued
to the great duty of filial piety. The ardour of the
lover should never absorb the reverence which be-
comes the son, who should never leave the parental
roof but in the assurance of returning in peace and
mutual congratulation. The relations of parent and
child are such as death only can dissolve ; the care
of the one and the gratitude of the other should
never cease: and whenever a man shall leave his
father and mother to cleave unto his wife, the con-
jugal union should be sealed by the blessing of his
parents ; the accession of new affinities should be
hailed with feelings of mutual benevolence ; and the
line of descent be extended without any interruption
of natural affection.
. There is no austerity in affirming, that to marry
against the will of a parent is an act for which the
most sedulous discharge of conjugal duties will
hardly afford an adequate atonement, and that the
precipitancy and temerity with which such marriages
are contracted threaten to produce, and in practice
are often found to produce, the worst and most
pernicious effects. On the part of the woman they
are more especially offensive, and liable to the im-
putation of at least a very defective sense of pro-
priety. The purest of all earthly love has been said
to be that which subsists between a father and a
daughter ; and when that love is transferred by the
woman, and in the peculiar delicacy of her situation
at the time of her marriage, she finds relief in the
consideration that she acts under the authority and
advice, and with the entire concurrence, of her
286
father. There is a striking el^nce in the fiction
under which the father gives his daughter, and under
which the Church, respecting the modesty of the
woman, and supposing her incapable of alienating
herself, asks, Who gives her away to be married ?
But what must be the reflexions of that woman, if
she has the sense to reflect, who, in defiance of her
father^s will, gives herself away, and betrays at once
a callousness or a carelessness to the dutiful affection
of the daughter, and the retiring delicacy of the
woman ? On this subject there is much wisdom
in the words of an ancient father of the Church,
who teaches, that the young woman is not consulted
upon the espousals, in which she depends on the
judgment of her parents, nor is it the part of virgin
modesty: to make choice of a husband, which is
rather left to the parents, that she may not be
charged with forwardness, in claiming the right of
choice in her own marris^. She should rather
appear to be sought by her husband, than to make
the choice herself, and to put on the appearance of
delicacy and reserve, by which her marriage may be
the more approved^.
There is not an argument which can be alleged
in palliation of the woman's temerity in marrying
without the will of her parents, or which can impair
the general duty and obligation of deferring to that
will. This is a duty which the heathen and the
Christian agree in supporting by every argument
and persuasion of reason and religion, which it is not
^ AmbnNu de Abraham. I. i. c* ult. apad Gerhard.
287
unworthy of a wise and prudent legislature to en-
force by the penalties of hunnan law, and of which
the neglect is in England and some of the con-
tinental states followed by forfeiture, disinheritance,
fines^imprisonment, and other punishments.
The policy of prohibiting* and restraining under
various penalties the marriage of minors without
consent of parents rests on very different grounds^
from the assertion of their nullity or invalidity. The
former power tnay be necessary to vindicate the just
authority of the parent; the latter is such an in-
fringement of the personal independence of the child,
ftod such an interference with his civil and religious
etigagements, as should not be admitted but upon
principles free from exception, or capable of bearing
the severest and most rigorous examination.
But whether marriage be considered simply as a
civil contract, or as a religious vow made in con-
formity with a divine institution, it is difficult to
conceive its entire nullity under any circumstances
in which the parties are capable of understanding
and fulfilling the vow, and are not forbidden by Ae
Deity, in whose name it is made, to contract it.
Infants, because they cannot fulfil, and idiots, be-
cause they cannot understand it, incur no matrimo-
nial obligation:, and if the force of the obligation
depended on the intervention of any third person,
the grounds upon which the child and the idiot
are exempted, would be removed. The exception
proves the rule in all other cases, and enforces the
bond, wherever it is not necessarily precluded. It
shews that the man and the: woman are the only
persons by whom the marrriage can be, and without
288
whom it cannot be, contracted : and the exclusion
of the effective consent of third persons is a primary
objection to the nullifying power of their dissent.
If marriage be a contract between two persons, it i.s
not in the power of a third person to disdiarge
another from an engagement in which be has not
power to bind him : and if it be a religious vow, it
.is dangerous to introduce the doctrine of dispensing
with oaths, which bind the conscience. Nor can
the parties nullify their own act, unless they have
reserved to themselves a conditional power of re-
scinding it : but such reservation is contrary to the
essential perpetuity of marriage. The man who
takes to himself a woman whom he may dismiss,
takes to himself a concubine, and not a wife ; and
he cannot nullify, because he has not contracted
marriage. The objections to nullity of marriage,
considered in its simplest form, are confirmed, if it
be contemplated as a religious vow, involving per-
jury in its violation ; or if it be contemplated in its
effects upon the woman, on whom it affixes a mere-
tricious character; and upon the issue, whom it
corrupts with the stain of bastardy.
It is admitted, that when the parents have given
their consent they have not the power of retracting
it : but it is contended, that they have the power of
nullifying the contract which their children have
made. If the consent of parents is thus necessary
to the validity of marriage, it is natural to ask, be-
tween whom is the contract to be made ?. between the
parents and the children on both sides, or between
the parents only, without the concurrence of the
children ? And what shall be the rule of judgment,
289
if the parents of the one party iassent, and the parents
of the other dissent? or if the one party, being of
age, is bound by his assent, and the free consent of
the minor i& controlled by the dissent of the parent ?
When it is held, that the consent of the contracting
parties, being of competent age and understanding,
publicly and irrevocably declared, is all which is essen-
tially necessary to the validity of marriage, the law is
clear, definite, and distinct: a man knows his wife, and
a wife knows her husband : but when the validity of
the marriage is made subservient to the consent of
the parents, and the obligation of the contract is
suspended on their interference, the law is embar-
rassed and involved, and a man may never know
whether he is or is not married.
It is commonly pretended, that in respect of mar-
riage children are not independent, or sui jurisj and
the pretence is just with reference to the Roman
law, which ascribed to the parent over the child the
power of an owner over a thing, and a necessary
incapacity of alienating itself. Such power it was
consistent with the arbitrary character of a Roman
father to assume, but it is incapable of vindication.
In respect of marriage, an original licence was given
to every man to leave his father and mother, and
deave unto His wife; a licence, only restricted by the
prohibition of incestuous marriage ; claiming the ap-
propriation of every man in the growth of those
affections which lead to marriage ; subject to no other
limitation besides the competence of discharging the
conjugal obligations, and such maturity in the con-
stitution of the mind and the body as is requisite to
a right apprehension of the nature of marriage, and
VOL. I. u
290
to the fulfilment of it8 great purposes of mututl
society, the religious education of children^ and the
maintenance of a family, which supposes a capacity
of sustaining labour and privation. The liberty of
marriage under these restrictions is of divine origin
and institution, and beyond the control of human
law. The moral and remedial uses of marriage are
such as can hardly be reconciled with a dependent
right, or be renounced or controlled without a tempt"
ation to offence^.
Writers who maintain the nullity of marriages con-
tracted without consent of parents have found it neces-
sary to make many exceptions in the practical appli-
cation of the principle for which they contend. They
who deduce it from the paternal authority, laid down
in the Roman law, assert, that it is unconditional
and unrestricted ; others, who make the necessity of
consent dependent on the duty of filial reverence, are
obliged to admit modifications of the necessity, to
limit the period of minority, and to take into consi-
deration the previous conduct and care of the parents.
Some deny the common right of parents, and con-
tend only for the operation of local and particular
laws, superseding the right of nullity, and substitut-
ing secondary penalties for the n^lect of consent.
Such fluctuations of opinion are not favourable to
the establishment c^ a practical truth.
The period to which the necessity of consent is
limited, and within which the marris^ contracted
* Inquiry into the force and operation of the annulling clauses
in a late Act of Parliament for the better preventing of Clan-
destine MarriageiB, with respect to conscience. London, 1754.
p. 7—16.
29 i
witboul; it is void, is variously defined. By the
Roman law, and by the constitutions of Saxony
and of Wjrtemhergi iU was not terminated by any
age. Other counixies have mitigated the rigour of
this la,w: thust in Fmnce, the son cannot marry till
thirty years of age, nor the daughter till twenty*five ;
m {foUand and in Pomerania, the soqs are at their
omu disposal at twenty-five, and the daughte^rs at
twenty. In other places the sons may marry at
tweoty^four. In England the mLaprity a^nd the ne-
cessity of consent expire together at twenty-one"^.
So arhita'ary is the restriction upon the paternal
power, the main principle of nullity of marriage.
If tl|e. pareqts should die during the minority of
the children, the English marriage law of 1764* re-
quif^ed thejconaent of guardians legally appointed, or
of the High Court of Chancery : but the Roman
Iftw, the original of the right of nullity, while it pre-
knod the .consent of the paternal grandfather to that
of ithe natural £uher, gave qo authority to guardians
io the marriage of the ward beyond .die settlement of
the dower. Neither did the Saxon nor the Salic
Jaw confer a right of nullity uf>on the guardian,
whose consent was required in some countries of
right, <ifi others of duty, and the want of it was made
penal absdlutely, or at the discretion of the judge.
Specious arguments have been alleged both in favour
and to the prejudice of the guardian's right, which,
if they are weighed in an equal balance, they are
^ 1 Bl. Com. c. 15. Sohott. Adnot. Jurid. ad Gerh. De Con-
jug, ad g. 93.
U 9
292
hardly capable of sustaining*. But if the father's
power cannot be delegated, and necessarily ceases
with his natural life, his consent cannot be abso-
lutely necessary to the validity of the niarriage,*or
orphan children would be precluded from marriage.
The concurrent or independent power of the grand-
father, peculiar to the Roman economy, while it
extends the paternal power in one relation, controls
and contracts it in another.
If the mother should survive the father, her con-
sent, under pain of nullity, was necessary to the
marriage of a minor, and sufficient during her wi-
dowhood, by the English law. But the Roman law,
maintaining exclusively the paternal power, gave no
authority to the mother. The laws and practice of
Germany admit the equal rights of both parents,
and upon the death of either parent convey the
whole power to the survivor : on the death of both
parents the care of the children, in respect of mar-
riage, devolves on the paternal grandfather, or the
nearest relations, who have not however the right of
dissolving the marriage contracted without their con-
sent, which is required only under particular constitu-
tions. The most scrupulous care is also required in
restricting the liberty of children in the contract of
marriage, and it is an admitted axiom, that there is
not less offence in uniting those who should not be
united, than in separating such as should not be
separated ^
* Brisson. de Ju. Con. Gerhard, s. 93. Schott. ad a. 94.
' Schott. ad 8. 96, 97. Gerhard, a. 96. So it ia admitted, non
quidem matrimonium absque pareDtum consensu contrahendum
293
If the right of nullity is abated by the defective
provisions which have been made for supplying the
power of the deceased parent, it is further invalidated
by the restrictions laid upon him during his life.
In the case of a father^s captivity, and consequent
incapacity of consenting, the old Roman law for-
bade the children to marry during his captivity, or
permitted him to avoid the marriage on his return.
The extreme rigour of this law was modified, and
an interval of three years was prescribed within
which the children might marry, upon condition that
the marriage was suitable and not displeasing to the
father, and at the expiration of which the marriage
would be confirmed. Thus the paternal power was
suspended for an arbitrary period, and the right of
nullity was also suspended on the circumstances of
the father, and the opinion which he might form of
the character of the marriage*.
The same limitation was applied in the case of an
absent father by the Roman law : in Germany the
advice of near relations and of the ecclesiastical judge
IS recommended for more security^: in England the
return of a father has vitiated a marriage contracted
^vithout his consent, on the supposition of his de-
cease.
If the father be insane, the English law requires
the consent of the guardian. In ancient Rome the
grand&ther gave consent ; but the consent was not
esse ; ti tamen contractum fuerit, nop esse dissolvendum. Multa
impediunt matrimonittm contrahendum, quae non dirimunt con-
tractum.
« Schott. ad s. 99. ^ Ibid.
u 3
294
required for the marriage of the daughter of a madman,
and Justinian confirmed the same immunity to the
son*. It is reasonable, that a man incapable of con-
tracting marriage for himself should not be the arbiter
of the marriage of another : but it is nevertheless an
infringement of the father^s power and right of nut-
Nty, and abates the necessity of his consent, by
affirming the marriage contfacted without it.
If these are called extreme cases, cases in which
the paternal power is inoperative, there are other
cases admitted by the advocates of nullity, iri which
there is a positive restriction of the agency of die
paternal power.
The impiety of a father does not supersede his
paternal relation, or the necessity of his consent:
but if his dissent is grounded in his impiety, the
child may appeal to the judge, and thus the iathePs
power will be controlled, and the necessity of his
consent avoided *".
If the parent neglects his duty, and unjustly, and
for the sake of private advantage, obstructs the mar-
riage of his children, they may appeal to othw rela-
tions and to magistrates, who may assume the rights
of the father, and give authority to a marriage con-
tracted without his consent^
If parents are harsh and severe in opposing the
marriage of their children, their consent may in rtie
same manner be dispensed with. This was the
opinion of Luther, and the rule of the civil and the
Julian laws : but the exception is of large extent,
* Fr. Hotman de Rit. Nu. et Matr. c. 3. " Schott. ad ■. 91.
> Gerhard, s. 76.
295
for gentle and e^y parents will not oppose the
naarriage of their children '°.
A distinction is made between children who after
marriage without consent si^bmit themselves to the
will of their parents, fi^d such as pe^ist in opposing
their will". This is a \i^ide deviation froni the main
principle of nullity. If the marriage without con-
sent is void in itself, the subsequent behaviour of the
children, which is independent of any conceivable
principle of nullity, caqnot remedy the defect.
- Another irrelevant distinction ' is made between
marriages contracted with persons of honourable and
equal condition, and those contracted with persons
ctf mean and unequal rank^ Whatever be the prin-
ciple of nullity, it cannot be affected by the condition
of the parties ; and what is honourable to the one
will be degrading to the other. If the validity of
the marriage rests on the consent of the parent, the
circumstances of the parties cannot confirm it.
If children marry without the privity of their
parents, the marriage is null; and the parents are
not bound to assign the reasons of their dissent.
Otherwise the dissent of parents was not arbitrary,
but liable, under the Poppaean law, to the revision
of the prsBtor. So in Germany, the power of the
parent^ being for the ben^t of the child, may not be
arbitrarily exercised ; and the ecclesiastical judge
may eumine the reasons of bis dissent, and in his
discretion either inhibit the marriage, or restrain the
*B Gerhard, 8. 5S, 90. A similar provision was introduced into
the Reformatio Legum.
" Gerhard, s. 59. "" IW.
u 4
296
prohibitory power of the parent and give lawful sanc-
tion to the marriageP. This is another infringement of
the paternal power, and another abatement of the
strict necessity of consent. The English law was in-
flexible ; if the required consent was not given, the
marriage was irretrievably void.
- It is admitted, that if the parent does not dissent,
bis virtual acquiescence may be assumed. It has
been conceived, that the assent needs not to precede
the marriage; but the retrospective operation of a
subsequent consent has been very properly disputed.
If the marriage without consent be actually null, it
cannot be amended : but in many of these cases the
marriage is rather voidable than void ; a distinction
not very consistent with the true principle of nullity.
A distinction is also frequently made between the
right and the exercise of the right : and yet, if the
validity depends on the right, it is difficult to con-
ceive how it can be established by the neglect of the
right.
If a marriage contracted without consent shall be
consummated, and followed by the birth of issue, it
is contended, that if the principle of nullity without
consent be admitted, a vicious marriage cannot be
amended by a vicious intercourse. The position is
opposed by the authority of Luther and Melancthon,
who argue, that after consummation, the rights of
the parent and the wife conflict ; that the injury of
the woman is irreparable if the marriage be not con-
firmed ; and that consummation ratifies the marriage.
The apologists of nullity also admit, that the woman*
P Gerhard, s. 89. Schott. ad s. 89, 90.
297
seduced by a promise of marriage, is entitled to re*
dress; that marriages so contracted and consum-
mated ought not to be lightly rescinded ; and that
many things which should prevent the contract do
not dissolve it after it is madc^. If there be any
weight in these reasons, they destroy the vital neces*
sity of the consent, by affirming the marriage which
is solenmized without it, and thus giving to clandes-
tine consummation a force equivalent to the paternal
authority.
On the effect of the ecclesiastical benediction it
has been argued, that it cannot make that legal
which is in itself illegal, or supersede the necessity
of consent: while others have contended, that when
the vow of marriage has been made, it behoves
parents to exercise their power with moderation, and
to consider the hazard of their children's souls'.
This argument proceeds on the principle, that it is
rather the duty of children to solicit, than the right
of parents to enforce, consent. This is the principle
of the humane law of Wirtemberg. Others, over-
looking the right of nullity and the rules of Roman
jurisprudence, contend that marriage is an actual
emancipation of the child, in virtue of which the
filial merges in a higher and indissoluble relation.
It has now been shewn that nullity, consequent
upon want of consent, is incompatible with the
nature of marriage, and that the difficulty of the ap-
plication, and the many cases of unavoidable excep-
tion and very subtle distinction, are sufficient to
*> Gerhard, s. 75, 82, 58, 99. Schott ad s. 83. ' Schott. ad
i. 82.
296
destroy the force of the principle in dispute. The
writers who contend for this principle have neverthe-
less made it to rest upon authority which requires to
be obviated or obeyed.
The necessity of the parent's consent to the va*
lidily of the maifiage has been inferred' firom the
terais of the divine institution. The inference is
oertaiBly not very obvious, and it is not noticed in
any of the Christian or Jewidi commentaries, col-
lected by Ainsworth and Poole. The text is again
and agaiii secited in the Old and in the New Testa-
ment, without an allusion to the consent of parents ;
in the reproofs of divorce the want of it is never
alleged in justification or ^cudeof the practice ; nor
is there the faintest or most distant allusion to the
doctrine in the forms of Jewish marriage or Jewish
divorce. There are many cases in whidi marriage
is expressly forbidden ; and a marriage contracted in
violation of the prohibition is held to be null, be-
cause it not only wants, but opposes the divine au-
thority: but there is no such interdiction of mar-
riage without consent of parents. It must have been
foreseen in the primary institution of marris^, that
many cases would occur, in which the consent of
the parent would be almost, if not altogether im-
practicable : and if the consent was so necessary as
is alleged, it would have been guarded by the au-
thority, not of a remote and doubtful inference, but
of a clek^ and positive command. The nullity of
marriage without consent is however so far fW>m
being authorized, that the necessity of consent is
» Gerhard, 8. 69.
289
almost superseded in tbe sen teno^y that the man shall
leaye his father and mother; not, that they sbaU
permit or command him to -depart, but that he shall
leave them, as it were by bis own act, and in the
exercise of his own discretion* It is a fanciAil gloss,
that, according to the plan and method of the ditine
institution, Adam did not of his .own will choose
Eve for his wife, nor did Eve make <^hoice of Adam,
but by the interposition of the Almighty, who gave
Eve as his daughter to Adam, with an ample dowry.
It was the remark of Luther, that Adam did not
seize Eve to himself, but waited die o£kr of God,
who in diis action gave exatnple to parents to pro-
vide for the maniage of their children. The nullity
of marriage without consent is a bold> uiieiisnce even
from these commentaries.
The right of nullity has also been inferred^ from
the fifth commandment, which only prescribes the
duty of children, widiout any intimation of the au«
thority of parenits to annull a marriage contracted
without their consent ; in which the child makes use
of a privilege conferred by Him that is greater than
any earthly parent. This command would convey
equal power to bt>th parents, which the Roman law,
the true origin of nullity, does not admit; in the
exercise of which there might be the most perplexing
disagreement; and under which the combined in-
fluence of the several parents could only extrad to
their own children.
< CMutfd, a. 60« Bssa de Dwmtih at RefftMa. See sko
Stebbiagf 8 ]>i8iiertatioo so the pmv^ «£ slates to deny «ml piO*
tection to the autniage of minore^ p. 16.
300
The right of nullity is again assumed from the
right of the parent to disallow the vow of his un-
married daughter". An exception might be made
to the very circumstance of the daughter's being
unmarried ; from which the state of marriage might
appear to be essentially distinct, and to be a virtual
emancipation : the vow is restricted to a vow unto
the Lord ; and the power of disallowing it is after
the marriage conveyed to the husband, and is only
permitted to the father during his daughter's conti-
nuance in his house, when it might be injurious to
his interest, because she might vow more than she
could redeem. In both cases it is expressly said,
that the Iiord will forgive her if her parent or her
husband disallow her vow : if the parent could plead
the same authority for annulling the vow of marriage,
all objections would be removed. In these respects
the vow unto the Lord is distinguished from the vow
of marriage, which might be equally injurious in the
case of the son, over whom the parent has received
BO such power: nor is there any authority under
which the parent of the bride can rescind the vow of
the bridegroom ; but, unless the power can be ex-
tended over both parties, it is worse than nugatory ;
acquitting the woman of her vow, and leaving the
man under obligation.
The law of ravishment has furnished* another plea
for the right of nullity; and it has been argued, that
if the father may refuse his consent to the marriage,
" Numb. XXX. 3—8. Gerhard, s. 61. Stebbing, p. 20. Tun-
■tairs Vindication of the power of states to prohibit clandestine
marriages under the pain of absolute nullity, p. 25, 62, 63.
* Exod. xxii. 16. Deut. xxii. 29. Gerhard, s. 61.
301
to which the ravisher is bound to submit, he may
also annul! the marriage contracted without his con-
sent But the two cases are very different : and the
particular power of preventing a marriage which one
party n\ay be obliged to contract, cannot be brought
to establish the power of annulling a marriage actually
contracted by both parties, under circumstances to-
tally distinct. The father of the ravisher had no
power of assent or dissent.
In many texts parents are said to give their chil-
dren in marriage, and to take husbands or wives for
them 7. It is unquestionably the duty of parents, to
provide marriages for their children, and of children,
to defer to the will of their parents : and this is the
chief conclusion which can be drawn from these ex-
pressions, of which a strict interpretation might make
children merely passive in the contract of marriage.
In English law widows are given in marriage, when
the consent of parents is not required. In the case
of the commanded marriage of the brother's widow,
the father was not consulted ; and his power, if he
possessed any, was suspended : and in any estimate
of the right of parents upon Jewish precedents, at-
tention should be paid to the early marriages of the
Jews ; the distinction between the espousals and the
marriage ; the solemnities of the dower ; and the
prevailing state of polygamy. The only passage of
the New Testament which can be thought to con-
firm the parental right, is that in which the apostle,
speaking of the marriage of a daughter, says. He
that giveth her in marriage doeth well, but he who
' Gerhard, s. 60. Stebbing, p. 19.
302
giv«th her not in marriage doeth better'. Tbe text
can rdate to no more than die power of yiarents to
diapose of their children in marriage ; and befoie it
can be brought to sanction a common right of nullity^
it ahoukl be shewn not to be restricted to a particular
time and case ; and care should be taken, lest in its
extreme application it is made to circumscribe the
free use of maniage. It is in the same cha^^ter that
the apostle affirms the remedial benefit of marriage,
of which it must be 1^ to the discretion of the indi-
vidoal, whether he will or will not avail himself^.
The authorities thus recited from the Scriptures
relate entirely to the cases of parents, in making
provision for the marriage of their children ; or of
children, in deferring to the will of their parents in
respect of marrii^ ; and exhibit no proof of the
right of annulling marriages contracted without con-
sent of parents. The marriage of Esau^ was emi-
nently contracted without the ccmsent, and against
the will, of his parents ; but it was not therefore
annulled. The iinritings of the fathers and the
canons of councils, which have been collected by
the learned industry of Gerhard and Bingham, are
not more conclusive.
TertuUian, in afiirming that marriage was not duly
extracted without the consent of parents, expressly
alludes to the Roman practice, widi which he com-
pares the conciliation of marriage by the Church,
and the ratification of the heavenly Father ''.
» 1 C«r. vii. 38. Gerhard, s. 60. • 1 Cor. vii. 9. Enquiry
into the force of annulling clauses, p. 11, 13, 20. ^ Gen.
xxvi. 34. xxWi. 46. « Ad Ux, ii. s. 9.
303
Clemens <^ Alexandria mentions the case of a
young woman, who being solicited concerning a
lawfiil marriage, referred the matter to her mother^.
The reference proved the piety of the daughter,
without establishing the nullifying power ef the
mother, which was not admitted even in the Roman
law.
Ambrose explains the apostolic injunction, of
marrying in the Lord, of the duty of a daughter
to leave the choice of a husband to her parents*.
Even this extraordinary exposition is by no means
conclusive of a right of nullity. The expressions of
the pretended Ambrose, concerning the validity of
marriages contracted out of the appointment of God,
which when they are known require to be amended^
liave been also interpret^ of marriages without con-
sent But the argument of the apostle and his com-
mentator relate to the marriages of the faithful whh
the unbelieving, interdicted in both the Testaments ;
and it is vain to deny the continuance of this inter-
diction, and to ground upon the denial a right of
nullity, not asserted in either Testament. Ambrose,
in maintaining the alleged right, pleads for modera-
tion in its use^.
Basil denies the force of covenants, contracted by
such as are in the power of another^. The rule pro-
ceeds on the assumption, that in respect of marriage
one person is in the power of another. He also calls
the marriages of minors stolen, or married clandes-
tinely and without the father's consent, not matri-
* Strom. 1. iii. « De Abrah. 1. i. c. ult. ' Com. ia
1 Cor. yii. ' Ep. ad Sisinn. ** Ep. ad Amphiloch.
304
mony, but fornication, of no validity, but null, unless
they were ratified by the consent required. If they
were null they could not be confirmed: and the
assertion of their nullity, from want of consent, was
the mere law of the empire.
Chrysostom' exhorts parents to take seasonable
care for the marriage of their children, that they may
not fall into debauchery ; adding, as a reason, that
if they shall be debauched before their marriage, they
will fail in matrimonial constancy. The precept
teaches the duty of parents : does it bear any evi-
dence to the right of rescinding the marriages of their
children ?
Augustin^ speaks of a minor whom be cCuld not
give in marriage, even by her own consent, because
she had an aunt, who ought to be consulted ; and
perhaps a mother, to whom nature gave the prefer-
ence, before all others, in disposing of her daughter,
unless she had attained the age in which she had free
liberty to dispose of herself. The rule is unexcep-
tionable, but it is inconclusive of the right of nullity,
and it is inconsistent even with the Roman law.
In the Epistle ascribed to Evaristus, it is pre-
tended to be an apostolical tradition, that there is no
marriage, unless the wife be asked of those who have
the dominion over her, and in whose custody she is,
unless she be betrothed by her parents and relations,
and lawfully endowed, and sacerdotally blessed.
Parts of this pretended tradition are manifestly coun-
terfeit, and probably not more ancient than the sixth
century : the right of nullity forms no part of it ;
' Horn. ix. in 1 Tim. ^ Ep. ccxxxii.
305
mnd it relates to the marriage of the woman, and not
of the man.
There are other authorities alleged by the advo-
cates of nullity, which it would be improper to ovei^
look, but which are not of sufficient value to demand
a distinct refutation. Thus the Pope Leo asks>
What should that wife be, who is to be deemed
according to the law a chaste virgin, betrothed in her
virginity, lawfully endowed, and delivered by her
parents to the bridegroom, and received by the para^
nymphs ; and thus, according to the law and to the
Gospel, taken by a public marriage for a wife ? He
also affirms, that women joined to husbands by the
will of their parents are blameless. Pope Nicolas
declares ' that nuptial contracts are formed by the
consent of the contracting parties, and of the persons
in whose power they are. The rule of Gregory is,
that when a girl that has been ravished is restored to
the power of her father, and the ravisher repents of
his offence, they may marry, with the consent of the
parents of both parties ; and that if a woman shall
be married by force, and without the will of her
fether, he is free to take her from ,her husband, and
deliver her to whom he will'.
So weak and inconclusive are the testimonies of
the lathers to the right of nullity : the decrees of
councils produced by Gerhard, in favour of the right
in question, are clear in affirming the duty of obtain-
ing consent; but they fail to establish the power
of annulling marriages contracted without consent.
Thus it was ordained in the fourth council of Car-
' Gerhard, a. 69.
VOL. I, X
306
thage: When the bride and brid^room are to be
blessed by the priest, they are to be presented by
the parents or paranymphs to the priest. .Again, in
the' third council of Toledo: Let widows marry
whom they will : let the same be the condition of
virgins : nor let them be constrained to marry against
the will of their parents, or their own wills. So in
the council of Orleans : If the girl who is ravished
has a father, and she shall have consented with the
ravisher, she may be delivered by the will of her
father, and the ravisher is liable to make satisfaction
to the fether, if he be of superior condition.
There is no presumption in asserting the irrele-
vance of these authorities, and their incapacity of
sustaining the right in question. Hotman, a very
competent judge, has pronounced it to be most
clear that the consent of parents is not required by
the canon law, and the exceptions which have
been alleged are such as confirm the opinion. That
the fathers have not spoken more fully upon the
subject may be accounted for by the prevalence of
the Roman law at the time, under which it would
have been impolitic to maintain a doctrine of which
the practical consequences would have been so per*
nicious as the civil nullity of marriage, and which
might have exposed its advocates to the frowns of
the imperial law. But it is bold and gratuitous to
assume^ that the invalidity of marriages contracted
without consent was held until the thirteenth cen-
tury, when marriage was made matter of ecclesiasti-
cal cognizance, and the doctrine of its indissolubility
"" Schott. adtf.68.iqq.
307
was first inferred from the mystical union of Christ
with his Church. This doctrine is derived from
apostolical authority, and is one of the first and
most continuous traditions of the Church. The
validity of marriage in the time of Tertullian, if not
of Ignatius also, depended on its public profession
before the Church ; and, notwithstanding the rigogr
of the ancient law of Rome, Ulpian, the contempo-
rary of Tertullian, has affirmed, that the concord of
matrimony caimot be disturbed by the paternal au-
thority^. The husband had also the right of demand-
ing his wife of a parent in whose power she was,
and who detained her against her will : and hence
resets the axiom of equity and of law, that mar-
riages are not lawfully contracted without consent of
the persons in whose pow^r the persoi^s marrying
are, but that being contracted they are not dissolved ^.
They may be compared with irregqlar wills, which,
notwithstanding their informality, are nevertheless
wills : and such marriages, although they are unjust
in reapect of t\)^ parents, may nevertheless, in respect
of the parties, grow into good marriage, by their
constancy in matrimonyi*. These opinions of the
old civilians are alone decisive of the question of
nullity ; and they proceed upon the ground that
the fHiUic interest prevails over the private advan-
tage of the parent, the only reason pretended for the
right of nuUity. It is at the sanie time necessary to
observe, that the advocates of nullity do not impugn
the doctrine of indissolubility of marriage, but insist
" Brissoa de Ju. Con. ** Paulus in libr. Senten. apud
Brbson. p Fr. Hotman de Rit. Nu. et Matr. c. 3.
X9
308
on the utter invalidity of the contract itself, which
in their judgment is not only voidable but vOid.
Bingham has asserted, that he knew ** no example
of the Church's allowing or approving any marriage
to be lawful where the consent of the parents, in
disposing of their children when under age, was not
had first or last to the ratification of it"*." First or
last is but a loose expression, more appropriate to
voidability than to nullity ; and it is obvious to ask,
Where are the examples of such nullity, independent
of the Roman law ? The apocryphal history of Paul
and Thecia, if it does not impugn the right of nul-
lity, does at least prove that parents had not the
power of constraining the marriage of their children.
Inconsistent with the nature of a voluntary con-
tract, and destitute of all divine authority, the right
of nullity has been argued upon thepower of human
legislators to refuse validity to contracts made under
certain prohibited circumstances'*. This right is
however restricted to the civil effects of the* mar-
riage, without pretending to weaken the bond of
marriage on the conscience, and is compared with
the invalidity of other acts performed during the
minority, which the minor is bound in honour, not
by law, to fulfil. Although the right is thus made
to depend not on any general principle, but on the
arbitrary authority of the law, of law varying in dif-
ferent nations, still, as it allows the marriage in a
certain sense, as it neither leaves the parties free to
marry again, nor affects their issue with the stain of
*» Eccl. Antiq. b. xxii. c. 2. s. 4. ' Puffendorf. de Off.
1. vi. c. 1.8. 8. Stebbing, p. 27.
309
bastardy, nor renders them incapable of inheriting
the property of their immediate parents, it does not
call for any particular refutation. Even disinherit*
ance, which in some countries follows the marriage
without consent, is a matter perfectly within the
cognizance of the law: and it is justly admitted,
that although parents have no right of annulling
marriages contracted without consent, the children
who marry without consent can have no claim upon
their parents for maintenance in the marriage con-
tracted against their will*.
Universal practice has been alleged in proof of the
right of nullity : and it is asserted with some ambi-
guity that the necessity of the consent of parents in
the marriage of their children is found not only in
the Roman law, but in the practice of almost all
nations, evinced in their poetry, their history, and
their laws^ If this necessity is interpreted of the
right of nullity, very considerable differences will be
found in the practice of different nations, and in
many, which have not admitted the principles of
Roman jurisprudence, the evidence will be found
very defective.
There is no trace of nullity in the Grecian mytho-
logy : the fable of Apuleius", concerning the clan-
destine marriage of Cupid and Psyche, is evidently
constructed on the rules of Roman law, and may be
pleaded against the validity of other marriages than
those contracted without consent of parents. The
Athenian laws collected by Potter* related only to
* Enquiry into the Annulling Clauses^ p. 10. * Gerhard,
8. 64. " De Asino Aureoi 1. vi. Bingham. * Antiq. b. i. c. 26.
X 3
310
the marriage of the heiress, which was to be con*
tracted by the father, brother on the fiither^s side, or
grandfather ; oil the death of these relations she was
to marry whom the law should appoint: the woman
of low condition might marry at her own discretion.
The heii*ess Was also, as in the Jewish law, obliged
to marry her nearest relation ; and the next of kin
was bound to marry or give a portion to the orphan
who had no inheritance. These were certain re-
strictiofis on the parental authority : but it is said,
that virgins might not marry without consent of their
fathers, or mothers, or brothers, grandfathers, or
guardians ; and that men were not permitted to
marry without consulting their parents 3^* There is
no difficulty in conceding this extent of parental
Hght and filial duty, as the concession does not
involve the right of nullity, which cannot be de-
duced from the cases alleged by various writers in
its support. Achilles, in refusing the offer of Aga-
memnon^s daughter, leaves his marriage to his fiither:
Does this sentence justify the right of nullity ? May
it not rather be argued, that the offer of Agamemnon
proceeds on the supposition that Achilles was com-
petent to accept or refuse the offer, which he actually
declined without consulting his father ; that he pro*
posed on his ^tum to choose for himself from the
daughters of Greece ;
y Antiq. b. iy. c. 11. * llhd, I 3d4, 397.
311
and that he eventually solicited and obtained Po-
lyxena. Hermione in Euripides'^ refers her espousals
to the care of her parents ; and, before her conduct
is made to sanction more than the parent's right in
disposing of a daughter, it should be remembered,
that she is at that very instant objecting to her
parent'a choice, praying for a deliverance from its
effects, and actually concerting with Orestes the
means of escape. Menelaus himself, according to
Euripides, had contracted her to Orestes, and changed
his purpose in favour of Pyrrhus, but he eventually
gave her to Orestes, who received her :
and even this line has been recited in favour of the
parent's right ; although, according to the Roman
representation of Ovid \ she was contracted not by
her father, but by her grandfather. Hero, according
to Musjeus^, object^ to the suit of Leander that they
could not be publicly married because it was against
the will of her parents; but they nevertheless agreed
to a private marriage, which, though it wanted the
custon^ary rites, was nevertheless called a marriage,
and it was certainly not annulled for the want of
consent. The story of Jason and Medea** is another
instance of a similar marriage. When Cyaxares
offered to Cyrus "^ his daughter in marriage, with
the kingdom of Media for a portion, he presumed on
the competence of Cyrus to accept the offer, and
*Andr. ▼. 988, 999. Compare Iphig. in Taurid. v. 365.
•» Heroid. Ep. riu. • Vers. 179, 221, 274—282. * Find.
Pyth. Carm. iv. ▼• 395. * Xen. Cyrop. 1. yiii. c. 5.
X 4
312
Cyrus proved no more than his own piety in wishing
to marry with the consent of his father and mother.
Terence' is also cited in testimony of the necessity
of consent, but fails to prove, that the want of con-
sent annulls the marriage, of which there is no evi-
dence in comedies formed upon Grecian manners,
and exhibiting the complaints of old men, offended
by the marriage of their sons, which they do not
attempt to nullify, and which are in fact confirmed.
Plautus, Gellius, and Stobaeus^ whose authorities
have been recited, affirm the power of parents to
prescribe marriage to their children, and the duty
of children to defer to that power, and they affirm
no more. Plautus and Gellius are merely Roman
authorities ; and nothing but the necessity of a
desperate cause could have induced a reference to
Catullus.
In the many constitutions of the Roman law it
would be easy to make distinctions between filial
duty and paternal authority, between the interdic-
tions of marriage, the right of nullity, and the various
modifications of that right; but the evidences of
absolute power are too clear to be disputed in a law
which, more than any other, sanctions the arbitrary
excesses of paternal tyranny, and in which the cha-
' Andr. act v. sc. 3. The o£feiice of Pamphilus consisted in
marrying not only against his father's will, but in marrying a
foreigner, as was supposed, and on proof of her Attic descent, a
reconciliation took place. Phorm. act ii. sc. 1. The father
ceases to plead his imperium, and acknowledges the authority of
the law.
< Plaut. in Stich. A. Gell. Noct. Att 1. ii. c. 7. Naumach.
apud Stobaeum, Serm. Ixxiv. apud Gerhard.
313
racter of master and of slave, of owner and of thing ^,
are written in characters of blood, which cannot be
obliterated by the tears of the millions whose necks
have been bent beneath its pernicious sway. The
right of annulling marriage was authorized by the
Roman law in its fullest extent, and the abuses of
its application will offer the best antidote to its
adoption. There is still extant a law of Numa
PompiliusS ordaining, that if a fether shall permit a
SOD to marry a wife, partaker of his sacrifices and
goods according to the law, he shall not afterwards
have power of selling that son : and hence Gerhard ^
infers, that from the beginning of the republic the
authority of the father was required in the marriage
of the children. Under the unbounded licence^ of
** Millar's Origin of Ranks, p. 125. '* In one respect the power
of a father over his sons appears in ancient Rome to have ex-
tended even farther than that of a master over his slaves. If
upon any occasion a son had been sold by his father, and had
afterwards obtained his freedom from the purchaser, he did not
thereby become independent, but was again reduced under the
paternal dominion. The same consequences ensued if he had
been sold and manumitted a second time : and it was only after
a third purchase that the power of the father was altogether
dissolved."
' Dionys. Halicar. apud Gerhard.
^ Sect ti5.
* The intensity of horror which the following narrative is
calculated to excite will not prevent the reader from observing
the practical application of the Roman rigour of paternal autho-
rity in the pubb'c law of the Mahometan, and the private prac-
tice of the Hindoo. The anecdote is the more relevant, as it is
founded on a case of disapproved and degrading marriage. "A
young Hindoo girl of superior beauty had by chance been seen
and admired by a youth of the same religion, but mferior caste.
