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after the building of Rome, under the consulship of M. Attilius and P. Valerius, was the first who put away his wife because she was barren; though Plutarch, in his Roman questions, maintains that Domitian was the first who permitted divorce. Justinian afterwards added impotence, a vow of chastity, and the profession of a monastic life, as valid reasons of divorce. Roman lawyers distinguish between repudium and divortium; making the former to be the breaking of a contract or espousal, and the latter separation after matrimony. Romulus enacted a severe law, which suffered not.a wife to leave her husband, but gave the man the liberty of turning off his wife, for adultery, for poisoning her children, or counterfeiting his private keys. However, in later times, the women as well as the men might sue for a divorce. The common way of divorcing was by sending a bill to the woman, containing the reasons of separation, and a tender of all her goods which she brought with her; and this was called repudium mittere; or else it was performed in her presence, and before seven witnesses, and accompanied with the formalities of tearing the writings, refunding the portion, taking away the keys, and turning the woman out of doors.

The Grecian Laws concerning divorces were different: the Cretans allowed divorce to any man who was afraid of having too many children. The Spartans seldom divorced their wives; and held it extremely scandalous for a woman to depart from her husband. The Athenians allowed divorce on very small grounds, by a bill containing the reason of the divorce, and approved, if the party appealed, by the chief magistrate; and women also were allowed to leave their husbands on just occasions. Persons divorcing their wives were obliged to return their portions; otherwise the Athenian laws obliged them to pay nine oboli a month for alimony. The terms expressing the separation of men and women from each other were different; the men were said ажожεμεiv or añoλeve, to dismiss their wives; but wives, añoλuπuv, to leave their husbands.

According to Ricaut (State, Ottom. Emp. ch. xxi.) there are among the Turks three degrees of divorce. The first only separates the man and wife from the same house and bed, the maintenance of the wife being still continued: the second not only divides them in that manner, but the husband is compelled to make good her ‘kabin,' which is a jointure or dowry promised at her marriage, so as to have no interest in him or his estate, and to remain in a free condition to marry another. The third sort of divorce, which is called 'Ouch Talae,' is made in a solemn and more serious manner, with more rigorous terms of separation; and in this case the husband, repenting of his divorce, and desirous of retaking his wife, cannot by the law be admitted to her without first consenting to, and contenting himself with, her being temporarily possessed by another man; which the law requires as a punishment of the husband's lightness and inconstancy. These usages seem to have grown out of the laws of Mahomet, who, in the second chapter of the Koran, has ordered that if a man di

vorce his wife the third time (for he may divorce her twice without being obliged to part with her) if he repent of what he has done, it shall not be lawful for him to take her again, until she has been first married and bedded by another, and divorced by such second husband. (Koran, ch. is. p. 27). The precaution, on the whole, has had so good an effect, that the Mahommedans are seldom known to proceed to the extremity of divorce, notwithstanding the liberty given them; it being reckoned a great disgrace so to do: and there are few, except those who have little or no sense of honor, that will take a wife again on the condition enjoined. (Seld. ubi. Sup. I. iii. c. 21; Ricaut's Ottom. Emp. b. ii. c. 21). It must be observed, also, that though a man is allowed, by the Mahommedan law, to repudiate his wife, even on the slightest disgust, yet the women are not allowed to separate themselves from their husbands, unless it be for ill usage, want of proper maintenance, neglect of conjugal duty, impotency, or some cause of equal import; but then she generally loses her dowry, which she does not lose if divorced by her husband, unless she has been guilty of impudicity or notorious disobedience. (Koran, ch. iv. p. 62). When a woman is divorced she is obliged, by the direction of the Koran, to wait three months before she marry another; after which time, in case she be not found with child, she is at full liberty to dispose of herself as she pleases; but if she prove with child she must wait till she be delivered: and, during her whole term of waiting, she may continue in her husband's house, and is to be maintained at his expense; it being forbidden to turn a woman out before the expiration of the term, unless she be guilty of dishonesty. (Koran, ch. ii. p. 26, 27; ch. lxv. p. 454). Where a man divorces a woman before consummation, she is not obliged to wait any particular time (Koran, ch. xxxiii. p. 348); nor is he obliged to give her more than one-half of her dower. (Koran, ch. ii. p. 28). If the divorced woman have a young child, she is to suckle it till it be two years old; the father, in the mean time, maintaining her in all respects: a widow is also obliged to do the same, and to wait four months and ten days before she marry again. (Koran, ch. ii. p. 27).

