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the guilty cannot, by the nature of the case, but may, by special enactment, be separated; which forms, however, shackling the liberty of Divorce and re-marriage, leave the state of our law open to the possibility of a nearer approach and conformity to the Saviour's rule.
This is a summary of the historical view of the subject. Some miscellaneous remarks shall close the whole.
Many have contended against the indissolubility of the marriage contract with too great earnestness, and urged the propriety of tolerating Divorces on slighter grounds than those of Adultery. The case of the celebrated Milton* immediately occurs to the mind, and allusion to him could not properly be omitted in an Essay on this subject. In his elaborate Treatise on the Subject of Adultery and the Law of Divorce, he strongly argues in support of this view of the case; and his own treatment of his wife, who left him either from dislike of his philosophical mode of living, or his republican principles, at first, indeed, corresponded with his reasonings, but he after
* Milton Tetrachordon.
Milton's was the case of a
man of strong judgment perverted by stronger passions. It is impossible to avoid smiling at the specious subtleties of some of his arguments, in order to repel the force of the terms in which the restricting clause of the Saviour's law is couched; he is obliged to reason thus: "The law of Moses is, Thou shalt do no manner of work on the sabbathday; but Jesus Christ says, 'Yes, works of charity.' And shall we be more severe in paraphrasing the considerate and tender gospel, than he was in expounding the rigid and peremptory law? He saith, The sabbath was made for man;' and I ask, What was more made for man than marriage?-and, as He dispensed 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 faith of a knowing christian, which is the best and truest endowment of the keys, I pronounce, that man, who so binds the ordinance of marriage, not to have the spirit of Christ."
At another time, he argues, "The Saviour said, My yoke is easy, and my burden light;' whereas, if the knot of marriage may, in no case, be dissolved, save for Adultery, all the burdens and services of the law were not so intolerable."
These passages have been quoted, as serving rather to strengthen our own view of the case, than as likely to impair it; for they show Milton's mind to have been enough opposed to the views of the Romanists; while his other arguments for an increased laxity are sufficiently pregnant with mischief and inconsistency, to furnish their own confutation. The master sophistry that pervades his whole Tetrachordon, is the transfer of those causes of Divorce that interfere with the great end of marriage, that of offspring, to causes purely of mind, temper, and inward habit; and these he contends furnish greater inaptitudes for marriage, and more defeat the design of it than any that can exist in reference to the body. Milton must have suffered sorely in his matrimonial connexions when he is reduced to support his position by such an idea as that of one of the old Fathers: "All wedlock is not God's joining. Where harmony is, there God joins; where it is not, dissension reigns, which is not from God; for God is love."
It has been justly remarked that Milton was too fond of Hillel. Perversions, like these, might be made of every duty in the Bible. Scripture might be employed in self-annihilation; and the awfulness and sanctity of its commands explained away by its own libe
rality of spirit, and its merciful condescension to human weakness."
It is astonishing that men who admit the authority of the Saviour on such a point as this, should attempt to evade prohibitions so explicit, by any ingenuities of argument, which are dictated rather by the feelings of prejudice than the cool reflections of enlightened reason.
To all the subtle sophistries of these writers, it will be sufficient to oppose the forcible and elegant language of the learned Judge of one of the Ecclesiastical Courts, in a memorable sentence delivered by him, in a matrimonial suit, many years ago. * In the arguments which had been adduced in that case, in support of the separation, much stress had been laid on the wretched state of disaffection in which the parties were living, and in which they were to continue to live, unless 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
*The Right Hon. Sir William Scott, since created Lord Stowell.
views to the present parties, it would be easily decided on first impressions. Every body must feel 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 together. The disinclination must be founded upon reasons which the law approves. To vindicate the policy of the law is no necessary part of the duty of a judge; but it would not be difficult to show that the law, in this respect, has acted with its usual wisdom and humanity; with that true wisdom and real humanity which regard the general interests of mankind. For though, in particular cases, the repugnance of the law to dissolve the obligations of matrimonial cohabitation, 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 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