Knowing the latter to be an insannountable barrier to the
314
the paternal authority maintained in the Roman law
the marriage of the children depended entirely upon
the father's power, and not only was his consent
required to confirm the marriage, but he might pre-
scribe a marriage to his children of his own autho-
rity, and without consulting their will, or obtaining
their consent. Such indeed was his power, that it
was at bis option whether be would command a
marriage to bis children, with which they might not
pueiit^B consent, he at length prevailad on her to elope with
him, and many him in his own village. Her family soon dis-
covered their retreat^ and contrived by stratagem to get her
again into their power. Accordingly her mother was dispatdied
to negociate (he pretended reconciliation, and to prevail on her
to return, in order that the marriage might be properly cele-
brated at her father's house. The poor girl, delighted at the
prospect of so fortunate an issue, readily accompanied her mo-
ther, and was received by her father and brother with open
arms. When three days had elapsed, and no marriage feast
been proclaimed, she began to suspect the treadiery, and deter-
mined on seuting the first opportuni^ of returning to the hus-
band whom she had chosen. A fitvourable one seemed to
present itself, but she had not been gone long, before she was
overtaken by her brother, who affected to sympathize with her,
and offered to see her aafe home. The road lay tlirough an
unfrequented path, which taking advantage of he drew his
sword, and severed her head from the body. She was found
the next morning weltering in her blood. The £iither and
brother were immediately apprehended, and not only confessed
the crime, but exulted in the accomplishment of it; nor was it
in the power of the judge to punish them ; for unh^[^ily the
Mahometan law, by which natives of every description are
tried, is so arbitrary as to invest parents with unlimited autho*
rity over their children, even to the depriving them of lifei and
it being proved in evidence that the son only obeyed his fiiAer's
ddacs, Aey were both acquitted." Tour through the Ui^er
Pro vinoea of Hiadoatan, p. 67*
315
refuse to comply, or regulate their marriage by his
consent : he might not only dictate the marriage
without their consent, but he might also dissolve it
without their concurrence. The power appears in-
credible, but it is attested beyond dispute; and it
was adapted to a peculiar state of society, in which
the father claimed a right of property in the children,
in which before their emancipation they were at hia
absolute disposal, and formed a common housdiold,
in which it was but natural that a son's wife should
not participate without his Other's consent, and
which was so r^ulated as to leave it doubtful whe-
ther the father or the grandfather had the more power
over the son's children in respect of marriage, and
that the daughter could not leave her service without
permission of her master. The only mitigation of
this state of the Roman child was, that, after the
decease of his father, or his own emancipation, the
son was at liberty to divorce the wife who had been
imposed upon him, and to prove his own liberty by
playing the tyrant to his wife. The rigour of these
laws could not be sustained, and they were reformed
by the emperors, who required the consent of pa-
rents, but abolished their power of prescribing mar«
riages to their children, and of annulling those which
had been contracted without their consent. It was
thus ordained by Diocletian and Marcian, that the
son should not be constrained to marry : if it was
his desire, and he observed the injunctions of the
law, he should not be prevented from -marrying
whom he would, upon condition diat his fiither conr
sented to the marriage. The law was more partially
rescinded in favour of the woman, wtio was still left
316
in subjection to the arbitrary will of her father, with
the only exceptions, that he might not compel her
to marry an unworthy, a base, or an infamous man ;
or to detain her against her will from the demands of
her husband"^.
There was a rigour in the law of Constantine
against ravishers, which merited the character given
to it by his son, that it was full of such atrocious
judgment as would defeat itself.
'^ If any one, without first obtaining the consent
of parents, steal a virgin against her will, or carry
her off by her own consent, hoping that her consent
will protect him, he shall have no benefit from such
consent, as the ancient laws have determined ; but
the virgin herself shall be held guilty, as partaker of
his crime. If any nurse b^ accessary, her detestable
service shall be revenged by pouring molten lead
into her mouth. If the virgin be detected to have
given her consent, she shall be punished with the
same severity as the raptor himself, seeing she that
is stolen away against her will is not suffered to go
unpunished, because she might have kept herself at
home ; or if she was taken by violence out of her
father^s house, she should have cried out for help to
the neighbourhood, and used all means possible to
defend herself. But on such we impose only a
slighter punishment ; denying them the right of suc-
ceeding to their father's inheritance. But the raptor
himself, being clearly convicted, shall have no benefit
of appeal. If parents, who are chiefly concerned to
prosecute this crime, connive at it, they shall be
>» Schott. ad 8. 65, 66. BrissoD, Hotman, ubi supra.
317
banished. Ali who are assistants to the raptor shall
be liable to the same punishment, without distinc-
tion of sex ; and if any such be slaves, they shall be
burned alive°."
This cruel and inhuman edict relates less to mar«
riages contracted without consent than to the ab-
duction of vii^ins ; it does not annull the marriage,
but by the death of the raptor ; and there is a
marked atrocity in its inflictions, from which the
Christian and the man must always recoil with horror
and disgust. Constans, in confirming the law of his
father, mitigated its severity, except in the punish-
ment of slaves. Justinian also admitted into his code
some of the laws of the heathen emperors, Severus
and Caracalla, upon this subject.
In these imperial laws, the marriage of the slave
without consent of his master, was put on the same
footing with the marriage of the child without con-
sent of his father. These were equal usurpations,
proceeding on the same assumed right of the power
of the master over the thing ; and the excesses of
the one may be of use in restraining the excesses of
the other®.
When it is said of the code of Roman laws, with
an exaggeration of eulogy which might be mistaken
for irony and sarcasm, that they are so known, that
no man can be ignorant of them, so clear that they
cannot be obscured, so holy that they cannot be
abolished P, it is forgotten that this system of jurispru-
dence proceeds in entire contempt of the principle,
■ Bingham, Antiq. b. xvi. c. 9. 8. 2. • See Robertson's
Charles V. vol. i. note ix. See above, p. 264. ^ Beza de
Repudiis.
318
that ^^ the interest of those who are governed is the
chief circumstance which ought to regulate the powers
committed to a fiither, as well as those committed to
a civil magistrate ; and whenever the prerogative of
either is further extended than is requisite for this
great end, it immediately degenerates into usurpa*
tion, and is to be r^rded as a violation of the
natural rights of mankind^/' This was the manifest
fault of the Roman law, the true and only source of
the power of nullifying marriages contracted without
consent. When it was thought necessary to defend
this power, it was argued upon authorities as irrele^
vant, as the exceptions to the practice were unavoid*
able.
The marked differenoe between the ecclesiastical
and the civil laws, at the time of the Reformation,
rendered it impossible to avoid the question of nul-
lity of vmrriages wilSiaut consent. The question
was brought before the council of Trent, upon occa*
sion of an argument upon secret marriages, which it
was proposed to avoid, together with all public mar^
riages contracted without consent. Th^ latter mea^
sure was argued upon the inconvenience of the
contract of inexperienc*ed youth ; upon the divine
law, commanding obedience to parents, and giving
to them authority to dispose of their daughters io
marriage r upon the precedent of the interference of
the father in the marriages of the patriarchs ; and
upon the authority of the imperial and other laws, in
mvaiidating marriages contracted without consent.
On these grounds, and with a view of preventing by
^ Millar's Oric^in of Ranks, p. 1 38.
319
a penalty of nullity what a mere prohibition could
not prevent, it was proposed to nullify such mar-
riages, on the authority of the Church. When the
proposition was pressed by the French fathers, it
was argued in reply, that such a measure would give
power to laymen over the sacraments ; that it was
contrary to the Scriptures, which permitted, a man
to leave his father and mother; and that nothing
could be more inconvenient, than to refer children to
their fathers in matters of conscience, or more per-
plexing, than the case of a father refusing to
consent to the marriage of a son who did not possess
the gift of continence. Of twenty-nine fethers who
spoke on this question in the congregation, twenty
proposed to omit it, and the others approved the
decree generally, or restricted it to sons of the age of
twenty, and daughters of the age of eighteen. The
French and Spanish prelates were all agreed on the
invalidity of secret marriages; and on a general under-
standing that it was a matter which related to re-
formation and not to doctrine, after many revisions
of the decree, and with the addition of new pre-
cautions for preventing clandestinity and enforcing
the presence of the priest, it was at length resolved :
^' Althou^ there is no doubt that clandestine mar-
riages, celebrated with the free consent of the contract-
ing parties, are valid and true, so long as the Church
does not make them void ; and therefore they are
justly to be condemned, as this holy synod with an
anathema condemns them, who deny that these are
true and valid marriages ; and who falsely aflSrm that
marriages contracted by children, without consent of
their parents, are void ; and that the parents may aflSrm
320
or void them ; the Church has nevertheless, for the
justest reasons, detested and prohibited them'/^
The Church of France has always dissented from
this decision of the council of Trent, and contended
for the right of annulling marriages contracted with-
out consent. The principal Reformers, with their
contemporaries and successors, were free in the ex-
pression of their opinions, whether in opposition to
the rule of the Romish Church, or in maintenance
of the principle of the. civil law. Luther and Me*
lancthon observed a discriminating moderation, af-
firming, that if the marriage without consent was
followed by birth of issue, it ought to be confirmed
and ratified ; otherwise it was in the power of pa-
rents, whether it should be annulled or ratified.
Calvin was more decided in the complaint that die
Romanists ^^ made lawes, whereby they stablished
their tyrannic, but these partly manifestly wicked
against God, and partly most unjust towards men,
as are these, that marriages made by young persons,
without consent of their parents, should remaine of
force aQd stablished '.'' Bucer desired the revival of
the provision of the civil law, under which marriages
without consent of the father or grandfather should
not be ratified. Brentius and Chemnitius held,
that if marriage was celebrated without consent of
parents, it should be referred to the magistrate, by
whose judgment it should be confirmed or annulled.
Beza, who acknowledges no validity in marriage
without a divine concurrence, claims a divine au-
r Sess. xxiv. De Reform. Matr. c. 1. Hist of the Council of
Trent. • Inst. b. iv. c. 19. s. 37.
321
tbority for the right of nuihty, which he attempts to
establish on texts of Scripture ; but when he is
pressed with the case of a father giving sanction to a
marriage, to which he had previdusly refused his
consent, he is forced to the littleness of arguing, that
the heavenly Father changes with the earthly father,
and authorizes a marriage which otherwise had been
invalids Erasmus, who has the reputation of agi-
tating the question, aflSrms, that the doctrine of the
validity of marriage contracted without the know-
ledge or the will of the parents, cannot be proved by
the sense of nature, nor by ancient laws, nor by
Moses, nor by the evangelical or apostolical doctrine.
Grotius denies that the consent of parents is na-
turally requisite to the validity of marriage ; affirm-
ing that the arguments for this position are incon-
clusive, but that it is the duty of children to obtain
their consent ; which he maintains, on the condition
that the will of the parents is not unjust. But he
denies the inference that children are therefore inca-
pable of contracting marriage, and that the duty of
filial reverence is such as to annull the marriage con-
tracted by an act of filial disobedience".
The opinion of most of these eminent men is but
temperately and with various modifications opposed
to the decision of the council of Trent, and to the
previous practice of the Church. In England the
opposition was not more decisive or distinct, al-
though, fi'om the previous use of the papal Church,
and the administration of marriage as a sacrament,
* Beza de Repadiis. "^ Gerhard, s. 82, 83. Stebbing,
p. 8—17.
VOL. I. Y
322
there was a necessity for a more explicit declaration
than is found in the public acts of the age. The
statute 39 Henry VIII. c. 38. entitled, An Act for
marriages to stand notwithstanding precontracts, pro-
vides that all ^^ such marriages as within the Church
of England shall be contracted between lawful per-
sons, as by this Act we declare all persons to be
lawful that be not prohibited by God's law to marry,
such marriages being contract and solemnized in the
face of the Church, and consummate with bodily
knowledge or fruit of children or child, shall be
judged and taken to be lawful, good, just, and indis-
soluble, notwithstanding any precontract ; and that
no reservation or prohibition, God's law except,
shall trouble or impeach any marriage without the
Levitical degrees/' Throughout the statute '^ Grod's
law" is made the sole rule and criterion of lawful
matrimony ; there is no impeachment of any mar-
riage without the Levitical degrees, which certainly
do not include the right of nullity ; there is no re-
servation or exception in favour of that right ; no
contravention of the Romish doctrine on the subject ;
but a continual complaint of the abuse of dispensa-
tions of marriage, which are perfectly distinct fix)m
marriages without consent. In the preamble it is
said of marriages void by reason of precontract,
^^ that marriages have been brought into such uncer-
tainty thereby, that no marriage could be so surely
knit and bounden, but it should lie in either of the
parties' power and arbiter, casting away the fear of
God by means and compasses, to prove a precon-
tract, a kindred and alliance, or a carnal knowledge
to defeat the same ; and so, under pretence of these
323
allegations afore rehearsed, to live all the days of
their lives in detestable adultery, to the utter de-
struction of their own souls, and the provocation of
die terrible wrath of God upon the places where
such abominations are used and suffered .^^ The
Wi)nt of consent is not rehearsed among the means
and compasses of defeating marriage, and leading to
detestable adultery, in the sense of a second mar-
riage upon the unjust avoidance of the first.
The Act underwent various modifications in the
succeeding reigns, being partially repealed, as re-
spected precontracts, by 3 Edw. VL c. S3/ entirely
repealed by 1 and 9 Philip and Mary, and again
partially restored by 1 Eliz. c. i. s. 12. but in none
of these modifications was any allusion made to the
nullity of marriages contracted without consent of
parents. It is, however, just to argue, that as the
doctrine of precontracts, held under the papal do-
* The reasons assigned for this repeal exhibit a curious view
of the humour of the age : *' Sithence the time of which Act,
although the same was godly meant, the unruliness of men hath
ungodly abused the same, and divers inconveniences, intolerable
to Christian ears and eyes, followed thereupon ; women and men
breaking their own promises and fieuths made by the one unto the
other^ so set upon sensuality and pleasure, that if after the con-
tract of matrimony they might have whom they more favoured
and desired, they might be content, by lightness of their nature,
to Oftrtum all that they had done afore, and not afraid in manner
even from the very church door and marriage-feast, the man to
take another spouse, and the espouse to take another husband ;
more for bodily hut and carnal knowledge than for surety of
fiuth and truth, or having God in their good remembrance, con-
temning many times also the commandment of the ecclesiastical
judge, forbidding the parties having made the contract to do any
thing in prqudice to the same : Be it therefore,'' &c.
Y 2
324
minion, was reestablished by Mary ; so if the right
of nullity in respect of marriages without consent
had been asserted by her protestant predecessors, it
would probably have been rescinded by the zeal of
Mary. The doctrine of Rome was indirectly con-
firmed by the silence of the l^islature, and espe*
cially as its attention was drawn to the marriage of
minors without consent, which was restrained by
other penalties.
The sentiments of Edward^s counsellors may be
collected from the form of Solemnization of Matri-
mony, which appeared in his first and second books,
in .which there is evident allusion to the statute of
his fether, both in respect of the celebration of mar-
riage in the face of the Church or congregation, and
in the warning addressed to the parties, that so many
as bee coupled together otherwise than God^s worde
doeth alowe, are not joined by God, neither is their
matrimonie lawful ; which is most obviously inter-
preted of marriages within the Levitical degrees.
If the compilers of the protestant liturgy had in«
tended to oppose the Trident ine doctrine of the
validity of marriage contracted without consent of
parents, they would have been more scrupulous in
copying from the missals already in use^; they would
have made some variation in the form of receiving
the bride from her fether or friend, in the triple pub-^
lication of banns, and the other rubrics in respect of
the form of solemnization prescribed by the council
of Trent, in the very chapter which ordains the
validity of marriages without consent : they would
7 See Appendix, No. Hi.
335
hardly have retained the form of mutual contract,
with little variation besides the omission of the hy-
pothetical consent of the Church, or have imagined
'that the same words which bound a Romanist inde-
pendently of the parents' consent, should only bind
a protestant upon condition of that assent : and if
they had contemplated any nullity of marriage, they
would not have insisted upon the typical unity of
Christ with his Church, which later writers have
supposed to be the chief argument of the Romanist
for the indissolubility of marriage. They differed,
and they avowed their difference from the Church of
Rome, on the sacramental nature of marriage ; and
had they differed upon other points, they would
have declared their difference with the same freedom,
and with a perspicuity which could neither be mis-
taken nor misunderstood. The absence not only of
express declaration, but of the faintest allusion to
nullity under such circumstances, affords the clearest
proof that the doctrine was not agreeable to the
English Reformers.
A strong objection will nevertheless be collected
from a clause in the Reformatio Legum, which
directly asserts the nullity of marriage without con-
sent; affirming, that ^' since it is agreeable to Scrip-
ture, to piety, and to justice, that such marriages
should be condemned and held to be null, as are
contracted by children without the knowledge or
consent of their parents or guardians ; they are
therefore forbidden to marry without the authority
of the persons in whose power they are ; and if they
do marry, their marriages are held to be null. But if
parents or guardians are slow in providing marriages^
Y 3
326
or too rigorous in the terms which they propose, an
appeal may be made to the ecclesiastical judge, who
may assume their oflSce upon such emergency,
and administer the whole business with equity'/'
There had been no occasion for this suggestion, if
the nullity of marriage had been previously known
to the English law : and it is a forcible proof of its
inconsistency with the spirit of that law, that the
proposition was not acted upon. The suggestion
may have originated with other members of the com-
mission for reviewing the ecclesiastical laws, thdn
those to whom the English Church is chiefly in-
debted ; and it would not be unjust to ascribe it to
a foreign civilian, modifying the principles of Roman
jurisprudence, and abridging the authority of the
parent in the same degree that it contracts the liberty
of the child. It is remarkable, that the following
section defines the age in which marriage may be
concluded ; allowing the woman at twelve years of
age, and the man at fourteen, to take a consort ; but
not permitting any persons under this age to be
partakers of marriage. Was it meant, that at that
age they were free to contract marriage for them-
selves?
It is certain that this was the law, till it was le*
stricted by the statute 4 and 5 Philip and Mary, in
which mention is expressly made of marriages with-
out consent, and their prevalence is ascribed to the
lack of wholesome laws for the redress thereof. The
Act is entituled, An Act for the punishment of such
as shall take away any maidens that be itiheritors,
' Ref. Legg. Eccl. de Matr. c. 4.
327
being within the age of sixteen years, or that marry
thetn without consent of their parents.
The preamble of this Act, which was the first to
make the marriage of minors without consent a legal
ofienceS recites in substance that women children,
as well heirs apparent as others having left unto
them hereditaments or goods moveable, to advance
them in marriage according to their degrees, and for
surety and comfort, as well for themselves as for
their friends and kinsfolk, by flattery, trifling gifts,
and fair promises, of many unthrifty and light per-
sonages, are secretly allured to contract matrimony
with the said unthrifty and light personages ; and
thereupon, either with sleight or force, oftentimes be
taken away from their parents, friends, or kinsfolk,
to the high displeasure of Almighty God, disparage-
ment of the said children, and the extreme continual
grief of their friends : Which ungodly dealing, for
lack of wholsome lawes to the redress thereof, re-
maineth a great, familiar, and common mischief in
this Commonwealth. After declaring it unlawful to
take away any maid under the age of sixteen years
without the will of the father or guardians, and mak-
ing the offender liable to imprisonment for two years
and to fine in the Star-chamber, it proceeds to enact,
That if any person shall take away, or cause to be
taken away, or shall, against the will, or unknowing
of the father, (if he be in life, or the mother having
* The Act 3 Hen. VII. c. 2. had made it felony to take away
or be concerned in taking away women, as well maideni as
widows, and wives having substances, some in goods moveable
and some in lands and tenements, and some being heirs apparent
unto their ancestors.
Y 4
328
the custody of such child if the fiaither be dead,) con-
tract matrimony with any such woman child, except
by the consent of such person or persons as shall
have the care of such woman child, that then every
pei-son so offending shall suffer imprisonment by the
space of five years, or else shall pay such fine as
shall be assessed in the Star-chamber. It was fur-
ther enacted, that if any woman child, being above
the age of twelve years and under the age of sixteen
years, do at any time consent to such person that
shall so make any contract of matrimony contraiy to
the effect of this statute, that then the next of the
kin of the same woman child, to whom the inherit-
ance should descend after the decease of the same
woman child, shall from the time of such agreement
hold and enjoy all such hereditaments as the same
woman child had in possession, reversion, or re-
mainder, at the time of such consent, during the life
of such person so contracting matrimony ; and after
the decease of such person, the said hereditaments
shall descend to such persons as they should have
done in case this Act had not been made, other than
to him only that shall so contract matrimony.
The last clause of this Act, which is the basis of
the present law of the marriage of minors without
consent, is of the highest importance in proving the
very reverse of the doctrine of nullity; that although
the parties contracting matrimony without consent
transgress the statute, add are liable to penalties,
they nevertheless do contract matrimony, and the
property of the heiress temporarily forfeited does
eventually revert to her and her heirs. The ope-
ration of the statute is singularly restricted to the
329
heiress : it offers no protection to the heir, or the
person without inheritance.
Archbishop Parker's Tables inhibit marriage with*
out consent, but do not assert its nullity, which, as
in the canons of 1603^, is expressly attached to mar-
riages within the prohibited degrees, but not to mar-
riages without consent of parents. The former are
prohibited and declared to be null, the latter are sim-
ply prohibited. The distinction is so obvious as to
render all comment unnecessary. With the hundredth
canon it is however proper to compare the sixty-
^ Canon 99. No person shall marry within the degrees pro-
hibited by the laws of God. • . • And all marriages so made and
contracted shall be adjudged incestuous and unlawful, and con-
sequently shall be dissolved as void from the beginning, and tfalB
parties so married shall by course of law be separated.
Canon 100. No children ^der the age of one and twenty -
years complete shall contract themselves or marry without con-
sent of their parents, or of their guardians and governors if their*
parents be deceased.
Canon 62. No minister, upon pain of suspension per trieri'
mum ipso facto, shall celebrate matrimony between any persons
without a faculty or licence . . . except the banns of matrimony
have been first published three several Sundays or holidays in
the time of divine service in the parish churches or chapels where
the said parties dwell, according to the Book of Common Prayer.
Neither shall any minister, upon the like pain, under any pre-
tence whatsoever, join any persons so licensed in marriage at
any unseasonable time, but only between the hours of eight and
twelve in the forenoon, nor in any private place, but either in
the said churches or chapels where one of them dwelleth, and
likewise in time of divine service : nor when banns are thrice
asked, and no licence in that respect necessary, before the pa-
rents or governors of the parties to be married being under the
age of twenty-one years shall either personally or by sufficient
testimony signify their consents.
330
second canon, which makes the most efficient pio-
vision for the prevention of dandestinity, by forbid-
ding, under pain of suspension for three years, the
celebration of any marriage without licence or banns;
by requiring its celebration in the time of divine
service, within certain hours of the day, and in the
place where one of the parties shall reside ; and by
demanding a notification of the consent of parents
to die marriage of minors. Every possible precau-
tion was thus taken to give publicity to the marriage,
and to secure the rights and interests of the parents,
which could only be defeated by a fraudulent con-
cealment of the minority.
<^ The drift of the canon without doubt is this ;
that as there are certain annulling impediments, as
those of precontracts, consanguinity, and affinity,
which make the marriage void, and for the timely
discovery of which, if any such lie in the way, all
imaginable care is taken both by publication of banns
and by securities required at the granting of licences;
so there are certain conditions to be observed in all
marrii^;es, which, though not so absolutely necessary
as that the marriage shall be void without them, are
yet so requisite to the due solemnization of it, that
it cannot be celebrated legitimately and canonically
wkhout them^.'^
This was the language of Archdeacon Sharpe,
delivered in an express comment on the canon in
the year 1748, only six years before the introduction
of Lord Hardwicke's Bill ; and it shews, that at that
period the consent of parents was not so
v*(i<:':M
' Sharpens Visitation Charget, p. 275.
SAl
that marriage was viHd without it« In the inteN
mediate period, and espeoially at the «ad of the
seventeenth and beginning of the eighteenth een-
tiiries, many remedial measures for the enforcement
of the canon were enacted or proposed.
The statutes which were actually passed {6 and 7
WiU. IIL c. 6, 7*«nd 8 Will. IIL c. 35."^ 10 Anne,
c. 19*) are chiefly valuabte in proving the entire
neglect of every canonical precaution in respect of
banns, licence, iand place of marriage, ii^ich they
endeavoured to regulate by pecuniary penalties, viz*
of <£100 (with suspension for three years for the
second offence) upon every clergyman who should
marry, or suffer another to marry, any persons in
his church without banns or licence ; of ^10 on any
person so married ; of £5 upon every sexton or
parish clerk assisting at such marriage; and of <£lOO
upon any gaoler who should permit marriage to be
solemnized in his prison before publication of 1>anns
* The preamble of the Act odntaiiui a -painfol Mcord of the
conduct and condition of the clergy at the time, eonplaining that
the former Act had been '* eluded and made of none effict by
several parsone, vicarsy and curatee, who, to avoid the eaid penalty
of £100, do aubatitute and permit divers other ministers to many
great numbers of persons in their respective churches or chapels,
without publication of banns or licence of marriage, many of
which ministers so substituted have no benefices or settled- ha-
bitations, and are poor and i^Miigenty and eannot easily be disco-
vered • • • and whereas divers ministers being in prison for debt,
or otherwise, do marry in the thad prisons many persons resorting
thither for the purposes aforesaid, and in other places, hr lucre
or gain to themselves; by all which means the duties upon
licences of marriage are greatly dhnlnished, and many ^>ther
gre^t 'inCMyeniences do arise."
332
or licence obtained. These Acts, which commonly
bear the name of Marriage Acts, are chiefly grounded
on the iqjury sustained by the revenue, and directed
to its preservation or improvement. Other mea-
sures were contemplated for the prevention of the
prevailing clandestinity.
In the year 1677 Dr. Lloyd and Dr.. Eaton,, two
eminent . civilians of the day, were summoned to
attend a committee of the House of Lords, to con-
sider of an Act to prevent clandestine marriages':
and again, ^^in the year 1690 or 1691) a Bill was
brought into the House c^ Lords against clandestine
marriages, the purport of which was to make it
felony in the minister who should solemnize or offi-
* Speech of Doctor Phillimore on the Marriage Act, p. 4. It
is reported (Times, June 19, 1822.) that '* the subject was re-
ferred to a very large Committee, consisting of eight peers and all
the prelates, who were instructed to provide suitable penalties
for clergymen who should act in defiance of the law, to examine
witnesses, and report the substance of their enquiries to the
House. After the fullest consideration both by the Committee
and the House it was enacted, (proposed,) that no marriage
between minors should be binding, that was celebrated without
the consent of parents or of guardians." Whatever may be the
truth of this report, the measure did not pass the House of Com-
mons; and the limitation of the nullity contemplated at this
period may be inferred from a passage of Bishop Stilling-
fleet, that <' matrimony being a contract of a civil and public
nature, it is very just and fitting that the civil society and the
Christian Church should appoint rules and orders for the decent
performance of it, and may appoint penalties to the breakers of
those rules, so far as to illegitimate the children bom of such
mairiage, which is nuUing the contract as to the civil effect of it.
But I do not see how either Church or State can null the con-
traoti as to conscience, so as to make it lawful for such persons to
marry othen.** Miscell. Disc. p. 73. See Stebbing's Disc p. 49.
date at such marriage. But after debate it was
dropped, and chiefly upon these suggestions; that
better laws could not be contrived than those already
made to prevent clandestine marriages: and were
our ecclesiastical constitutions duly observed and
vigorously prosecuted against all who violate them,
there would be no need of making Acts of Parlia-
ment, or establishing sanguinary laws against the
<^l^rgy> for preventing them. That most of the
stolen marriages that are complained of are brought
about by the dispensation of publication of banns,
which was the original law to prevent clandestine
doings: the rules laid down in the canons of 1603
for granting these dispensations not being strictly
observed as they ought to be^**
At this period occurred a transaction which ex-
cited considerable attention. Captain Campbell,
brother of the Duke of Argyle, succeeded in carry-
ing off the daughter of Sir George Wharton, an
heiress of large fortune, and marrying her against
her will. A royal proclamation was immediately
issued for the apprehension of the offenders, and Sir
John Johnstone, one of the accomplices, was tried,
condemned, and executed, notwithstanding the pow-
erful interest which was exerted in his favour, and
the plea that the violence offered to the bride was
less than was alleged. It was thought that this
incident would have favoured the progress of a Bill
then before the House of Commons for the pre-
vention of clandestine marriages, which however
dropped. Another Bill however passed both Houses
' Sharpe't Charges, p. 287. note.
334
for rendering void the marriage between Mr. Camp-
bell and Miss Wharton, which could not have been
necessary if the law of the age had rec<^nized tlie
nullity of marriages contracted without consent. In
1713, and again in 1718, the Convocation took up
the subject of licences of matrimony, and the re-
formation of sundry and grievous abuses in the
granting and obtaining of such licences : and the
drift of their resolutions in both cases was to ap-
prove and enforce the provisions of the sixty-second
canon of 1603^.
Hitherto the English law has been shewn to be
free from the imputation of nullity, and when at
length it was introduced, its novelty was affirmed by
Blackstone, who observed, with reference to the prac-
tice of other countries, that " it has lately been
thought proper to introduce something of the same
policy into our laws . . . much may be, and much
has been, said, both for and against this innovation
upon our ancient laws and constitution ^/^
There is no doubt, that at this time the law of
marriage imperatively called for revision and renova-
tion, from the entire neglect of every precaution
and restraint which had been provided against clan-
destinity, and from the extraordinary faciUties' which
* Ibid. p. 288, 289. Previous to the Marriage Act, licences
might be obtained by letter only, stating the assent of both the
parties concerned to the union, and the attestation of a witness
to the signature. Gent Mag. vol. xciii. p. 522.
" 1 Bl. Com. c. 15.
'The nature of the singular privilege attached to the Fleet
Prison of celebrating what were termed Fleet marriages, is ex-
hibited in the complaint of a correspondent of the Gentleman's
for 1735, who deplores ** the many ruinous marriages
335
were offered for entering into private and irregular
marriages, to the irretrievable injury of the most
respectable members of society.
The history of the Act of 1754 is given by Lord
Orford with his characteristic flippancy, and in the
full spirit of that implacable hostility which he bore
to the Lord Chancellor Hardwicke.
^' The session of Parliament was languishing to-
wards a conclusion, when a Bill, sent down from the
Lords to the Commons, which had passed almost
without notice through the former House, having
been carried by an hundred lords against the Duke
of Bedford and eleven others, raised, or gave occa-
sion to raise, extraordinary heats. . . .
^^ The Bill had been originally - moved by my
Lord Bath, who, attending a Scotch cause, was
that are every year performed in the Fleet, by a set of drunken,
swearing parsons, with their myrmidons that wear black coats,
and pretend to be clerks and registers to the Fleet, plying about
Ludgate Hill, pulling and forcing people to some peddling ale«
house or brandy-shop to be married, and even on Sundays stop>
ping them as they go into the church." 2954 marriages, as was
shewn in evidence, were celebrated in this way from Oct. 1704
to Feb. 1705, without either licence or certificate of banns.
Twenty or thirty couple were sometimes joined in one day, and
their names, if they chose to pay for it, were concealed by pri-
vate marks. Pennant says, that in walking by the prison in his
youth, he had been often tempted with the question. Sir, will
yon please to walk in and be married f and that signs exhibiting
a male and female hand conjoined, with the inscription, '< Mar-
riages performed within," were common along the whole of this
lawless space. A dirty fellow invited the passenger in. The
parson was seen walking before the shop, a squalid, profligate
€gure, clad in a tattered plaid night gown, with a fiery fkee,
ready to eouple yen for a dram of gin or a roll of tobacco.
336
struck with the hardship of a matrimonial case, in
which a man, after a marriage of thirty years, was
claimed by another woman on a precontract. The
Judges were ordered to frame a Bill that should
remedy so cruel a retrospect. They did ; but drew
it so ill, and it was three times printed so inaccu-
rately, that the Chancellor was obliged to give it
ample correction. Whether from mere partiality
to an ordinance thus become his own, or whether in
shaping a law new views of power opened to a mind
fond of dictating, so it was that the Chancellor gave
all his attention to a statute into which he had
breathed the very spirit of aristocracy and insolent
nobility. It was amazing in a country where liberty
gives choice, where trade and money confer equality,
and where facility of marriage has always been sup-
posed to produce populousness ; it was amazing to
see a law promulged, that cramped inclination, that
discountenanced matrimony, and that seemed to an-
nex as sacred privileges to birth as could be devised
in the proudest, poorest, little Italian principality. . . .
'^ The abuse of precontracts had occasioned the
demand of a remedy: the physician immediately
prescribed medicines for every ailment to which the
ceremony of marriage was, or was supposed to be,
liable. Publication of banns was already an esta-
blished ordinance, but totally in disuse, except among
the inferior people, who did not blush to obey the
law. Persons of quality, who proclaimed every
other step of their conjugation by the most public
parade, were ashamed to have the intention of it
notified, and were constantly married by special
l%:ence. Unsuitable matches in a country where
337
the passions are not impetuous, and where it is nei*-
ther customary nor easy to tyrannize the inclinations
of children, were by no means firequent ; the most
disproportionate alliances, those contracted by age,
by dowagers, were without the scope of this Bill:
yet the new Act set out with a falsehood, declaiming
against clandestine marriages as if they had been a
frequent evil. The greatest abuse were the tempo^
rary weddings clapped up in the Fleet, and by one
Keith, who had constructed a very bishopric for
revenue in May Fair, by performing that charitable
office for a trifling sum/* . . .
The Bill was opposed on the ground "of its
impropriety in a commercial nation, and the ill-
nature and partiality of its restrictions ;" and as a
Bill in which " new shackles were to be forged to
keep young men of abilities from mounting to a level
with their elder brothers/* Long debates ensued
*^ on the clause for annulHng marriages that should
be contracted contrary to the inhibitions in the
Bill :** and some of the principal speakers are said
to have " laid open the jargon and chicanery of the
lawyers, and the arbitrary manner of enforcing the
Bill/* A long and angry debate ensued upon the
clause, " that gave (very novel and) unheard of
power in the first instance to parents and guardians,
and then to the chancery, on the marriage of mi-
nors,** in which it was maintained, " that from the
beginning to the end of the Bill one only view had
predominated, that of pride and aristocracy.** The
Bill however eventually passed the House of Com-
mons by a majority of 125 to 56, and when it w^
returned to the House of Lords, it was accepted as
•VOL. I. z
338
a Bill which was ^' too good to be lost» and mi^t
have much good engrafted oo it hereafter^/'
The virtue of the Bill was contained in the pro-
visions for enforcing the publication of banns ; for
making the consent of parents or guardians neces-
sary to the attainment of a licence for the marriage
of minors ; for abolishing the obligation of precon-
tracts; and for securing the registration of marriages.
If the Bill had contained no other provisions, it had
been innocent of all evil, it could not have failed of
producing essential good. These however were in
the issue but the subsidiary and subordinate details
of a measure which in its amended form pronounced
a sentence of absolute and irretrievable nullity upon
all marriages celebrated under an improper publica-
tion of banns, or under the authority of a licence
obtained surreptitiously and without the requisite
consent, and rendered them unmeaning forms, by
which no relation was contracted and no obligation
incurred.
Such nullity ought to rest not on the arbitrary
rule of a single statute, opposed to the whole tenour
of national law, but on principles universal and im-
mutable: and yet, as was contended at the time,
and as has been argued in these pages, the assumed
right of nullity rests on no solid foundation of di-
vine law delivered in the Scriptures, or of natural
law adapted to the condition and constitution of
mankind, and cannot be collected from the variable-
ness of national laws, or firom the imaginary compact
which is the supposed basis of civil society, or from
^ Lord Orford*B Memoirs, yoI, L p. 293—296.
339
any principle but the paternal despotism maintained
in the Roman jurisprudence. The legislature may
ordain the civil nullity of marriage, it may take
away the civil benefit and protection of marriage,
and alter the law of maintenance and inheritance ;
but it cannot change the nature of marriage as it
afiects the conscience ; it cannot make the marriage,
except as it is founded in the perjury of one of the
parties, an act of sin opposed to the law of God,
and therefore void ; it cannot make that which is
marriage to be no marriage ; it cannot justify the
parties in a voluntary separation from each other, in
abandoning the care of a common issue, or in revok-
ing and transferring the vows which they have mu-
tually bound themselves to observe ; it cannot, upon
any just principle of moral reasoning or political ex-
pedience, defend the nullity which it creates. The
very permission of the marriage of minors both by
banns and by licence implies both their natural and
moral competence to marry, and in restricting that
permission the law infringes the common liberty of
mankind, the privilege which the Almighty has
ordained for the relief and consolation of human
infirmity. If the parties had come of age but on
the very day of their marriage ; if the marriage had
been celebrated by banns instead of licence ; if some
form, known or unknown, had not been intention-
ally or unintentionally neglected ; the marriage would
have been affirmed : but the penalties of the law
were extended beyond the design or conception of
its authors in cases of the most perfect integrity and
good faith which could not have been brought within
its rules^ but by the most subtle application of de-
z2
340
tached principles of law. Such were the informality
in the testamentary appointment of a guardian, the
reasonable presumption of a mother's widowhood,
and the incompetence of the mothers of illegitimate
children, circumstances under which the courts were
constrained, in violation of every equitable principle,
to pronounce the marriage of a minor void. The
last case was first decided in the Ecclesiastical Court,
and again after solemn argument in the Court of
King^s Bench, when Lord Ellenborough reluctantly
and after hesitation consented*. Lord Eldon may be
supposed to have at least doubted of some of the
decisions, when, in opposing Mr. Wilson's Bill for
the amendment of the law, he adverted to a case
which was before the Court of Chancery, and which
might be argued before another tribunal".
In opposition to the received principles of British
law and equity, and to an extent unprecedented in
the foreign laws of nullity, the victims of this legis-
lative experiment were persecuted without discrimi-
nation and without redress. The party by whose
contrivance the marriage was concerted, whether by
perjury in obtaining the licence, or fraud in the
publication of banns, was not only exempt from all
penalty, but free, in the first moment of caprice or
satiated passion, to take advantage of his own wrong,
and the innocent object of his delusion was also
free to solicit, and unable to resist, the sentence of
nullity. No distinction was made between fraud
and error": the marriage was intrinsically and irre-
' See 1 1 Tenn Reports. Priesdey v. Hughes.
« Woodfall's Pari, Rep. vol. k. p. 690.
* The whole &alt of the marriage might origimrte in the
341
mecliably null : and although the parents and guar-
dians had never meditated an objection ; although
they had actually consented in a presumption of
their right to consent; although all parties had acted
in good faith ; although they had lived for years in
harmony ; although their marriages had been ac-
knowledged in their families and by the world ;
although they would have sacrificed life itself to
confirm their marriage, and secure its benefits to
their children ; the law was inexorable : there was
no redress for the original misapprehension ; no ad-
vantage could be derived from the submission of the
offender, the mediation of friends, or the compliances
of returning affection : the marriage had been de-
nounced by the law as a meretricious union ; the
husband and wife had been legally living in concu-
binage ; their issue was illegitimate and incapable of
inheritance. Even this was not the consummation
of legal iniquity. If any defect in the parents'
ignorance or miflapprehension of the surrogate ; and the follow-
ing observations are ascribed to Sir John NichoU in deciding a
case of nullity upon the ground of minority and the want of the
required consent: ''The marriage had been contracted in a
distant part of the country, and the surrogate had granted the
licence on an affidavit^ which on the very face of it was de-
fective. It stated the young woman to be only twenty years of
age^ and yet there was no certificate of consent by parent or
guardian in her behalf. This was not the first instance of such
neglect that had fallen under his notice. A surrogate in the
country had a short time since written to him stating that he
had granted a licence to a minor on the consent of his father-
in-law, and wishing to know whether such marriage was legal.
He had of course advised the parties to be immediately remar-
ried by banns, there being no doubt, that the former marriage
was ipwfacio void." Gent Mag. voL xc. pt ii. p^ 488.
Z 3
342
marriage bad been oveiiooked or unlmowD, and
their children had been married during thekr mi-
nority with their consent, their marriage also was
ill^I, and their children also were exposed irre-
trievably to the penalties of bastardy. Under such
a law the whole line of descent was disturbed, and
the rights of all property wese insecure. A taint
worse than the taint of treason was affixed to a
marriage solemnized in the most undesigned violar
tion of the statute, a statute arbitrary in its prin-
ciples, indiscriminate in its application, inflexible in
its judgments, and insatiable in its revenge.
It is easy to conceive the effects of such a law
upon the charities of domestic life ; the restraint
which it would put upon the yearnings of parental
afiection ; the watchful cupidity which it would
excite among the collateral relations ; the tyrannical
power which it would convey to the husband ; the
temptation which it would offer to an unprincipled
woman to abandon the maternal and conjugal du-
ties ; and the suppression of all parental affection to
children, whom the law had disinherited and pro-
nounced a spurious issue. It was a law which con-
stituted new offences, and gave impunity to un-
disputed crime. The English law supposes such a
duty of cohabitation in married persons, as to make
the loss of a wife's society thi^ burthen c^ the action
for criminal conversation ; but if any parties married
in contravention of this statute, their cohabitation
was vicious ; their separation was no abandonment
of conjugal rights ; their infidelity was npt adultery ;
their marriage with others was not bigamy. The
nullity of their first marriage left them free to choose
V
343
their course of sin. It might have afforded a curious
illustration of the confused ethics of the law, if, dur-
ing the undisputed validity of the marriage, the
nominal wife had committed adultery, and the plea
had been repelled not by recrimination, or proof of
innocence, but by allegations, then first exhibited,
of minority and want of consent at the time of
marriage. The legal ailment would have been
irresistible, but would common sense or common
honour have concurred in approving the equity of
the defence ?