The divine law to the Jews on this subject is to this effect (Deut. xxiv. 1, &c.): When a man hath taken a wife, and married her, and it come to pass that she finds no favor in his eyes, because he has found in her some uncleanness; then let him write her a bill of divorcement, and give it into her hand, and send her out of his house. And when she is departed, she may go, and be another man's wife; and if her second husband hate her, and write her a bill of divorce, or if he chance to die, her former husband shall not take her again to be his wife, after she is defiled, for that is an abomination to the Lord.' A question has occurred respecting the interpretation of this law, What is meant by the words, if he find any uncleanness, turpitude, or nakedness in her?' and the critics are divided in opinion about it. Dr. Geddes has rendered the Hebrew words, 37, some defect,' but they are by Montanus rendered nuditatem verbi

by our translators, something unclean.' Sept

ασχημον πραγμα. Vulg. aliquam fæditatem, ries. The feelings of the mind that preserve and so equivalently Onk. Syr. and both Arabs. But Tharg. y, some transgression;' and this transgression is supposed by Rabbi Sammai and his followers to be adultery. R.

that innocence, the very affections that prompt and support him in the path of duty, prepare for him present sufferings, against which the criminal party must be hardened; and to the same remote generations, that hear the tale of delinquency on the one side, the humiliation, and, generally, the groundless blame of the other, will be faithfully conveyed.

to ערות דבר Hillel and his party extend the

whatever may displease the husband; and such appears to have been the loose construction of this law in our Saviour's time. The opinion of the Sammaites is untenable; for adultery was punished with death; while that of the Hillelites appears to be too lax. It was probably either some very great bodily blemish, or some base immoral habit, that was meant by the legislator.

The form of the bill of divorce was to this effect:

'Such a day, month, or year, I, such an one, of such a place, upon, or, near such a river, do, of my own free consent and choice, repudiate thee, such an one, my late wife, banish thee from me, and restore thee to thy own liberty; and thou mayest henceforth go whither, and marry whom thou wilt: and this is thy bill of divorcement, and writing of expulsion, according to the law of Moses and Israel.' This writing was signed by two witnesses, and delivered in the presence of as many, at least. From this time, the wife was as much at her liberty, as if she had been a widow; only, in both cases, she was obliged to stay at least ninety days, before she was married to another, lest she should prove pregnant by the last. It does not appear that women were indulged by the law of Moses with the privilege of divorcing their husbands upon the same ground; unless in the case of a virgin betrothed by her parents before she was twelve years of age, who might then refuse to ratify the contract which her parents had made, without giving any other reason than that she did not like the person designed for her; but this cannot be called a divorcement, because there is no marriage in the case. Josephus, therefore, thinks (Ant. lib. xv. c. 11; xviii. 7; xx. 15), that a divorce was so far from being permitted to women, that, if the husband forsook his wife, it was not lawful for her to marry another, till she had first obtained a divorce from him. He adds, that Salome, sister of Herod the Great, was the first who took upon her to repudiate her husband, whose example was soon followed by others, mentioned by the same author.

3. Let us now regard the subject more particularly in its various relations to society, and as a topic of legislation with the great Christian lawgiver. Divorce is always an evil. The sufferings of the innocent, the regrets of the wise and virtuous, and the abhorrence of God, attend upon it; while it opens a breach in the foundations of human society to which no other domestic evil is comparable. That it may be the refuge of a good man from the vices of an incorrigible companion, and the prospect of indefinite future injuries, who can deny? but never can it be his remedy for the past; never will it offer any thing to his mind in the shape of compensation. It is of that species of punishment on the guilty, of which the innocent is compelled to share the shame and the suffering, in a peculiar manner; and to bear, perhaps, in this life the chief mise

More bitter than

As far as the immediate parties to a divorce are concerned, all the objects and uses of marriage are ruinously overthrown and defeated by it. The husband (following the supposition of his being the innocent party), can no longernever more, perhaps, can he-regard the character of woman in its true light. No longer has she power to infuse a peculiar sensibility into his heart, to give candor and patience to his mind, or sweetness to his disposition. All his recollections of her influence are calculated to inspire just the opposite feelings. death,' have been the consequences of his submission to it. And when the husband is the guilty, and the wife the innocent party (for the only just cause of divorce will compel the Christian moralist to hold the balance even between the sexes), what must the widowed heart of an all-confiding female endure? It is hardly possible that she should ever more look up to man; that she should again believe that his judgment can strengthen hers, or his character become a safe pillar of her hope.

