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manner in which Paley has argued the law of divorce, with reference to marriages contracted upon this 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 obligation 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 children 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 possessed 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 circumstance 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 them."
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
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 considered 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 pleasure; 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 demonstrateth that it is not a human bat a divine contractu.”
“ 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 juris gentium, affecting the personal status of the parties t.” “ This
* Boswell's Life of Johnson: the year 1776. u Fergusson, 340. * Ibid. 327.
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 marriage when it is once constituted no longer any local site or boundary, but it is in all respects different, 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 contract and nothing more, is, that it changes
Quarterly Review, No. XLIX. p. 251.
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 nevertheless 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 inprovement 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 primæval law of marriage, delivered with divine authority, the same should it remain 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 permanent union of one man with one woman, it still precludes all polygamy and all divorce: if its primary law imposed a voluntary and irrevocable engagement, it is still opposed to force and to caprice :
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 prevented 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 friendship, 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 marriage as divinely instituted is adapted to all men in all ages and in all countries, the protection of his infancy, 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
2 Monthly Review, vol. ciii. p. 299. Mohammedism“ is well adapted to the servile population of the tropics, for it is not merely the hereditary and traditional religion of the African Blacks, but it opposes no obstacle to those frequent divorces, which the early decay of females in warm climates tends to render irksome to the husband, and which the frequent transfer of individual slaves to another plantation is calculated to make desirable to the slave-owner.”