The common and only palliation of these anoma-
lies is, that there is no legal marriage : but, if a clear
view be taken of the essence of marriage, and of the
peculiar forms under which it is celebrated in Eng-
land, can it be said, that, because the marriage is
deficient in some irrelevant form arbitrarily imposed
by the law, the conjugal relation is therefore not
contracted ? In the parallel case, under the same
statute, of marriages null by the publication of banns
in an unauthorized churchy and afterwards ratified by
the special enactment of the legislature, when did
the conjugal relation commence ? When the parties
in the church pledged their troth either to other } or
when the Act interfered to prevent the dissolution
of their marriages, when some of the parties were
probably in their graves, and could derive no benefit
from the Act, but in the confirmed legitimacy of
their children ? The same question may apply to
such marriages void without consent as were ratified
by the Act 3 Geo. IV. c. 75. and admits but of one
resolution. The abstract essence of marriage is the
consent of the parties to live together as man and
z 4
344
wife : policy requires that this consent shall be pub-
licly declared ; religion has ordained that it shall be
avowed in the face of the Church, and ratified with
sacred offices. In the English formulary of marriage
not a word is said of the consent of parents, and
minors, married by banns duly published, although
without consent, or by licence with consent, are
joined together in indissoluble marriage. The par-
ties are warned, that if they are joined together
otherwise than God's word doth allow, they are not
joined together by God, neither is their matrimony
lawful: this clause, explained by contemporary enact-
ments of marriages within the prohibited degrees,
implies, that if there is no such impediment they
are joined together by God, and their matrimony is
lawful. No such impediment is alleged, and, ac-
cording to the ritual, the man takes the woman for
his wife, and the woman takes the man for her hus-
band, to live together after God's ordinance in the
holy estate of matrimony ; the man further declares,
that he weds the woman with the ring ; they declare
their mutual consent in holy wedlock by giving and
receiving of a ring, and by joining of hands ; the
minister pronounces that they are man and wife
together, and recites the words primarily relating to
the institution of marriage, but in their ritual use
having a ritual application : Those whom God hath
joined together let no man put asunder. This is
the form in which husbands and wives are joined
together in England, and without which, except in
the case of Jews and Quakers, there is no marriage.
In this form there is certainly no reservation ; and
its validity is admitted in all cases in which it is not
345
defeated by the law. Where there is no fraudulent
intention, no offence but involuntary ignorance or
misapprehension, it is hard to conceive that this
form does not bind the conscience : and where fraud
is intended, it is equally hard to conceive that any
misrepresentation out of the Church can disannul a
solemn obligation contracted in the Church; and
that perjury before a surrogate can cancel a vow
before the minister. When the Marriage Act was
passed, the ritual of marriage should have been
altered in conformity with its provisions ; and as in
the ancient missals, a clause was inserted in the form
of mutual stipulation, if holy Church will, it ordaine^
the modern ritual should have made the vow and
publication of marriage dependent on the hypothe-
tical condition of the parentis consent. The Act
would thus have retained all its oppression and in-
justice ; but the ritual would have been guiltless of
the profanation of invoking the Deity in attestation
of a nullity, and the minister would not have been
degraded by the publication of a falsehood.
It is a proof of the fatal force of prejudice, that a
statute so vicious in its principles, so arbitrary in its
enactments, so indiscriminate in its application, so
pregnant of moral guilt and misery, should have
been suffered to disgrace the English law for nearly
seventy years, and that after the full maturity of its
iniquity wds disclosed, the legislature should have
been harassed for ten years in its amendment.
The law had been nearly sixty years in operation
before all the excesses of its fatal power were deve-
loped ; and it was from February 5, 1812, when
Mr. Wilson first moved the amendment of the law.
346
to July 99, 1899, before the nullity of marriage was
superseded, and die good old doctrine of its indisso-
lubility was restored.
It would be tedious to collect even the most con-
tractM view of the arguments which were again and
again urged in this decennial controversy; but it
would be unjust to the opinicms which have been
advanced, to overloc^ the speech of Doctor Phiili-
more, in introducing the first successful Bill ; and
the debates in the committees of the House of
Lc^ds, on the several propositions for restricting the
nullity of marriage, and for substituting voidability
for nullity. A clear view may thus be obtained of
the light, which Ae civilian, the lawyer, the states-
man, and the divine, have thrown on this most in-
teresting and important question.
Doctor Phillimore argued on the vast importance
of a question affecting the very foundations of social
order and the happiness of very many individuals.
In repelling the charge of innovation, he observed,
that the Marriage Act itself had no claim to anti-
quity, and was the very first instance of legislative
interference with the general law of marriage received
in England , whose constitution was so averse firom
the doctrine of nullity, that the old lawyers, who
had opposed the encroachments of foreign jurisdic-
tion, would have recoiled with horror fiom the im-
putation of bastardy upon the issue of a marriage,
unimpeached during the life of the parties who had
contracted it. Penalties and censures were pro-
nounced upon irregular and clandestine marriages,
but they were indissoluble. Incestuous marriages
were the only exceptions ; and they could only be
347
annulled in a court of competent jurisdictian, and
during the Ufe of the parties, 'whose heirs would
otherwise succeed to their inheritance.
The law of precontracts, and the frequency of
clandestine marriages, had undoubtedly called for
reformation and redress. The Bill introduced by
Lord Hardwicke passed the Lords with little oppo-
sition ; but it was vehemently debated id the Com-
mons, and was so changed and modified, that the
original provisions could hardly be recognized. Lord
Hardwicke nevertheless considered it expedient to
pass the Bill ; distinctly stating that the objection-
able clauses might be afterwards amended. It was
hardly possible, that a law which at oiie blow sub-
verted the whole matrimonial law of England, as it
had existed for centuries, should not need revision ;
and if its author could have foreseen its practical ope-
ration and effects, he would have been the first to pro-
pose a remedy for the evils which it had produced.
The Act was valuable, in making the consent of
a parent or guardian necessary to the marriage of a
minor ; in abolishing the law of precontracts ; and
in securing the registration of marriages. It was
objectionable in giving encouragement to fraud and
perjury, and in taking vengeance of posterity ; as if
it was designed to operate upon the innocent, and to
afford impunity to the guilty. It sought to enforce
its provisions by mere terror, and practically gave
rise to a complication of immorality and injustice.
Under this Act marriages were null, when they were
celebrated by minors by licence obtained without con-
sent ; and when they were solemnized in churches and
chapels in which banns had not been [Published
before the year 1754. In the latter case the nullity
348
has been seldom allowed to attach : in the former no
obstacle has ever been opposed to its most unre-
stricted operation. By this enactment of nullity the
marriages in question never had any legal existence,
and could not be affirmed by any act of the parties
or their relations. The sentence of nullity might
be obtained at the suit of the parent or guardian,
against the will of the parties ; of the woman, not
r^arding the delicacy of her sex ; and even of
the man who had obtained the licence on a false
statement of the age of himself or of the woman
whom he proposed to marry. Whether be had
made the statement in ignorance or with design, he
was free to take advantage of his own wrong ; and
by proof of the minority of either party, and the
want of legal consent, to set aside the marriage at
any time after its celebration, within a year, or after
a cohabitation of thirty years. It might seem in-
credible, that a man, impelled by passion or caprice,
or surfeited with enjoyment, should have the power
of discarding his wife at his pleasure ; that in tlie
elevation of prosperity he might dismiss the partner
of bis adversity; or that, in an unwillingness to
maintain his family, he might rend asunder all the
tender charities of life, and turn his offspring loose
upon society, as helpless and fatherless vagabonds.
It was on the innocent offspring of these ill-fated
marriages that the severest punishment was inflicted:
the children, the grandchildren, the remote posterity,
might at any time be deprived of their inheritance, on
proof of the want of lawful consent to the marriage
of any of their progenitors ; and there was no se-
curity for any property derived by virtue of marriage
contracted under the Act. The nullity ordained by
349
the council of Trent was not subject to the power of
the party creating and concealing it. The nullity
contained in an Act of the Irish Parliament, was re-
stricted to persons possessing a certain amount of
property, and must be prosecuted within a year after
the expiration of the minority. The nullity of Lord
Hardwicke^s Bill was at variance with die whole
spirit and analogy of English law ; not only of that
which regulates marriage, but of those great and
fiindamental principles on which the English law
proceeds ; undermining prescription, disturbing the
course of inheritance, and taking away the limitation
of actions. By its actual operation the marriage
law does, as far as any law can license that which is
malum in scj license adultery. If two persons of
mature intellect, and perfectly competent to under-
stand the nature of the contract in which they en-
gage, are united together in a de facto marriage,
deficient in no circumstance enjoined by the religious
institutions of the state — if they cohabit together as
man and wife, and acknowledge each other as such
for many years after they have come of age, and
shall afterwards separate on the plea of want of
parental consent, and severally intermarry with other
persons, will any one contend, that persons so con-
ducting themselves, although they may not be ame-
nable to the municipal law, are not, in the eye of
God and man, guilty of the crime of adultery ? or
deny, that the municipal law, in sanctioning such
conduct, does not in fact, and in the spirit of that
law which is written in the heart, lend its sanction
to adultery ?
It might be permitted to refer to cases which had
350
been decided. In Wattle v. Hathaway, the man
had obtained a licence upon a false oath of the
woman's age : they cohabited four years, and had
four children, when they fell into poverty ; the man
went to India, where he acquired a considerable pro-
perty, and on his return to England, after having
been married twenty-seven years, obtained a sentence
of nullity, on the ground of the woman^s minority.
In Hewitt v. Bratche the circumstances were the
same, and nullity was decreed after a marriage of
twenty-five years. Four other cases had been de^
cided within two years ; varying m their circum-
stances, but shewing how theftamiers of the Act had
been defeated by its actual operation. In Riddell v.
Liddiard,the marriage had been solemnized with con^
sent of the guardian of the woman being a minor : but
the guardian^s appointment was deficient in the legal
attestation,, and the marriage was therefore declared
null by the judge, with strong comments on the
hardship of the case^. In Hayes v. Watts the mar-
riage was celebrated with consent of the woman's
mother, reasonably supposing, herself to be a widow:
after an interval of eighteen years, it was discovered
that the father was alive at the time of the marriage,
® '^ This marriage is in no degree clandestine : it has been
solemnized with all the requisites of law. The court must
deeply lament to see such a case brought before it : it is a case
of hardship on society, that persons should have been so long
living together as man and wife, and be cast loose on society ;
but it is in vain for the court to observe on the hardship, so long
as the law continues on its present footing. As the law now
stands, there is nothing more to be done, than to pronounce this
to be an invalid marriage." Speech, p. 25. Many more cases
are added in the notes.
351
which was therefore deckued null, as the judge ob-
served, without any imputation of fraud. In Jones
V. Hazlewood, the parties were married by licence
obtaine4 on the man^s bath that both were of age :
after a cohabitation of thirty-eight years, it was
proved that the man was not of age, and that consent
was wanting, and the marriage was nulled at the
suit of the woman.
The Act operated with infii^itely more rigour ii|
the case of illegitimate minors, especially of those
who were married before the recent decisions on the
construction of the law. Men of ordinary talents
and acquirements could not have foreseen, that, in
cases where the putative father, or where the natural
mother, was present and consenting to the marriage,
the marriage should nevertheless be null for the want
of legal consent. It required professional acuteness
a^d experience to ascertain the incompetence of the
parties consenting, and the consequent nullity of
the marriage, for want of consent of the court of
chancery. It was only after long and elaborate
arguments in various courts, and after doubts on the
part of some of the learned judges, that the point
was decided, first by Sir William Scott, in 1799v
and afterwards by Lord Ellenborough, in ISOQ^ after
some hesitation, as has always been supposed, in
the case of Priestly v. Hughes. In this case,
J. W, Hughes had married Jane Roberts, ill^i*
timate daughter of Thomas Jones, in the presence
of her natural mother, and with her consent ex-
pressed in the licence. J. W. Hughes died, leaving
an only daughter, in whom apparently vested con-
siderable property, left by the father of J. W. Hughes,.
352
which was wrested from her by the heir at law prov-
ing the nullity of her mother's marriage, celebrated
without consent of the Court of Chancery. In
Homer v. Liddiard; Hannah Liddiard was the
daughter of John Whitelock by Sarah Liddiard ;
Whitelock bequeathed to Hannah Liddiard consi-
derable property, appointing her natural mother and
another person his executors and the guardians of
the child. The other guardian died ; and at the age
of twenty years, with the qonsent and in the pre-
sence of her natural mother, Hannah Liddiard mar-
ried Mr. Homer, at whose suit the marriage was
afterwards annulled for want of legal consent.
Frances Davidson, an illegitimate minor, was mar-
ried with the consent and in the presence of her
natural mother, and after an interval of twenty-five
years the marriage was declared null at her suit.
Cases of this description had been formerly few, but
of late years they had been exceedingly multiplied,
and would probably continue to multiply in an in-
creasing ratio. Since 18 10, forty cases of nullity, for
want of previous consent, had been decided in the
Consistory Court of London, and twenty in the
Arches Court of Canterbury. The same suits might
also be entertained by all the Ecclesiastical and Con-
sistorial Courts, in the Courts of Quarter Sessions,
and in the Courts of Common Law; and the nullity
of these marriages might also be established without
the sentence of any court. The evil was therefore
of an extent to demand the interference of the l^is-
lature.
It was proposed to rescind the clause of nullity,
and to convey to the father, guardian, mother, or
3&3
guardian appointed by the Court of Chancery, a
power of annidling a marriage contracted without
cpnsent, by a suit in a court of competent jurist
diction. It w^ found .impossible, on niature consi-
deration, to invest either of the parties contracting
the marriage with the same power.
Justice demanded that the law should be retro-
spective, and it was proposed to affirm all marriages,
celebrated without consent before the passing of the
Act, in which the parties shall have attained the age
of twenty-one years, and be living together, unless a
suit shall be instituted within six months. It was a
strong argument for the retrospective operation o|f
the Bill, that it had inflicted wounds which ought to
be healed, and involved many families in a state of
the most distressing uncertainty, ^hich the legislator
only could relieve, as he was not restrained by any
particular law, but directed in all his acts by the
principles of all law, equity and expedience. Pre-
cedents in favour of the retrospective clause might
be found in the Bills introduced for the confirmation
of marriages celebrated in churches or chapels in
which banns had not been published before the year
17^- These cases appear to stand precisely on
the same ground. In both cases there were mar-
riages de facto^ but not de jure: in both cases
therefore the marriages were legally null, and no-
thing short of a retrospective law could render them
valid. The law which had been applied in the one
case should not be withholden in the other. The
rights of third parties, if such unhallowed pretensions
might bear that name, were equally affected in both
cases: for if there be a nullity of marriage, the
VOL. I. A a
354
relative situation of third persons to the parties mar-
ried must be the same, whatever be the ground ci
nullity. In very many cases both parties, at the
time and for many subsequent years, were com-
pletely ignorant of the nullity of their own marriage.
One of very many cases of crying hardship might be
recited. Twenty years had elapsed since a marriage
was solemnized between two minors with the full
consent and in the presence of the parents of both
parties : four years ago the eldest daughter of that
marriao^e was married with the entire consent of her
father : children were born of this marriage, but after
its solemnization the fether of the woman discovered
that he was born before the marriage of his parents,
a circumstance which had hitherto been studiously
concealed from him. The consequence was, that
not only all his children, but all his daughter's chil-
dren became as it were ipso facto bastards ; no
guardian appointed by the High Court of Chancery
gave consent to either of these marriages. A nullity
had been engrafted upon a nullity, and it might
have proceeded ad infinitum ; for if the granddaugh-
ter had been married with her Other's consent,
before the flaw had been discovered, her issue would
also have been illegitimate. It was in vain that all
the family in all its branches concurred in an anxious
wish to give stability to two marriages, solemnly
and bond Jide contracted, deficient in no religious
ceremonies, and consolidated by reciprocal affection,
and the birth of numerous issue : it was in vain that
the parties to each of these marriages, endeared to
each other by the strongest ties of mutual affection,
and deeply impressed with the sacred natuie of the
355
bond which united them, earnestly and anxiously
sought for a process of law. by which their marriages
might be declared valid. Without the success of
the proposed clause their case was hopeless: the
children and grandchildren must be degraded from
the station which they had hitherto occupied in
society, and be considered in law as the offspring of
a meretricious union. All marriages of illegitimate
minors without consent of Chancery were in the
same condition.
There was a striking anomaly in the statute, which
ordained, that if marriages of minors without consent
were celebrated by licence they could never be le-
galized : if they were celebrated by banns they could
not be called in question, although it was notorious,
that the publication of banns was subject to the
most fraudulent abuse. It was proposed to remove
this anomaly, and to place the publication of banns
under new regulations.
The principal points of this luminous argument ^
by which an experienced civilian introduced the
measure to the House of Commons, were necessa-
rily enforced or contested when the measure was
debated in the House of Lords; and it will be
sufficient to present a very brief summary of the
arguments used in the Committee on the clause for
restricting the nullity of marriage.
The advocates^ of the restriction regretted that a
law which was irreconcileable with religion, justice,
^ See Substance of the speech of Joseph Phillimore, LL. D. in
the House of Commons, March 27, 1822, on moving for leave to
bring in a Bill to amend the Marriage Act.
4 Earl of Westmoreland and Lord Ellenborough.
A a9
356
and bumaoity, had ^not been already amended, and
that effect had not been given to a measure now
made &miliar by repeated discussion, and recom«-
mended by frequent sanctions of the other House.
The judgments of the courts proved the insecurity
of all hereditary titles, derived in succession from
ancestors whose marriages might have been vitiated
by casual oversights and informalities, naturally re-
sulting in the bastardy of their issue ; and they
enforced the necessity of ratifying all marriages con-
tracted in good faith, and annulled only in conse-
quence of accidental omissions. It was not unpre-
cedented, it was not inconsistent with the prospective
clauses of the Bill, to counteract effects which had
not been foreseen, and which for a long time had
not been acted upon. The great object of the Bill
was to give confidence to the most important relation
of social life, and to ascertain who were and who
were not married. This was at least due to the
institution on which the succession of property and
civil rights depended, but which the existing Act so
far subverted in opposition to the ancient law, that,
while it ostensibly professed to prevent clandestine
marriages, it annulled those which ought to be bind-
ing, and inflicted a stigma on persons who were
under an obligation to live together. It was ri^ht
to protect youth and property, but it was also right
to prevent acts of fraud and spoliation, and to give
security to all who complied with the law as far as
they were acquainted with its provisions. The au-
thors of the law could not have intended that a mar-
riage should be dissolved at the suit of a man who
had compassed it by his own perjury, or at the suit
3BT
of an heir at law, from the merest motives of selfish
kiterest, or that the hiw should arm the dearest con-
nexioi^ against each other, and extinguish the senti-
ments of honour and affection. These evils of the
law, these temptations to crime and to the violation
of the most sacred duties needed only to be men-
tioned to be restrained. The main objection was,
that the measure affected the rights of third persons,
whose rights were however sufficiently protected, if
indeed any thing more than their expectations were
iifi danger. The interest of an uncle in the nullity of
a nephew^s marriage would for instance be defeated
by the legal marriage of that nephew. It was in-
cumbent on the legislature to overlook such expecta-
tions, and the rights of third parties had been again
and again infringed ; by the Act of Henry VIII. in
confirming all marriages celebrated in the face of the
Church; by the restrictions which had been put
upon the Marriage Act in respect of one class of
void marriages, and by the general law, which allowed
no suit of nullity to be brought but during the life
of the parties. To allow the parties themselves to
commence suits of nullity was to allow voluntary
divorces. Under the proposed law the parents would
have the power of dissolving the marriage within a
limited period, at the expiration of which it could be
no more impeached. It was natural to look to a
better system than diis, under which marriage should
be indissoluble but by the adultery of one of the
parties. It might be observed, that the present Act
was nugatory, and might be evaded, by a foreign
marriage ; by a secret publication of banns ; and by
a marriage aflter the parties should come of age.
A a 3
358
The arguments for the immediate amendment of the
law were, that no more nullities might be incurred ;
that the rights of property might be secured ; and
that every man might be assured, that the law, which
maintained him in the possession of his inheritance,
would also enable him to transmit it to his posterity.
The welfare of society demanded, that the principles
on which the security of property depended should
not be.opposed to the rules of morality and religion.
The apologists of the existing system' admitted
the importance of the subject, and the occasional
evils of the present law, but the reverence due to the
gi-eat name of its author often checked the desire of
seeing it reformed. Various Bills had indeed pro-
ceeded from the Commons, but, notwithstanding
the corrections and assiduous attention which they
had received, they had all failed of their Lordships'
approbation : nor would it secure the success of the
present Bill to point out the evils which it was
intended to remove, without shewing that the pro-
posed alterations would not be more mischievous.
The long period over which the existing law had
operated, and the prodigious interests which it in-
volved, required that a full view should be taken of
all the difficulties of the question. It was clearly
within the competence of a civil jurisdiction to con-
sider the age and circumstances, and to prescribe the
forms, of marriage, and to exercise a controlling au-
thority over the whole subject. Dangerous conse-
quences might arise, and it might be difficult to
distinguish between marriage and concubinage, if
' Lords Stowell and Eldon.
359
private judgment were allowed ,to fix the terms wbicb
should constitute marriage. For its more security,
marriage before the Reformation had been considered
a personal sacrament, in which the intervention of
no third person was necessary: and even now in
Scotland marriage was dependent on nothing but
the declared will of the parties. At the Reformation
a material change took place, and many attempts
originating in the Upper House, and no doubt with
royal sanction, were afterwards made to give a more
definite character to this institution. The Act of
George II. had been demanded by the gross abuse
of former laws, under which every legal restraint had
been eluded, and youths of the best families had
been inveigled into the most unhappy connexions.
A prompt and efllcacious remedy was required, and
if the means of prevention had been clear, the pre-
sent evils could not have arisen. The Bill framed
by Lord Hardwicke became the law of the land,
and had continued in operation ever since. It was
ignorantly supposed, that under this Act marriages
of minors without consent were good in themselves,
but voidable in the ecclesiastical courts: but, in
truth, they were absolutely null, and, whatever cere-
monies might be observed, they signified nothing,
and imposed no obligation ; the parties might again
be married to other persons ; their infidelity to each
other did not amount to adultery ; the woman had not
acquired, and therefore could not forfeit, the character
of a wife ; the issue was necessarily illegitimate ; and,
however the parties might live in full confidence of
their marriage, it was in law a perfect nullity ; the
parties had made a law for themselves, and they
A a^
360
must abide the result. The only question tberefof^
was, how far it might be convenient to leave these
contracts for a certain interval to b6 decided by
others. But perhaps there couM not be a worse evil
than the voidability of marriage. At present the
law was fixed and definite : the nlalriage without con-
sent was intrinsically and irremediably tiuU. It was
known that these marriages were usually contracted
not against, but without, consent : they might be,
and they often were, industriously concealed ; and
if they were made voidable only, and dependent on
the sentence of a court, there would be no end of
the perplexity and confusion. It had been said,
that the parties might be betrayed into error, through
ignorance and misapprehension of the law, with
which they were willing to comply, and that time
should be allowed for the supt>Iy of the requisite
forms. If this principle should be admitted, the
time thus allowed should be scnlpulously restrictied
to the period absolutely necessary for the purpose
which was contemplated. It was necessary that the
parties should know with the least delay, whether
they were or were not married. Parents should not
be allowed to deliberate, whether they should inva-
lidate or confirm the marriages of their children ;
they should not have the power of suppre^ing their
resentment for a time, and afterwards, in the exercise
of a cruel right, of annulling the marriage, after the
birth of a numerous progeny, whom their act Would
render illegitimate. Again ; the parent might die
during the minority, and this singular anomaly would
result. Of the children of two fathers, both with-
holding their consent from their marriages, the cfnt
361
by the death of his fether woald be lawfully married ;
the other, whose father survived) Would not be mar*
ried at all. The evils of a voidable marriage were
increased in proportion to the length of its duration,
and the period allowed for avoiding it. On the
rights of third persons it was material to observe,
that there were vested interests besides those of
which the party was in possession, and that they
might be the more valuable of the two. Thus an
elder brother, illegally married, possessing an entailed
estate, might have a younger brother legally married :
the children of the latter would have a vested interest
in the estate, more valuable than their father. The
session was however drawing to a close, and the
measure might be deferred to another year, when it
might originate in the upper House, and have the
benefit of all the learning which peculiariy belonged
to the subject.
Nothing could be stronger than this argument
against voidability, which arose on the clause for
rendering the marriages of minors without consent
null, at the suit of the parents during the minority :
and the force of the argument Was justly appreciated
by the rejection of the clause. The argument in
favour of nullity of marriage failed at the same time
to produce conviction, and the practice of nullity
was for the future effectually restrained. Thus the
exertions of all who laboured for the amendment of
the law were more than fulfilled: the validity of ail
marriages celebi^ted in the face of the Church was
reestablished ; the law of marriage was rendered
definite and distinct ; the vow of marriage, accordidg
to Its primitive institution, was again irrevocable.
362
The intrinsic force of the argument, which produced
these results, could not have been more clearly
proved, than by the decision of the House, which
would not have lightly disregarded the opinions and
suggestions of the Lords Stowell and Eldon.
The new Bill was embarrassed with exceptionable
forms, and excited so much popular clamour, as to
call for immediate revision: and in the following
session a committee of the Lords was appointed, to
consider the improvements which were required. In
this committee, notwithstanding the force of the
argument against the evils of voidability compared
with nullity, a clause of voidability was proposed,
and it was carried by a majority of seven to four, in
the absence, as was alleged, of some of the members,
who would not have concurred in the proposition*
It will be proper to take the substance of the debate,
when this extraordinary clause was moved in the
committee of the House.
It was argued against the clause of voidability,
that marriage was a religious contract instituted by
God ; and that the proposed clause was contrary to
the plain rules of Scripture, that a man should
leave his father and mother and cleave unto his wife,
and they twain should be one flesh ; that what God
had joined together man should not put asunder;
and that a man should not put away his wife except
for the cause of fornication. These were authorities
which should govern the law of man, and with
which the present form of Solemnization of Matri-
mony was in just conformity. It was a mockery,
to allow the dissolution of a marriage, solemnized
with all the sanctities of religion, in which the parties
363
solemnly pledged themselves to keep the vow and
covenant betwixt them made, and were pronounced
to be man and wife, in the name of the Father, of
the Son, and of the Holy Ghost. The parties were
challenged to declare whether there was' any lawful
impediment to their union, and the absence of such
impediment should in a religious sense determine
the validity of their marriage, which nothing could
annuU but a previous contract or affinity. These
considerations weighed upon the mind with a force
which could not be resisted : and it would be dan-
gerous to deny the religious character of marriage,
the main principle of that conjugal virtue, which was
the best foundation of public virtue and domestic
happiness*. It was indeed within the competence
of the state, to make laws and prescribe forms of
marriage, without which the whole institution might
be perverted ; but, as a measure of legislation, the
proposition must be nugatory, and might be defeated
by a foreign marriage, or by a fraudulent publication
of banns, which was the most ordinary means of
compassing clandestine marriages ; and the greatest
difficulties would arise in the practical operation of
the clause, in respect of the rights of the husband
and trustees during the period of voidability, in
which it was doubtful how far they could alienate
the property of the woman, or what might be the
consequences if money was lent upon the security of
that property^. Policy demanded that the inconsi-
' Bishop (Law) of Chester; Archbishop (Vernon) of York ; Lord
Ellenborough.
'Earls of Liverpool and Westmoreland; Lord Ellenborough;
Archbishop of YorL
364
derate marriages of minors should be restrained by
any means short of voidability^; and there was
sound wisdom and justice id a subsequent clause,
which prevented men who married from merely mer-
cenary motives from deriving any benefit from the
fortune of the wife. When a choice was to be made
between restrictions too easy and too rigorous, the
more lenient course was generally to be preferred ;
but on a comparison of the opposite evils of nullity
and voidability, the former appeared to be the least
objectionable. If the parties took the vows tendered
to them falsely and knowingly, there was a ground
of nullity ; but it was preposterous, that they should
ever be in a condition to declare, that they knew not
whether they were or were not married ; because
the validity of their marriage depended on the will
of a third party, which they could not control '»
The end of all matrimonial law was to render the
marriage certain between the parties and all the
world besides : for others with whom the parties
might have occasion to deal, were interested in the
validity of their marriages ; and if the subject were
contemplated in this light, it was highly inexpedient
to admit the interference of a third person to dissolve
the marriage, to the detriment of the persons with
whom the married parties were connected.. The
disadvantages of such a law were far greater than
any advantages which it could be supposed to pro-
duce, and confirmed the conviction in favour of
nullity compared with voidability of marriage^. In
" Archbishop of York. > Earl of liverpooi. ' Lord
Redesdale.
365
a moral view of the law and its consequenoes, the
wounded feelings of the parent, and they were often
no more than feelings of mortified ambition or dis-
appointed avarice, coiUd not be weighed in the scale
with the injury and degradation of the woman, and
the bastardy of h^r children '. It was necessary to
contemplate the probable eiSects of the measure
upon the woman, the man, and the parent or
guardian. The woman whose marriage should be
annulled would have nothing before her but misery
and ruin; and it was impossible to conceive any
circumstances under which the woman's parents
could desire the nullity of her marriage, or any state
more distressing than the interval of suspense, during
which the parties whose intentions were honourable
might doubt of the validity of their marriage. No
immunity was due to the man who could consent to
abandon the woman, whom he had engaged to chen
rish ; and it would be dangerous to public morals to
allow a dissolute minor to effect a seduction under
the pretence of marriage and the forms of religion ^.
The most anxious responsibility would also devolve
upon the guardian, who would be called to decide,
without knowing the feelings of the parties, or being
able to decide what duty required him to do. It
was desirable therefore to restore the old law of the
country, which still prevailed in most foreign nations,
and especially in Scotland, where the feelings of
aristocracy were stronger than in England, where
the contract was purely of a civil nature, and where
* Bishop of Chester. • Archbishop of York and Earl of
Liverpool.
366
no evil resulted from the facility with which it was
concluded ^.
The supporters of the clause of voidability were
concerned at the objection which had been made,
and were persuaded that it was unfounded. They
argued that the clause was not contrary to the prin-
ciples of morality or the authority of the Scriptures,
which contained nothing to prevent national so-
cieties from prescribing the forms which should
ascertain the validity of marriage. The true question
was, not whether man should disturb the union
which God had sanctioned, but whether the union
under certain circumstances had received the sanction
of God. It was true that certain words of Scripture
were used in the solemnization of matrimony, and
that marriage had been formerly held to be a sacra-
ment of the Church ; but it was nevertheless com-
petent to man, as should be most for the convenience
of man, to ordain the forms of the contract which
were not found in the Scriptures. If these laws and
forms of marriage were consistent with the revealed
will of God, and were truly complied with, the union
was sanctioned by divine authority; but it was im«>
pious to call those marriages the act of God which
were compassed by fraud and perjury, in direct con-
tradiction of the laws both of God and man. The
marriage ceremony was founded on the assumed
agreement of parties competent to enter into the
union on the terms prescribed by law. Let the
religious ceremonies be ever so simple, the marriage
contracted under them could not be confirmed by
^ EUtrl of Lirerpool.
367
any possible addition ; but if the law added other
terms, such as solemnization in a church, a licence,
or publication of banns, the religious ceremony was
not sufficient if these terms were not iiilfilled^. As
minors were to a certain extent incapable of acting,
as in the disposal of their property ; and irresponsible
for their acts, as in the case of debts ; it was not
inconsistent to restrict their power in respect of an
engagement which concerned their fortune, their
happiness, and their virtue; and which should not
be contracted without the utmost circumspection.
Their marriages had therefore been placed under
certain regulations ; and it was now to be consi-
dered, whether marriages contracted in violation of
those regulations should not be voidable^. When
of old the assent of parents to the marriage of minors
had been assumed, nothing was in fact required but
the consent of the parties. Measures, including
nullity of marriage, had however been proposed at
dij9erent times, for strengthening the parental au-
thority, which the committee, to whom the matter
had been lately referred, found no methods of sup-
porting, but nullity, preventive measures, voidability,
and the stimulus to parental jealousy, which might
arise from the entire emancipation of youth. Void-
ability had therefore been recommended, not because
it was free from reasonable objections, but because
it was preferable to the entire dereliction of parental
authority ; because it would be vain to recommend
the plainer course of nullity ; and because preventive
^ Archbishop (Sutton) of Canterbury; Bishop (Howley) of
London ; Lord Eldon ; Lord Sidmouth ; Lord Redesdale.
* Bishop of London ; Lord Redesdale.
368
measures had been found inefl^tual. In a neigh-
bouring kingdom, marriages had been protected by
voidability in the same manner and for the same
purpose as was now proposed, and no pernicious
eiSects had been produced. In Ireland a distinction
had been made in respect of property, but it was an
invidious and unjust distinction, and would not be
approved in this country. It had been argued that
the clause would operate to the protection of young
men and the prejudice of young women, whose in-
terests should be treated with care and tenderness ;
and that the injuries which it was sought to prevent
were more commonly inflicted upon women than
upon men. It would not however be denied that
young men also required the protection of the law ;
and it had b^en found in a long course of profes-
sional experience, that young men were more com-
monly inv(^ved in disgraceful and ruinous marriages
than young women. This effect naturally resulted
from the more guarded education of young women,
from the more constant superintendence of their
parents, and from the natural delicacy of their sex ;
while young men, in schools^ and colleges, and laige
towns, removed from such protection, and left to
their own discretion, were in more danger of forming
unsuitable connexions, and engaging in improvident
marriages. It had been said that the clause would
be nugatory; but there would be an end of all
l^islation, if the possibility of eluding a law was to
be made a just objection to its enactment. The
clause might be called an experiment ; but it was an
experiment which had not been tried, and which was
worthy to be tried ; in the suggestion of which the
369
committee had acted with the best intention and
with the maturest deliberation ; and which it might
be hoped would not be followed by the disastrous
effects which were anticipated^.
On a division the clause was rejected : contents
S9 ; non-contents S8 : and this small majority has
probably abolished for ever in this country the nul-
lity of the marriage of minors contracted without
consent, and restored a wholesome state of law,
under which every man may know whether he is or
is not married ; under which every man who is
interested in the marriage of another may be assured
of the fact ; and under which, according to its primi-
tive institution, marriage has resumed its proper
character of an irrevocable obligation.
Three cases of nullity are recognized in the Act^
viz. if the parties shall knowingly and wilfully be
married, 1. in any unlawful place, other than a
* Lord Stowell.
^ The Act does not interfere with any of the provisions of the
old law in respect of marriages by banns, which remains in full
force in all that regards trae and accurate publication of Chris-
tian and surnames : and as the old law declares that in every
case, where there shall be a defect of these particulars, the mar-
riage shall be ipso facto void ; the same consequence endures '
under the same circumstances under the new Act. By this rule,
the case of Fagg against Sergeant, otherwise Lord, otherwise
Parrington, falsely calling herself Fagg, was decided in the Con-
sistory Court, July 20, Nov. 8, 1824. In this case Mr. Fagg
married the lady under the name of Farrington, her real name
being Sergeant, while her name of repute, or that by which she
was known among her acquaintance, was Lord. All the objec-
tions to nullity of marriage by licence apply to nullity of marriage
by banns : if it is not fated that there shall be an anomaly in the
two cases, the same rule should govern both.
VOL. I.' ^ li
370
church or chapel, in which banns may be published:
2. in any unlawful manner without bann^ or licence:
3. by any unlawful person, i. e. by a person not in
orders. As the Church of England gives sanction
to none of these marriages, as her ministers cannot
be supposed to assist in ratifying them, and as the
penalty is restricted to offenders knowingly and wil-
fully offending, it would be gratuitous to offer any
objection to their nullity. The parties themselves
can hardly fail of knowing whether they are married
in a church or authorized chapel, by licence or by
banns, and they can marry in no other place and in
no other manner without the grossest collusion.
They have not the same power of ascertaining whe-
ther the person who marries them is or is not in
orders, and the penalty is therefore rightly restricted
to cases in which they act knowingly and wilfully.
If they voluntarily offend against the premises, the
connexion is compassed by their own fraud and
contrivance, and might probably be cancelled with-
out the aid of the statute, in a suit of jactitation of
marriage. It may probably be objected that the
ratification of these irregular marriages, even if the
parties shall a<!t in ignorance and unwillingly, is an
innovation upon the law of marriage, which has
from the remotest periods required a properly sacer-
dotal benediction, and the interpretation of the law
may be called in question. The words of the Act
are, " If any person shall knowingly and wilfully
consent to or acquiesce in the solemnization of such
marriage, by any person not being in holy orders,
the marriage of such persons shall be null and void.^^
The converse of the proposition is, that if they shall
371
not act knowingly and wilfully, the marriage shall
not be null and void : and whatever be the innova-
t4on» the principle is just. The parties act in the
fair presumption that the ministrations of the Church
are lawfully conducted ; that the persons appearing
as her ministers are what they pretend to be ; and
they have no ipeans or authority for examining the
truth of their pretensions. It has happened, but
uncler the present law it will hardly happen again,
that persons married, as they presumed lawfully^
certainly without any fraudulent intention, without
any consciousness of doing wrong, by the mere act
of another, in which they did not connive, which
they did not suspect, which they had no means of
discovering or preventing, have been amerced of their
matrimonial rights, and reduc^ to the necessity or
the chance of being married again ; it may be after
the birth of issue* thus deprived of their natural in-
heritance. It is impossible to palliate the hardship
of this proceeding ; or, with the most extreme jea-
lousy of the ministration of the Church, to dqny the
expedience of acknowledging an irr^ular marriage,
in preference to the infliction of accumulated injury
on the innocent and undeserving. There is no
penalty not due to the person, who, ^rfalsely pre-
tending to be in holy. orders, shall solemnize matrir
mony according to the rights of the Church of Eng^
land ;'' and it is an enactment of perfect justice,
that ''every person knowingly and wilftilly so of-
fending, and being lawfully convicted thereof, shall
be deemed and adjudged to be guilty of felony, and
shall be transported for the space of fourteen years,
Bbg
372
according to the laws in force for the transportation
of felons/^
Although the principle and law of nullity of mar
riage have been investigated with tedious prolixity^
it would be improper to overlook certain objections'^
against the amended law, which is worthy to be vin-
dicated from the most captious exceptions.
It is objected, that the clause of voidability pro-
posed by Dr. Phillimore, ^^ obtained the sanction, or
rather was inserted at the instance, of the most dis«
ttnguished law lords; was adopted and recom-
mended by the Lords' committee ; was entitled to a
more dispassionate consideration than was given to
it ; and that the apprehensions of the law lords were
treated with disrespect.'* There is no difficulty in
turning the course of this stream of authority. Lord
Redesdale, in 1833, argued against the proposition,
and declared that nullity was in his judgment pre-
ferable to voidability. Lord Stowell, when the
clause of voidability was brought forward in 1823,
argued in the most convincing manner against the
evils wiiich it involved ; and was so far from chang-
ing his opinion, that although he concurred in the
recommendation of the committee of 1 893, he never-
theless declared the bias of his own mind to be in
favour of nullity in preference to voidability ; and
only acquiesced in the latter, in a conviction that
the former would be proposed in vain. The Lord
Chancellor Eldon also, in 18S3, powerfully demon-
strated the mischievous operations of voidability.
' See Britiih Critic, new series, roL xix* p. 655— 660»
373
Such were the opinions of the most distinguished
law lords.
It is an equivocal apolc^y for the meditated clause,
that ^^ whatever be its merits or demerits, it is inno-
cent of all the mischief which has been laid to its
charge. It was not contrary to the law of God ; it
did not afford encouragement to the seducer ; it did
not derogate from the sanctity of marriage or the
dignity of the priesthood. ^^ The innocence of the
clause was quite unexceptionable ; it never had legal
existence or power in England ; it was but a thesis
for the trial of polemical skill, conducted with the
most unblemished liberality. Some of its negative
merits may claim the consideration of a moment.