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The mischiefs of divorce are but too often capable of a still greater aggravation, i. e. when children are connected with its consequences. For a father's authority (in our boyish days particularly), it is as impossible to find a substitute, as for a mother's care in earlier life. Let not parents forget, that no hireling, however faithful or respectable, can do their duty to their children-a duty ever, as a whole, intransferable, 'because he is a hireling;' but divorces generally break into a family when all that is most important in the character of each parent should be in full exercise; when, if there are children, they are of tender years, and every thing in relation to their character and hopes is in the bud, or in blossom. Now, either father,' or 'mother (names especially in conjunction, of greater moral power than any other that belong to creatures), becomes a term worse than unmeaning, worse than dead. As soon as the mind can be influenced by the fatal example, it is weakened on the side of virtue, and influenced to evil by one or other of these endearing and important names; which it connects for life with the ideas of tyranny, and cruelty, and profligacy-or with those of treachery, and folly, and female shamelessness. Nor is this all; though one of the less direct, it is not one of the least blessings of marriage to society, that it frequently draws together numerous collateral parties into kindred, and, like a single branch of an inland navigation, unites the resources and blends the interests of distant neighbourhoods. Imagine this one branch to be obstructed or annihilated, and the effect is felt wherever its waters flow. Something like this, or worse than this, occurs in every case of

divorce, however just. Amongst all the parties connected by affinity with the original tie, the annihilation of it distils evil. Where only ordinary good wishes were increased by it, and approving aunts and smiling cousins felt it but decent to remember the relationship when it did not infringe on their selfishness, or on prior claims, the warmest discussion of the facts and circumstances, the merits and demerits of the case, will spread; and wounded pride will be far more productive of hatred and of falsehoods, than any such ties ordinarily are of affection. Every divorce is thus a party affair with a number of families and individuals, an evil unseen, but increasing with the increasing intelligence of the community-and proportionably destroying the safeguards of virtue amongst them, by familiarising them with the details of the worst of crimes.

It is rather remarkable that we have a most · elaborate disquisition on this subject from the pen of Milton. As his prose writings generally, and his theological sentiments in particular, have recently attracted considerable public notice, we may be allowed to notice his views of divorce somewhat in detail. He had made what he would call a disastrous and misyoked marriage,' a remediless mistake;' in which it were 'as vain to go about to compel the unhappy pair into one flesh, as to weave a garment of sand, to compel the vegetable and nutritive powers of nature to assimilations and mixtures which are not alterable each by the other; or force the concoctive stomach to turn that into flesh, which is so totally unlike that substance as not to be wrought upon.' In other words, the prince of poets had proved himself but man in his choice of a wife; and because she was not more than woman in bearing with his learned peculiarities at home, and not a well advised or discreet woman, in refusing to return home after a short absence at her father's house, Milton branded her as 6 no wife,' an adversary,'' a desertrice; and actually paid his addresses to another lady with a view to supplying her place. The sequel of the poet's history speaks of a romantic reconciliation taking place between them She rushed to his feet in tears at the house of relative; and, after a short reluctance, he sacrificed his resentment to her entreaties, and the solicitation of surrounding friends. To this event, according to Fenton, we owe much of the painting in that pathetic scene in Paradise Lost, in which Eve addresses herself to Adam for pardon and peace. Now then, the mistake' was remedied; the uncongenial assimilations' mixed; and the champion of divorce and his adversary' became one flesh:' but he had published, in the interim, his work on Divorce, and others in defence of it; and he through life justified the theory he had, under these untoward circumstances, espoused. Milton composed two sonnets on the treatment he received from the public, and particularly from the clergy, on account of these works. In one he says:A book was writ of late, called Tetrachordon

And woven close, both matter, form, and style; The subject new: it walked the town awhile, Nembering good intellects; now seldom pored on.