The clause of voidability was *^ not contrary to
the law of Grod.'' There is a distinction which no
careful writer will overlook, between nullity and
voidability of naarriage. The advocates of the former
contend, that when a marriage is null it never for
one moment has existence as a marriage ; and so far
their doctrine is clear from the imputation which
may attach to the dissolution of marriage : but void-
ability implies the validity of the marriage until such
time as it is actually voided ; in other words, its
permanent validity, unless it is voided by a court of
competent jurisdiction. This interpretation is con-
firmed by a clause in the proposed Bill ; in which,
in dependence upoif the clause of voidability, it was
provided, '* that notwithstanding any such marriage
shall be declared null and void ... the husband shall
nevertheless continue liable for all the charges and
expences . . . incurred in maintaining the wife during
the coverture, and until the avoidance of the mar*
Bb S
374
riage by the judgment of the court, and for all such
just debts as she may have lawfully contracted dtirihg
that period ; and he shall be answerable for the
maintenance of any child or children bom of such
niarriage, in the same manner ^ If the said nlarriage
had continued valid \^^ Here the parties are called
husband and wife ; provision i^ made for the main-
tenance of the child or children bom of the marriage;
arid there is an hypothetical view of the continued
validity of the marriage. Now the essence of mar-
riage by the law and institution of God is, that the
man shall cleave unto his wife, arid they two shall
be one flesh : it is impossible to tonceive how the
voidability of a marriage of acknowl^ged validity
can be compromised or sheSvn to be " not contrary
to the law of God.**
It is further insisted, that "of all the g^rounds
that were ever taken for condemning the voidability
clause, the religious grbutids ai^ the most unsub-
stantial and treacherous .... the argutnents from
Scripture rested upon a iiiost extraoitlinary mitop^
prehension of our Saviour^s words : Those whom
God hath joined together let no mian put asunder.
They refer to the institution of the marriage state,
and not to the celebration of thfe marriage ceremony."
^ See Bill, intituled. An Act for amending the laws respecting
ihe solemnization of marriage in England. Ordered to be printed
13th of May, 1823. Another clause enacted, ^* that if either of
the parties shall die before the instittttien t£ a iiiiity no sttit of
nullity shall be commenced; and if any suit hath been ccnn-
menced, the same shall be discontinued, and the issue shall be
legitimate. '^ So decidedly was the original validity of the inar-
riage affirmed.
375
As the words stand in the Gospels they refer ori-
ginally and generally to the institution of marriage ;
as they stand in the Liturgy, apd are accompanied
with the significant act of the minister, they have 9.
reference to the celebration of a particular marriage :
and so far is this from being a new or incorrect ex-
position of the liturgical application of our Saviour^s
words, that it is sanctioned by the most eminent
ritualists. Comber, Wheatly, and SHepherd. Under
this construction, w indeed uqder any construction,
it is ?ery readily conceded, that jtbe words ^^ prohibit
us from annulling any marriage vow,^ • and that '^ the
promise in the sight of God is irrevocable and irre-
versible/^ It is not however meant to concede that
under this interpretation they '^ lead to the conclu-
sion, that neither licences nor banns, or altar or priest,
can be required as indispensable to a valid con-
tract," or that our laws, '* in requiring them, are a
monstrous system of impiety and injustice/'' Our
Saviour^s words, in prescribing the permanence, pre-
clude the voidability of marriage : but they have no
reference to the circunistances alleged, which are not
indispensable to a valid contract, but are proper and
useful in preventing clandestinity, in procuring a
pubUc attestation of the marriage, and adding new
solemnity to the vow and covenant. It is again
asked, *^ Even supposing that God joineth those aqd
those only who are noiarried by a priest, wh^t right
has the Churcfa to restrict the priest^s privil^e to
certain hours of the day, to certain consecrated
places, and to a certain prescribed form of words?
Why may he not solemnize matrimony without
banns. or licence ?'^ The answer which the objector
Bb4
376
returns to his own question is, ^^ For this single
reason ; he is forbidden by the law :'^ and he might
have added, that in these requisitions the law is not
partial or arbitrary, as in enacting the nuih'ty of
marriage in a particular case, but directed generally
to the public good ; and he should have shewn that
the public good forbids, and that the law of the
country forbids, the priest to marry minors, or there
is no analogy in the cases which he pretends to
compare. The marriage of minors was annulled,
not forbidden ; marriage out of the church and the
canonical hours was forbidden, not annulled, and
might be sanctioned by special licence.
. The objector asks, '^ What shall constitute lawful
marriage ? What degree of notoriety shall be given
to its solemnization ? What consents shall be ob-
tained, and what ceremonies observed, in order to
give certain civil rights to the parents and their
issue ?" With the exception of the rule of consent,
the questionist knows that the agreement of the par-
ties to live together till death shall part them, de-
clared in the face of the congregation, according to
the ritual provided, constitutes lawful marriage in
England. '^ These points are to be,^' and have
been, ^' determined by the law of the land, and it
may employ effectual means to enforce its decision.'^
Let this be granted ; the question still remains : Is
the necessity of parental consent, or the right of
nullity, founded on such clear authority of the
Scriptures as to render void or voidable the marriage
which is contracted without consent ? Is the neces*
sity of consent so indispensable to the public good
as to justify the legislature in putting restrictions
377
upon the law ot marriage in order to prevent it ; in
disannulling a religious vow administered without
any reference expressed or implied to that consent ;
in counteracting the truth of a public declaration of
the marriage, delivered without any exception or re-
serve? It is but begging the question to contend,
^' that the parties who are married by licence, and
have obtained that licence by perjury, cannot well
claim the privilege of being joined together by God,*^
whose providence nevertheless gives in many in-
stances a successful issue to very unlawful means;
and it is the excess of misrepresentation to assert,
that ^^ the priest, who has been deceived by a solemn
lie deliberately asserted in the most holy place, can
hardly complain that his ministrations are disho-
noured/^ It is notorious that this solemn lie is
never asserted at all, or at least in no place more
holy than the office of the surrogate, and never by
the woman, who has no part in procuring the
licence. When it is argued, that ^^ children are
prohibited from entering into a variety of temporal
engagements, on the mere account of youth,^^ and
when it is asked, " What pretence is there for say-
ing, that it is unjust, unchristian, and improper to
postpone their capability of forming an indissoluble
engagement until they are arrived at years of dis-
cretion ?^^ it might have been remembered, that the
age of discretion and capacity of marriage legally
arrives before the expiration of the minority, and
that the validity of a minor's marriage, if it be by
banns, is expressly recognized in Lord Hardwicke's
Bill. Is there then, after the disapproved precedent
of the Irish law, any thing in the condition of the
378
wealthier classes of society, whose marriages are
most usually solemnized by licence, which renders
them less competent to marry during their minority?
or are rank and property to constitute a secret crite-
rion for ascertaining the validity of the marriage, the
obligation of the vow, and the truth c^ the publi*
cation }
The striking anomaly of annulling the marriage of
minors by licence, and confirming the marriage by
banns, is not overiooked by Ihe objector, who thinks
that nullity ^' ought to be extended to all cases, or
taken away from all,^^ and that '^ the instances in
which minors have been entrapped into matrimony
are not so numerous or bo painful as to call for a
stretch of power to (Nrevent their recurrence/^ In
arguing against the imputation of the immoral ten-
dency of the pro|K)sed clause of voidability, he admits,
^^ that in extreme cases only would the remedy be
put in force/^ But who should judge of the ex-
tremity of the case, and would these extreme cases
be ^* so numerous as to call for a stretch of power to
preveiit' their recurrence ?^^
If Ihe doctrine of nullity of mar-riage had under
any circumstances been agreeable to the common
sense and feeling of mankind, it would have been
more generally established in the world, and its de-
fence on a particular occasion would not have failed
under the ingenuity, the eloquence, the erudition,
and authority with which it was conducted. The
right of nullity is liable to so many exceptions in
practice ; its theory has no solid foundation of Scrip-
ture, primitive antiquity, canonical law, or common
practice ; it is evidently and entirely derived from
379
•
the excesses of paternal power maintained in pagan
Rome, and adapted to a peculiar condition of so-
ciety. It is inconsistent with the nature of a vow ;
it is contrary to the essence of marriage ; it is at
variance with the formularies of the English Church ;
It was unknown to the English law before the Act
of 1754; its authors could not anticipate its tnis*
cfaievouB operations ; and the judges by whom it
was administered avowed its injustice and oppression*
The clause of voidability was impugned by its veiy
supporters^ and the whole law of nullity, the stigma
of the Statute Book, has been almost, if not alto*
gether, rescinded by the repeal of a jsingle and solitary
statute, and marriage has been rescued firom th<e
arbitrary experiments of man, to the freedom, the
virtue, the wisdom, and the power of a divine insti**
tution. There is not a man who now regrets the
repeal of the abolished law, or who has not occasion,
when he reflects upon the sorrows which it might
have entailed upon his own children, to be thankful
for the wisdom, the energy, and the persieverance by
which it has been amended.
SECTION III.
Marriages of the Royal Family.
The prolixity of the argument upon the law of
void and voidable marriages, and of the attempt to
prove that no authority short of a divine prohibition,
positively declared or reasonably inferred from the
common practice and natural feeling of mankind, is
sufficient to preclude and nullify marriage, and that
it is only upon assumed and arbitrary principles that
marriages, contracted not otherwise than God's word
doth allow, have been vitiated and annulled, will
render it unnecessary to insist at any considerable
length on the peculiar laws which regulate the mar-
riages of the Royal Family, and the penalties by
which those laws are enforced.
The consent and approbation of the king is neces-
sary to the marriage of his children, his grandchil-
dren, and the heir presumptive of the crown. The
most frequent instances of the crown's interposition
go no' farther than nephews and nieces ; but exam-
ples are not wanting of its reaching to more distant
collaterals, as great nieces, first, second, third, and
fourth cousins, and the blood royal in general.
By statute 28 Henry VIII. c. 18. it was made
treason for any man to contract marriage with the
king's children or reputed children, his sisters or
aunts ex parte paterndj or the children of his bre-
thren or sisters. And now, by statute IS Geo. III.
c. 1 1 . no descendant of the body of King George II.
other than the issue of princesses, married into
381
foreign families, is capable of contracting matrimony
without the previous consent of the king, signified
under the great seal, and any marriage contracted
without such consent is void. Provided, that such
of the said descendants as are above the age of twenty-
five years may, after a twelvemonth^s notice given to
the king's Privy Council, contract and solemnize
marriage without the consent of the crown, unless
both Houses of Parliament shall, before the expira-
tion of the said year, expressly declare their dis-
approbation of such intended marriage. And all
persons solemnizing, assisting, or being present, at
any such prohibited marriage shall incur the penal-
ties of the statute of praemunire^.
The penalties of the statute of praemunire include
the removal of the offender out of the king's pro-
tection, the forfeiture of his property to the king,
and the imprisonment of his person during the king's
pleasure. The offender is secure from public wrongs,
but he has no claim upon the protection of the law
to guard his civil rights, or to afford redress for any
grievance which he may individually sustain^. Pro-
secutions upon a praemunire are now unheard of in
the courts, and, under the present administration of
the law, the penal provisions of the statute are a
dead letter, and might be found of difficult execu-
tion. It is not meant to palliate the offence of a
voluntary and deliberate connivance in furthering
these marriages, which certainly calls for any rea-
sonable punishment which can be inflicted, in con-
.sideration of the act of disloyalty to the paternal
• 1 Bl. Com. c. 4. " 4 Bl. Com. c, 8.
382
character of the sovereign ; of the violation of posi-
tive law ; of the degradation and embarrassment of
the Royal Family ; and of the irreparable iojury to
the woman, who, . under the form of maniage, is
betrayed into a state of l^al concubinage^ and the
parentage of a spurious issue.
Whether the political expedience of the measure
is sufficient to justify the nullity of a marriage con^
tracted without consent of the king by a member of
the Royal Family under twenty-five years of age, or
after that age without the silent concurrence of the
two Houses of Parliament, is a question which rests
entirely upon its own merits. In the latter case it
is essentially distinguished from the right of paternal
power, asserted in the Roman laws, the precedent
and original of nullity of marriage, unfounded and
assumed, as that right has been shewn to ber^and
there is no principle but political expedience to
which the ndlity of a royal marriage is or can be
referred. It was ^^ from his paternal aflfection to bis
own family, and from his royal concern for the
future wel&re of his people, and the honour and
dignity of his crown, that the late king was gnh
ciously pleased to reconmiend to Parliament to take
into their serious consideration whether it might not
be wise and expedient to supply the defect of the
laws, and by some new provision more effectually td
guard the descendants of -King George IL from
marrying without the approbation of the king; and
the JParliament took this weighty matter into their
serious consideration, and being sensible that mar-
riages in the Royal Family are of the highest im-
portance to the state, and that therefore the kings of
383
this realm have ever been intrusted witb tlie care
and approbation thereof, and being thoroughly conr
inof^ed c^ the wisdom and expedience of what his
Migesty bad thought fit to recomBiend%^^ passed
the Act for the better regulating of the marriages of
the Royal Family. The Marriage Act of George II.
had introduced the principle of nullity into the Eng-
lish law, and the spirit of terror which breathed
through that statute had been made familiar to the
legislature, befofe an interval had been allowed for
the proof and exhibition of the stupendous iniquity
which it was capable of producing. If it had been
explained to the sovereign, that the principle of mil-
lity rested on no authority but the will of the pa-
ternal despots of Rome; that it was a restriction
upon the divine law and liberty of marriage ; that it
was .certainly not countenanced, if it was not coun-
teracted, by the law of God ; that its direct opera-
tion was to harden the heart, and to eradicate every
kindly affection ; George the Third was too good,
too wise, too religious, to lend the proposition the
sanction of his assent for a moment. Every censure
which is due to the nugatory marriage of minors
may be applied to royal marriages, voided under the
same authority ; and these are reflexions which men
who ar^ anxious for the honour of the court will
be cautious of inviting. The remote consequences
of this inconsiderate measure may involve a disputed
succession, and the feelings of the country may be
distracted upon the feilure of the legal and legitimate
issue of George 11. between the necessity of resort*
^ 12 Geo. III. c. xi. b. 1.
384
ing to a foreign line, in conformity with the Act of
Settlement, and the elevation to the throne of what
the law has pronounced the issue of a royal concu-
bine. The law itself contemplates the divisions of
the Royal Family in making provision for the mar-
riage of a prince or a princess, who, after attaining
the age of twenty-6ve years, '^ shall persist in his or
her resolution to contract a marriage disapproved of
or dissented from by the king :" but is it expedient
to bring these differences before the public ; to shew
the prince in opposition to the king, and the king in
opposition to the prince ; to inflame the zeal of par-
tizans, and to engage the Houses of Parliament in
the private quarrels of the court ? What would be
the issue, if the two Houses should not concur in
disapproving a marriage proposed to the council ; if
the one House should silently approve the proposi-
tion to which the other should avow its dissent ? If,
when the sovereign was known to disapprove the
union, the Houses of Parliament should make the
inclinations of a public favourite the means of offence
to an unpopular sovereign, or in the caprice of poli-
tical favour allow the marriage, by not disapproving
it, and then withhold the means of support ? And
is it quite comely or consistent with the preamble,
which declares, that ^' the kings of the realm have
ever been entrusted with the care and approbation'^
of the royal marriages, to make the Houses of Par-
liament instrumental under any circumstances in
concerting a marriage to which the king has refused
his sanction ? These also are questions of political
expedience, which should be weighed deeply in the
minds of men who would sustain the true dignity of
385
the Royal Family, and throw over their private
transactions a veil of mysterious majesty, which
might conceal the frailties and follies of exalted sta-
tion from the rude gaze of malignant envy or idle
curiosity.
The Act quickly followed the marriage of the
Duke of Gloucester into the House of Waldegrave ;
and it might be thought expedient to prevent the
recurrence of that precedent, although there was cer-
tainly nothing in the issue of that marriage which
called for censure, or which could justify the nullity
of similar marriages. Whatever may be the policy
of separating the court from the people, and of pre-
venting the secret influence or too intimate associa-
tion of particular families, there are relations in life
in which the peasant and the prince are bound by
the same authority, and placed under the same obli-
gations. Marriage is one of these relations, by
which the sovereign, as well as the meanest of his
subjects, is. or is not bound: and if there is no
principle upon which the one may claim the benefit
or suffer the wrong of nullity, neither has the other
any exemption or immunity. When Doctor Johnson
declared his disapprobation of the royal Marriage
Act, he justified his objections by saying, ^^ Because
I would not have the people think, that the validity
of marriage depends on the will of man, or that the
right of a king depends on the will of man. I should
not have been against making the marriage of any of
the Royal Family without the approbation of King
and Parliament highly criminal"*." He should rather
* Boswells Life; the year 1772.
VOL, I. C C
386
have said, highly penal; for there is no crime in
marriage: but the l^islature, ahhough it cannot
alter the nature of right and wrong, is concerned in
regulating the law of property, and may certainly
circumscribe and restrict the civil effects of marriage;
and now that the principle of nullity is rescinded,
and better penalties are substituted for the offence of
marrying a minor without consent, it might be suffi-
cient to enact^ that the disapproved or unauthorized
marriage of a prince should be followed by a for-
feiture of the right to the throne. The issue of the
marriage would thus sink to a level with the family
into which it might please the royal parent to transfer
himself, and, however detached from the royal line
by the act of his parent, he would be capable of the
most honourable and virtuous associations. There
would be no taint of bastardy upon the child to
disgrace the noblest pedigree: the royal parent would
feel the weight of his conjugal and parental respon-
sibility, and be exemplary in the discharge of its
obligations: and no forfeiture would be incurred
which would not equally result under the existing
law fix)m the marriage of an English prince with a
papist. The marriage would be affirmed : the title
to the throne would be void.
The Act has different operations upon the sons
and the daughters of the sovereign. If a prince
shall marry in contravention of the law, his marriage
is simply void ; the persons who connive in his
marriage are liable to certain penalties ; his wife is
dishonoured ; his children are degraded ; as long as
he takes an honourable interest in the engagement
which he has contracted, he suffers the deepest
387
anguish in perceiving the precarious and untenable
relation of his wife and his children ; but the volatile
passions of youth are under no legal restraint or ob-
ligaticHt ; he may burst his bonds and cast his cords
away at his discretion ; he is free to abandon the
wife of his youth and the child of his first affection ;
and, however honour and conscience may restrain
him, political advantage may seduce him to take
advantage of the nullifying statute, which he cannot
amend, and to marry whom he will with consent of
the Crown, or without the dissent of Parliament.
This is the e£fect of political expedience upon the
marriage of a prince : what is the operation of the
same law upon the marriage of a princess undet the
same circumstances ? If the Princess Royal should
be clandestinely married to a subject, the effect
would involve something more than nullity ; the
violation of her person is an act of treason. The
marriage of the other princesses would be simply
void ; but it would require more than ordinary in-
genuity to reconcile the nullity of the marriage, and
the unavoidable consequence of the nullity with
political expedience. If this should be called an
extreme and improbable case, let the attention be
fixed on the case which is contemplated in the Act,
that a marriage is proposed by a princess under the
age of twenty-five years, and disapproved by the
Crown; and that the same marriage, after a period,
is in due form submitted to the Council, and through
the Council to the Parliament : if the marriage is
disapproved, will the disapprobation be met by
no opposing considerations; or will the prevailing
wishes of the princess be exposed to no animadver-
c c 2
388
sions ? Is it the condition of a princess to be never
emancipated? Is she exempted from the natural
affections of her kind ; or must they be hek) in sub-
jection to the abstract notions which others entertain
of political expedience, which she does not appre-
hend, and in which she takes no interest or concern?
Or, without being required to take the veil and vow
of chastity, or permitted to entertain the views of
power to which even a solitary may aspire, must the
British princess alone be deprived of the liberty of
marriage, and of the independence, the authority,
the maternal affection, the condition of inspiring
love, of loving and of being loved, which is the
passion of the sex ?
The heirs of the throne of England are precluded
from intermarriage with Romanists, under pain of
forfeiting the royal inheritance : and this restriction
separates them from all the southern courts of Eu-
rope, from France, Spain, Portugal, Naples and the
Italian states, Austria, and Saxony. Prussia and
some of the German courts, Holland, and the
Northern States, are alone open to their addresses.
The princes may visit these courts and seek alliances
for themselves; but the princesses have only the
chance of a casual acquaintance before they are
transferred as the seals and pledges of a treaty of
political expedience: and notwithstanding the con-
trary example which has been exhibited in a long
and virtuous reign, there is no presumption in assert-
ing that such alliances do not promise to fulfil' the
end and design of marriage ; and that while mar-
riages thus contracted on a principle of abstract
interest, without any community of heart and mind,
389
deserve to be viewed with the most delicate forbear-
anoe, they are not the marriages which political or
moral expedience recommends to be exhibited to the
gaze of nations. It is not however the effect of these
marriages, but the right of nullity, which is the proper
subject of the present discussion, a right which, in this
application claims no better foundation than political
expedience ; an expedience very doubtful both in its
principles and its effects, irreconcileable with the
nature and freedom of marris^, an isolated anomaly
in the English law, and derogatory to the honour
and good^ith which are demanded in all the trans-
actions of a British prince. The Act has borne the
trial .of half a century ; in a isingle instance only has
it operated in positive nullity ; the benefits which
the terror of the law has produced are at least un-
equivocal or unknown.
The Act restrains the inclinations of the Royal
Family, by nullifying any marriages which they may
contract in violation of the specified conditions, and
rendering the issue incapable of any inheritance,
either from the royal parent or from the family into
which he may transfer himself: but it does not pre-
clude their marriage, it does not impose the absolute
necessity of celibacy, or offer any temptation to a
debauched and vicious practice. Thousands of men
and women in every station of life are restrained by
circumstances from marrying, whose characters are
nevertheless clear from every stain of impurity.
While the provisions of the royal Marriage Act
continue in force, and the persons most interested
^^ feel the hardship of being unable to contract such
marriages as their inclination might lead them to
c c 3
390
form, they should recollect, first, the principle of the
prohibition,, the sacrifice of individual convenience
to general good,^^ or what is supposed to be general
good, ^^ deducing the wisdom and necessity of it
from those melancholy pages '. of our history which
exhibit the destructive consequences of the civil
Contentions which divided the royal houses of York
and Lancaster, and deluged the kingdom widi blood:
and secondly, that fix>m the situation whidi imposes
such hardships, adequate advantages arise ; the com-^
forts of affluence, without exertion of body or mind ;
rank, dignity, and consideration, without any pre-
vious effort to obtain them ; lind exclusive privileges,
without the necessity of personal qualifications : and
thirdly, they should recollect, that no human law
whatever can afford an excuse for the violation of a
divine precept*/'
There is another statute, 6 Henry VI. which pro-
hibits the marriage of a queen dowager without the
consent and licence of the king. The occasion of pass-
ing this statute was the marriage of Catherine, mother
of Henry VI. with Owen Tudor, a private gentle-
man ; and the reason which is assigned for the law is,
** because the disparagement of the queen shall give
greater comfort and example to the ladies of estate,
who are of the blood royal, more lightly to disparage
themselves ^'^ Disparagement was then the prin-
ciple of prohibition. The Jewish doctors had as
good reason for asserting, that the wife of a king was
too exalted to be the wife of a subject. Other
widows are free to marry whom they will ; a queen
* Antijac. Rev. vol. vi. p. 209. ' 1 Bl. Com. c 4.
391
dowager only is subject to the will of the heir of her
lord.
There are other circumstaoces under which the
political expedience, which regulates the marriages
of the Royal Family, betrays the most singular incon-
sistency. To violate or defile the queen consort is
an act of treason, as well in the person committing
the act as in the queen herself if consenting. But
if the adulterer be an alien, owing no allegiance to
.the sovereign, he is not responsible for the treason ;
and tlie queen, being an accessary, is exempt from
trial, by the irresponsibility of the principal : and
yet the adultery of the queen, and the interest of the
state in her purity, and the consequences of her
infidelity, whether with a foreigner or a subject, are
the same in respect of the taint and suspicion thrown
upon the royal progeny. It is the danger to the
royal issue which constitutes the treasonable ofience,
and therefore, the violation of a queen dowager, and
the adultery of the husband of a queen regnant, are
exempt from the charge of treason, because they do
not afiect the royal lineage.
Again, to violate the chastity of the consort of the
Prince of Wales, or heir apparent to the throne, or of
the Princess Royal or eldest daughter of the king, is
an act of treason, on the principle that the Prince of
Wales is next in succession to the crown, and to
violate his wife might taint the blood royal with
bastardy, and the eldest daughter of the king is alone
inheritable to the crown on failure of issue male:
but it is an obvious remark upon this statute, that it
perhaps was not meant to be extended to the Princess
Royal when she had younger brothers living ; for the
c c 4
392
issue of their wives must inherit the crown before
the issue of the Princess Royal, yet their chastity is
not protected by the statute.
In all the subtlety which converts adultery into
treason, and defines the treason at one time by the
duty to the king, at another by the danger to his
issue; in all the expedience which professes, not
only to restrain the inclinations of the Royal Family,
but to nullify the marriage whidi is not conformable
to its rules ; it is not impossible that the wisdom of
the politician may have been deceived, and may have
been subject to the common faults and oversights of
human nature, in the maintenance of positions which
the moralist cannot approve, and the tendency of
practices which the enlightened wisdom of the l^is-
lature may not scruple to examine, and to reduce to
a more just conformity with the manly, rational, and
religious spirit of the English law.
CHAPTER IV.
RECIPROCAL DUTIES OF HUSBANDS AND WITES.
JlHE divine institution of marriage ; the perfect
innocencd of the age in which it was ordained ; the
holy purposes which it is designed to accomplish ;
the mysterious union between Christ and his Church,
which it has been made to represent; the divine
presence and beginning of miracles with which its
feast was honoured in Cana of Galilee ; and the
religious solemnities with which it has been ratified
in all ages and in all countries; combine in throwing
a peculiar sanctity round the state of matrimony,
and in rendering it worthy of the honour of all men.
The sublimest and most elevated views of the dig-
nity of marriage may all be reduced into motives of
practical improvement ; and there is no sanction
which can be conceived to enforce the obligations
of conjugal duty, which may not be brought into
action in the most ordinary course of wedded life,
spent in conformity with the divine instructions, in
a due consideration of the ends for which matrimony
was ordained, and a conscientious obedience to the
rules by which the virtue and the peace of domestic
life may be promoted and fulfilled. " Whence," says
the eloquent Tertullian, ^^ whence shall I be able to
declare the happiness of that marriage which the
Church conciliates and the oblation confirms, of
which angels announce the seal, and which the
Father ratifies? For even on earth sons do not
394
rightly and lawfully marry without consent of their
fathers. What then should be the yoke of two be-
lievers, of one hope, of one discipline, of (he same
service ? both brethren, both fellow-servants, without
any distinction of spirit or of flesh ? They, however,
are truly two in one flesh, where being one flesh
they are also one spirit. Together they pray ; toge-
ther, they prostrate themselves ; and together they
keep their fasts ; guidfng one another, exhorting one
another. As in the Church of God, so it is in the
marriage of God : as in anguish, so in refreshment
and relief; neither conceals any thing from the other;
neither avoids the presence of the other ; neither is
troublesome to the other ; freely by them is the sick
man visited, and the poor man sustained. There is
no pang in giving alms ; there is no scruple in offer-
ing sacrifice ; there is no obstruction to daily dili-
gence : there is no surreptitious sealing ; no trem-
bling gratulation ; no silent benediction. Psalms
and hymns resound from the one to the other ; and
their mutual challenge is, which shall excel in sing-
ing to his God. Christ rejoices in seeing and hear-
ing such things, and sends upon them his own
peace : where the two are, there is He ; and where
He is, there the wicked one is not*." *
The duty of husbands, as it is set forth in the
Scriptures of heavenly truth, is to love their wives
as they love themselves : to be not bitter against
them ; to dwell with them according to knowledge ;
giving honour unto the wife as unto the weaker
vessel ; and as being heirs together of the grace of
» Ad Ux. 1. ii. 8. 9.
395
]ife, that their prayers may not be hindered **. These
apostolical precepts require of the husband the
strictest and inost constant affection ; the suppression
of all moroseness ; the control of every churlish
humour; a cohabitation with the wife, conducted
with knowledge, discretion, and reverence, in consi-
deration of their eternal inheritance, and the accept«-
ance of their mutual prayers. It is in a just con-
formity with these precepts that every English hus-
band pledges himself to live together with his wedded
wife, after God's ordinance, in the holy estate of
matrimony : to love her, comfort her, honour and
keep her in sickness and in health; and forsaking all
other, to keep him only unto her, as long as they
both shall live : he takes his wedded wife, under all
the varieties of human character and condition, for
better for worse, for richer for poorer, in sickness and
in health ; to love and cherish her until death shall
part them. This engagement of the husband implies
unwearied affection, consolation in trouble, honour
and reverence, maintenance, care, and constant fide-
lity.
The engagements and the duties of wives are not
less plain or easy to be understood. They are re-
quired to submit themselves to their own husbands
as unto the Lord ; to be subject to them in every
thing ; to reverence them ; to win them even to the
love of the truth by the purity and modesty of their
conduct, being adorned with the incorruptible orna^
ment of a meek and quiet spirit, which in the sight
^ Eph. V. 28, 33. Col. iii. 19. 1 Pet. iii. 7.
396
of God is of the highest value^. It is in corre-
spondeoce with these sacred instructions, which re^
quire submission, reverence, conciliatory demeanour,
exhibited in all meekness and quietness, that the
English wife engages to live together with her
wedded husband, after God's ordinance, in the holy
estate of matrimony ; to obey him, serve him, love,
honour, and keep him, in sickness and in health ;
and forsaking all other, to keep her only unto him,
so long as they both shall live : to have and to hold
him for better for w(»rse, for richer for poorer, in
sickness and in health ; to love, cherish, and obey
him, till death shall part them. The vow of the
ivife is in perfect harmony with that of the husband,
implying, with the addition of obedience, affection.
Honour, care, and maintenance, according to her
power, with uninterrupted constancy and fidelity.
These vows of marriage are constructed in terms
of the most exact reciprocity. Not only do the
husband and the wife pledge themselves to the per-
formance of the duties appropriate to each, and bind
themselves by a covenant of mutual stipulation, to
render one semce in return for another; but the
engagement is in many cases precisely the same, in-
volving the same love, the same honour, the same
maintenance and care, the same forsaking of all
other, the same constant affection of each to the
other, in the same circumstances, and for the same
period. There is no distinction but that which is
inseparable from the distinction of the sexes, in the
« Epb. V. 22, 24, 33. 1 Pet. iii. l-p^.
397
force of which, if the woman is required to defer to
the* will of her husband, there is a compensation of
that deference in the consolation in trouble, the pro-
tection in danger, the instruction, persuasion, and
advice in difficulty, which she is entitled to demand
and receive. Each should be faithful to the other;
or rather, the wife should learn a lesson of chastity
froin the husband^s virtue, (which may include every
kind of moderation.) It would be unjust in the man
to demand that virtue of another which he is not
himself able to observe : for the husband is the head
of the wife; and when she lives more virtuously
than her husband, the house hangs aa it f^ with
its head downwards. The husband should there-
fore take the lead in all good works, because he
18 the head, that his wife may imitate and follow
him, as the body follows the head, and as the Church
follows Christ^. The wife, says Chiysostom, is a
secondary chief, and should not claim equal honour
with her husband, for she is under the head: nor
should the husband hold her in contempt, as if she
were subject unto him, for she is the body ; andjf
the head despise the body, it shall perish'. It has
been of old the condition of woman, that her desire
should be subject to the will of her husband, and
that he should rule over her^: and this subordination
of the sexes is recognized, not only in the formulary,
which exacts of the woman the duty of obedience,
but in those principles of English law which attach
the guilt of treason to the woman who murders her
* Wdor. de Div. Off. 1. ii. c. 19. •* Horn. xx. in Ep. ad
Ephes. apud Gerhard. ' Gen. Hi. 16.
398
husband, to whom, as her lord, she owes allegiance,
and render her irresponsible for O0ence8 committed
in his company, on the hypothesis that they are
committed under his authority and control.
The golden rule of Christianity requires of its dis-
ciples to do unto others as they wish that others
should do unto them : and the great principle from
which the apostle proceeds to the recommendation
of the relative duties is the submission of one to
another in the fear of Godc^. In the strict com-
munion of married life, in which there is not only a
reciprocal obligation, hardly varied by the distinct
condition of the sexes, but in which, in the energetic
language of inspiration, the man cleaves unto his
wife, and they become one flesh ^, this principle is
of the highest value and importance. In the equal
condition of the husband and the wife mutual sub*
mission and mutual reverence form the virtue and
the happiness of conjugal life, and the infringement
of them its crime, its misery, aiid its shame. In this
union of persons one and the same object and end
should be set before the man and the woman ^ There
should be an unity of purpose, of pursuits, of afTec*
tions, and desires, without which the singleness of
the conjugal relation must be broken and destroyed.
Each should consider the other as another self, mo*
rally and mystically incorporated by an union which
death only can dissolve, and practically consolidated
in the parentage of a common offspring. It is no
metaphorical or unnatural representation of Chris*
' Ephes. V. 21. h Gen. ii. 24. ^ Clem. Ah Strom. 1. i?.
s,20.
399
tian duty which requires of husbands that they shall
love their wives as their own bodies : He that lovetb
his wife loveth himself: for no man ever yet hated
his own flesh, but nourisheth and cherisheth it, even
as the Lord the Church ; for we areanembers of his*
body, of his flesh, and of his bones. For this cause
shall a man leave his fether and his mother, and
shall be joined unto his wife, and they two shall be
one flesh. This is a great mystery ; but I speak
concerning Christ and his Church : nevertheless let
every one of you in particular so love his wife even
as himself^. It is in perfect accordance with this
scriptural authority that the union of persons in
marriage is so strictly maintained under the law of
England, that the very being or legal existence of
the woman is suspended during the marriage, or at
least is incorporated and consolidated into that of
her husband ; that she does every thing under his >
wing or cover; that her rights merge in those of her
husband ; that her responsibility devolves upon him ;
that she can bring no action for redress of wrongs
but in her husband^s name and with his concur-
rence ; nor be herself sued without making the hus-
band a defendant: the principle also upon which
they are precluded from bearing witness for each
other is, that no man may be witness in his own
cause ; nor may they testify against each other, be-
cause no man is bound to accuse himself^ But,
whatever be the doctrine or the law, can this personal
unity of marriage be supposed to subsist, in fact,
where the hearts and minds are distracted and at
. " Ephes. v. 28—33. * 1 Blackstone, c. 15.
400
variance ; where each pursues a separate object ;
where various and incompatible friendships are con-
tracted ; where there is a perpetual conflict in the
pleasures and business of life ; where, in the privacy
of domestic intercourse, instead of the mutual confi-
dence which becomes a personal union, there is dis-
trust on the one side, and reserve on the other ; here
jealousy, and there susceptibility of offence ? If the
whole force of friendship consists in the supreme
agreement of desires, pursuits, and sentiments, the
union of marriage, which is the most intimate and
unreserved of all friendship, should proscribe all se-
crecy and concealment, which the one is not bound
to maintain, and the other is not concerned to pe-
netrate; all distraction of interests and affections,
which are incompatible with the strictest unity ; all
collision of opinions and sentiments, which one and
the same mind cannot entertain. The unity of
marriage, if it has any practical existence, is that
oneness of mind, of heart, and of soul, which alone
corresponds with the original identity of the sexes,
before the woman was taken out of the man, bone
from his bone, and flesh from his flesh, to be an
help meet for him. It is only when there is unani-
mity and harmony of the husband toward the wife,
of the one as chief, and the other acting in obedience
to the precept, He shall rule over thee, that it can
be truly said of them, that they are no more two".
There is a community of interest subsisting be-
tween the husband and the wife which should con-
stitute an unfailing motive to the discharge of the
m
Origen. Com. in Matth. torn. xiv. s. 16.
401
reciprocal duties of the married state. Id conveying,
as it were, their persons to each other, beyond the
power of reclaiming them, or making any new dis-
position of them, and in putting themselves into a
condition in which they may grow into one flesh,
there is nothing of external circumstances which tiiey
can be supposed to reserve. The ancients were not
jonmindful of the unlimited confidence which the
husband in his marriage reposed in his wife, and
they expressed it in the forms of marriage, in which
they included the delivery of the bridegroom's keys
to the bride"; (and the taking back of the keys was
equivalent to a message of divorce ;) and in the form
of betrothing, in which they severally agreed the
man to be Caius, where the woman was Caia ; the
woman to be Caia, where the man was Caius®;
intimating that in whatever respects the man was
m^ter, the woman should be mistress ; a form of
which the traces may yet be perceived in the custom
of the woman's taking the name and title of her
husband. These acts were designed to denote the
commitment to the woman of the superintendence
of the fiimily, and the entire management of do-
mestic concerns. The common participation of the
same fortune, whether of riches or of poverty, was
held to be most agreeable to nature, which requires,
that in the changes and chances of life the husband
should be the partner of the wife, and the wife of the
husband P: and it is a beautiful picture which the
historian has drawn of the condition of the Roman
de Rit. Nupt. A. Hotman de Vet. Rit. Nupt. c. 10.
* A. Hotman, ibid. c. 16, ** Ulpian: apud Hotman.
VOL. I. D d
402
wife, that by her discretion, and the constancy of
her submission to her husband, she was the mistress
of the house in the same manner as her husband was
the master ; that when he died she was the heir of
his property, as a daughter of a father's ; that if he
died childless and intestate she became the mistress
of all which he lefl ; that if he left issue she was
entitled to an equal portion with the children *«
Plutarch also maintains the necessity of the goods
of the wife belonging to the husband, and those of
the husband to the wife^; and, in the practical ope^
ration of this reciprocity of interest, married persons
were incapable of making presents to each other^
and it was held, that no judgment could be pro-
nounced on the wife for subtracting her husband's
goods, of which the society of life had made her a
mistress'; there was no sign of any division in the
house, there was nothing which the husband could
appropriate to himself, or the wife to herself; their
property was consecrated by both in common ; and
the sedulity of the mistress was exerted with aA
equal care of industry with the more active employ-
ments of the man in the forum^. In the same man-
ner the Christian wife is said in an ancient form of
espousals to have conveyed all her substance and
her whole dower to her husband, and to have thrown
it into, his hands with strong affection, saying, I
Have nothing of my own ; my goods are thine, the
dower is thine, even my soul and my body are thine".
«
^ Dion. Halicarn. apud Hotman. ' Plat fy mtrtt^ apad
Brisson. * Brisson de Vet. Rit. Nupt. * A. Hotman de
Vet. Rit. Nupt. c. 26. " Macarii Homil. xxxiL apud Hotman.
403
The Englisli wife is equally the partner of her
husband's fortune, whether of richer or of poorer ;
they bear the same name and the same title ; they
are so consolidated that they have no power of mak-
ing a separate agreement ; the wife's fortune so en*
tirely devolves upon the man, that nothing is reserved
but by the interposition of trustees; they are equally
elevated by prosperity, and depressed by adversity;
the husband's fortune is the rule of the wife's main-
tenance ; the wife's fortune is liable to the husband's
debts; the husband is responsible for debts con-
tracted by the wife; the widow is entitled to a
portion of the husband's estate ; and the separate
inheritance of each is united in a common offspring.
This common condition is the principle of many
reciprocal obligations. In the giddy elevation of
prosperity it calls upon both to have a holy jealousy
of character, that the dishonour of the one may not
tarnish the fair name and reputation of the other; to
beware of dissipation and ruinous excess, and to pay
a prudent attention to means and circumstances, not
more with a view to their private interests, than in a
generous consideration, that the embarrassments of
the husband are fatal to the comforts of the wife, and
that the wife cannot indulge an extravagant passion for
display without involving the credit, the independ-
ence, and it may be the personal liberty, of the hus-
band. In the condition of hfe which requires mutual
exertion, the industry of the one or the circumspec-
tion of the other will be vain by itself; they must
be combined to promote success, and to avert cala-
mity : in the time of trial and adversity, the con-
siderate forbearance, the manly fortitude, the consola-
Dd2
404
tory kindness of the husband, should be encouraged
by the patient and cheerful resignation of the wife!.
Bound together in all the changes and chances of
human condition, their tears and their smiles, their
sorrows and their joys, should be common : with
the delicate influence of the mind upon the body,
and the body upon the mind, their best energies
should be exerted in furtherance of their common
liealth and happiness: each should comfort the other
in his affliction ; each should bear the burthens of
the other, and lighten the load of human care and
anxiety ; each should labour sedulously to prosper
the endeavours of the other. Such are the sympa<*
tbies of wedded life ; so strong is the association of
mutual interest ; so perfect is the affinity ; so fine
the distinction ; that, like the tender oi^ns of the
sight, the one cannot be insensible of the injuries
which the other receives ; the one cannot be brought
to act upon any object with more effect, than when
it is aided by the cooperation of the other.