Cries the stall-reader,

Bless us! what a word on

A title-page is this!' And some in file
Stand spelling false, while one might walk to Mile-
End-Green.-

In the other he is more serious:

I did but prompt the age to quit their clogs
By the known rules of ancient liberty,
When straight a barbarous noise environs me
Of owls and cuckoos, asses, apes, and dogs:
As when those hinds that were transformed to frogs,
Railed at Latona's twin-born progeny,
Which after held the sun and moon in fee.
But this is got by casting pearls to hogs,
That bawl for freedom in their senseless mood,
And still revolt when truth, would set them free.

A definition of marriage, which the poet furnishes in due form and order, certainly lies at the basis of the Doctrine of Divorce.'

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The material cause of matrimony,' says Milton, is man and woman; the author and efficient, God and their consent. The internal form and soul of this relation is conjugal love, arising from a mutual fitness to the final causes of wedlock,-help, and society in religious, civil, and domestic conversation, which includes, as an inferior end, the fulfilling of natural desire and specifical increase; these are the final causes, both moving the efficient and perfecting the form.' p. 272.

Or again, and with all the eloquence of a disappointed lover:

Marriage is a divine institution, joining man and woman in a love fitly disposed to the helps and comforts of domestic life. A divine institution. This contains the prime efficient cause of marriage: Joining man and woman in a love, &c. This brings in the parties' consent, until which be, the marriage hath no true being. When I say consent,' I mean not error: for error is not properly consent; and why should not consent be here understood with equity and good to either part, as in all other friendly covenants-and not be strained and cruelly urged to the mischief and destruction of both! Neither do I mean that singular act of consent which made the contract; for that may remain, and yet the marriage not true nor lawful; and that may cease, and yet the marriage both true and lawful, to their sin that break it. So that either as no efficient at all, or but a transitory, it comes not into the definition. That consent I mean which is a love fitly disposed to mutual help and comfort of life; this is that happy form of marriage, naturally arising from the very heart of divine institution in the text, in all the former definitions either obscurely, and under mistaken terms expressed, or not at all. This gives marriage all her due, all her benefits, all her being, all her distinct and proper being. This makes a marriage not a bondage-a blessing not a curse-a gift of God not a snare. Unless there be a love, and that love born of fitness, how can it last? Unless it last, how can the best and sweetest purposes of marriage be attained? And they not attained, which are the chief ends, and with a lawful love constitute the formal cause itself of marriage, how can the essence thereof subsist? How can it be,

indeed, what it goes for? Conclude, therefore, by all the power of reason, that where this essence of marriage is not, there can be no true marriage; and the parties, either one of them or both, are free, and without fault, rather by a nullity than by a divorce, may betake them to a second choice, if their present condition be not tolerable to them. If any shall ask, why domestic' in the definition? I answer, that because both in the Scriptures, and in the gravest poets and philosophers, I find the properties and excellencies of a wife set out only from domestic virtues; if they extend further, it diffuses them into the motion of some more common duty than matrimonial.' pp. 276, 7.

We have but one objection to both these definitions. They envelope in a cloud of words the chief design of marriage; or rather they wholly mis-state its chief design to be the personal comfort of the immediate parties. Help and society in religious, civil, and domestic conversation;' a love fitly disposed to the help and comfort [of each other] in domestic life.' The relative bearing of the institution, or its aspect towards society at large, is almost wholly overlooked. Now we are not about to tempt an unequal warfare with the able quills, or still more formidable frowns, of our fair countrywomen, by denying for one moment the reality of the only want of our primitive sire; or disputing the superior personal comforts he enjoyed, after the formation of his bride. But even a Milton must not be allowed to stigmatise, in prose, the dearest hope of the marriage state, the possession of children, as an inferior end' of marriage. We contrast such a sentiment with the nobler views of the author of Paradise Lost, and smile at the versatility of our nature:

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Hail wedded love, mysterious law, true source
Of human offspring, sole propriety
In Paradise, of all things common else!
By thee adulterous lust was driven from men
Among the bestial herds to range; by thee,
Founded in reason, loyal, just, and pure,
Relations dear, and all the charities

Of father, son, and brother, first were known.