It is not in secular concerns only that there is a
community of interest, and a reciprocity of duty ;
the apostle has directed the mutual care of husbands
and of wives to higher objects, in representing them
to be heirs together of the grace of life*. The hea-
thens were not ignorant of this valuable principle.
It was the wise institution of Romulus, that a wife
married to a husband according to the sacred laws
should be the partaker of all his goods and of his
sacred rites. Hence marriage was defined to be the
conjunction of divine and human law, and a wife
« 1 Peter iii. 7.
405
was called the partner of divine and human cod«^
cems^^. The known effect of marriage in producing
a coalition of religious rites and sentiments was the
chief principle of the divine prohibition of the mar-
riage of the Jews with the heathens, which was
adopted into the laws of the primitive Church, in
which the faithful were restrained from marrying
with the unbelieving. If the wisdom of these re-
strictions be now called in question, and the expe-
dience of reviving them be denied, it may never-^
theless be permitted to assert the necessity of the
most entire and cordial agreement in religious prin-
ciples and professions between the husband and th&
wife. The spirit of controversy is but seldom in
unison with the spirit of friendship ; and when reli-
gious dissension is admitted into the private family,
and an injudicious zeal is exerted in depreciating or
maintaining a disputed faith, the natural result will
be the destruction of domestic peace, or the com-
promise of religious truth. They who would be
heirs together of the grace of life will hardly fulfil
their duties to each other but by unreserved com-
munication on the grand truths of their religion ; by
hdding the same fundamental principles of moral
practice; by following the same form of religious
worship; by accompanying each other to the same
house of prayer ; and by joining in the same com-
mon acts of devotion, in their closets, in their fami-
lies, and in the church. In the participation of a
common faith and a common hope they will find
' BriBson de Rit. Nupt. Dion. Hal. 1. ii. Modestin. I. i. Julian i
and other authorities quoted by Brisson.
Dd 3
406
principles and rules of restraining the lust of the
flesh, the lust of the eyes, and the pride of life ; they
will have common motives of consolation in the hour
of trial and adversity ; they will be prepared for the
great work of instructing their children and hoi:fee-
holds ; And they will have no occasion to resort to
that accommodation of principles which has been
sometimes attempted, and which either in itself is a
disguised indifference, or must produce jealousy and
offence at the mode adopted in the religious ediica*
tion of the children of either sex. Such compromises
prepare the way for the division and separation of
families, and cannot be obligatory upon parents, if
they believe the truth themselves ; if they desire
their children to be instructed in the truth ; if they
are persuaded of the Christian duty of contending
for the truth ; and of the necessity of a knowledge
of the truth to the salvation of the soul'. One end
of the divine institution of marriage, says the pious
and excellent Gerhard', is, to be a help not only in
human but divine affairs ; and married persons will
perceive, that its primary rule requires of them to
render mutual aid to each other in the worship and
service of God, and in all religious- obedience, by
precept; by example; by mutual exhortations to
piety ; by the confession with one heart of a true
faith ; by praying with one mouth to God ; by com-
bining their prayers ; by the pious agreement of the
two in whatever they desire to obtain ; by reading
' Leslie, Of Marriage in different Communions ; pre&ce :
prosecuted by Dodwell, s. 48 — 52.
* De CoDJugio, 8. 447.
407
and meditation in the Scriptures; by training their
households in piety and virtue; by building to them-*
selves a church in their own house; and by the daily
observance of religious offices. It is thus that they
should give themselves up unto prayer; that they
should promote each the salvation of the other ; that
they should win each other to the belief of the truths
and cherish and confirm their common faith. It ia
thus that they should please each the other to his
edification, and consider each other for the provoca-
tion and excitement of love and good works. It is
thus that they should exert themselves, and encou-
rage each other, in such constancy of religious duty
that their prayers may not be hindered ; and it will
increase the force of their reciprocal obligations to
remember, that the conjugal duties and interests are
not bounded by time, but are regulated by principles,
and directed to objects, which should govern the
heirs of the grace of life.
The great end for which matrimony was ordained
is the mutual society, help, and comfort that the one
ought to have of die other, both in prosperity and
adversity. When God saw that it was not good
that the man should be alone, his wisdom and his
mercy provided an help meet for himS to whom he
might cleave, and with whom he might be incorpo-
rated in one flesh. Thus, by the original law of the
institution, cohabitation, in its widest and most ex-
tensive sense, was made the primary duty of mar«
riage, and the neglect of this cohabitation defeats
the great purpose of mutual society which it was
" Gen. n. 18,24.
D d 4
408
ordained to produce. This view coincides with the
eonsiderate precept of the apostle : Defraud oot one
the other, except it be with consent for a tin)e,thai
ye may give yourselves to festing and prayer, and
come together i^in"": and with the most ancient
inference from this text, that marriage has its proper
offices and duties, excelling in the Lord, and exhi-
bited in the care of the wife and the children, and
that the great object of him who would be perfect ia
marriage, is the domestic character of the union,
requiring the provision of all things for the comnion
femily^. There may be many cases in which the
separation of the parties for a time is unavoidable,,
and even necessary and expedient : but though the
society be interrupted, the duty of help and comfort
may never be remitted. In the wild sports of the
savage tribes which hunt the desert, and in the pas-
sion and jealousy which fill the harem, there may be
no rational apprehension of the mutual correspond-
ence of the sexes : but *' when men begin to disuse
their ancient barbarous practices ; when their atten-
tion is not wholly engrossed by the pursuit of mili-
tary reputation ; when they have made some progress
in arts, and have attained to a proportional d^ree of
refinement ; tfiey are necessarily led to place a value
upon those female accomplishments and virtues,
which have so much influence upon every species
of improvement, and which contribute in so many
different ways to multfply the comforts of life. Id
this situation the women become neither the slaves
nor the idols of the other sex, but the friends and
* 1 Cor. vii. 5. ^ CI. Alex. Strom. 1. fii. t. 12.
409
compaDions. The wife obtains that rank and station
which appears most agreeable. to reason, being suited
to her character and talents. Loaded by nature
with the first and most immediate concern in rearing
and maintaining the children, she is endowed with
such dispositions as fit her for the discharge of this
important duty, and is at the same time particularly
qualified for all such employments as require skill
and dexterity more than strength, which are so ne^
cessary in the interior management of the family.
Possessed of peculiar delicacy and sensibility, whe-
ther derived from original constitution, or from her
way of life, she is capable of securing the esteem
and affection of her husband, by dividing his cares;
by sharing his joys, and by soothing his misforr
tunes*.^^
The different avocations and the different duties
of the sexes will offer continual occasions of separa-
tion, and there are comparatively but few stations of
life in which the help which the one should render
to the other is not rendered in distinct and different
places. The husbandman, the soldier, the merchant,
the lawyer, and the statesman, are all called from
their own houses to the busy haunts of men, in
which alone they can fulfil the duties of their station,
and advance the interest of themselves and of their
families. The lot of women has been cast in a dif-
ferent mould : they are happily exempted fix>m the
* Millar*! Essay on the Origin of Ranks, p. 89. This inge-
moos and excellent Essay traces in distinct chapters the estima-
tion in which women are hdd, in savage life, in the pastoral
state, and under the improyements of agriculture and manufac-
tures, and the refinements of opulence.
410
tumults of worldly strife ; their modesty shuns the
public gaze; their care is employed upon the ar-
rangements of domestic economy, upon the wise
administration of means provided by the more active
energies of the husband, and upon the accumulation
of all those delights which not the schoolboy^s anti-
cipation only, but the manly sense of Englishmen,
comprehends under the name of home^ and which
are strongly contrasted with the heartless ceremony
to whiojh the term has been prostituted in the voca-
bulary of fashion. There is a peculiar grace in the
delineation of these duties of the wife, in the dis-
course ascribed to Roger Ascham, when, in reply to
the proposition of Lady Jane Grey, that she would
read to her husband, he is made to say, ^^ Rather do
thou walk with him, ride with him, play with him ;
be his faery, his page, his every thing that love and
poetry have invented : but watch him well ; sport with
his fancies ; turn them about like the ringlets round
his cheek : and if ever he meditates on power, go,
toss up thy baby to his brow, and bring back his
thoughts into his heart by the music of thy dis-
course. Teach him to live unto God and unto thee,
and he will discover that women, like the plants in
woods, derive their softness and tenderness from the
shaded''
It is with excellent sense and judgment that
Chrysostom treats of the distinct but cooperative
duties of the two sexes ; arguing, that it is the one
office of the woman to preserve the means which are
collected, to take care of the resources, to superin-
' Landor's Imaginary Conversatioiui, toI. ii.
411
tend the family. For God hath given her for this
purpose, that she may assist us in these and other
domestic concerns. For since public and private
affairs are wont to distract our life, God, making a
distinction of diese, hath assigned to woman the
government of the family, and to man all the busi-
ness of the state, forensic matters, trials, councils,
the command of armies, all public concerns. The
woman cannot hurl the spear, or shoot the arrow ;
but she may take the shuttle, and weave the web,
and manage all the concerns of the family. She
Cannot give an opinion in the council, but she may
give advice at home ; and she has often a better ac-
quaintance with domestic duties than her husband.
She cannot conduct public affairs well, but she can
train her children, the chief of possessions, well.
She can penetrate the designs of her maidens, and
watch over the prudence of her servants, and give all
security to her husband, and relieve him of all care
by her attention to those things which it is neither
honourable nor easy for the husband to undertake,
however he njay desire it. This is indeed the work
of the care and wisdom of God, that the man, who
is useful in more important affairs, should be inferior
and useless in those of a more trifling nature, that
there may be a necessity for the offices of the
woman : for if man had been equal to both public
and private duties, the female sex would have fallen
into contempt : and again, if the greater and more
useful office had been assigned to the woman, God
had filled her mind with arrogance. Therefore he
assigned not both duties to one, that the other might
not be depreciated and appear to be unnecessary ;
412
nor did he distribute the two ofiices in equal proper-'
lion to each, lest there should be a contest and am*
bition of equal honour, and that the women might
not contend that they are worthy of the same pre-
eminence with the men : but having a care of peace,
and preserving to each the rank which is due, he
hath made in our life a distinction of public and
private duties, and hath given to man what is more
necessary and more useful, and hath assigned to
woman the inferior part ; that the one, on account
of the necessity of his office, may be very highly
respected, and that the other, on account of the
inferiority of her office, may not rise against her
husband. Knowing these things, let us seek no
more than virtue of mind and nobility of manners,
that we may enjoy peace, that we may have per-
petual luxury in unanimity and love^.
It is when the husband returns from the toils and
anxieties of an useful but laborious day, that he
seeks, in the quiet order of his family, and in the
conversation of his wife, a society, help, and comfort,
an interval of rest and repose, a refreshment of ex-
hausted nature, an exhilaration of the wearied spirit,
and a stimulus to renewed exertions in the conten-
tions of a busy and an angry world : he seeks the
solace of a companion, with whom he may freely
communicate on his most important interests; who
bears with him the burthen of a common parentage,
and is anxious for the welfare of a common off-
spring ; who will enter into his strongest feelings ;
whose fascinating vivacity may dissipate the labour-
s Eclog* lii. ex Johan. Cl^yswtom. ed. MatthaN, p. 88.
413
ing passions of his mind ; whose softness may soothe
the brow of care ; and whose unsophisticated worth
may challenge and reward the most strenuous and
indefatigable exertion. It was with this view that
the Roman orator put the question, *^ What is more
honourable than the solace which a wife affords
{uxorium levamentum) when men return from war^,*'
or f]X)m any service of care and diflSculty ? But if
home be deficient in society, help, and comfort, if
the wife be indifferent or averse to the preparation or
enjoyment of domestic bliss, it is but natural that
the man should contract an abhori^nce of home, and
that he should seek his pleasure as he pursues his
business, at a distance from its threshold. The
frequent abuse of this domestic alienation might
alone be brought in proof of the advantage of mutual
cohabitation ; and as the absence of friends is but
too often fatal to the continuance of friendship, and
their firequent association and unrestricted converse
is most favourable to its confirmation and improve-
ment, so if there be but a cohabitation of them that
are married and bound together in the closest and
most intimate of all friendship, it is hardly possible
that their minds and tastes, their tempers, affections,
and wills, should not be formed into a Jholy resem-
blance and conformity. In the degraded and se-
cluded condition of women in heathen and Maho-
metan countries, there are but faint traces of the
mutual society, help, and comfort, that the one
ought to have of the other ; there is no intercourse
of mind with mind ; there is no common principle
^ Tac. Ann. K iii. a. 34.
414
of friendship ; no sense of reciprocal obligation ; no
perception of mutual interest ; no dependence of the
one upon the other. May the marriages^ of a Chris-
tian country never be conducted so as to produce the
same effects ; where the husband is known only as the
master, and the wife as the mistress of the family ;
where except upon occasion they are seldom seen
together ; ^ where the separation which necessarily *
follows from the difference of occupations is not
compensated by the more rigorous devotion to the
duties of domestic life. The happiness of the mar-
ried state is not more destroyed by open contention
than it is sapped and undermined by the apathy, the
indifference, and the aversion, which result firom the
want of constant and unreserved communication,
and the cultivation of a common feeling and- a
common interest. When the means are n^lected
tibe end is naturally disappointed ; and if it was
foreseen by infinite wisdom that it was not good fix
man to be alone, and a remedy was provided for the
solace and alleviation of his solitude, his interest in
the provision, and his gratitude for the benefit, re-
quire that he should appropriate the blessing to
himself, by cleaving unto his wife, and becoming
one with her.
The observations of an old writer' upon the co-
operation and mutual interest of the husband and
the wife, are so excellent, that no apology will be
required for reciting their substance. Our nature,
he observes, inclines us to society ; and experience
teacheth us, that a companion makes adversity more
* Comber, Off. of Matn partit i. sect. 1. a. 8.
4U
tolerable, and prosperity more sweet ; and God
therefore created the woman and joined her to the
man, that they might mutually help and assist each
other, and unite their counsels and endeavours for
the common good. If therefore we make a prudent
choice, we shall find a mighty advantage in a dia-
creet, virtuous, and affectionate relative; for so we
double all our powers and capacities to promote our
own good : the sacred bond of friendship derives all
its usefulness and esteem from this, that it combines
two hearts, and conjoins two heads, for carrying on
the mutual interest of bdth parties: and therefore,
marriage must needs be highly beneficial and hugely
valuable, which makes the nearest union of all sorts
of friendship ; there being no friends so closely and
inseparably linked together; none whose concerns
and interests are so entirely the same; none that
must so necessarily share in the varieties of each
other^s fortune as the man and wife must do: so
that if they do consider, none should love like these ;
none should be so unanimous in their designs and
actions, none so zealous for each other's gocx], as the
married pair should be ; and if they be so, none have
belter opportunities to advance a joint interest than
they. It is said of married persons, that they see
with four eyes, and hear with as many ears, and
work with as many hands : it being true of such a
couple which Ovid feigns of the eyes of Argus, that
one ever supplies the cessations of the other : when
one is weary the other can labour; when one is
absent the other is present ; when one is sick the
other is healthful, and able to attend and make pro-
vision. And doubtless it is not easy to determine.
416
whether it be a greater pleasure or advantage to have
a prudent counsellor in our doubts, a faithful con-
cealer of our secrets, a compassionate comforter in
^^ our sorrows, and a loving sharer in our joys : such
relatives are sometimes so necessary, often so com-
fortable, and always so useful, that th^ can scarce
be happy that are without them ; an^jiapfejain tielL
the felicity- of such an enjoyment but those whom
Providence hath blessed with such a choice : which
consideration should engage all married persons for
their own sakes to resolve to be such n^utuai helps
and comforts to one another ; they should lay aside
all their Uttle private ends, and esteem themselves
but one half of themselves ; espousing oae common
interest, and believing the body can never be well
while the one half only is provided for : they should
be as ready to assist each other as the one hand is to
/ help the other ; for whatever is truly for the good of
either party will redound to the pro6t of both at
last. Finally, let us all admire the wisdom and
goodness of Almighty God, in contriving so happy
a conjunction, for so blessed an end: and whenso-
ever we find the comfort and convenience of this
mutual succour, let us bless bis name for it, who
deserves the glory of it for designing so useful a
favour to the children of men, in this valley of misery
and necessity, where our wants are so pressing and
so many, that if we had not such society to cheer us,
such help to aid us, and such comfort to support us,
we should even sink under the burden of them.
It has been ordained, that in marriage the nearest
and dearest of all natural relations shall be dissolved,
and that for the sake of woman*" a man shall leave
417
his father and his mother, and cleave unto his wife.
In making a transfer of the first affections, in leaving
the house of the parent for the house of the consortf
and in entering into a voluntary but irrevocable en-
gagement, there is a necessity for the most anxious
and deliberate circumspection. The desire of mar-
riage should not be directed for a moment to an
object upon which the affections cannot permanently
rest ; and the motive of plighted faith should not be
a transitory passion, but a constant and settled prin-
ciple, rooted in the heart and the understanding, and
actuated by an earnest apprehension, not only of the
present joy, but of the whole circumstances of the
future life. '^ The condition of human life will not
permit us to say, that no one can conscientiously
marry who does not prefer the person at the altar to
all other men or women in the world ; but we can
have no difficulty in pronouncing, (whether we re-
spect the end of the institution, or the plain terms in
which the contract is conceived,) that whoever is
conscious, at the time of his marriage, of such a
dislike of the woman he is about to marry, or of
such a subsisting attachment to some other woman,
that he cannot reasonably, nor does in fact, expect
ever to entertain an affection for his future wife, is
guilty, when he pronounces the marriage vow, of a
direct and deliberate prevarication ; and that, too,
aggravated by the presence of those ideas of religion
and of the supreme Being, which the place, the
ritual, and the solemnity of the occasion, cannot fail
of bringing to his thoughts. The same likewise of
the woman. This charge must be imputed to all,
who from mercenary motives marry the object of
VOL. I. EC
418
their aversion and disgust: and likewise to those
who desert, from any motive whatever, the object of
their affection, and without being able to subdue
that affection marry another ^/^
There may be other motives, which, although
they are not mercenary, are nevertheless equally
vicious in principle and mischievous in effect. In
old time, the approved motives of choosing a hus-
band were, his virtue, his descent, his person, and
address ; and a wife was recommended by her birth,
her manners, and her beauty : and it has been the
common and inveterate complaint of heathen and of
Christian moralists, that wives have been chosen
only for their riches or their beauty ; for beauty,
which tempts many lovers; or for riches, which
attract a counterfeit love, and multiply the occasions
of strife^ Comber pronounces the best motives in
the choice of a wife to be " an honest extraction and
virtuous education, piety and modesty, integrity and
a good temper; we must choose one that we can
love for themselves, if they were stript of all their
accidental advantages ; and then if there be any loss
or abatement in the fortune afterwards, it will not
abate our affections and duty to each other, nor
deprive us of the comfort and satisfection we have in
each other: we may be richer or poorer, but that
will make no variation in our love, if it were
grounded on the more lasting and noble foundation
of internal goodness"/^ The marriages which ap-
^ Paley's Moral Philos. b. iii. pt. 3. c. 8. < Juvena], Sat.
iii. 1. 140. Chrysostom, Eclog. Iii. p. 90. Isidor. de Div. OflF. 1. u.
c. 19. ™ Comber, Oflf. of Matr. partit. ii. setft. ii* s. 5.
419
pear to offer the feirest promise of happiness, and to
be most conducive to mutual society, help, and
comfort, are those in which there is equal age, equal
rank, equal fortune; affectionate attachment to the
future relations, resulting from their worth ; an agree-
able person ; congeniality of temper ; an informed
and regulated mind ; and a correspondence of senti-
ment on the great subjects of religion and virtue :
where there is no suspicion of avarice or ambition ;
no room for the reproach of poverty or mean de-
scent ; no jealousy of attentions shewn to an of-
fensive kindred ; no motive of future antipathy or
aversion ; no dissonance of pursuits ; no apprehen-
sion of a tedious listlessness, or want of mental
resources; no deUberate provision for the collision
of opinions which cannot be reconciled. In the
present condition of humanity, differences are inse-
parable from the course of wedded life ; and there
will be multiplied occasions for the exercise of
forbearance. The best wisdom will be seen in
the circumspection which shall be most effectual
in preventing the occasions of offence, and prepar-
ing the ground for the most uninterrupted agree-
ment.
The secondary end which the divine wisdom pro-
posed in the institution of marriage, was the conti-
nuance of a godly seed, and the education of a
righteous progeny : and " thus marriage becomes
highly venerable, as it is the nursery of the Church,
and the propagator of religion, and an estate, which,
being rightly managed, doth evidently tend to the
salvation of souls, and the increasing of the blessed
£ e 3
420
members of the heavenly choir"." In the fulfilment
of this purpose the office of the parent enforces the
duty of the consort, and confirms the necessity of a
strict attention to the reciprocal obligations of do-
mestic virtue. The first seeds of Christian know-
ledge are sown by the mother, in the earliest years of
infancy ; and whatever be the preparatory substitutes
which the genius of fashion has invented for the
indulgence of indolent luxury, or which have been
accommodated to the exigencies of labouring poverty,
there is nothing so natural or powerful as the assi-
duous tenderness and delicacy of a mother, in form-
ing the mind of the infant into a holy conformity
with the will of the heavenly Father ; in inspiring
his heart with the fear and love of God ; in folding
the hands and bending the knees to offer the sacrifice
of the morning and the evening ; and raising the
hope of happiness above the sky. But although it
is the peculiar office of the mother to open the
affections and the understanding, and to give the first
bias in favour of virtue and of truth, it is not enough
that the father contributes to the support and main-
tenance of the child ; it is incumbent on both the
parents, and especially upon the father, to train their
children in the nurture and admonition of the Lords
and to teach them, so soon as they shall be able to
learn, the duties of their appointed station. The
general order of nature has been alleged in proof of
the necessary care of both the parents, and of their
cohabitation, so long as it is required for the pro-
B Comber, Off. of Matr« partit. i. sect. 1. a. 6. ^ Ephei. \j. 4.
421
tection of the offspring : and it is the lesson of daily
experience, that the assiduities of the woman should
be encouraged and supported, not by the distant
approbation, but by the cordial cooperation, of the
man ; and that the fear of a father^s authority should
be added to the grace of a mother's love. In the
performance of these duties, in forming their children
into the image of themselves and of each other, their
own tempers will be harmonized, and they will ex-
perience a richness of domestic bliss, which the
heartless formalities of ordinary society will not
convey. The very cares and anxieties which they
entertain for their common offspring, will soften their
hearts into a mutual love and gratitude to each other;
and when the transports of youthful passion have
subsided, there will remain a lasting remembrance of
benefits conferred upon their common offspring, and
the cheerful hope of a common return for their several
duties.
The wisdom of Grod's providence has been con-
spicuous, in ordaining the perpetuity and permanence
of marriage, and requiring a continuous performance
of the duties of the husband and the wife till death
shall part them. The man shall cleave unto his wife,
and they two shall be one flesh, indissolubly united.
There is no relaxation of the principle of conjugal
duty : although the temper shall alter for the better
or the worse; though the circumstances shall change
from richer to poorer ; though the complexion, ac-
cording to the old ritual, shall be varied, and be the
fairer or the fouler. The old objection is briefly
made and refuted in the words of Isidore ?: What if
<* De Div. Off. 1. ii. c. 19.
£ e 3
422
she be barren, if she be deformed, if she be decrepit,
if she be offensive, if she be drunken, if she be im-
moral, if she be luxurious, if she be a glutton, a sim-
pleton, or a wanderer, or a scold, or abusive ? She
must be retained, whether with or against the ,will :
whatever she was when she was taken she must be
kept : for when you were free you voluntarily sub-
mitted yourself to the service. In all the changes
and chances of human character and condition there
is the same unabated obligation to give comfort in
the time of trouble ; to sustain the vigour of health ;
to cherish the infirmity of sickness and decay ; and
to relax in no part of duty until death shall put an
end to the relation. We may use all circumspection
in making the choice ; we are free to choose the good
and refuse the evil : but if our rashness and impru-
dence lead us into an evil choice, we have no liberty
of changing or repentance, since no relation is or
ought to be dissolved by the evil manners of the
correlative. If our father or our master be an evil
man, he remains our fether or our master still : and
the relation of the husband and the wife is not more
dissoluble ; in respect of which it was the proverb of
the Jew, that we must gnaw the bone that falls to
our lot, and be content with the wife that we have
married. It was the wiser reasoning of the heathen,
that the faults of a wife are to be .taken away or to
be borne: he that can take them away makes his
wife better; he that bears theip makes himself better.
The Christian should be more circumspect in his
choice than the heathen^ because he binds himself to
keep the covenant of marriage indissoluble, whether
the person prove the better or the worse ; and if he
423
is imprudent in his choice he should be the more
patient in bearing the punishment of his folly^.
When the ancient Egyptians, in their sacrifices of
marriage, threw the bile of the victim under the
altar, they meant to signify that there was no room
for anger in the conjugal relation, in which kind
affection should take the place of wrath, love of
hatred, and human kindness of the gall of bitterness;
in which the consorts should bear the common yoke
with equal minds and accommodation to the manners
of each other; in which, with all the energies of that
charity which suffereth long and is kind, which is
not easily provoked, which beareth all things and
endureth all things, they should learn to be patient
under the humours and infirmities of each other*^.
If marriage was not^ in nature and in law, perma-
nent, if it was subject to the caprices of human
passion, it would be the most unstable of all ac-
quaintance : there would be no patience of the first
offence and the apprehension of its consequences :
the disappointed hope of pleasure or of profit in mar-
riage would be followed by immediate separation ;
there would be no provision for the education of
children ; there would be no maintenance for the
infirmities, and no imperceptible acquiescence in the
humours, of declining age. It is the consideration
of the indissoluble permanence of the conjugal union
which enforces the necessity of moulding the temper
from the very beginning of matrimonial life, by unin-
terrupted converse and the most unwearied spirit of
^ Comber, Off. of Matr. partit iL sect 2. s^ 5. ' Gerhard,
de Conjug. 8. 448.
E e 4 '
424
conciliation, that when the transports of passion have
subsided, and the fascinating graces of early life have
been impaired, there may still remain a disposition
to mutual concessions ; a ready acknowledgment of
tried excellence, a cheerful forbearance and compas-
sion of each under the infirmities of the other. It is
an affecting scene, which is sometimes exhibited in
the extremities of wedded life, when an aged couple,
that have long borne tlie burthens of each other, are
unable to contend with the last separation, and sink
together into a common grave. It is a less mournful
proof of virtuous constancy, which many have ex-
hibited in imputing such obligation to their first love,
as not to allow to themselves a liberty of entering upon
a second marriage. The doctrine, notwithstanding
its opposition to the permissive rule of the apostle, was
commonly held in the primitive Church : and it has
been carried also into the practice of savage life, with-
out being restricted to the suttees of India. The
women of ancient Germany took an husband, as they
took one body and one life, not suffering their
thoughts or their desires any larger licence, and
restraining their love, as it were, not to the husband,
but the marriage : and it is recorded of the Winedi,
who were in other respects a most savage race of
men, that they were so zealous in observing the
mutual love of marriage, that the woman refused to
survive her husband, and that she was commended
who committed suicide, that the body of herself and
her husband might be burned upon a common pile*.
There is a reciprocity in the duties of w^ded
* Tac. de Mor. Ger. 8. 19. Brotier, Aimot. ad loc.
425
life, dependent on the singleness of the union of the
two into one flesh, which in practice should never
be abated. It is not meant that the offences of the
one will ever excuse the offences of the other, or
that indifference or aversion, inconstancy or infi-
delity, can under any circumstances be worthy of
pardon, or capable of defence. But when the con-
jugal duties are upon one side adequately discharged,
a foundation is laid upon which the performance on
the other part may be the more confidently de-
manded : and whenever they are neglected it is
unreasonable to require the benefit which is not
conferred. This is the ground of the doctrine of
recrimination, under the most aggravated of offences,
which operates not in the increase of crime, but in
refiitation of the plea of injury, and the pursuit 'of
redress. If upon the one side there is constant
affection and love, gentleness, modesty, rational
compliance, respect, and revereilce, the whole circle
of a wife's duties to her husband, they form a ground
upon which she may build her claim to protection, in-
dulgence, honour, admiration, and all the virtues which
a husband owes to his wife. But if the woman is lov-
ing and amiable, faithful and obedient to her husband,
and in all quietness, sobriety, and peace, a follower
of holy and godly matrons, what shame does she
not accumulate upon the indifference, antipathy, and
aversion, the fickleness and arbitrary tyranny of an
unkind, an inconstant, and cruel husband ? What
provocation does he not offer to her to retaliate and
resent the injuries which she sustains ? And what is
the justice of his complaint, what is his title to
redress, if she inflicts the evils which she receives ;
426
if she makes him in his turn to feel, if he has the
sense to feel, ^^ the worst of sorrow, and the worst of
shame ;^' if she deprives him of benefits which his
own conduct proves him unable to appreciate, and
unworthy to possess? Or if the husband, in the
punctual fulfilment of all his duties, meets with no
return, or is incited by bad example to retaUate, can
the woman complain, if she is n^lected, insulted,
abandoned, and despised ? It is the excellent argu-
ment of Lactantius, that both should observe the
pledge which they have severally given to each
other, or rather, the wife should be taught a lesson
of chastity by an example of continence. For it is
unjust to demand of another what you yourself are
not able to exhibit. This injustice has been the
occasion of adultery, when women have been indig-
nant in maintaining their fidelity to those who have
been wanting in reciprocal affection : nor is there
any woman so destitute of shame, as not to gloss
over her vices with the pretence, that in her offence
she does not commit, but only revenge, an injury.
This is well expressed by Quintilian, when he says,
that the man who does not abstain from the bed of
another man is not the guardian of his own, for
between these things there is a natural connexion.
For the man who is engaged in debauching the wives
of other men can have no leisure for preserving the
sanctity of his own house ; and the woman who falls
into such a marriage is provoked by the example,
and thinks how she may imitate her husband, or
obtain redress for her wrongs. Caution is therefore
necessary, that no occasion or pretext for vice may
arise from our intemperance ; that the manners of
427
the two may be accommodated by custom to each
other ; and that the yoke may be borne with equal
minds. We should one in the other contemplate
ourselves. For in this consists the sum of righte-
ousness, in not doing to another what we are not
willing that another should do unto us^.
The general rule of Christian duty is especially
appropriate to the state of matrimony, in which no
man can deviate from the straight path of reciprocal
obligation, without injury to his own interest; with-
out danger^ to his own honour ; without disparage-
ment of his own affections ; without destruction of
his best and most substantial happiness. In the
practice of inconstancy and unconcern, he deprives
himself of all title to consolation, to compassion, and
to redress, if he suffers wrong: and although he
respects not himself, nor the redemption of the vow
of his marriage, although the claims of the wife of
his covenant are undervalued or renounced, let him
think upon his children, whose Christian and vir-
tuous education, the secondary end of marriage, is
defeated, when their parents live not together in
godly love and honesty, and the full possession of
that mutual society, help, and comfort, which it is
the great purpose of matrimony to produce. It is
the sentiment of an unknown and anonymous writer,
which in this respect is worthy of more authority
than is due to the general character of his writings,
and in which he professes to deliver the substance of
the apostle^s doctrine on the duty of marriage: I
have taught wives to love their husbands, and to
* Lactant. Div. Inst. 1. vi. c 23.
428
fear them as their masters : I have taught husbands
to keep their Ifaith to their wives, as they desire by
all means that modesty should be preserved for
themselves: for whatever Grod, who is himself the
Father and Founder of all things, punishes in an
adulterous wife, he also punishes in an adulterous
husband °.
« Abdise Apottol. Hist de S. Paulo, s. 7. apud Fabricium. Cod.
Apocr. Nov. Teit.
CHAPTER V.
THE SINFUL AND CRIMINAL CHARACTER OF
ADULTERY.
The degree of guilt which attaches to the offence
of the adulterer cauLOt be justly ascertained without
reverting to the nature of the contract of which adul-
tery is the breach and violation. If marriage, as it
is contemplated by some writers, be a civil contract,
and nothing more, adultery, as the violation of that
contract, may be thought a civil injury, and liable
to the same redress as other civil injuries. A civil
injury is properly the infringement or privation of
the private or civil right of an individual, in respect
of his person or property, under which he is entitled
to recover by civil action the right and interest which
he has lost, or to receive some compensation for the
wrong which he has sustained. Thus by the civil
law of Rome^ simple theft was pronounced a civil
injury, for which a man was entitled to obtain re-
dress by civil action, and which under the Jewish
law^ also might be discharged by the payment of an
equivalent. It is not unreasonable nor inconsistent
with this view of the nature of civil injuries to sup-
pose that the fine or compensation for adultery, con-
sidered as a civil injury, had originally respect to the
manner in which the wife came into possession of
the husband, and to the right and interest which the
• Gibbon's Rom. £mp. c 44. ^ Exod. xxii. 1 , 4. Lev. vi.
4. Prov, vi. 31.
430
man possessed in the woman at a time when the
woman was held to be not a person but a thing ; a
thing which might be acquired by coemption, and
any deficiency in the title to which might be sup-
plied by use and possession for a year"". It was
very consistent with this state of society, that the
fether of an adulteress should return the dower
which the husband had as it were paid for the pur-
chase of the wife, and that the adulterer should
redeem himself from other penalties, by paying the
price of the benefit of which he had surreptitiously
possessed himself. It is not unjust to impute the
same doctrine, or at least a tacit recognition of the
husband^s property in the wife, to the law of Eng-
land, which pronounces adultery to be a civil injury,
and provides satisfaction to the husband by an action
of trespass vi et armis^ which is the ordinary method
of obtaining redress for immediate injury done to the
person or property of another : but it may be asked.
Is the comfort and society of the wife, in the loss of
which the foundation of the action is said to consist,
a personal right of the husband in any other
sense than as it affects his property ? It may also
be questioned, how far the doctrine of the law is
agreeable to the present state of English society, in
which the woman is certainly not purchased by the
man, is not held to be his property, but is possessed
of equal and reciprocal rights: how fas it corre-
sponds with those reciprocal rights, or even with the
nature of marriage, considered as a civil contract
between parties equally capable of contracting, to
' Gibbon, c. 44.
431
allow to the husband, and to withhold from the wife,
the right of action for damages for the civil injury ;
and what is the value of the common excuse for this
partiality, if the gist of the action is not the danger
of a spurious issue, but the loss of the wife^s con-
versation, a loss not more injurious to the man, than
is the loss of the husband^s protection to the woman.
It may be more generally excepted, that if under
the authority of the merely civil contract the parties
are free to covenant for a mutual release, and to
resort to the Roman practice of divorce bond graiidj
they are equally free to reserve a right and licence of
adultery, by which the civil injury would be abated,
and which is actually stipulated for in the East, is
implied in all cases of polygamy and community of
wives, and is supposed to have been the ground of
the extraordinary power assumed by the husband of
lending a wife. Such objections to the doctrine of
marriage as a civil contract, and of adultery as a civil
injury, it would be unjust to overlook, but it is no
part of the present argument to resolve.
If marriage, as has been contended, be a divine
institution, and not merely a civil contract, adultery
assumes the character of a sin, and is the violation
of a duty which is due to God, not less than of a
duty which is due to man : and if the question be
referred to the sacred writings it will be seen, as
well from the punishment as from the prohibition,
that adultery has always been accounted a sin of a
very heinous and aggravated kind.
In the patriarchal age God took upon himself to
defend the purity of the marriage bed, when it was
endangered through the false fear of those who were
432
most concerned in its preservation. When Abrani
in the consciousness of Sarai's beauty advised her to
assume the character of his sister, and Pharaoh, as
was expected, was captivated by her beauty, ^he
Lord plagued Pharaoh and his house with great
plagues because of Sarai, Abram^s wife, and de-
terred him from the crime which he ignorantly me-
ditated. Pharaoh obeyed the warning, and reproving
Abram restored to him his wife, not without ex-
pressing a secret abhorrence of the sin which he had
tempted him to conceive, and which he would not
have conceived, if he had known that Sarai was a
man^s wife : What is this that thou hast done unto
me ? Why didst thou not tell me that she was thy
wife? Why saidst thou, She is my sister? so I
might have taken her to me to wife. Now there-
fore, behold thy wife ; take her, and go thy way^.
A similar case occurred, through the same false
fear and apprehension of Abraham, in which the
guilt of adultery, as a sin against God, is yet more
clearly demonstrated. Abraham represented his wife
under the same character of his sister to Abimelech
the king of Grerar : and when Abimelech had sent
for Sarai, God came to Abimelech in a dream by
night, and said unto him, Behold, thou art but a
dead man, for the woman that thou hast taken, for
she is a man^s wife. But Abimelech had not come
near her ; and he said, Lord, wilt thou slay also a
righteous nation ? Said he not unto me, She is my
sister? And she, even she herself, said. He is my
brother ; in the integrity of my heart, and the inno-
•»Gen.xii, 11—20.
433
cency of my hands, have I done this. And God
said unto him in a dream, Yea, I know that thou
didst this in the integrity of thy heart ; for I also
withheld thee from sinning against me. Now there-
fore restore the man his wife, for he is a prophet,
and he shall pray for thee, and thou shalt live : and
if thou restore her not, know that thou shalt die,
thou and. all that are thine. Abimelech therefore
restored her, expressing at the same time his just
indignation at the temptation which Abraham had
brought upon him : What hast thou done unto us ?
and what have I offended thee, that thou hast brought
on me and my kingdom a great sin ? thou hast done
deeds unto me that ought not to be done. — And
God healed Abimelech, and his wife, and his maid-
servants ; and they bare children : for the Lord
had fast closed up all the wombs of the house of
Abimelech, because of Sarah, Abraham's wife^.
These are two recorded instances in the patriarchal
age in which the Lord interposed to vindicate the
purity of marriage. Adultery had not at this time
been formally or expressly forbidden ; at least there
is no record of its prohibition, except by necessary
inference from the divine institution of marriage, or
by tradition from Noah, to whom, according to the
Jews, there was delivered, with other precepts of
natural and universal obligation, a prohibition of
adultery. In the histories both of Pharaoh and of
Abimelech a secret abhorrence of adultery seems to
have been impressed upon their hearts, nor would
either of them have entertained the thought of taking
* Gen. XX.
VOL. i; F f
434
Sarai to be bis wife, if be had known tbat sbe bad
been the wife of Abraham, and not his sister. In
Egypt Abraham was apprehensive that the Egyptians
would slay him, that they might obtain possession
of Sarah ^; that they would be less scrupulous of
killing the husband, than of committing adultery
with the wife : and, in the alarming judgment which
the Lord pronounced upon Abimelech, the circum-
stance of Sarah's being a man's wife is introduced as
a familiar, an acknowledged, and undoubted reason,
for which she should not have been taken, and for
which he that had taken her was but as a dead man:
and although he did not proceed to the act of adul-
tery, and the Lord in approbation of his integrity
restrained him, he nevertheless pronounced the act
which he meditated a sin against himself. I know
that thou didst this in the integrity of thy heart, and
I also withheld thee from sinning against me: there*
fore, because of the integrity of thine heart, and
because thou mightest not sin against me, I have
not suffered thee to touch her. Abimelech also
affirmed the sinfulness of adultery in his expostula-
tion with Abraham for having brought on him and
his kingdom a great sin. The design of taking
another man's wife was a sin against Grod, a great
sin by the law of nature, and in the judgment of the
Gentiles^, and worthy to be avenged by a judgment
of death upon Abimelech and all his house, if he
persisted in his design, and did not restore the woman
to her husband. In both instances the Lord visited
the intention with severe and various penalties. It
' Patrick on Gen. xii. 12. « Grotius in Poli Syn. Gen. xx. 9.
435
IS ' of importance also to observe, that this is the
second occasion upon which a sentence of death was
pronounced upon the sins of noen. The murder of
Abel drew down a capital judgment on the shedder
of blood.; the Lord himself undertook to execute
the same sentence upon the meditated sins of Pharaoh
and Abimelech. Murder and adultery are nearly
allied in judgment and in guilt, as sins against Grod.