The Roman moralist (Cicero) understood the matter better than either of these definitions state it: or rather, unbiassed by his private grievances in respect to marriage (for he too had them, it will be remembered), he expressed its great objects far more correctly, when he called it The beginning of a city, the seminary of the commonwealth.' In fact, if either the Mosaic narrative of the original institution, or the positive declaration of the almighty Author, is to be held decisive on the subject, the relative objects of marriage, as a source of human offspring,' and a natural guarantee of their education, far from being subordinate to any other, constituted his principal design in it. Every other part of creation is represented by the sacred historian as containing, at its birth, some provision for its perpetuity. Light is divided into successive days; the gramineous tribes are secured against destruction in the seed which they yield, and the fruits in that which they contain; all the inferior creatures of the deep, the earth, and the air, are created ' after their kind:' and God saw this arrangement,

in particular, to be 'good,' perfect, complete. The male of the human species only was, at first, produced alone;' perhaps to teach man more distinctly some of the lessons we are about to consider. This was 'not good,' not a perfect arrangement with regard to man; it did not provide for the complete development of the divine plans concerning him. Marriage was accordingly instituted; and the nuptial benediction pronounced in these terms: 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.' Jehovah formed for man a companion, a covenanted wife.' 'Did he not make (two) one flesh? And is there not one spirit thereto? And what doth he seek? A godly seed.' Abp. Newcome's version of Mal. ii. 15. The endearing names of husband and wife are subordinated by revelation to the important duties of parents. It is truly surprising to see so accurate a textuary, so good a moralist, and so profound a divine, as Milton unquestionably was, bringing together a ponderous volume on marriage and divorce, in which this consideration does not occupy the extent of one page.

The parties then, as we contend, who are in the first instance capable of forming a good and binding marriage, are incapable afterwards of dissolving the contract. The will that binds becomes bound by its own act, and the tie can neither be less strong nor less reasonable on that account. Too common is the notion of measuring the obligation of this, the most important of our voluntary engagements, by the same sort of capricious feeling in which it often originates. With regard, indeed, to the particular person we marry, we are and may justifiably be directed by our own inclinations and preference; but if hence it is assumed, that inclination rather than duty may be a safe future rule, a decent recollection of the ends of marriage will show the fallacy of the conclusion; while to the Christian, who sincerely feels that the way of man is not in himself,' it will appear perfectly monstrous. Various are the contracts that bring us into such new relations to others, that, after having once voluntarily engaged in them, no power of withdrawment is reserved to us. The formal promises and promissory undertakings of the merchant, most of the actual engagements of the learned professions, the acceptance of political office and military rank, but all marriages pre-eminently, are contracts of this description. They bring us into a new moral state; we disengage ourselves from one class of duties, and undertake another; and our good or evil conduct supports the good or evil, promotes the prosperity or adversity, of all men of our class. If we would retreat, we cannot replace numerous other interested parties, nor can we be ourselves replaced in our respective situations before contracting. Amongst these other interested parties to marriage, the appointment of God and nature places prominently-children. Their being is to be considered as a matter of course, and the promotion of their moral well-being as a matter of duty, attendant upon every marriage;—a seed,

and a godly seed.' The cases in which this relation may be lawfully entered into, without any view to the obtaining a family, are to be regarded as exceptions to the general purposes of the institution; they are clearly out of analogy with what we have seen to be its chief design.

We would press particularly on the consideration of the moral reader, married or unmarried, the divinely established connexion between marriage and education. Men and women are united, when God is duly acknowledged to join them together, for objects worthy their own future destiny. A new tribe of creatures, wearing the image of our Almighty Maker, is designed to spring from the union-creatures whose duties, and whose happiness, whose temporal, and whose everlasting destiny, will be more materially affected by the conduct of their parents, as such, than by that of any other human beings. These are the parties, for the sake of whom Christianity has banished polygamy, and restrained divorce; for the sake of whom, even the course of nature seems to dictate the expediency of pairing, and the permanency of the marriage tie, all animals, whose care is necessary for the rearing of their young, having a similar instinct; and none discarding them while their parental care is important :-but what animal has eternal destinies connected with that care, except man? In an age greatly distinguished for the promotion of education by substitute, we have never seen these considerations sufficiently insisted upon in print. Let us educate by substitute, we say, and let any adequate moral superintendence be introduced, when there are no means (from whatever cause) of bringing the parent to watch over and control the machinery of education. But where this can be done, let it be done. It ought to be done. It is the Divine appointment that it should be done; and in those classes of society that have so laudably stood forward for the benefit of others, it is ever practicable-it should ever be borne in view.