There is a striking recurrence of the same senti-
ments in the history of Isaac, during his abode in
Gerar. He also was apprehensive that the Gerarites
would slay him, that they might obtain possession
of Rebekah ; that they would rather murder a man,
than commit adultery with a man^s wife. When
the true condition of Rebekah was discovered,
Abimelech thus remonstrated with Isaac: What is
this that thou hast done unto us ? one of the people
might lightly have lien with thy wife, and thou
shouldest have brought upon us guiltiness, both in
(he heinousness of the offence, and the severity of
punishment. And Abimelech charged all the peo-
ple, saying, He that toucheth this man or his wife
shall surely be put to death**. The same law pro-
tected the life of the husband, and the chastity of the
Mrife: and it is of importance to remark, that the
first sentence of capital punishment^ which man pro-
nounced, was directed against murder and adultery.
The doctrine, that adultery is a sin against God,
w^s again, before the delivery of the Mosaic law,
avouched by Joseph in the question with which he
resisted the temptation of Potiphar's wife: How
'' Gen. xxvi. 7 — 11. Ainsworth in loc.
* fC2
436
shall I do this great wickedness, and sin against
God*'.
Job, who also flourished before the time of Moses,
declared adultery to be a crime, an excess of wicked-
ness, worthy to be avenged with the punishments of
men, and, where they failed, liable to the judgments
of God: If mine heart have been deceived by a
woman, or if I have laid wait at my neighbour's
door, then let my wife grind to another, and let
others bow down upon her, for this is an heinous
crime, yea, it is an iniquity to be punished by the
judges; for it is a fire that consumeth to destruc-
tion, and would root out all mine increase^.
Thus was the sinful character of adultery acknow-
ledged and avowed before the publication of any
written law forbidding its perpetration : but as there
is no sin where there is no law, and it is the essence
of sin to be the transgression of a law, adultery must
be considered the infiingement of that natural and
universal law which is written in the heart, and pre-
served by tradition from the first fathers of mankind.
When the law of Moses was delivered, adultery was
simply forbidden, by the authority of the divine
legislator, as an offence of which the guilty character
was so undoubted, so readily admitted by the com-
mon sense of mankind, that no reasons were alleged
to justify the prohibition. In that law murder, adul-
tery, and theft, are inseparably and immediately con-
nected in criminal classification, and in the severe
simplicity with which they are denounced. The
* Gen. xxxix. 9. * Job xxxi. 9—12. Poli Syn. and Patrick
in loc.
437
order of the Decalogue is, Thou shalt do no murder :
Thou shalt not commit adultery : Thou shalt not
steal. Murder, or the violation of God^s image in
man, is the first in guilt: adultery, which is the
breach of his institution for the preservation of man-
kind, is the second : and theft, or the disturbance of
his providential distribution of property, is the third
gradation of offence. It is worthy of remark, that
in some copies of the Septuagint, and in the arrange-
ment of Philo the Jew, the prohibition of adultery
precedes the prohibition of murder, as if the crimes
were of equal or indiscriminate guilt ; as if murder
was not more heinous than adultery. Tertullian
was acquainted with the same arrangement, which
led him to expatiate in a t<Hie of the severest indig-
nation upon the aggravations of a sin which is second
only to idolatry, and which has a bad preeminence
above every other crime, without the exception even
of murder.
In the great transgression of David, in which
murder was combined with adultery, the Lord pro-
nounced his equal wrath and indignation upon either
sin: Wherefore hast thou despised the command-
ment of the Lord, to do evil in his sight ? Thou hast
killed Uriah the Hittite with the sword, and hast
taken his wife to be thy wife, and hast slain him
with the sword of the children of Ammon. Now
therefore the sword shall never depart from thine
house, because thou hast despised me, and hast
taken the wife of Uriah the Hittite to be thy wife.
Thus saith the Lord, Behold, I will raise up evil
against thee out of thine own house, and I will take
thy wives before thine eyes, and give them to thy
Pf3
438
neighbour, and he shall lie with thy wives in the
sight of this sun ; for thou didst it secretly, but I
will do this before all Israel, and before the sun. In
this sentence, the charge against David of despising
the Lord appears to have an .immediate and especial
reference to the sin of adultery ; and if the sword
was judicially punished by the sword, and trea-
cherous cruelty by defeat, the adultery also was
fearfully avenged, and the injury to Uriah was ex-
actly retaliated in the treatment experienced by the
concubines of David. Even in the time of his re*
pentance and forgiveness it was resolved, that, be-
cause by this deed he had given great occasion tp
the enemies of the Lord to blaspheme, the child that
was born unto him should surely die. All the cir-
cumstances of this history combine in justifying the
expression of Origen, when he calls tb% offence of
David, the sin unto death ^
David himself compares the adulterer with the
thief, and supposes them both, with their accom-
plices, to be liable to the judgments and admonitions
of- the Almighty: When thou sawest a thief, thou
consentedst unto him, and hast been partaker with
the adulterers ; and thou thoughtest wickedly, that
I am even such an one as thyself; but I will re-
prove thee, and set before thee the things that thou
hast done".
Solomon describes the adulteress' as one who ibr-
getteth the covenant of her God ; and he represents
the judicial destruction of her. gueste, for her housd
I i Sam. xii, »-.14, Orif . Beleet. ki Fuim. ' " Patlm I
18, ^l.
439
inclincth unto death, and her paths unto the dead :
none that go unto her return again,^ neither take
they hold of the paths ofl\fe^.
The divine abhorrence, and the inexcusable nature,
of adultery in connexion with the prevailing apostaqy
are strongly depicted by the prophet Jeremiah : How
shall I pardon thee for this ? thy children have for-
saken me, and sworn by them that are no god^:
when I had fed them to the full, they then com-
mitted adultery, and assembled themselves by troops
in the harlots' houses : they were as fed horses in the
morning; every one neighed after his neighbour's
wife: Shall I not visit for these things, saith: the
Lord ; and shall I not be avenged on such a nation
as this°?
The texts which have been recited afford the
clearest evidence that adultery is a sin most offen-
sive to God, and liable to his severest judgments :
the criminal character of adultery, and its heinous-
ness as a sin against God, may be further collected
from the figurative use of the word to denote the
highest and most aggravated offence which could
enter into the contemplation of a Jew, the sin of
religious apostacy. The covenant between the Lofd
apd his people is described as a contract of marriage,
and the violation of it by idolatry as an act of adul-
tery. This figurative language is of continual recur-
rence in the prophecies of Jeremiah, Ezekiel, aqd
Hosea : and some instances of the metaphor may be
adduced to shew the guilt and punishment of a^nl-
tery properly so called from that which is spiritual.
» Prov. ii. 17—19. "" Jer. ▼. 7—9.
Fi4
440
Jeremiah thus denounces the judgments of God
upon the sins of the people : Therefore will I scatter
them as the stubble that passeth away by the wind
of the wilderness : this is thy lot, the portion of thy
measures from me, saith the Lord, . because thou
bast forgotten me, and trusted in falsehood. There-
fore will I discover thy skirts upon thy face, that
thy shame may appear. I have seen thy adulteries,
and thy neighings, the lewdness of thy whoredom,
and thine abominations upon the hills in the fields'.
Ezekiel reproves the accumulated idolatries of Israel,
in which she had acted as a wife, that committeth
adultery, which taketh strangers, instead of her hus-
band ; and, after specifying the aggravations of her
offence, the prophet, in proceeding to pass judg-
ment, pronounces in the name of the Lord, I will
judge thee as women that break wedlock and shed
blood are judged,^and I will give unto thee blood in
my fury and jealousy. . . . They shall also bring up
a company against thee, and they shall stone thee
with stones, and pierce thee through with swords^.
Thus murder and adultery, the shedding of blood
and the breaking of wedlock, are again combined as
kindred offences ; and it was of adultery that the
stoning with stones was the appropriate punishment.
The whole chapter, in directly condemning the sin-
fulness of idolatry, conveys important information
on the sinfulness of adultery.
The prophet Hosea not only speaks of idolatry
under the popular metaphor of adultery, but assigns
the prevailing apostacy as the reason of exempting
^ Jer. xiii. 24—27. i Eawk. xvi. 38, 40.
441
the adulteress from punishment ; excusing, as it
were, the proper adultery of the wife, in retaliation
of the spiritual adultery of the husband : I will not
punish your daughters when they commit fornica-
tion, nor your spouses when they commit adultery ;
for themselves are separated with whores, and they
sacrifice with harlots^. This particular exemption
of the adulteress from punishment is sufficient to
shew that she was generally amenable to the judg^
ments of God, especially in the waters of jealousy,
of which the power is supposed at the time to have
been judicially suspended. In this and in many
other passages, idolatry and adultery are combined
as cause and effect ; they are identified in nature
and in name; and, in the judgment of a true
Israelite, adultery could not be more severely con-
demned or more powerfully designated as a sin
against God.
There is a passage in the apocryphal Book of
Wisdom, which it is necessary to recite in testimony
of the opinion which the ancient Jews held of the
sinfulness of adultery ; of the class of crime in which
they placed it; and of the source and origin fix)m
which in its predominance it was supposed to pro^
ceed. The' writer, in speaking of idolaters, affirms,
that they kept neither lives nor marriages any longer
undefiled, but either one slew another traitorously or
grieved him by adultery ; so that there reigned in all
men without exception, blood, manslaughter, theft,
dissimulation, corruption, unfaithfulness, tumults,
' Ho8. iv. 14.
442
perjury, disquieting df good men, forgetfulness of
good turns, defiling of souls, changing of kitid, dis-
order in marriages, adultery, and shameless unclean-
ness*.
The author of the Book of Ecclesiasticus filso
unequivocally declares his opinion, that God is the
judge of the adulterer and the adulteress, and that
they trespass against the law of the Most High : A
man that breaketh wedlock, saying thus in his heart.
Who seeth me ? I am compassed about with dark-
ness; the walls cover me, and nobody seeth me:
what need I to fear ? The Most High will not re-
member my sins : — such a man feareth only the eyes
of men, and knoweth not thait the eyes of the Lord
are ten thousand times brighter- than the sun, be-
holding all the ways of men, and considering the
most secret parts. . . . This man shall be punished
in the streets of the city ; and where he suspecteth
not, he shall be taken. Thus shall it go also with
the wife that^leaveth her husband, and bringeth in an
heir by another : for first, she hath disobeyed the law
of the Most High ; and secondly, she bath tres-
passed against her own husband; and thirdly, she
hath played the whore in adultery, and brought in
children by another man. She shall be brought out
into the congregation, and inquisition shall be made
of her children : her children shall not take root, and
her branches shall bring forth no fruit: she shall
leave her memory to be cursed, and her reproach
shall not be blotted out : and they that remain shall
• Wisdom xiv. 24—26.
443
know that there, is nothing jbettei: thaifi the fear of the
Lord, an4 (that t^iere; is nothing sweeter than to take
heed to the. command meats of the. Lord ^
The prophet Malachi assigns a different reason for
the offence which the Lord took at the adulteries
which prevailed in his time, and which principally
consisted in the.diiKorce of the lawful wife, through a
preference of foreign and idolatrous women : Because
the Lord hath been, witness between thee and the
wife of thy youth, against whom thou hast ^ealt
treacherously; yet she is thy companion and the
wife of thy youth". Their adultery comprehended
perjury, or the .violation of the solemn engagement
of their marriage, in which they had called God to
witness their vows, in whose name as well as by
whose institution the. wife of each of them had been
made his companion for ever, even the wife of his
covenant, and against whom he could not deal trea-
cherously without sin and offence to the Deity.
It is a truth therefore which cannot be contro-
verted, that, in the judgment; of the Jews, and in the
doctrine of their inspired and uninspired instructors;
adultery veas a sin against God : but it will be pre-
tended that the judgment of Christians is not bound
to defer to Jewish opinions, and that men are now
placed under a law more accommodated to the real
condition and circumstances of man upon the .earth,
and at liberty to take a larger and more comprdien-
sive view of the divine judgments and proceedings
.with mankind than was agreeable to the narrow pre-
judices of the Jews, and to their concef^tions of the
' Ecclus. xxiii. 18— 27. - Mai. ii. 14.
444
immediate interpositions of the Deity. It ought not
however to be forgotten, that the Lord pronounced
adultery to be a sin against himself, before the ori-
gination of the Jewish polity ; and it might be con-
fidently maintained, if it were necessary to argue tKe
question, that the true doctrine of marriage and
adultery is primarily and originally derived from the
law given to Adam, recorded by Moses, amplified
by the precepts successively delivered by the pro-
phets, and finally recovered from the glosses and
comments of pharisaic superstition, and restored to
its native purity by the Saviour of mankind. But it
is an easier and more certain method of forming a
Christian estimate of the nature and guilt of adultery,
to refer to the words of Christ and his apostles, and
to shew in what class of crimes they coiAprehended
it, from what sources they derived it, and to what
judgments of the Deity they pronounced it to be
liable.
When our Saviour referred to the institution of
marriage, he evidently pronounced it to be a divine
institution : the violation of marriage is therefore the
violation of a divine institution, and by consequence
a sin against God. The general rule which our
Lord delivered concerning divorce, is not unsuitable
to adultery : What God hath joined together, let no
man put asunder by any division of the unity which
he hath consolidated*.
In delivering an authoritative comment upon the
original prohibition of adultery, our Lord bath de-
clared the heinousness of the sin, by the rigorous
' Matt. xix. 6. Mark x. 9.
44$
caution which he hath prescribed in avoiding it, and
by the fatal consequences which he hath attached
even to mental transgression : Ye have heard that it
was said by them of old time, Thou shalt not
commit adultery : but I say unto you, Whosoever
looketh upon a woman (a married woman yvvoAxa^,)
to lust after her, hath committed adultery already
with her in his heart : and if thy right eye, by thus
looking upon a woman, shall cause thee to offend,
pluck it out and cast it from thee : for it is profitable
for thee that one of thy members should perish, and
not that thy whole body should be cast into hell'.
The sentence is primarily appropriated, and naturally
applied, to the sin of adultery, although in other
texts it may be of more general application.
The order in which our Lord, in enumerating the
various issues of the corrupted heart, arranges the
violations of the second table, is the same as that
which obtains in the Decalogue : Out of the heart
proceed evil thoughts, murders, adulteries, fornica-
tions, thefts, false witness, blasphemies*.
These declarations of our Lord sufficiently prove
bis concurrence in the sentiments of the Jews, con-
cerning the heinous sinfulness of adultery ; and not-
withstanding the mildness and benevolence of his
character and disposition, not a word or an act can
be alleged in which he palliated or extenuated its
aggravated guilt. Although he approved the faith
' vvw<x« «AA«r(i«f. Theoph. ad Autol. !• ill. s. 13. »)iX§r^m
yvfmtu. CI. Alex. Strom. 1. vii. 8. 13. Alienam mulierem. Orig.
Horn, in Gen. i. s. 17. Cf. Basil. K&>^ w^h r$v§ fuvf.
» Matt. V. 28, 29. • Matt. rv. 19.
446
of harlots and publicans, and foretold their admission
into the kingdom of heaven ^^ his judgment was
founded on the consideration of their repentance and
conversion, and it is by no means certain that he
used the word in its received and ordinary sense:
when he condescended to converse with the woman
of Samaria, he declared her condition without re-
serve, and awakened her conscience bv the freedom
and severity of his reproofs^: nor was there more
lenity in the manner in which he treated the woman
taken in adultery**. He made no objection to the
rigour of the ancient law, which punished the offence
with death ; he offered no apology for the woman^s
guilt ; if he pronounced no condemnation he deli-
vered no sentence of acquittal. He required, indeed,
as in the law of the bitter waters, that the accusers
should be pure and free from sin ; and referring them
to their own conscience, he proved their incom-
petence to appeal to the conditions of that law : he
was aware that they were tempting him, and he had
the address to defeat their attempt. When he was
left alone with the woman, when her convicted
accusers had abandoned the charge, and he was on
the point of dismissing her, he said. Neither do I
condemn thee. It was not a cause in which he was
sent to judge ; but he nevertheless added. Go, and
sin no more : evidently implying that she had been
living in sin.
Under the phrase of an adulterous generation, our
" Matt. xxi. 31, 32. See Appendix, No. I. « John iv.
7-.26. *« John viii. 1—11.
447
Saviour means to denote a very high d^ee of guilt,
whether of positive adultery or religious apostacy^.
Saint Paul speaks of whoremongers and adulterers,
whom Grod will judged thus reserving the judgment
to the Almighty ; he includes adultery among the
most heinous sins, and makes it amenable to the
heaviest judgments : Neither fornicators, nor idol-
aters, nor adulterers, nor effeminate, nor abusers of
themselves with mankind, nor thieves, nor covetous,
nor drunkards, nor revilers, nor extortioners, shall
inherit the kingdom of God^. He places it also at
the very head of the works of the flesh : Adultery,
fornication, uncleanness, lasciviousness, idolatry,
witchcraft, hatred, variance, emulations, wrath, strife,
sieditions, heresies, envyings, murders, drunkenness,
revellings, and such like, of the which I tell you
before, as I have also told you in times past, that
they who do such things shall not inherit the king-
dom of God ^. In another text he speaks not only
of God's reserving the judgment of the adulterer to
himself, but describes adultery as an act of contempt
to God, and of fraud to man, unsuitable to the holi-
ness of the Christian state: Ye know what com-
mandments we gave you by the Lord Jesus; for
this is the will of God, even your sanctification ....
that no man go beyond, transgress, or defraud his
brother in the matter, for the Lord is the avenger of
all such, as we have also forewarned you and testi-
fied*. For God hath not called us to uncleanness,
but to holiness. He therefore that despiseth, de-
* Matt. xii« 39. xvi. 4. Mark viii. 38. f^n iyfviuTHf nfMf, «( i
9§fMi fiwXtrta, CI. Alex. Strom. 1. Hi. s. 12,
' Heb. xiii. 4. ^ 1 Cor. vi. 9, 18. *» Gal. v; 19—21.
448
spiseth not man but God, who hath also given unto
ud his Holy Spirit*.
Saint James asks with indignation, Ye adulterers
and adulteresses, know ye not that the friendship of
the world is enmity with God ? Whosoever there-
fore will be the jfriend of the world is the enemy of
God^
Saint Peter speaks of profane seducers, as having
among their other sinful characters, eyes full of
adultery, and that cannot cease from sin '.
Saint John, in the Apocalypse, copies the meta*
phor of the ancient prophets, and represents apostacy
and apostates from the true religion, under the name
of adultery and adulterers.
It will hardly be disputed, that the sinfulness of
adultery, and its liability to a sentence of eternal
condemnation, are scriptural doctrines ; and that, as
scriptural doctrines, they rest upon authority which
commands the assent of the theologian, and obliges
him to maintain them without any compromise or
abatement of their rigour or simplicity. The first
fathers of the Christian Church strictly followed the
example that was before them, and when they made
mention of adultery, they classed it with the most
offensive sins ; they attached to it the most oppro-
brious epithets*"; and they exhibited, without any
compromise, its most fatal consequences. Tertul-
lian especially conceived all felsehood to be synony-
mous with adultery, and pronounced every idolater
to be an adulterer in respect of the truth '', and all
* 1 Thesg. iv. 2, 3, 6—8. Whitby in loc ^ James iv. 4.
' 2 Peter ii. 14. «" Clem. Rom. ad Cor. Ep. i. c. 30. Cf. Ep.
ii. c. 4, 6. » De Idol. s. 1 .
449
who corrupted the purity of the truth by accommo-
dating it to philosophical opinions, or by the intro-
duction of jfabulous additions, to be guilty of adul-
terating the truth^. He expatiates with extraor-
dinary force and eloquence on the sinful nature of
adultery, alleging the law of God to shew how its
guilt may be estimated according to its criminal
operation. If after the interdicted worship of the
heathen divinities and the fabrication of idols ; after
the approved veneration of the sabbath, and the
commanded piety to parents, which is second only
to that which is due unto God, the Almighty has
laid down no other fundamental rule for confirming
and recommending such precepts, besides the law.
Thou shalt not commit adultery, (for after spiritual
chastity and purity immediately follows personal
purity, which he has fortified by instantly proscrib-
ing its enemy adultery,) it will be presently under-
stood what is that fault of which God has arranged
the prohibition after iddatry. There is nothing
second to distinguish it from the first. There is
nothing so near to the first as that which is second.
That which originates in the first is itself in a certain
form the first. Therefore adultery is akin to idolatry.
For idolatry, with which the people are often re-
proached under the name of adultery and fornication,
shall be combined with it in its portion, as it is in
the series and succession of the law : it shall be
united with it in its condemnation, as it is in the
present arrangement and order of the commandments.
• Apologet. 8. 47.
VOL. I. . G g
450
The law speaks more fully ; premising, Thou sbait
not commit adultery ; it subjoins. Thou shalt not
kill. It aggravates adultery by placing it before
murder. In the very front of the moat holy law, in
the first title of the heavenly proclamation, it is dis-
tinguished by being proscribed before the principal
sins, the character of each of which may be ascer-
tained by its position, its state from its order, its
merit from its company. It is the dignity of evil to
be placed at the head or in the midst of the worst
offences. I observe, ^s it were, the procession and
throne of adultery, idolatry leading the way, and
murder following as a companion and attendant, and
adultery herself sitting down, as without doubt she
is worthy, between the most elevated summits of
crime, in the middle of which she has seized pos-
session of the vacant throne, with the just authority
of guilt. Who, when she is surrounded by such
attendants, when her body is thus propped up. and
supported, who will tear her from the train of b^r
adherents, from the connexion of neighbouring crimes,
from the embrace of kindred sins ; or detach her
from them, and place her separately and by herself,
to bear the fruit of repentance ? Will not idolatry
on one side, and murder on the other, hold her back
and detain her ? Aqd if they h^ve a voice, will they
not exclaim in her defence, This it is that as a wedge
binds us together and consolidates us. . We measure
ourselves from adultery : we are combined by her
that is placed between us, and alone divides us : we
wait with adulation upon her that is elevated between
us: the divine Scripture hath bound us into one
451
bocly : the letter of Scripture is our bond of union :
nor has she power without us. I, Idolatry, admiRister
the most common occasion of adultery : my groVes,
and my htHs, and my fountains, and my temples in
the city, know of what modesty I procure the de-
struction. I, Murder, also labour in the work of
adultery ; I make no allusion to the Tragedies ; to-*
day the makers of poison know, the sorcerers know,
how many seductions I avenge ; how many jea-
lousies and rivalries I cut off; how many guardians,
how many accusers, how many witnesses to the
deed I take away: the midwives also know how
' many conceptions of adultery are slain. Even
among Christians there is no adultery without us.
Idolatries are there, wherever is the work of the
spirit of impurity : murder is also there, wherever
man is polluted and dlain. Wherefore the aid of
penitence will not be appropriate to them, or it y^iU
be appropriate to us also. We either detain her or
we follow her. These are words which facts them-
selves deliver. If facts themselves cannot speak, yet
there stands the idolater, there the murderer: be-
tween them stands' the adulterer also. In the office
of penitence they equally sit in sackcloth, and be-
come squalid in ashes : they groan with the same
breath ; they supplicate with the Same prayem*; they
prostrate themselves upon the same knees ; they in-
voke the same mother. What art thou doing, most
mild and gentle discijiline ?' Thou oughtest tb be
such to all; for Blessed are the peacemakers: or if
not such to all, thou shouldst be on our side. Thou
dost indeed condemn the idolater and the homicide ;
dost thou except the adulterer who is between them ?
452
him, who follows the idolater, who guides the adul«
terer, who is the colleague of both p?
In the Apostolical Constitutions the guilt of adul-
tery is denounced, because it divides the unity which
God hath consolidated' in marriage^: and the author
of the Clementina is, with other primitive writers,
earnest in recommending early marriages, that the
fervour of passion may not be kindled into a flame,
or, by occasion of fornication or adultery, bring a
pestilence upon the Church ; for beyond every other
sin, the impiety of adultery is abhorred by God, for
it not only slays the offender, but all who are ac-
quainted and converse with him ; for it is like a
pestilence, and has a natural power of spreading its
own mania, and involving all in the guilt of the
adultery, which God hath pronounced to be very
heinous, and is so great, that the second penalty is
annexed to it, the first being due to those that live in
error. Fornication is adjudged by God to be very
aggravated ; there are many sorts of it, but the first
is adultery, a great evil ; and it is so contrary to the
Christian discipline, that they who are guilty of it
separate themselves, and are separated, from the
communion of the faithful ; and that, like apostates
to heathenism, incited by the devil, and conceiving
in concert things which are not lawful, they perish
under a charge of adultery, and are excluded firom
the kingdom of heaven'.
Origen quaintly calls adultery the money of the
devil, bearing his image and superscription, and pro-
p De Pudicit. s. 5. *i Const Apostol. 1. vii. c. 2.
' Epbt. Clem, ad Jac. s. 7, 8. Clement. Horn. iii. c. 68, 69, 8.
453
eeeding from his mint. Thou hast committed adul-
tery : thou hast received the coin of the devil. With
this coin he purchases whom he does purchase, and
secures to himself the service of all who receive ever
so small a sum of this revenue*. He justly remarks,
that no man can commit adultery alone, without
having an adulteress, the associate and partper of his
offence: and although more are not required, it is
necessary that some man or some woman should
minister in the participation of the offence, and all
who are concerned in it derive their injurious nativity
from their father the devilS In another place he
supposes, that prayer would in vain be offered for
the forgiveness of adultery, and disputes the preten-
sions of such as took upon themselves to pardon
idolatry, and to remit the guilt of adultery and forni-
cation, as if even the sin unto death might be ab-
solved by their prayer in favour of the men who had
dared to do such wickedness ".
But it is in vain to ntiultiply authorities, or to
collect proof of the rigorous and uncompromising
severity with which adultery was denounced in the
primitive Church. The Christian and the divine
need not to be convinced of its sinful character ; and
it is necessary to take a more popular view of its
accumulated guilt, for the satisfaction of such as are
more accustomed to hear the palliations and ex-
tenuations of vice, than the strictness of the sacred
law, and are wont to contend, that the merits of
* Id Exod. Horn. vi. s. 9. ^ Ibid. Horn. viii. 8. 6.
^ De Orat. s. 28. So he says that the adulterer Amv i^ytv
s'{«TTti JMMMF. De Rect. in Deum Fide, sect. 4.
GgS
454
adultery caunot be appreciated without a large ac-
quaintance with the world ; that its several bearings
cannot be traced in the doset of the theologian ; or
be defined by religious authorities ; by the rules of
Christian duty ; or the conditions of the judgofient
toconoe.
It is not the Scripture, or Christian antiquity,
alone which has appropriated adultery to the figura-
tive description of what is false in religious doctrine
and practice: the metaphor has been readily adopted
into the language of men, and the name of adul-
terated has been attached to every thing which is
base and counterfeit, and perverted by art from its
proper and genuine use and condition. The meta-
phor stamps the infamy of the crime ; it proves it to
be the consummation of fi^ud.
Adultery cannot be perpetrated without peijury,
without a violation of that solemn engagement in
which a married person has bound himself to an-
other in the presence of witnesses, and with an
earnest acyuration of the Deity in attestation of his
vows. It is upon this account that the prophet
Malachi calls the Lord a witness between a maq
and the wife of his youth, and infers the guilt of
dealing treacherousfly with her^. If marriage be
thus considered in the light of a religious vow, adul-
tery cannot be committed without perjury, and the
perjury is not the more venial because the oath is
administered by a minister, and not by a magistrate.
'^ No person can doubt, that adultery is a crime of
a most iflagrant nature, involving too that of perjury,
' Ma!, ii. 14, 15.
455
in addition to its otherwise heinous guilt ; and so, in
every point of view, a gross violation of the laws
both of God and imn^.V If both parties are mar^
ried, the peijury is committed by both: if the
seduced pierson is married, and the seducer is uii->
marriedi there is on the one side actual peijury, and
on the other subornation of perjury* These are not
venial offences even in the judgment and estimation
of men ; they are sins which God hath declared that
he will not hold guiltless ; and while the spirit of
honour consists in an exact fulfilment of the word
of promise, it is folly to call the adulterer an honour-
able man : it is a solecism in tnorals to suppose that
the man who is guilty of perjury can be innocent of
crime.
The condition of a whofe is a condition of shame,
and infamy, and vice, which no nian Will attempt to
palliate or excu^ : the merest voluptuary seeks re^
tirement in his debaucheries, aiid ventures not to
speak of them but in the most profligate society.
Is the condition of the adulterer and th^ adulteress
a condition less pregnant with ignominy^ or tiior6
capable of vindication and defence? What is the
end and object of adultery, but the gratification of
the basest, the most depraved, and merely animai
passion ? the indulgence of the most selfish desire
with the least consideration of what is reasonable,
honourable, generous, and humane ? the accomplish-
ment of the most nefarious purpose, by means the
most degraded and degrading, by fraud, treachery,
and disguise ? ^^ What," asked Lord Eldon in a tone
^ FerguBBon's Reports, p. 350.
Gg4
456
of virtuous indignation, ^^ what was the plain £ng-
lish .of all the cant which he heard respecting the
honourable intentions of the adulterer in proposing
to marry the woman whom he had seduced ? Could
any form of words, any ingenuity of mind, any
power of eloquence, conjure up for a single moment
what would serve to throw a ray of true honour on
the seducer of the married woman ? Such a man
ought to be hunted from society, as its bitterest
enemy ; as the inveterate foe of morality ; the malig-
nant fiend, whose purpose it was to undermine pri-
vate happiness wherever he found it, as the surest
means of destroying all public virtue'.^^
In what character does the adulterer address the
adulteress ? Each would loathe and abhor the other,
if the guilty passion were unequivocally avowed, and
the act of adultery were contemplated without re-
serve. It is by the practice of the most consummate
hypocrisy that the virtue of the man is tempted, or
the constancy of the woman is overcome. The
overture commences with professions of respect,
which the end belies; and is carried on by insi-
nuations of love, which cannot be more than brutal
appetite ; by promises of immunity and protection,
which it is impossible to realize ; and by the wanton
suggestion a^d unjust excitement of suspicions, jea-
lousies, and aversions from the proper object of
aJBTection. " He,^^ said Lord Mulgrave, " would be
a clumsy man of intrigue indeed, who should b^in
his attempt to obtain the fevours of a woman by
offering her marriage after she should have consented
* Woodfairs Pari. Rep. vol. xx. p. 317.
457
to violate the solemn vow she stood pledged to in
the sight of God. No; his weapons would be
flattery of her understanding, depreciation of that of
her husband, insinuation of his own superior. mind
and talents, and exaggerated pictures of the fanciful
prospect of avoiding detection, accompanied with
the most earnest protestations of eternal constancy
on his part, and the most alluring representations of
the happiness she had in her power to maintain and
continue to enjoy in his company and attentions'/^
When by these means the mind and moral principle
are debauched, and compliance and consent are ex-
torted by a complication of lies and deception, for
which there is no adequate name: what is the tri-
umph which is achieved, but the possession of the
most abandoned of the sex, of a woman whom a
man would blush to call his wife, his daughter, his
mother, his sister, or even his acquaintance ? If, in
the moment of their perpetrated crime, the adulterer
and the adulteress could weigh the character of each
other with a clear and unbiassed judgment, it is hard
to conceive the terror with which the woman would
behold the author of her ruin, or the scorn and
aversion which the man would feel to the base pol-
luted victim of debauchery ; in what an instant the
mutual delusion would vanish, and love be turned
into loathing, and the professions of ardent admira-
tion into a feeling of the deepest abhorrence and
disgust.
The fraud upon the offending woman has no
parallel but the fraud upon the injured man. The
* WoodfaU*8 Pari. Rep. vol. xx. p. 314.
458
adulterer frequently enters the house of the husband
in the guise and character of a friend* While the
duties of that sacred relation require him to commu*
nicate any suspicions which he may have reason to
entertain of the inconstancy of the wife, he is deceiv-
ing his friend, and abusing his confidence, at the
time that he is debauching his wife, and destroying
his best and dearest interests. If his friend^s suspi^
cions are excited, and he is forbidden access to the
house, there is no artifice to which he will not resort,
there is no occasion of which he will not avail him-
self, for the accomplishment of his dissolute design.
Adultery includes the crime of seduction ; and
*' the seducer practises the same stratagems to draw
a woman's person into his power, that a swindler
does to get possession of your goods or money ;
yet the law of honour, which abhors deceit, applauds
the address of a successful intrigue. So much is
this capricious rule guided by names, and with such
facility does it accommodate itself to the pleasures
and conveniency of higher life.
'< Seduction is seldom accomplished without fraud,
and the fi*aud is by so much more criminal than
other frauds, as the injury effected by it is greater,
continues longer, and less admits of reparation^.''
If injuries are to be estimated by their mischievous
effects, there is no injury more aggravated than adul-
tery. It is the irretrievable ruin of the woman ; it
contaminates her family with a taint which the jea-
lousy of a brother's honour will' make tb^ last sacri-
fice to remove ; which throws suspicion on a sister's
^ Paley's Moral PhU. b. m. e. 3.
459
purity ; wbicb brings a parent's bairs with sorrow to
the grave. It inflicts upon domestic peace a wound
which no balm can hea)^ wbicb no oil can assuage :
it destroys the name and relation of husband and
of wife: it too often weakens the obhgations of
parental love. When the aduherer is the father, and
the adulteress the mother, of a family, what is not
the injury which that family sustains, from the act,
firom the example^ from the loss of natural protection
and advice ? *^ The children are generally involved
in their parents^ shame, and always made unhappy
by their quarrel/^ The injury which is done to the
wife is more than reflected upon the children; and
it was the just remonstrance of an injured husband,
that the adulterer had offended against his wife and
against his children^. When the adulteress is sepa-
rated from her husband, her children are deprived of
a motber^s care, and abandoned by the parent who
should have protected and instructed their infant
years ; they are impressed with a secret abhorrence
and shame of a mother whom it was their first duty
to love and to honour. Even their father's affections
are abated, firom a recollection of their mother's
wrong, and often transferred to another wife, and
another family. There is the permanent exhibitioo
of an example, which may be made the pretence for
crime; there is an imputation upon the hereditary
character, which may produce a recklessness of of*
fence, which the most unsullied purity shall not be
able to obliterate, and und^ which the hand of the
^ Lysiae vti^ t«v E^mr$a'itHvt ^$nv «ir«A«yi«. ed. Taylor, p. &
460
daughter shall be spurned, and the sin of the mother
be visited on the child.
The injury which adultery *^ inflicts on the hus-
band and the children are beautifully but painfully
stated by an excellent American writer to be such
as numbers cannot calculate, and tongue cannot
describe. The husband is forced to behold his wife,
once beloved beyond expression, not less affectionate
than beloved, and hitherto untarnished even with
suspicion, now corrupted by fraud, circumvention,
and villainy ; seduced from truth, virtue, and hope ;
and voluntarily consigned to irretrievable ruin. His
prospects of enjoyment, and even of comfort, in the
present world are overcast with the blackness of
darkness. Life to him is changed into lingering
death ; his house is turned into an empty, dreary
cavern. Himself is widowed, his children are or-
phans, robbed of all their peculiar blessings, the
blessing of maternal care and tenderness, the rich
blessing of maternal instruction and government, the
delightful and persuasive blessing of maternal exam-
ple: and this, not by the righteous providence of
God, but by the murderous villainy of man. Clouded
with woe, and. hung round with despair, his soul
becomes a charnel house, where life, and peace, and
comfort, have expired; a tomb, dark and hollow,
covering the remains of departed enjoyment, and
opening no more to the entrance of the living^/'
No man, who has the heart to contemplate the
perfection of domestic happiness, can be at a loss
^ Tebbs's Essay od the Scripture Doctrines of Adultery and
Divorce, p. 222.
461
*• to determine what would be the greatest injury
which human malice could devise against it, if it
were in the power of malice to execute every atro-
city which it might conceive. It would be that
very injury which the adulterer perpetrates^ the crime
of himy who can see all this happiness, and can say
in his heart, This happiness shall last no longer.
A time may indeed come, when, if his artifices be
successful, this happiness will exist no more : when
she who was once as innocent as she was happy,
shall have been consigned to that remorse which is
to hurry her, too slowly for her own wishes, to the
grave ; and when the home which' she has deserted
shall be a place of wretchedness and desolation;
where there is one miserable being who knows his
misery, and others who still smile while they en-
quire anxiously, with a sort of fearful wonder, for
the presence of her whose caresses they no longer
enjoy, and are as yet ignorant that a time is to
arrive, when they are to blush at the very name of
her, to whose knee and embrace of fondness they are
longing to return «
..." And of all this mass of wretchedness which
the adulterer produces, and of all the iniquity which,
can calmly meditate and plan such wretchedness,
what is the palliation which he assigns ? It is the
violence of his love alone which he pleads. He is not
aware what aggravation there is of his guilt, in that
which he regards, or professes to regard, as the
apology of it. If by love he means mere sexual ap-
petite, his excuse is of the same kind as that of the
common robber, who should think that he has given
a moral justification of his rapacity, by describing
46^2
the debaucheries which it enables him to pursue, and
the difficulty which, without his thefts, be should
fisel in visiting as frequently the tavern and the bro-
thel. And if by the love which is asserted be mean^t
an affection more worthy of that name, what are we
to think of the sincerity of his love^ vrho, to gratify
his own lust, is eager to plunge into gtnitt and
wretchedness the very being whom he professes to
r^^ard with an interest which should have led him^,
if sincere, to expose himself to every thing but guilt,
to save her from misery like that which he is inten-
tionally preparing for her? To speak of aflfection,
therefore, or of feelings to which he dares to give
the name of affection, is on his part to double his
crin^. It is to confess, that while he is not merely
regardless of the happiness of the husband whom he
robs, but equally regardless of the happiness of her
of whom he robs him ; he is as completely and
brutally selfish in his love as he would be id his
indifference or in his haired: and that the peace
and virtue, smd honour, of the being whom he pro-
fesses to regard as the dearest to him in existence^
are therefore as nothing, when he must either sacri-
fice them^ or make a sacrifice, which is far more
painful to him, of one of his own desires*/'
Adultery is strangely represented by the law of
England as an act of trespass vi et arfj/tis; and if the
extent of injury bear any proportion to the force and
violence which is offered to the will and affections of
the person who is injured, it is certain that adultery
• Brown's Lectures on the Philosophy of the Human Mind.
Lect. Ixxxiv.
463
is the consumfnation of wrong. There la no injury
which a man would be more unwilling to sustain, or
more anxious to avert : it is a wrong which a man
dares not even to contemplate, to which he cannot
bring hiihself to assent, in which the laws of society
uMll not permit him to connive with impunity : or if
there be any man in a civilized country, so debased
in heart and mind, as to prostitute the honour of his
wife, and to make himself the partner of her shame,
he is deprived of all title to legal redress, as a man
who is not susceptible of injury ; the finger of scorn
is pointed at him, and he bears a name of reproach
which none can tolerate but the effeminate Italian.
The wrong of adultery is such as almost justifies the
extremities of resentment : and although fraud, and
robbery, and libel, may be overlooked and pardoned,
the crime of the adulterer may not be compromised.
It was one of the proverbs of the wise king of Israel,
Whoso committeth adultery with, a woman lacketh
understanding : he that doeth it destroyeth his own
souL A wound and dishonour shall he get, and his
reproadi shall not be wiped away : for jealousy is
the rage of a man ; therefore will he not spare in the
day of vengeance. He will not regard any ranscnn,
neither will he rest content, though thou givest many
gifts^ It has been already shewn, that in the ar-
rangement of the sacred Scriptures, and in the argo-
ment of the primitive writers, murder and advltery
are kindred crimes : and instances have been allied,
in which murder has been meditated in preference to
adultery. It is not intended to take any advantage
' Prov. vi. 32—35.
464
of this argument, but in proof of the general sense of
the guilt of adultery ; which is further proved, as th^
divine arrangement of the crimes is justified, by the
common immunity afforded to men who have taken
upon themselves to avenge their own wrongs, and
who, if they have not been protected by the express
sanction of the law, have been acquitted upon their
trial before the public tribunals. The liability of
the adulterer to private revenge, was the rule, not
only of Athens and of Rome, and of other nations of
the heathen world : it was sanctioned by the express
law of the emperor Justinian ; and even under the
law of England it is all but authorized, under the
name of justifiable homicide. Can there be stronger
proof of the guilt, than is found in the penal retri-
bution ?
If the appeal were made to the golden rule of
Christianity, and the judgments of men could be
collected from their own sense of injury, there is not
a father, a brother, a son, or a husband, who would
not instantly agree in deprecating, above all other
wrongs, the adultery of her whom they severally hold
most dear, the adultery of their sisters; their daugh-
ters, their mothers, and their wives. The judgment
of mankind in secret, and their voice in pubUc,
would be instantly raised in denouncing the offence
of the adulterer.
It is the dangerous hypothesis of some who suffer
themselves to make distinctions in vice, that adul-
tery is more aggravated in women than in men ; and
it is certain that chastity is the chief honour in wo-
men, that the loss of it is synonymous with complete
depravity, and that the purity of pedigree and descent
465
depends upon the constancy and virtue of the wife.
But as a sin and transgression of the divine law,
adultery is not palliated, it cannot be aggravated, by
the distinctions of sex : and in reference to the divine
judgments, it is equally criminal and equally penal
in the man and in the woman. The man that com-
mitteth adultery with another man^s wife, even he
that committeth adultery with his neighbour's wife,
the adulterer and the adulteress shall be surely put
to deaths. It is remarkable also that our Lord, in
commenting upon the original prohibition of adul-
teiy, contemplates chiefly the offence of the man :
Whosoever looketh upon a married woman, to lust
after her, hath committed adultery with her alread}'
in his heart ^. He contemplates the same result in
a man's marrying a woman that is divorced ^
It was worthy of the passing wisdom of the civil
law, that by too strict an adherence to the etymology
of the word, derived from the criminal access to
another's bed, {ad alterius torum,) the offence of
adultery was restricted to the woman, and no notice
was taken of the intercourse of a married man with
an unmarried woman. Hence arose the distinction
between double and single adultery ; the former
committed when both the parties were married, the
latter when the one was single. This restriction
was evidently founded on the prevailing notion of
a man's property in his wife, as it was opposed to
the scriptural notion of marriage and adultery, and
to the equal obligation to chastity in the man and
» Levit. XX. 10. •' Matt. v. 28. » Matt. v. 32. xix.
9. Luke xvi. 18.
VOL. I. H h
4GG
the woman, and called forth the strong protest of the
Christian fathers, on the difference between the
laws of Caesar and of Christ, of Papinianus and of
Paul^
The notion of adultery is so far restricted to mar-
riage, that there is no adultery where there is no
marriage. But if a single man debauches a married
woman, it will be generally admitted that his celi-
bacy does not excuse him from the charge of adul-
tery ; and parity of reason requires, that if a married
man has criminal intercourse with any other woman
than his wife, he is guilty of adultery, whether the
woman is married or unmarried. The woman is
guilty of adultery in respect of the man's wife : and
there is in adultery such a reciprocity or common
participation of crime, that it is impossible that the
one should be guilty and the other innocent: the
charge must attach to both or to neither. The
offence is quite independent of the Latin etymo->
logy: its entire essence is the violation of conjugal
faith.
It was the argument of the amiable and accom-
plished Lactantius, that the man who has a wife
should not have in addition either a slave or a free
woman. For it is not, as under the rule of the
public law, the woman, who has another beside her
husband, that i9 alone guilty, while the man who has
other women besides his wife, is acquitted of the
charge of adultery : the law of God has combined
the two in matrimony, as into one body ; with such
equal rights, that the man is held to be an adulterer
" Hieron. Ep. ad Oceanum. apud Gerhard.
467
who shall divide the union of that body. . . . Fidelity
is therefore to be observed by both parties; ot
rather, the wife should be instructed in chastity by
the example of the husband^s virtue. It is unjust
to demand that debt of a wife which the husband
neglects to pay. Such iniquity has been the cause
of adultery, when the wife has been impatient of
rendering fidelity to a husband who exhibits no
return of affection. Nor is there any adulteress so
abandoned and unprincipled, as not to plead, in ex-
tenuation of her fault, that she does not commit the
original injury, but only retaliates. This is the excellent
observation of Quintilian, when he says. The man
who does not abstain from another^s marriage, ceases
to be the guardian of his own : for between these
things there subsists a natural and mutual connexion.
When the husband is occupied in the seduction of
another man^s wife, he can have no leisure for the
cultivation of domestic sanctity: and the wife who
falls into such a marriage, is provoked by the ex-
ample which she thinks herself at liberty to imitate
or avenge'.
Gregory of Nazianzum also objects to the received
law, that men were the legislators, and that therefore
the law was not in favour of women '°.
Jerome argues on the same principle with Lac-
tantius, that whatever is prescribed to men refers by
consequence to women. Among Christians, what-
ever is unlawful to women is equally unlawful to
men ; and the same service is held upon equal con-
ditions".
' DiT. Inst. 1. vi. c. 23. "* Orat. ad Virg. apud Gerhard.
■ Ep. ad Ocean. Ibid.
H h 2
468
Ambrose, also maintains, that no man should de-
rive a, false security from the laws of men. All
whoredom is adultery, nor is that lawful in the man,
which is unlawful in the woman. The same chas-
tity is owing from the husband, as is owing from the
wife. Whatever is committed with a woman, who
is not a lawful wife, is liable to the charge of
adultery**.
Augustin complains, that men are offended at the
suggestion, that adulterers should suffer the saooe
punishment as adulteresses, when they ought to be
punished the more severely, as they are the more
concerned to excel in virtue, and to rule their wives
by their example p. He also admonishes such as are
about to marry, to preserve themselves in purity for
their wives. Such as you wish to find them, let
them find you. Who that would marry, does not
require chastity in his wife, and the purity of a virgin
bride ? Do you desire purity ? Be pure. Chastity ?
Be chaste. The woman has no power which you
do not possess ''.
In answer to the reciprocal claims of conjugal
fidelity, which are stated with more force than might
be expected from the writers of the fourth century,
and in favour of the alleged aggravation of adultery
in the woman, it is common to object the danger of
a surreptitious issue. But the essence of adultery
consists in the actual violation of conjugal faith, not
in the adventitious result, on the occurrence of which
no man would rest the guilt of adultery. Thus to
<» De Abrah. 1. i. Ibid. ^^ De Adulierin. Conjug. 1. ii. Ibid.
•» Serm. xlvi. De Verb. Dom. Ibid.
46»
leave the offence in a precarious dependence on the
proof, would be to revive the exploded doctrine of a
false philosophy', that there is no evil in the adultery
which is unknown or unheeded : nor in any candid
or ingenuous judgment is the tree which bears the
bastard fruit more in. fault than the hand which
inserts the vicious graft, without which the tree
would be fruitless, or would bear its proper fruit.
In the very highest case, which relates to the danger
of a spurious issue, and in the memorable interpre-
tation of the singular law which pronounces adultery
committed with the Queen of England, or the
Princess of WaleSy to be high treason, the woman
is regarded, not as the principal, but the accessary ;
so that if the adulterer be a foreigner, owing no
allegiance, the treason is incomplete, and the capital
punishment is avoided. It is an obvious conclusion
from this interpretation, that if the accessary is not
more guilty than the principal, the adulterer is not
more innocent than the adulteress. In the more
ordinary practice of the English law, it is not the
danger of a supposititious issue, but the loss of a
wife^s society, which is the ground of the action for
criminal conversation ; and if guilt is to be estimated
by injury, it might be difficult to shew in what
respect the loss of a husband^s protection is less
injurious than the loss of a wife's society. It is
certainly no common injury which the wife sustains
in the preference shewn to a prostituted rival ; in
' Compare Origen c. Celsum, 1. vii. s. 63. where he specifies
the several motives of the Greek philosophers in refraining from
adultery.
uh 3
470
the alienation of a husband^s favour; in the slight of
her own fond affect ron ; the spretas injuria Jbrmce ; the
impoverished provision for her children ; the destruc-
tion of all domestic comfort ; and the reduction to a
state the most trying and delicate ; in which her con-
duct will be weighed with the keenest jealousy and sus-
picion ; in which her character can only be sustained
by the severest and most inflexible rectitude, and the
most religious circumspection ; in which she is ex-
posed to the most powerful temptation from the arts
of seduction, and the passion of revenge ; in which
»the virtues of the wife must rise in proportion to the
vices of the husband ; and from which the partiality
of the law refuses to release the wife, while it is too
ready to redress the injury of the husband, and per-
mits her '^ either to be cast off at his pleasure, or com-
pelled to suffer the last wrongs of a wife, of remaining
the helpless and neglected witness of his infidelity.
ultimum est nuptss malum
Palam mariti possidens pellex domum. Seneca*.'^
The opinion therefore which would aggravate the
guilt of the adulteress fails to palliate the guilt of the
adulterer. However in the partial judgments of
men the adulterer may be acquitted, and the adul-
teress condemned ; however the one may be received
without a blush into society, while the other is
shunned, and forced, at least for a time, into a
wholesome seclusion, there is a law which com-
prehends both the adulterer and the adulteress in
equal guilt : or however in practical experience the
• Qu. Rev. xlix. p. 252.
471
adulterer, as the seducer, or as the man more capable
of resisting the seduction, is the more criminal, it is
hazardous to make distinction in crimes of which
the guilt admits of no apology, and of which the
final doom, if it be not prevented, is incapable of
aggravation.
. In proof of the aggravated sinfulness and criminal
character of adultery it has been shewn, that, before
the delivery of any written law, God took upon
himself the punishment of this offence, and in va-
rious cases pronounced or inflicted an immediate
and extraordinary judgment on the offender. It will
be proper now to renew the consideration of the
several laws which have proceeded upon this prece-
dent to regulate the punishment of the offence in
different ages, and in different countries, more or
less improved by civilization and religious know-
ledge, and to collect additional evidence of the na-
ture of the crime from the nature of the punishment.
When the law was delivered to Moses, adultery
was made a capital offence in both parties, and the
divine judgment was expressly committed to the
mediation and administration of men: The man that
committeth adultery with another man^s wife^ even
he that committeth adultery with his neighbour's
wife, the adulterer and the adulteress shall surely be
put to death*. It was the remark of Origen, that
the prohibition and the penalty were delivered at
different periods ; the one originating in a father's
love, and designed to attract a pious and affectionate
compliance ; the other denounced upon such as de-
' Lev. XX. 10. Patrick in loc.
H h 4
472
spised that lore, and drew down upon theiiiselre9
tbe rigour of the law.^ The law was precise and
definite: it admitted no evasion, no mediation, no
compassion. When tbe crime was proved, nothing
remained but to carry tbe judgment into execution'.
The only variation was in the manner of tbe punish-*
ment, which was inflicted separately on tbe man and
the woman, that even their death might not be com-
mon'. If the daughter of a priest committed adul*
tery, she was to be burned, and tbe adulterer, as the
Jews interpret the law, was to be strangled^. If the
adultery was committed with a virgin espoused, but
not married, both parties were to be stoned by the
express words of the law, and the satisfaction of the
ardent passion of the lover is the reason assigned for
this extreme severity*. If the adultery was com-
mitted with a married woman, the parties, according
to the Jewish interpretation, were to be strangled ;
i. e. they were to be buried to their knees in dung,,
and, while they were in this position, a napkin was
placed round the neck, and drawn tightly at both
ends, until death ensued*^. The milder penalty of
strangling was considered a sufficient fulfilment of
the sentence of the law, when its rigour was not
enforced by the addition. Their blood shall be upon
them, which was explained of the more painful death
by stoning. It is the severer death however which
is denounced upon Jerusalem as an adulteress, by
the prophet Ezekiel, in the name of the Lord : I
»* Orig. in Lev. Horn. xi. s. 2.' « CI. Alex. Strom. 1. ii. s. ult.
y Lev. xxi. 9. Ainsworth, Patrick in loc. * Deut. xxii. 23.
' Patrick in Lev. xx. 10.
473
will judge thee as women that break wedlock are
judged: they shall strip thee of thy clothes, and
stone thee with stones^. The Jews also, in the time
of our Lord, and in the case of the woman taken in
adultery^, recite the commandment of Moses that
such should be stoned. This was however no more
than the popular opinion of the age, and the different
interpretations may be reconciled according to the
suggestion of Grotius, by supposing that the in-
creased prevalence of adultery called for the infliction
of the heavier penalty^.
These penalties were appropriated to cases of
adultery in which the offence was clearly and dis-
tinctly proved. In more doubtful cases, in which
the husband suspected the guilt of the wife, but
could bring no other proof to justify his suspicions,
than that the woman had been secreted with a man,
with whom she was forbidden to associate, the trial
by the waters of jealousy was provided, and God
permitted an extraordinary appeal to be made to
himself according to a ritual which is prescribed^.
If the woman, under the apprehension of this ordeal,
confessed her guilt, she was discharged, with no
other penalty than the loss of her dowry. If she
persisted in maintaining her innocence, and had the
confidence to appeal to the Deity in her vindication,
she was to be brought to the door of the congrega-
tion, and the priest, after various ceremonies suited
to her condition, and a form of imprecation which,
was prescribed, and which the woman in the most
*» Ezek. xvi. 38, 40. * « John viii. 5. ^ Lowth in Ezek.
xvi. 40. «Numb. V. 11-^31.
474
solemn manner appropriated to herself, caused her to
drink the bitter water, which, if she was guilty,
caused her death ; and it ws^ the received opinion
of the Jews, that the adulterer also died, at the same
time, and in the same manner. If the woman was
innocent, the waters had no eiSect : and their power
was also suspended, if the husband was guilty of
adultery, for his marital integrity, or guiltlessness from
iniquity, was a principal condition of the divine
interposition in his favour. If the woman, after her
acquittal, should be again suspected of a criminal
intercourse with the same man, she could not be
again submitted to the same trial, nor was she liable
to any punishment except divorce, with the loss of
dowry. The trial might however be repeated, if the
woman was married to another husband, or was
suspected of intimacy with another man. This was
to the husband a permissive, not a preceptive, law,
and, during the long continuance of its duration,
God shewed himself at once the protector of the in-
nocent, and the judge of the guilty : and while he
punished the adulteress by an extraordinary interpo-
sition of his power, he resisted the vain surmises of
jealousy, and suffered not the unfaithful husband to
revel in impunity, or to obtain the redress which he
desired. The prophet Hosea is supposed to allude
to a judicial suspension of the pow^ of the bitter
waters in the refusal of the Lord to punish the
Jewish wives when they should commit adultery'.
Our Lord also, in the case of the woman taken in
adultery, in the posture of his body, in the action of
' Ho8. iv. 14.
475
writing on the ground, and in bis allusion to the
sinless character of the accusers, has been shewn to
act in strict conformity with the law of the bitter
waters K. In his time the trial was inoperative, and
the Jews, conscious that the failure of the trial was
to be imputed to the prevalence of adultery, pro-
hibited the appeal to the ordeal, and suffered not the
sacred tetragrammaton to be invoked in vain. This
law, most extraordinary in all its parts, was a strong
proof of the divine legation of Moses, who, without
an immediate revelation from the Deity, would never
have indited the provisions of a law which involved
no less than the promise of a perpetual miracle, of
the operation and suspension of such extraordinary
power and knowledge as proved the immediate in-
terposition of God in the minutest affairs of the
Jewish people, maintaining the authority of his
laws by the judicial suppression or visitation of
crime. When this law was finally superseded, if
any man^s wife excited his jealousy and suspicion,
by secretly keeping company with another man, he
might no more use her as his wife, and her dowry
was forfeited^.
In the latter times of the Jewish state, when, from
the prevalence of the crime, and also from the subject
condition of the people, the capital punishment was
impracticable, other penalties, and some of a very
strange nature, were substituted. ^^ Extraordinary
fasting was one, and indeed might well enough be
expected : but who, except the Rabbins, could have
< See Ligbtfoot Hor. Hebr. in John viii. 6. ** Patrick and
Ainsworth on Num. v. Ux. Ebr. 1. ill. c. 13. Tebbs*s Essayi s. 1.
476r
thought of exposing the adulterer paked, if it were
summer, to the flies and wasps, and of steeping him
for a certain period, if it were winter, in cold water,
up to the chin* ?*^
In the countries adjacent to Judea, which may
have derived a casual instruction from the law of the
Jews, adultery was by no means a venial offence.
Abimelech the king of Gerar, and Pharaoh the
king of Egypt, were threatened with death if they
attempted the virtue of Sarah ; Joseph also was
thrown into prison upon the false accusation of the
wife of Potiphar: and by the ancient laws of S^-
sostris, the adulterer and the adulteress were burned
alive. In a later age, adultery by consent was pu-
nished in the man with a thousand stripes, in the
woman by the loss of her nose^.
The prophet Jeremiah has left a record of the ex-
treme punishment of adultery in Babylon : The
Lord make thee like Zedekiah and like Ahab, whom
the king of Babylon roasted in the fire, because they
committed adultery with their neighbour's wife*.
This punishment is explained of being roasted by a
gentle' fire; and it is maintained in the traditions of
the Jews, that the persons thus punished were the
elders, who attempted the chastity of Susannah.
In ancient Armenia the adulterer was put to death
as an enemy, not for the simple fact of the adul-
' tery, but from its tendency to deprive the husband
of the affections of his wife".
' Nuptise Sacr»» or an Inquiry into the Scriptural Doctrine of
Marriage and Divorce, p. 10.
^ Uz. Ebr. 1. iii. c. 12. i Jer. xxix. 22, 23. Lowth in loc.
"^ Xen. Cyrop. 1. iiL c. 1 .
477
In Greece, in times of remote antiquity, it is pro-
"bable that the husband of the adulteress sought his
own revenge, as in the fabulous legends of Atreus
and Phasis. The language which Homer" has put
into the mouth of Hector, that a coat of stone would
be a proper recompence of the deeds of Paris, has
been thought to imply that the adulterer might be
8toned to death. The Trojan war was no more than
an act of private vengeance upon adultery, consi-
dered chiefly as an invasion of property, and was
carried on for the recovery of the dower**. Upon
the same principle rich adulterers had the liberty of
redeeming themselves by a fine, called i^^x^yq^ and
paid to the husband of the adulteress : the woman's
father also returned to the husband the dower which
be had received of him, and for which he was in-
demnified by the payment of the adulterer. Another
punishment was the loss of sight, a retaliation upon
the sense which was supposed to admit the .first
incentive of unlawful passion. This punishment
was retained in a later age among the Locrians,
whose legislator, Zaieucus, having detected his son
in adultery, and refusing to remit any part of the
punishment, at length consented to redeem an eye
of his son with one of his own eyes; thus exhibiting
an extraordinary example of the rigour of justice,
and of the earnestness of paternal affection p.
In Crete, in token of the effeminacy of their
character, adulterers were clothed in wool, and con-
ducted in that dress to the house of the magistrate,
■ II. y. V. 57. ° MUlar's Origin of Ranks, p. 69. p Pot-
ter's Antiq. b. iv. c. 12.
478
who passed on them a sentence of ignominy, which
deprived them of their civil privileges, and of all
share in the pubUc administration^.
In the simple manners of the ancient Spartans,
either adultery and its punishment were unknown,
or the severity of the penalty prevented the of-
fence ""^
Among the Athenians the punishment of adultery
was originally arbitrary, and with the exception of
death, left to the discretion of the magistrates. Thus
the Archon Hippomanes, having detected his daugh-
ter in adultery, yoked her with the adulterer to a
chariot, until the man died, when he confined his
daughter, and she was starved to death. Draco
permitted any man to mutilate or slay the adulterer
whom he discovered in the fact, and to treat him as
he pleased ; a liberty which was first allowed by
Hyettus, who had himself killed the man that had
committed adultery with his wife. This licence was
afterwards confirmed by Solon ; and it forms the
ground of the defence by Lysias of the murder of
Eratosthenes, who had been detected in the very act
of adultery, and acknowledging his guilt, intreated
that his life might be spared, and that the fine might
be taken in compensation of the injury. The hus-
band refused to compromise the matter, and in de-
fence of the death of Eratosthenes, appealed to the
law, which permitted the husband to use his discre-
tion, and acquitted him, under such circumstances,
of the guilt of murder. He compared also the law
*i Potter's Antiq. b. iv. c. 12. r Ibid. Ayliffe's Tmrergon,
p. 46.
479
of ravishment with the law of adultery, and main-
tained, that in the former case the fine would be sui^
ficient, because the ravisher would be hated ; but as
the act and address of the adulterer might enable
him to appropriate the wife^s affections, to obtain an
ascendancy in the family, and tb introduce a doubt-
ful progeny, the penalty of death was justly awarded
to the adulterer*. When a man was apprehended
upon a charge of adultery, he was at liberty to appeal
to the Thesmothetae, and they referred the cause to
proper judges, who might inflict any penalty short
of death, and demand a pledge of chastity for the
time to come. Another punishment peculiar to the
Athenians, and inflicted chiefly on the poor, for the
rich redeemed themselves by a fine, was the /iflc^ayi&M-i^
or wofoTiXfLosy a strange compound of torture and
buffoonery.^ It was also infamous for the husband
to live with his wife after she had committed adul-
tery ; and it was unlawful for her to enter into the
public temples, or to appear dressed in the streets.
If she transgressed this law, it was in the power of
any one to tear off her clothes, and to beat her, but
none was permitted to kill her^
There are various conjectures concerning the an-
cient punishment of adultery at Rome. The point
which is liable to the least dispute is the inveterate
partiality of the law, in restricting to the man the
right of accusation and redress, and in not suffering
the woman to vindicate her wrongs. In the very
infancy of the state it was ordained by Romulus,
« Ux. Ebr. 1. iii. c. 16. Potter, b. iv. c. 22. Tebbs, s. 2. Patrick
on Lev. xx. 10.
480
that if a husband detected his wife in adultery^ he
was free to put her to deaths but the wife was not
permitted to lay her finger on an adulterous hus-
band*". • Cato and the Twelve Tables allowed the
same partial privilege, which was perhaps not incon-
sistent with a state of society in which the wife was
the child, the slave, the property, of a domestic lord.
The penalties of adultery were necessarily various
and unsettled while they were thus left to the licence
of private revenge, and to the arbitrary discretion of
the father, as well as the husband, of the adulteress,
who, according to their temper or caprice, would
choose the punishment to be inflicted rather under
the tacit connivance, than the express authority, of
the law. It was thus that the father of the woman
was allowed to kill both parties, if he detected them
in the fact, provided he did it immediately, and slew
both together, and, as it were, with one blow. The
same power was not ordinarily indulged to the hus-
band, but only when the crime was committed in his
own house, in defiance of repeated admonitions, and
with some mean and infamous person ; although, if
under other circumstances his jealousy impelled him
to kill them, he would not be punished as a murderer.
On many occasions however the revenge was. satis^'
fied with the mutilation of the offender. There is
certainly no ground for presuming that the Romans
were indifferent to adultery, and the imputation is
disproved in the manuscript notes which Spence and
Holdsworth have left upon Horace. It was the
aggravation of the injury which Lucretia sustained,
" Aul. Gell. Noct. Alt. 1. x. c. 23. apud Gerhard.
481
that she had been treated as a slave, and, however
the Romans might justify themselves in the Uberties
which they took with this unfortunate class of per-
sons, nothing was more severely reprobated by them
than the violation or corruption of the free horn
virgin or matron^. Rome was distinguished by the
wise institution of. a domestic tribunal, and if a wife
was suspected of adultery, the grounds of suspicion
were investigated before her husband and her own
relations^: and such infamy was attached to the
woman who was detected in an adulterous inter-
course, that, although she was not condemned, aU
though she was not accused, although she was
acquitted, the very circumstance of her being de*
tected was a legal impediment, under the -Julian
law, to her marriage with a man of ingenuous rank
and condition*. The Roman law, says Montesquieu,
in requiring the public investigation of the chaise of
adultery, was an admirable instrument of preserving
the purity of manners : it excited the apprehension
both of the woman and of those whose duty it was
to be jealous of her virtue*.
The right of private revenge was not abolished by
the Julian law, although, in the strict interpretation
of that law, the right was restricted to the father, to
the exclusion of the grandfather of the adulteress^
and an interval of sixty days was allowed to the hus-
band to determine whether he would seek the redress
which the law afforded^. Gibbon has nevertheless
* Gent. Mag. vol. xciiL pt, 1 . p. 540. "f Tebbs, s. 2.
* Briflson de Jure Con. * Esprit des Loix^ 1. v. c. 7. in Tebbs.
* BriMon de Jure Coannb. * Tac. Ann. i. ii. c. 86.
VOL. I. I i "
482
rematkedt that "the wisdom of AugtMtus, dter
cuii>iiig tiie freedom of revenge, applied to tfiis do-
mestic offence the animadversion of the hws ; and
the guilty parties, after the payment of heavy for-
feitures and fines, were condemned to long or per-
petual exile in two separate islands ^,^' from which
if they should venture to return, they might be slain
by any man. Augustus however appears in several
instances to hav^e exceeded the rigour of his own
laws, and to have visited the offence with death ; and
when tbe ofience was committed with any woman
of the reigning family he pronounced it an act of
treason, anc) took advantc^ of the construction to
remove many eminent citizens, whose influence ex-
cited his jealousy^. Tiberius conceived that the
punishment of adultery was sufficiently guarded by
the laws, and, in the case of Yarilia^ he deprecated
the severer penalty of death ; and pretending the
atithority of Romulus, who had ordained the divorce
of the adulteress, banished her to the distance of two
hundred miles from Rome, and prohibited the adul-
terer to approach either Italy or Africa. On another
occasion he sent the adulterer and the adulteress into
exile, thus depriving them of all civil privileg^^ It
Was worthy of the general (Character of Domitian to
afiect an extreme severity against adultery, and even
to degrade a Roman knight from the rank of a judge,
for the offence of taking back his vtrife, whom he had
divorced for adultery. It was in the same temper
of arbitrary rigour that Macrinus caused persons
* Rom. Hist. c. 44. * Aac. Univ. Hist. vol. xiv. p. 132.
' Tac. Ann. 1. ii. c. 50. 1. !▼. c. 42. with Brotier'slnotite.
483
who were convicted of adultery to be sown together
in a sack, and burned alive ; and that Auidian pub-
lished many severe laws against adultery, and put to
death one of his own domestics for the ofience.
Under the Christian enirperors adukery was made a
capital crime, and assimilated to sorcery and parri-
cide, to poison and assassination, to high treason
and debasement of the coin. This was the law of
Constantine: under Constans and Constantius adul*.
terers were burned, or sown in sacks and cast into
the sea : under Leo and Marcian the penalty was
feduoed to perpetual banishment and cutting off the
nose. Under Justinian it was again permitted to
IdII the parties, if their intercourse had been for-
bidden, and was renewed in certain places : but at
the same time, under the inAisence probably of
Theodosia,.the Jaw was mitigated, at least in favour
of the wife, who was only to be scourged, to lose
her dower, "and to be confined in a nunnery for two
years, ^t the expiration of which ber husband might
receive her, but if he refused, she was to take the
veil for life. It still remained a capital offence in
the husband^. There is also the .record, of which
some of the circumstances are disputed, of a penal
and public constupration of the adultaress, which
was very properly abolished by Theodosius. In
some cases the adulteress was banished, and ber
goods confiscated: and while it was the recei\^
opinion of the Jurists, that to kill the parties was a
lawful act, as fer as the courts of law were concerned,
« Ayliffe's Parergon.
lis
484
it was held to be uDlawful in the conscience, and
even a deadly sin**.
The writers of the New Testament make no men-
tion of the • punishment of adultery, but in the de-
nunciation of its infinite and eternal doom. The
primitive writers pursue the same course. Clemens
of Alexandria is the first of the Others who takes
notice of the punishment of adultery, comparing the
capital judgments under the Mosaic law with the
spiritual death incurred by the adulteress who does
not repent*. Origen takes up the same argument,
and dwells on the lenity of the ancient law in inflict-
ing the capital punishment as a perfect satisfection
for the sin, and the virtue of the Gospel in restrain-
ing crime by proposing the final vengeance reserved
for the offender who sins without repentance^. He
argues in another place that the law, with its threats
of corporal chastisement, was adapted to a state of
infancy, but that the Gospel, which is addressed to
men of perfect age, denounces heavier judgments.
Under the law the adulterer and the adulteress were
not threatened with hell, or with eternal fire, but
were to be stoned with stones. But the adulterer
may now say. Oh ! that the sentence of the former
law had been pronounced concerning me, that I
might be stoned with stones, and not reserved to the
eternal fire^ In proof that things are evil, not in
themselves, but in their modification ind use, he
instances the murder of the adulterer, and affirms,
** Ux. Ebr. 1. iii. c. 12. Anc. Univ. Hist. toK xiv. p. 132. vol.
XT. p. 344, 461. Enc. Brit. Art. Adultery. ' Strom. 1. ii. ad
fin. ^ In Lev. Horn. xi. s. 2. > In Jer. Horn, xviii. ad fin.
485
that if any man slays the adulterer detected in the
crime, and demands the punishment of the offence,
he does not evil". Writers of a later period advert
to the capital punishment of the offence in the
secular courts, where men who through the frailty
of their nature are prone to passion and the allure-
ments of pleasure, nevertheless punish adultery by
law, and inflict capital punishment on such as they
convict of invading the rights of the genial bed".
This recognition of the capital penalty may be added
to the other proofs of the late age of the several
writings falsely attributed to Clemens of Rome.
The Apostolical Constitutions speak in express
terms of the conviction and capital punishment of
the adulterer^; of the expulsion of the woman from
the house before her condemnation p ; and of the
secession and rejection of adulterers from the com<-
munion of the Church^. In the Apostolical Canons
the imputation of adyltery is justly made the ground
of exclusion from the sacred order'. The truth is,
that in the primitive times ^^ the punishment of adul-
tery was very great ; perpetual penance all a man's
life, and scarce being admitted into communion at
the very hour of death : till Pope Zephyrinus, about
the year 216, considering the great inconveniencies of
so much severity, persons being hereby often driven
into despair, and others discouraged from coming
over to the Christian faith, ordered that penance in
this case should be limited to a shorter time, which
*" De Rect. in Deum Fide, s. 4. * Arnob. Adv-. Gentes,
L iv. g. 23. ^ L. ▼. c. 2. ^ Clementin. Horn. iii. s. 28.
« Ibid. 8. 69. 'Can. 53.
lis
486
being ended, such persons ibighl be received again
into the bosom of die Church. This decree gave
great offence to the African Chlircbedi most whereof
stood up for the strictness of the ancient discipline.
Tertullian inore especially inveighs against it with
much bitterness and animosity, as a thing unfit in
itself, and an innovation in the Church. The same
Cyprian also plainly intimates, though be himself
was foir the more mild opinion. By the Ancyran
council^ held A. D. 315, it was decreed, that who-
ever was guilty of adultery should be punished with
a seven years' penance befoi^ they were admitted to
the communion. By the synod bf Ilhberis, if a
man, after having done his penance for the first
fiiult, fell afterwards into the same sin again^ he was
not to be taken into communion, no, tiot at the hour
of death. Saint Basil, writing to Amphilochius
rules for thie conduct of discipline, and measures of
repentance, sets adultery at fifteen years' penance,
and then to be admitted to the holy sacfament.
His brother Gregory, Bishop of Nyesa, treating
about the same affairs, appoints fornication to be
punished with no less than nine years' penance, and
suspension fix)m the sacramedt; and adultery, and
all other species of uncleanuess, with double that
time, though allowing a liberty to the spiritual guide
to contract this time, as the circumstalices of the
case or person might require. But both these last
mentioned being but private bishops, their caaoos
could be no further obligatory than to those parti-
cular dioceses that were under their chai|;e. And
indeed their censures of the Church in this case did
much vary according to time and place, in soVne
48T
more rigid and severe, in others more Ifoc and favour.-
able, though in all such as did abundantly, shew what
hearty enemies they were to all filtbii^ess and itf^*
purity whatsoever*/' In the progress of epd^i*-
astical discipline, a penance of seven years was im-
posed upon a layman, and often years upQn ^ clergy-
man, who should be convicted of adultery ; which,
however, admitted of a pecuniary compen^tion : the
woman was also excluded from a second marriage,
that she might perform a pen^ce coextensive virith
her life*.
The di^ipline of the Church was, however, ne-
cessarily feeblf , lyithout the aid pf the secular power,
and the favour pf the emperors towards the bishops
by whom they had been converted, soon admitted
them to a shane of the temporal jurisdiction. The
administration of the law concerning marriages and
bequests, which had formerly belonged to the pontir
fices, was transferred to the Christian bishops, to
whom it was thpught that the law of marriage, which
was ip itself a religious rite, and to which from the
apo9(olic age the cppsent of the bishop had been
requirecj, was especially appropriate ; and the bishops
maintained their title to this judicial authority, by
their learning, their knowledge of the laws, and by
the part which they took in the cpmpilation both of
the .civil a^d canonical code. Thus adultery fell
upd^r tl^jc episfcopal jurisdiction ; and it cannot be
depied that there is a reasonable analogy between a
dj<vine ipstitutipp ^.nd ecclesiastical cognisance 9f its
* Cave*s,Priiii. Christianity, pt. 2. c. 6. ' Ayliffe** Parergon,
p. 47, 48.
I i 4
488
violation, although, in other respects, adultery is no
more sacril^ in the Church than it is treason in^
the state. For a long period, however, the bishops
govefrned by no other laws than those of the empire,
or of the several nations in which they resided ; and
hence arose the different penalties inflicted upon
adultery in different countries. Such was the origin
of the separate and concurrent jurisdiction of the
secular and ecclesiastical courts, in cases of aiatri-
tnonial law": adultery was an ecclesiastical ofience,
because it was tried by ecclesiastical judges, to whom
the authority was originally delegated by the civil
powers, and from whom, especiaJly wherever they
have been removed from the superintendence of their
own courts, the whole trial of adultery would not be
improperly remanded to the jurisdiction of the cri*
minal courts. As a crime of a very aggravated
character, adultery challenges a criminal and penal
prosecution ; and with an uniformity which marks
the sense of mankind, it has been tried and punished
as a crime, in all quarters of the globe, with penalties
relatively varied, according to the estimation in ¥^icb
woman is held, and the views which are taken of the
nature of marriage.
In the practice of the Mahometans, adulterers and
adulteresses are stoned to death. The authority for
this punishment is not extant, and in the execution
of the sentence the evidence of four witnesses is
required to substantiate the chaif;e, and a false ac-
cusation subjects the accuser to corporal punishment,
and renders his testimony invalid for the future. By
" Ayliffe, p. 52. Nupt. Sacr. p. 125.
489
another law it is ordered, that the parties shall receive
a hundred stripes; that they shall be interdicted
fix)ai marrying with a Mahometan ; and that the
woman shall be confined till she die or repent".
Among the Druses adultery is but rarely punished
with death, notwithstanding their natural jealousy.
If a wife is detected in the crime she is divorced^ but
the husband is afraid to kill her seducer, because his
death would be avenged, for the Dnises are inexo-
rable in the retaliation of blood, and because, if the
governor should hear of the afiair, he would ruin
both parties by his extortions 3^. Among the Nesserie
or Ansari of Syria, whose religious tenets are de^
duced from Heathen, Jewish, Turkish, and Christian
sources, and with whom marriage is altogether li
matter of sale, adultery is not severely punished : if
a man can prove his wife to be guilty of infidelity,
he repudiates her, takes back fi*om her parents the
price which he has paid for her, and if he likes,
manies another a few days afterwards. The adul-
terer is obliged to marry the woman who is forsaken,
or to absent himself for a year and a day : but the
woman is punished with death if she has been inti-
mate with a man not of her own nation*. In Arabia
adultery is a capital ofience, and the process of ex-
amination is curious when the husband is the ac-
cuser. The man swears five times' that the all^tion
is true ; and he adds an imprecation that he may be
cursed by God if he lies. If the woman swears as
* Mod. Univ. Hist. vol. i. p. 396. Ux. Ebr. 1. iiL c« 12.
' Burckhardt's Travels in Syria.
* Lit. Gazette, No. 406. From Dupont*s Memoir of the man*
ners and religions ceremonies of the Nesseriei.
i
4d0
ofteo, aud adds a pmyQr. that God may destroy ber
if her aaseveratioos are not true, she i$ usually be*
lieved. If she is coDvicted, the husband has her Ufi^
in his ppwer, and msy io his vengeance pujt bei: into
a saqk full of stones ^d drown her. The punish-
noent of the adulterer is ridiculous. He is qoa-
demned to rid^ on an ass, with his &ge. towards the
tail, which hq us^s as a bridle ; his head is crowned
with the entrails of a b^ast, and his fe^t are \^^
tinadped ^.
Aniong the Tartars, adultery, whiqh is very un-
usual, is punished with death. In the tribe of
Kokant Tartars in Central Asia, adulteresses are
buried in the earth qp to the breast, and stoned by
the people^. Adultery is also a qapital offence by
the laws of Gqnghis Khap, the founder of the Mogul
empire.
There are various opipions on th? ppnishipent of
adultery in China, where it is affirmed by some, and
denied by others, to be a capital offence. In Pekin
the dowers of convicted adulteresses are bestowed
on the hospitals and female orphans: but in th^
province of Petane, noble criminals may choose
whether the poignard or the bow-^nng shall expiate
their ofiencC;. In some parts the adulteress is sold
into slavery. It is an extraordinary practice of the
celfsstial empire, not only that husbaP(4s lend their
wives, but tbait parents, contract with the suitors of
their daughterSf that ii^ consideratipp of a valuable
present, they shall possess a certain extent of matri-
monial licence. If this precaution is not taken be-
* Tebbs, p. 174. ^ Gent. Mag. vxd. xcii. pt 2. p. 156.
491
fore marriage, the husband may inflict corporal pu-
nishment on the wife who transgresses, or divorce
her : and if the adulterer has committed any violence,
he is liable to pecuniary or corporal punishment,
at the discretion of the judge before whom he i^
brought*.
In Japan the husband may take the life of the
adulteress. If she is detected in familiar conversa-
tion with another mw^ the offence is esteemed to be
such, as neither banishment, nor confinement, nor
any penalty shiH't of death, can compensate : and
the law is so rigorously enforced, that the Japanese
women have been known to commit suicide, to pre-
vent discovery : the woman only is punished for the
crime^.
In the Marian Islands, on the contrary, the offence
is not punishable in the woman : but if the oum
ofiendS) the wife and her relations waste his lands,
and turn him out of the house. In Ceylon, adultery
is BO common that hardly a native woman is inno-
cent : the law nevertheless proclaims the ofience to
be capital, but is probably more rigorous in the ,
threat than in the execution ^
In some parts of continental India^ it is said, that
a wife may prostitute herself to any man for the
price of an elephant, and that it is no common
glory to be held in so high estimation K Adubery
is, however, so far from being a venial offence in
the continent and peninsula of Hindostan, that
every violation of the compact of marriage is fol-
« Mod. Univ. Hist. vol. viii. p. 174. Tebbs, p. 178.
^ Tebbs, p. 175. ^ fine Brit f IM. Tefabs, p. 176.
492
lowed by a loss of caste, compared to which, the
loss of life is in India scarcely considered as a pu-
nishment. Their legislator Menu says, A married
woman who violates her duty to her lord, brings
infamy on herself in this world, and in the next shall
en tier the womb of the shakal, or be affected with
elephantiasis and other diseases which punish crimes.
In some parts, fines of various amount are levied
upon the adulterer, and the woman's ears and nose
are cut off: but in general adultery is so criminal,
that rather than the offenders shall escape punishment,
their own brothers will not scruple to take away
their lives, and the act is not punished but ap-
proved^. Among the tribe of Rajah-poots the of-
fence is punished with death >>. The Shaster is every
where full of nice discriminations of comparative
guilt, and especially in respect of matrimonial crime,
and the penalties of adultery naturally vary with
these discriminations. If the adultery be committed
with a woman of inferior caste, and by force, the
possessions of the adulterer are confiscated, his person
is mutilated, and he is carried round the city on an
ass : for adultery with a woman of inferior or equal
caste, and by fraud, the adulterer forfeits his estates,
is branded on the forehead, and banished the king-
dom. These laws of the Shaster apply to the higher
castes. If a man of low caste commit adultery with
a woman of high caste, he is tied on a hot plate and
•burned to death ; while the adultery of the higher
s Monthly Rev. toI. cvi. p. 416. Mod. Univ. Hist. vol. vi.
p. 247.
^ Dubois' Letters on the State of Christianity in India, p. 202.
493
with the lower castes may be compensated for a
trifliDg fine. A Brahmin suffers ohly the loss of his;
hair : but the wife of a Brahmin is subject to severe
discipline if the crime be committed with the higher
castes ; and if she offends with a lower caste she is
punished by the loss of her hair, a nauseous unction,
and a procession on an ass through the city, from
which she is sent out on the north side, or, as some
writers affirm, is delivered to be devoured by the dogs'.