Our poet's Doctrine of Divorce,' proportionably defective with his definition of marriage, would place the most important of our voluntary contracts on the weakest of all possible grounds. With him, the peculiar temperament of mind and character which first determines us to marry a particular person may, if afterwards reversed, reverse and annul the bond. Indisposition, unfitness, or contrariety of mind!' It would be irreverence to the memory of this great man, to multiply quotations from his mode of reasoning on the subject.

Milton defends his doctrine by contending that the law of Moses on this subject is not, in point of fact, repealed by Jesus Christ; and that as other reasons of divorce than actual adultery were allowed by the Jewish legislator, the Christian magistrate should yet admit of them. He minutely examines the celebrated text, Deut. xxiv. 1; and compares it with the original institution of marriage; insisting that no covenant whatever obliges against the main end of itself and the parties covenanting, which main end he calls, in marriage, the remedy of loneliness' in He then objects to the ignorance and in

man.

iquity, as he terms it, of the canon law, providing for the right of the body in marriage, but nothing for the wrongs and grievances of the mind.' He contends, that the ordinary construction of Matt. v. 32, as repealing the Mosaic law, in reality charges that law with conniving at open and common adultery among the chosen people of God. Nine reasons are given (chap. ii. to xiii.) for the Mosaic precept, thus assumed to be still in force. 1. A meet and proper conversation is the chiefest end of marriage. 2. Without this law, marriage, as it happens oft, is not a remedy of that [kind] which it promises [to be]. 3. Without it, he who finds nothing but remediless offences and discontents, is in greater temptations than ever before. 4. God regards love and peace in the family more than a compulsive performance. 5. Nothing more hinders and disturbs the whole life of a Christian, than a matrimony found to be incurably unfit. 6. To prohibit divorce sought for natural causes is against nature. 7. Sometimes the continuance in marriage may be evidently the shortening or endangering of life. 8. It is probable, or rather certain, that every one who happens to marry hath not the calling. 9. Marriage is not a mere carnal coition, but a human society. Such are the contents of book I. of the Doctrine and Discipline of Divorce.

He examines, in his second book, the Chris tian doctrine on the subject. Christ, it is insisted, neither did nor could' abrogate the law of divorce, but only reproved the abuse thereof. He afterwards combats the common exposition of divorce being permitted to the Jews, because of the hardness of their hearts,' and insists, that the law cannot permit, much less enact a permission of, sin; that to allow sin by law is against the nature of law; that if divorce be no command, neither is marriage; and that divorce could be no dispensation, if it were sinful.

He further objects, that if a dispensation of the real law of marriage be supposed, Christians need it as much as the Jews did, and that the gospel is apter to dispense than the law. In defining (chap. viii.) the true sense in which Moses suffered divorce for hardness of heart, he says:

Moses, Deut. xxiv. 1. established a grave and prudent law, full of moral equity, full of due consideration towards nature, that cannot be resisted, a law consenting with the laws of wisest men and civilest nations; that when a man hath married a wife, if it come to pass that he cannot love her, by reason of some displeasing natural quality or unfitness in her, let him write her a bill of divorce. The intent of which law undoubtedly was this, that if any good and peaceable man should discover some helpless disagreement or dislike, either of mind or body, whereby he could not cheerfully perform the duty of a husband, without the perpetual dissembling of offence and disturbance to his spirit; rather than to live uncomfortably and unhappily, both to himself and to his wife; rather than to continue undertaking a duty, which he could not possibly discharge, he might dismiss her whom he could not tolerably, and so not conscionably, retain. And this law, the spirit of God by the mouth of

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