In these penalties the degradation of the offender
appears to be contemplated more than the criminality
of the act. In the following passage the circum-
stantial proofs of the crime are very correctly enu^
merated : ^' If a man should use equivocal expres-
sions to another man's wife, or eye her with\imorous
looks ; or if he should hold conversation with her at
a time or in a place when or where he ought not to
have been speaking with her — any instance of this
sort is to be regarded as a crime, in the first or lowest
degree. Or if a man, with the view of seducing the
wife of another, should send her firagrant sandal
powder or flowers, such as. jessamine, or perfumes,
or jewels, or wearing apparel, or edible fruits; if any
of these circumstances be proved against him, it is a
crime in the second or middle degree. If a woman
and a man should meet in a secret place, or should
embrace one another, or if they should sit together
on a bed, or remain tpgether in a dark place^ or if
he should converse with her, handling her hair at
the time, or should wound her breast with his
nails, or her lips with his teeth, or should untie the
* Tebbs, p. 177.
494
knot of her cloth ; if any of these circum^anoes
should be proved, the crime imputed is to be in-
ferred V*
Thus, throughout the vast regions of Asia, and in
the infinite variety of its tribes, kmong Mahometans,
Tartars, and Hindoos, fix>m Arabia to Japan, there
is one prevailing abhorrence of adultery expressed in
a general avowal of its capital punishment. The
chief exception is found among the MiBgreUans,
with whom marriage is nodiing but a bargain and a
sale, and adultery is satisfied with the forfeiture of a
hog, which is eaten in good fellowship between the
adulterer, the adulteress, and the injured husband'.
Africa is possessed with the same abhorrence of
adultery. In Ethiopia the crime is avenged by the
excision of the adulterer's nose. In Abyssinia the
violation of conjugal fidelity on either side is ootn-
pensated by a fine or present, equivalent, at least in
the judgment of the injured party, to the wrong;
and as the husband and the wife have each their
separate property, they are in a condition to make
the compensation required. Where the compensa-
tion cannot be agreed upon, the woman is usually
punished with the most severity, being condemned
to forfeit all her goods, to quit her husband's house
in a mean and ragged attire, under an express con-
dition that she is not to return : she is allowed to
take with her a sewing needle, that she may maintain
herself; and her head is sometimes closely shaven,
with the exception of a single lock on the forehead,
^ Strange's Elements of Hindu Law, vol. ii. p. 36. Month.
Rev. Jan. 1826. i Eac. Brit.
*■'
495
which ODly increases the disguise. This treatment
depends on the will of the husband, who may receive
her again, and upon whose refusd both parties are
free to marry again. On the contrary, if the hos-
band be the offender, he and the partner of his
offence are liable to a penalty, Dirhich seldom exceeds
a fine upon both parties, which is appropriated to
the totnplaining wife. If the adulterer is convicted,
be is required to pay a fine of forty horses, cows,
suits of clothes, &;c. and if he is not able to pay it
he remains a prisoner with the husband at bis dis-
cretion till the fine is paid, and is not released but
upon condition of fetching what will satisiy him,
when the adulterer procures wine and oow^s flesh,
which they eat and drink together, and, upon the
aduherer^s asking pardon of the offended liusband,
one and another part of the fine is remitted till the
whole is discharged ^.
In the kingdom of Benin, on the western coast
of Afi^ica, there are three different punishments of
adultery. If a husband, of the meaner class of the
people, suspects the fidelity of his wife, he tries
every method to surprize her in the fact, without
whic^'he has no power of inflicting any punishment
but ill usage. If he succeeds in detecting the in-
trigue, he immediately becomes possessed of all the
property of the adulterer: the offending wife is
beaten with a cudgel, driven out of the house, and
left to seek her fortune, which usually ends in
misery. Attiodg person^of higher rank,' the crime
is satisfied by a sum of money, which the relations
ro
Mod. UnW. Hist. vol. xv. p. 79.
496
of the woman pay to avoid the scandal of tlie adul-
tery, and after the payment of which the woman
passes with her husband and all her acquaintance
for a woman of virtue in proportion to the sum
received by the husband. The governors punish
this crime with the utmost severity. Both the adul-
terer and the adulteress are immediately put to death,
if they are taken in the act : their bodies are thrown
upon dunghills, a prey to the birds and beasts,
without process of law or form of trial. The result
of this severity is, thai adultery is less frequent in
Benin than in any other country °.
Adultery is also rare among the Cafires, with
whom it is severely punished in the woman, but
little regarded in the man^
The wild tribes of America have also their notions
of the criminal character of adultery. In Mexico
the adulterer was stoned to deaths. In the tribe of
Omawhaws, near the Rocky Mountains, where the
marriages are very irregular, and a whole family of
sisters are married in succession by the same man,
many husbands will connive at the infidelity of their
wives, or be satisfied with some slight punishment,
but others will brand or mutilate, and then repudiate,
them^
Of the sentiment which has been entertained in
Europe upon the criminal character of adultery there
is the earliest, the most continuous, and the most
copious evidence. Tacitus has left his record of the
ancient Germans, that adultery was very unusual in
■ Ibid. vol. xvL p. 369. • Enc. Metrop. ^ Tebbs, p. 173.
1 Month. Rev. vol. ci. p. 347.
497
so populous a nation, and that the punishment was
instant, and at the discretion of the husband. The
woman was shorn of her hair, stripped naked, and,
in the presence of her relations, turned out of the
house by her husband, and driven with a scoui^e
through every village ; for there is no pardon of
prostituted chastity : the woman that is debauched
will not find a husband by beauty, age, or wealth.
No one there laughs at vice, nor is it the fashion to
debauch and to be debauched^. This severity of the
ancient Germans has had a long hereditary influence.
By the ancient laws of the Burgundiones, a Vandal
tribe, the adulterer and the adulteress were both to
be put to death : the excision of one only was an
offence, for which a fine would be demanded".
In Poland, before the establishment of Chris-
tianity, adulterers were placed in a condition of
exquisite torture, in which they had no alternative
but to perish or to mutilate themselves ^
The ancient Swedes and Danes left the punish-
ment to the discretion of the injured husband, who
might kill the wife, and. mutilate the adulterer. In
Bohemia, adultery was in the strictest sense a capital
offence, and the offenders were beheaded. In the
seventeenth century the divines of Strasburgh pre-
vailed on the magistrates to inflict a capital punish-
ment on adultery ; and the writer who records the
fact, regrets that the divines of the Low Countries
had not been more vigorous in the denunciation of
adultery, which in Belgium was only punished by a
fine".
' Tac. Germ. s. xix. * Brotieri Aan. ad Tac* Germ. s. xix.
* Enc. Brit. » Tebbs, p. 169, 172.
VOL. I. . K k
498
The ancient laws of France usuatly prescribed for
adultery severe flagellation^ with public exposure,
which might however be commuted by a fine more
or less considerable. The public exposure was of a
serious kind : the parties were severely whipped as
they ran through the town in opposite directions,
either naked, or with no other covering than decency
required. The laws made a distinction between
married and unmarried pereons, inflicting the pu-
nishment only on the former ; nor was the punish-
ment inflicted at all, unless the parties were taken in
the act ; although suspicious circumstances,, espe-
cially after admonition, would render them liable.
In some places, if they were surprised in the act,
they were tied tc^ether to receive the merited casti-
gation ; and in others, on the repetition of the
ofience, the punishment was augmented in propor-
tion, at the discretion of the judge, and banishment
for various periods, extending to life, was added to
the fine and the gaundet. This rigorous discipline
gradually fell into disuse, and adultery obtained such
impunity as was not cbsturbed by one or anodier
example of severity, which was sufficiendy counter-
acted by the want of accusers, the ignominy attached
to the accuser, and the difficulty of proving the ac-
cusation'. Under the Code Civil, the adulteress
who shall be convicted on the accusation of her
husband, shall be liable to imprisonment for a period
of not less than three months, or more than two
years, which may be reduced by the husband's con-
senting to receive her : the accomplice of the adul-
«Tebbs, p. 157—169.
499
teress shall be liable to the same period of imprison-
ment, and to a fine, varying from one hundred to
two thousand francs. The husband who shall keep
in his house a woman with whom he has committed
adultery, shall be liable, on the complaint of his
wife, to a fine, varying from one hundred to two
thousand francs, and shall be incapable of prosecuting
his wife for adultery y.
In Spain, adultery was formerly punished by mu-
tilation ; by fine, which was doubled if both parties
were married ; and by scourging, if they were unable
to pay. In the draft of. the Penal Code submitted
to the Cortes, adultery on the part of the wife was
to be punished by seclusion, for as long a period as
the husband should desire, provided it did not ex-
ceed ten years: her accomplice was to undergo the
same punishment, with the addition of exile. Adul-
tery by the husband was to be punished with in-
famy.
The laws of Lucca, in Tuscany, made adultery
punishable by fine and banishment for a year. A
law of Sicily condemned the offender to be burned,
even although it could be proved that his crime was
not aggravated by seduction. Joseph Scaliger says
thai he was at Geneva when a very handsome young
woman was drowned for this offence^. Beza, in his
Treatise of Divorce, was earnest in pressing the
magistrates to do their duty, and by inflicting the
capital penalty on adultery, to remove the difficulties
of divorce.
In investigating the penalties of adultery in Eng-
y Code Penal, Art. 336—339. * Tebbs, p. 172.
K k 3
500
laody as derived from our remote progenitors in
Germany, the law of the Visigoths will be found in
singular conformity with the law of Solon. If any
woman shall commit adultery, and not be detected
in the fact, her husband may accuse her before the
judge ; and if she shall be convicted upon sufficient
evidence, she and the adulterer shall be delivered to
the will of the husband, who shall not be guilty of
homicide, although he shall kill both the adulterer
and the adulteress*^.
In ancient Saxony or Westphalia, the adulteress
was sometimes compelled to hang herself, and over
her ashes viras erected a gibbet, on which the adul-
terer was also hanged. At other times, the women
assembled in a body, and scourged the adulteress
through all the neighbouring villages, lashing her,
cutting off her garments, piercing her with their
knives, and sending her bleeding and covered with
wounds from village to village, where were always
found new bodies of flagellants, actuated by zeal for
modesty, until the woman was left half dead, or
hardly alive**.
It has been said, that ^^as to what our native
savages thought of this matter, it is useless to en-
quire. The Anglo-Saxons afford some glimmering
of legislation concerning it. By the laws of Ethel-
bert, the adulterer paid a fine to the husband, and
bought another wife for him ! Alfred fixed the fine
at one tenth of the offender's property, and the fine
was known by the expressive name of Lecherwite*'.
>>
* Brotier Ann. ad Tac. Germ. s. 19. »* Ibid. «= Nupt.
S^acr. p. 119.
501
King Edmund the Saxon ordered adultery to be
punished in the same manner as homicide: and
Canute the Dane ordained, that a man who com-
mitted adultery should make such satis&ction as the
bishop should enjoin, and be afterwards banished ;
and that the woman should have her nose and ears
cut ofF**.
" After the Conquest, the benefit received by
government from the fines upon adultery, is evident
from Domesday-Book, where the levying of them is
frequently mentioned. But though that foreign sub-
jection was in its own nature productive of the papal
jurisdiction among us, and though it occasioned that
first separation of the spiritual and temporal courts,
which was so hostile to the genius of our Saxon
judicature, yet it does not appear that ecclesiastical
punishment, free from the control of the crown, was
as yet applied to adultery*/' On the contrary,
William made the offence capital in the adulteress,
and took away the jurisdiction from the bishops,
whom he did not suffer to implead, excommunicate,
or visit with any ecclesiastical punishment, his serv-
ants, or tenants in chief, upon a charge of adultery.
The offenders were tried in the Leet, which is a
temporal court, and upon conviction were fined, and
the fines were paid into the Exchequer, unless the
offence was committed in Kent, when the king re-
ceived the fine of the adulterer, the archbishop of the
adulteress. The lords of some manors had also the
privilege of punishing the offenders within certain
** AyliflFe*s ParergoD, p. 52. Enc. Brit. ' Nupt. Saci:.
p. 120.
K k 3
502
limits, and of appropriating tiie fines to their own
use. Thus the temporal and spiritual courts took
cognizance of the offence by turns, and without con-
tention, until the right of the pecuniary mulct came
into disputed
In the reign of Henry I. adultery was punished
by the loss of sight and mutilation, which was de-
manded in con^espondence with the infliction of the
capital punishment on the woman, and which, in the
reigns of John and Henry III. as appears from
letters still extant, directing inquisition to be made,
was exercised by the husband, upon condition that
he had previously forbidden the intercourse of the
offenders^.
^^ The distinct exercise of the ecclesiastical judg-
ment was, after an interval of great turbulence, and
the most dangerous encroachment, settled by Ed-
ward I. While he guarded the rights of his own
crown, so lately violated, he surrendered to the
clergy the cognizance of things ^ that be mere spi-
ritual,' and gave his permission that in all cases of
* penance enjoined by the prelates for deadly sin, as
fornication, adultery, and such like, the spirkual
judge shall have power to take knowledge, notwith-
standing the king's prohibition.' And this seems
to have continued in force till the Reformation. It
is only necessary to observe upon it, that the original
punishment inflicted upon the Church was corporal,
and that it sgon came to be commuted for money.
But by an auxiliary provision of Edward II. it was
ordered, that if the Church decreed a fine in the first
' AyliflFe, p. 52. » Ux. Ebr. 1. iu. c. 12.
503
instance, preferring the money to a proper punish-
ment, the king's prohibition immediately took place.
And this shews us the true intention of the legis-
lature, in surrendering to the Christian courts this
branch of public punishment, which had formerly
benefited the Exchequer by its impure produce : it
was conceded, for the sake of repressing public licen-
tiousness, by the characteristic punishment of per?
sonal exposure and disgrace. That this was the
object has been more fully proved since our renunci-
ation of popery, by the projected Reformatio Legum;
by the Canons of 1640; by the injunction of King
William ; and the regulations under Queen Anne :
for it was the declared intention of these provisions,
though indeed they are not now in force, that no
commutation should be allowed, except for very
weighty reasons and in very particular cases**/'
The sentiments of the English Reformers may be
collected from the project entertained in the reign
of Edward VI. when the commissioners met, by
letters patent, for the purpose of digesting a reformed
body of ecclesiastical laws ; at which meeting were
present. Archbishop Cranmer, Bishop Goodrich,
and other bishops, with Peter Martyr, and other
eminent divines, together with the most distinguished
canonists, civilians, and common lawyers, then in
the kingdom. The laws then agreed upon against
adultery were very severe; denouncing upon the
guilty party nothing less than perpetual banishment
or perpetual imprisonment. The adulterer was to
restore to his innocent wife her dower, with a moiety
^' Nupi. Sacr. p. 121.
K k4
504
of all his goods : the adulterous wife was to forfeit
her dower and all l^;al claim upon her husband^s
goods. It appears, however, that the sentence
might be mitigated by the reconciliation of the
parties*.
In the time of the great Rebellion it was pro-
posed, that every minister convicted of adultery or
fornication, should suffer death: but the cause of
the clergy was undertaken by Sir Dudley Digges and
many others, who would have these laws universal,
and as great a punishment to be inflicted upon the
laity, lest they might seem partial. Under the Pro-
tectorate the law was made universal ; and an ordi-
nance of Parliament enacted, that every person, as
well the man as the woman, offending therein,
should suffer death, as in case of felony, without
benefit of clergy^. On the Restoration, when men,
from an abhorrence of the hypocrisy of the late
times, fell into a contrary extreme of licentiousness,
' Chr. Remembr. vol. ii. p. 748. Reform. Leghorn £cc1. De Adult,
et Divort. c. 3, 4. The punishment on the clerical offender was
highly aggravated : *< Ordiamur ab Ecclesianim ministris quorum
Titae prsBcipua qusedam integritas esse deberet. Itaque si quis
ex illis adulterii, scortationis aut incestus convictus fuerit, si pro-
priam habuerit uxorem omnes ejus Qpes et boni^ devolventur ad
eam et ad liberos, si qui sint ex ek vel ex aliquo priore matrimonio
legitime nati. Si vero nee suam uxorem nee liberos habeat,
omnes ejus facultates arbitratu judicis vel inter pauperes disper-
tientur vel in alia pietatis officia conferentur« Delude si quod
iili beneficium fiierit, postquam adulterii vel incestus vel scorta-
tionis convictus fuerit, ex eo tempore protinus illud amittat necilli
potestas ullum aliud amittendi. Prseterea vel in perpetuum able-
getur exilium vel ad seternas carceris poenas deprimatur.*' c. 2.
k Ellis's Letters on Engl. Hist. vuL iii. p. 222. Month. Rev.
vol. xciv. p. 464.
505
it was not thought proper to renew a law of such
unfashionable rigour. And these offences have been
ever since left to the feeble coercion of the spiritual
court, according to the rules of the canon law, a law
which has treated the offence of incontinence, and
even adultery itself, with a great degree of tender-
ness and lenity, owing perhaps to the constrained
celibacy of its first compilers. The temporal courts
therefore take no cognizance of the crime of adultery
otherwise than as a private injury*. The ecclesias-
tical courts, in pursuance of the authority expressly
reserved to them at the Reformation, inflict their
punishment, and the injured party has besides his
private action against the offender for the temporal
damage he has sustained*".
There are however two cases in which the secular
law interferes; aggravating the punishment of a
clergyman convicted of adultery, and palliating the
offence of homicide committed in retribution of adul-
tery.
If a man takes another in the act of adultery with
his wife, and kills him directly upon the spot, though
this was allowed by the laws of Solon, as likewise
by the Roman civil law, if the adulterer was found
in the husband's own house; and also among the
ancient Goths ; yet in England it is not absdutely
ranked in the class of justifiable homicide as in the
case of a forcible rape, but it is manslaughter. It-is
however the lowest degree of it, and therefore in
such a case the court directed the burning in the
1 4 Bl. Com. c. 14. "* Nupt. Sacr. p. 124.
506
hand to be gently inflicted, because there could not
be a greater provocation ".
The ecclesiastical punishment of adultery was
formerly excommunication in a layman^ and de-
privation in a clergyman: and since die Reformation
three instances have occurred, all in the reign of
Elizabeth, of the deprivation of clergymen for this
offence. These instances are sufficient to prove
that the force of the ecclesiastical law is in this
respect allowed by the judges of the temporal courts*.
By the statute 1 Henry VII. c. 4. it is further made
lawful to all who have episcopal jurisdiction to
punish priests, clerks, and religious men, being
within the bounds of their jurisdiction, as shall be
convicted before them by examination and other
lawful proof, requisite by the law of the Church, of
advoutry, fornication, incest, or any other fleshly
incontinency, by committing them to ward and
prison, there to abide for such time as shall be
thought to their discretions convenient for the qua-
lity and quantity of their trespass^.
No objection will be made to these extracmlinary
penalties inflicted upon the clergy in the secular
courts. In all other cases of adultery, or criminal
conversation with a man's wife, though it is as a
public crime left by our laws to the coercion of the
spiritual courts, yet, considered as a civil injury, and
surely there can be no greater, the law gives a satis-
faction to the husband for it, by an action of tres-
" 4 Bl. Com. c. 14. • Ayliffe, p. 47. p Bum's Eccl. Law,
Art. Lewdnefls.
50/
pass for it, vi et armisy against the adulterer, wherein
the danaages recovered are usually very large and
exemplary. But these are properly diminished or
incjreased by circumstances ; as the rank and fortune
of the plaintiff and defendant ; the relation or con-
nexion between tbem ; the seduction or otherwise of
the wife, founded on her previous behaviour and
character; and the husband^s obligation, by settle-
ment or otherwise, to provide for those children
which he cannot but suspect to be spurious.
Evidence may be given, in mitigation of damages,
that the husband had criminal connexion with other
women, or that he was not accustomed to treat his
wife with tenderness and affection, or that they did
not live together upon terms of harmony or cor-
diality ; for the jury must collect from a considera-
tion of such circumstances the extent of the wound
w|iich is given to the husband's feeling and happi-
ness. It is now settled, that if the jury should be
convinced that the husband consented to the infamy
of his wife, they ought to find a verdict for the
defendant. This is founded either upon the maxim,
volenti non fit injuria^ or upon consideration that
the plaintiff, as a profligate pariiceps criminis^ ap-
pears under too unfavourable circumstances to receive
any countenance or protection in a court of justice.
But if the husband's conduct does not prove actual
consent, but only that degree of negligence or levity
which probably contributed to the seduction of the
wife, it will not deprive him of a verdict, however it
may lessen the damages. But he can maintain no
action if he lives entirely separated from his wife, in
consequence of a mutual agreement ; for the gist, or
508
foundation, of the action is held to consist in the
husband^s loss of the comfort and society of his
wife^.
It is also provided by an early statute, 13 Edw. I.
St. i. c. 34. that if a wife wilfully leave her husband,
and go away, and continue with her advouterer, she
shall be barred for ever of action to demand her
dower that she ought to have of her husband's
lands, if she be convict thereupon, except that her
husband willingly and without coercion of the church
reconcile her, and suffer her to dwell with him, in
which case she shall be restored to her action^.
The practice of the English law of adultery is said
to be an occasion of censure and offence to foreigners:
and it is worthy of the most serious and dispassionate
consideration, whether a crime second only in the
divine law to that of murder; whether a crime
which was pronounced capital under the law gf
Moses, which the Lord interposed his extraordinary
power to prevent and to punish, and on which in
the Gospel an eternal judgment is denounced ; whe-
ther a crime which comprehends the worst fraud, the
basest prostitution of character, and the most irre-
parable injury ; whether a crime of which the just
character is recognized in the penal inflictions of
almost all nations, and in the right assumed or
allowed in many of taking summary vengeance of
the offender— can be rightly excluded from the cata-
logue of crimes and misdemeanours, and held to be
a merely civil injury, for which a pecuniary fine
<> 3 Bl. Com. c. 8. with ChriBtian's note 12. ' Burn ubi
supra.
509
offers an adequate compensation ? Is it agreeable
with the recognition of a divine law to exempt from
the charge of crime and the infliction of punishment
a transgressor whom that law so plainly and so
awfully condemns? Or is it consistent with the
analogy of the English law to attach a criminal and
felonious intention to a man who enters a shop or a
dwellinghouse, and steals an article of inconsiderable
value, and to impute no crime to the act of the adul-
terer, who robs a husband of his wife's affections,
and a family of a mother's care ? Or is there any
thing in the class of civil injuries which bears any
proportion to the wrong which the adulterer inflicts,
a wrong which '^ injures the peace and happiness of
society, and with which nuisances and assaults are
not worthy to be compared*?" Even in the assess-
ment of the damages it is not the guilt of the
offender, or the wrong of the injured husband, but
the variable and casual circumstances of the plaintiff
and defendant, which forms the ground of the assess-
ment, and '^ the price of adultery," as it has been
called, is unsettled and indefinite, and modified by
the wealth or poverty of the parties concerned. If
the parties are poor, redress is almost impracticable,
the damages are inconsiderable, and disproportionate
even to the ex pence of recovering them : but is the
offence or the injury abated ? If the parties are rich
and of elevated rank, the damages are enhanced : but
how is the offence or the injury aggravated ? If the
parties are in different circumstances, the adulterer
rich, and the husband poor, or the adulterer poor,
• Mr. Erskine. Woodfall's Pari. Rep. vol. Hi. p. 232.
510
and the husband rich, upon what principle is the
JQst measure of the fine to be ascertained ? Is the
rich man^s wrong excused, because the adulterer is
poor, or is the poor man's wrong aggravated, because
the adulterer is rich ? In such cases small damages
would give impunity to the rich, and aggravated
damages might tempt the poor to seek and triumph
in their shame and dishonour. What a violation of
all the principles of equal law is exhibited in these
suits and prosecutions for criminal conversation.
The injury is the same in the act, and in the effects
which it produces : the penalty should be really, npt
relatively, equal : the criminal character of the act
should be avowed, and the criminal should be pu--
nished without discrimination or distinction.
Another anomaly in the English law of adultery
is, that the whole penalty of the offence, such as it
is, is claimed to the man, and levied upon the man.
The divine law pronounces the same judgment on
the adulterer and the adulteress. In England the
man pays the fine ; the man seeks the redress : the
injured wife has no remedy but in a suit of separa-
tion a mensd et thoroy for the more complete divorce
a vinculo she is not permitted to solicit : the adul-
terous wife undergoes no penalty beyond the forfeit
of the right of dower, a sentence of divorce, in which,
whether it be partial or complete, she rather rejoices
than is aggrieved, and the loss of reputation. When
her affections have been transferred from her hus-
band, it is no additional grief that she is separated
from him, and in respect of the scorn of the world,
she defies it in the moment of her crime, and before
she has time to feel or to fear its force it is satisfied.
511
abated, and withdrawn. The woman who has once
ceased to respect herself is reckless of public o[Hnion%
The adulterer is received into society as a man who
has done no wrong ; the success of an intrigue on
his part is applauded, by a wretched equivocation,
as an achievement of gallantry : and it is not always
that the adulteress is banished to the retirement
which alone is suited to her shame, and in which
alone she can retrieve her prostituted character.
There is danger that on her repentance her sin may
be forgotten^ and that the ostentatious display of her
recovery may counteract the just example of her
disgrace.
Another objection to the present law of adultery
is, that, while it exempts the guilty, it often, in its
direct consequences, injures the innocent. A pecu-
niary fine is paid by the adulterer ; but if he be a
married man his wife and children are made par-
takers of his punishment. The price of adultery
cannot be paid without diminishing their means of
present subsistence and future establishment in the
world. This is the effect of other offences which
are compensated by fine; but, in those cases, the
injury is not accumulated upon insult and neglect:
however the property may be eventually injured, a
design may have been entertained, unworthily, and
with a dishonest intention, of promoting the interests
of the wife and her femily.
The last objection to the present law of adultery
is, that it is a partial law. The unavoidable expences
of obtaining redress for the civil injury are such as
can be borne only by the opulent, and necessarily
leave the destitute without any means of compensa-
5\2
tion. The natural effect of a law so partial in its
operation is to exp96e the vices of higher life, and to
conceal those of inferior station ; to give to adultery
the ostensible character of being the exclusive vice
of the great, to charge them with << a monopoly of
debauchery," and to represent them, in respect of
adultery and its consequences, as '' a privileged
caste/' While the man of humble station is left
without legal redress under the worst of injuries, he
is tempted to take the vengeance to himself, to be
the judge of his own wrongs, and the ^executioner of
his own sentence, in such rigorous and cruel treat-
ment of his wife, and in such violence towards the
adulterer, as have frequently ended in the effusion of
blood, made murder the companion of adultery, and
increased the number of public executions. In a
case in which the exasperated jealousy of an ignorant
man is too ready to mistake suspicion for the proof
of guilt, it is especially necessary that the ball of the
magistrate should be open to receive his complaint,
and that the phrenzy of passion should be restrained
by the assurance of a just and equal administration
of the law.
Various remedies have from time to time been
proposed for correcting these deficiencies and ano-
malies of the law of adultery : and it would be un-
just to the present subject not to notice the highly
interesting and instructive debates in Parliaments
on the Bill for the prevention of adultery, debates in
' Woodfall's Pari. Reports, vol. xxii. p. 303, &c. Lonls, April
4, 1800. vol. xxiii. p. 35. Lords, May 16. Ibid. p. 76. Lonb,
May 19. Ibid. p. 90. Lords, May 23. Ibid. p. 138. Commoiis,
May 30. Ibid. p. 171. Commons, June 10.
513
which high principles were maintained upon the
soundest reasoning, and recommended by the full
force of professional character, experience, and re*
putation. It is not necessary at present to advert
to that part of the Bill in which it was proposed to
prohibit the intermarriage of the offending parties,
and which may be reserved for future discussion.
The inefficacy of the present law", the inadequacy
of the existing penalties^ the necessity of revision in
conformity. with genera^ principles of legislation and
the practice of other countries^, and the expedience
of recognizing the criminal character of adultery in
order to secure its appropriate punishment', and to
destroy the code of a peculiar caste*, were either
generally admitted or so feebly opposed as not to
require defence. The law was in that state in which
the lawyers regretted abuses for which there was no
remedy, and collusion for which there was no pu-
nishment^: that damages could afford no compensa-
tion to a man for the injury which he sustained by
the adultery of his wife; that there was an insidious
pretence that damages could not be demanded or
received without a sacrifice of honour ; that there
was a common understanding and collusion between
the parties out of court, that the damages should
not be exacted ; and that even the award and pay-
ment of vindictive damages might offer a temptation
n Lord Eldon. (Lords Thurlow and Kenyon.) Sir W. Grant.
Mr. Wilberforce. ' Sir W. Grant. ^ Bishops Porteus and
Horsley. Lord Eldon. Attorney General, (Law.) Sir W. Grant.
Mr. Wilberforce. * Lords Eldon and Auckland. Sir W. Scott.
Mr. Perceval. ' Lord Auckland. ^ Lord Grenville.
VOL. I. L I
514
to connive in the prostitution of a wife; and that
wherever damages were desired, they were not de-
served^. Upon these grounds it was proposed, that
among other measures a criminal proceeding should
be engrafted on the civil process ; that the verdict of
damages should be followed up by a criminal pu-
nishment of fine and imprisonment ; that the pro-
secution should be by indictment before the grand
jury, and carried on by the injured husband, after
obtaining damages in a court of record. The fine
and imprisonment would be a satisfaction to the
public, and .the damages were retained for the benefit
of the poor man, upon whom the adultery entailed
increased expences in the education of his children^.
Thus a crime subversive of all morality and religion,
and of the good order, rights, and happiness of civil
society, would become subject to criminal juris-
prudence'^. It was the remark of Montesquieu, that
the criminal law ought to be harmonious in all its
parts. But if in the British code, renowned as it is
for the wisdom and benevolence of its enactments,
there did not occur any provision for punishing and
restraining the vice of adultery, the code was in that
respect defective, it contained an anomaly which was
not desirable, and which it was the object of the
proposed measure to remove. The best method of
treating adultery was as a misdemeanor and a public
wrong. Considered as a public wrong, it must at
the same time be considered a private injury ; and
indeed there was no act of man on which the cri-^
* Lord Eldon. Mr. Enkine. ^ Lord Eldon. * Ldrd
Auckland.
516
ininal code operated which did not involve a public
wrong, as it implied a civil injury. Treason, rob-
bery, assault, and battery were in their nature public
wrongs, but they were also civil injuries. The crime
of adultery was also a public wrong. Thus, while
the rights of the individual are not merged in any
general principle of jurisprudence, it was sought by
the Bill not to divest the public of the means oi
correcting crime and punishing guilt. Adultery is
lifted up by the common law and by our statutes
into a public crime. Now with regard to adultery
being considered a misdemeanor, it might be said,
that most undoubtedly it did properly fall within
that description. According to the laws of man,
promulgated for the regulation and security of so-
ciety; according to the laws of God, promulgated
for the instruction and preservation of man ; adultery
was already a crime. But if these things were put
out of view ; if it were put out of view that the
effect of adultery is to distract, and divide, and ruin
families ; if it were put out of view that it is a viola-
tion of the sacred ceremony of marriage ; if it were
put out of view that the order and succession of
families, of that compacted and regulated state which
constitutes and consecrates society, are disturbed
and broken by adultery ; still the vice is by law an
indictable offence, and the measure in contemplation
would do little more than give activity to the law.
But looking at adultery as it affected society and
families, what man was there who would not concur
in considering it a most hideous crime ? Adultery
breaks up all domestic society ; for the moment the
mother loses the sense of moral obligation, children
lI 3
516
relax in the observation of their duties* The viola-
tion of the marriage vow in either man or woman
was a transgression of moral duty, and an enormous
crime against God and society ^ In this measure
domestic peace, public morality, and conjugal fide-
lity, were prostrate at the bar of the House, and
pleading for every thing that could cement human
society, and endear and sanctify its ties^.
The arguments in support of the measure were
confirmed by the high reputation of its advocates,
and by the authority of public and private character,
which was found in the Bishops Porteus, Barrington,
and Horsley ; in the Lords Grenville, Auckland, and
Eldon ; the Attorney Greneral, Law ; the Master of
the Rolls, Sir W. Grant; Hon. Thomas Erskine;
Mr. Spencer Perceval ; and Mr. Wilberforce. The
general propriety of giving a criminal character to
adultery was hardly denied : the chief force of the
opposition was directed against the clause which
prohibited the intermarriage of the adulterer with
the adulteress ; and that opposition was successful.
Mr. Perceval nevertheless conceived that there had
been a general admission of the criminal character of
adultery, of the inadequacy of the existing law, and
of the necessity of new measures to prevent and
punish the offence ; and he gave notice of his in-
tention to introduce a new Bill upon the subject.
Bishop Horsley also expressed his hope that the
' Mr. Erskine, whose opinions were fortified by a professional
experience of thirty years, during which he had been concerned
in all the principal actions for criminal conversation. See Pari.
Hep. vol. lii. p. 234.
< Bishop Horsley. -
517
attempt would be renewed : but the hope of the one
has been disappointed, and the intention of the other
was not fulfilled'^. The English law of adultery
retains its old character of%being partial, ineffectual,
and inadequate.
It may be that there was an unnecessary compli-
cation in the details of the contemplated measure,
and under the doctrine of divorce which prevailed
and continues to prevail, opinions were naturally
divided on the intermarriage of the adulterous par-
ties in the event of a divorce of the husband from
the wife. A strong feeling was nevertheless excited
throughout the country, and the minds of men were
drawn to the great question of the criminal cha-
racter, the penal prosecution, and public punishment
of adultery. Among other suggestions which the
occasion called forth, it was especially and very
powerfully proposed, that the man should suffer
imprisonment, and that the woman should lose her
fortune and be placed in a state of moral control.
*^ In the case of the abduction of a man^s wife,
public fine and imprisonment for two years are
added to the recovery of private damages, and both
>> " ££fort8 have from time to time been made for the amend-
ment of a law, which as it stands at present operates as an
inducement to the crime which it ought to prevent, and by its
contrariety to Scripture is unworthy of a Christian country. A
g^reat and learned ornament of the law, it is said, once pledged
himself in the House of Lords that he would use his utmost
endeavours to render adultery by law a criminal o£fence. Every
friend to the moral character of his country must wish him
health and life and opportunity to redeem his pledge.*' Bishop
Burgess. Greek Original of the New Testament asserted, ^
xxxiii.
•;t
518
the king and the husband may have this actioo. la
the seduction of her so much lighter in guilt, that
the Crown shall have do plea against it, and bar-
barity be imputed to those who would guard the
marriage vow by a salutary increase of rigour against
the invaders of it*/' The crime of the woman re-
quires a parity of punishment in proportion to her
share of the guilt, and to the delicacy always due to
her sex. But it was alleged, that her seclusion in a
convent, as is the practice on the continent, and as
is conformable with the ancient law of Justinian,
was obviously impracticable in England ; and it was
urged with a chivalrous delicacy, that her imprison-
ment was not to be thought of for a moment. It
was a^ked, therefore, whether in the case of the
woman a penalty might not be copied from one of
the ancient ordinances of France. *' Might not a
certain part of her fortune be retained for her decent
maintenance, while the rest of it is forfeited ? Might
not the Lord Chancellor, or the Lord Chief Justice
of the King's Bench, be appointed the official judge
of her conduct ? If she continued vicious, or drew
impure gains from other quarters, might not the
portion first awarded to her revert to her family ? If
there were appearances of contrition and a better
behaviour, might not the judge have power to com-
mand from the husband a certain discreet addition
to the allowance originally made ? Here would be a
sort of moral inspection, equally discouraging to the
progress of viciousness and promotive of a returning
sobriety "".^
* Nupt Sacr. p. 131. ^ Ibid. p. 135.
519
To the proposed impriMnment of the man there
can be no objection : but is it not a fastidious gal-
lantry, which recoils from the imprisonment of the
woman ? It is the practice of every day to commit
the female misdemeanant : it is the specific punish*
ment provided for the unmarried woman who gives
birth to a bastard ; and is there any ground for such
a distinction of crimes and penalties, as makes adul-
tery more venial than simple incontinence ? The
proposal of a moral inspection is worthy of all con-
sideration : but in the accumulated labours which
press upon the chiefs of the law, might not a private
guardian, amenable to the courts, be preferable to an
official guardian ?
In the code of laws submitted to the Cortes of
Spain, it was proposed to punish adultery by the
seclusion of the adulteress, the imprisonment of the
adulterer, and a sentence of infamy upon the husband
who should be convicted of the oflTence. These were
wise and manly suggestions, and may be applied to
the improvement of the English law. The tem-
porary seclusion of the woman, for a period to be
limited by the aggravated or mitigated circumstances
of the case, to be terminated by the consent of the
husband to receive her again, and to be made per-
petual on the repetition of the offence, might afford
the best opportunities of moral inspection, and coin-
cide with the popular opinion of the age in favour of
a penitentiary discipline for the reformation of of-
fenders. The degradation of the adulterer, under the
same limitation, ait the prosecution of the wife whom
he has neglected, or the husband whom he has in-
jured, to a state of infamy, which should on^y be
520
avoided by voluntary banishment, or commuted for
imprisonment with hard labour,' under which, as
under the sentence of civil d^radation admitted into
the French code, and as a man of suspected cha-
racter, he should be incapable of exercising any
civil privileges, or holding any office of honour or
emolument, under which his property should be
liable to the maintenance of the adulteress, and
otherwise inalienable for the time, after the deduction
of his unavoidable expences, from his wife, and chil-
dren, and lawful heirs, would be a revival. of the
virtual excision of the offender, of the true excom-
munication from all virtuous and honourable society.
Such penalties would have no prejudicial effects
upon the innocent ; they would not suffer the guilty
of either sex to revel in impunity; they would pre-
clude the exhibition of a bold bad example ; they
would put redress in the power of all who are liable
to the injury, and equally avenge the wrongs of the
peasant and the peer; they would supersede all
argument concerning the intermarriage of the parties;
they would stamp the guilt and criminal character of
adultery ; they would reduce the man, who scruples
not to call himself a man of honour, to his proper
level with criminals and misdemeanants ; and would
counteract all the pretensions of superior address
which the adulterer affects, by treating him as a man
unworthy and incapable of exercising his civil rights,
and take away the protection of the law from men
who violate or invade the most sacred and most
solemn obligations.
Other and severer measures have been proposed
for the punishment of adultery, and continental
521
writers have not scrupled to demand the revival of
the capital penalty, to insist upon the banishment of
the offenders, and to make a change of abode, by
which the bad example may be abated, the only
condition of their intermarriage'. The law of Scot-
land still authorizes the capital infliction, although it
has fallen into desuetude : but the penal abridgment
of human life is at all times a matter of momentous
consideration ; and it is more just to the condition
of humanity to maintain, dtad in the present state of
society more easy to carry into effect, the principle,
that whatever correctioh shall be applied to the evil,
it shall be just sufficient for the purpose required ;
and while endeavours are used to repress offence,
every possible opening shall be left both to repent-
ance and to reconciliation. " If the punishment
goes beyond the necessity ; if in the violence of
reform terror is heaped upon terror against the of-
fenders, for morals too have their excesses, and
virtue sometimes riots ; it is easy to see the conse-
quence. Society will grow universally depraved
under a law superfluously rigorous"".^'
The true question is not whether adultery has
obtained a predominance which calls for new penalties
and restraints, but whether the present law of adul-
tery is adequate to the prevention and punishment
of a crime, than which none is more injurious to the
peace of private life ; none in its own nature more
pregnant of complicated and aggravated villainy ;
none from whose contemplation the mind of man
recoils with more aversion, or which is more opposed
' Gerhard, s. 622. "• Nupt. Sacr. p. 137.
VOL. I. Mm
522
to the law and to the judgments of God. It is in
periods free from the excesses and the inrkations of
crime, that legislation wiH proceed most' securely,
and that remedial and preventive laws will be devised
with the most unbiassed wisdom, and opposed with
the least of passion, prejudice, and iatereat. But
before any revision of the law can be expected, it
will be necessary to raise the tone of society in the
mention of each and every kind of dduuicbery ; to
throw aside the levity whlbh renders vice ridiculous,
the compassion which supposes it venial, and the
austerity which seems to hate the offender more than
the ofience ; and to counteract the licence of decla-
mation, which, in making the worse appear the better
cause, softens the odious character of adultery, con-
fers a heathen divinity on the adulterer»4md exhibits
him in all the graces of the god of love. It will be
necessary to denounce adultery in its proper cha-
racter, not as a civil injury capable of pecuniary
redress ; but as the abandonment of all honour ; the
violation of the most sacred rights : a crime against
society ; a sin against God : overlooked by the partial
vengeance of human laws, but liable to the awful
sentence of everlasting doom: Aoultkrers God
WILL JUDG£.
END OF VOL. I.
BAXTER, ^RIHTIR, OXPOROb
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