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Trent, and the Papal anathemas against all who thought otherwise, with the exception, however, made in favour of the Venetian Republic and her dependencies.
The law of Scotland, however, seems to have viewed the whole of this important subject in that light which best harmonizes with the doctrines of the Scriptures. The chief argument against the liberty of re-marriage is that which, on the supposition that a dissolution of the marriage bond is effected by the act of Adultery, would make a return to cohabitation between the parties an adulterous intercourse, if it took place without the intervention of a second marriage. But this difficulty is overcome by the Scotch law, which views the dissolution of the first vinculum as effected, not by the adulterous act itself, unless, when the discovery is made of it, the injured party wishes to avail himself of it,* (thus viewing it in the same manner as all other contracts are regarded,) but by the sentence of Divorce, the judicial declaration founded upon satisfactory proof of the crime.
The innocent person may recede from his right, and renounce a favour introduced on his own behalf.
Ayliffe's Parergon, p. 40.
We have, in the Third Section of the Essay, remarked on the reasonings of those who would deny to the guilty party the liberty of re-marriage, while they concede that liberty to the innocent and injured party; and, although such a measure is clogged by considerable difficulty, it is, nevertheless, one which appears to carry with it much that is plausible and specious; for there is reason to fear, that adulterous connexions are often formed with a view to the final union of the companions in crime; and certainly this would afford the seducer a tempting argument to overcome the yet remaining scruples of his victim, when he had once captivated her affections; and, by not prohibiting this, it is said the legislature would be conferring a privilege, where it ought to inflict a punishment. We find, that by the law of Scotland, there is a special statute on this subject, which does restrict the union of the adulterer and adulteress : and it has been proposed to annex a clause, similar to the provision of the Scotch law, to the penal acts of South Britain. Paley thought the proposal certainly deserved an experiment; but, in the mean time, we renew our remark, that this must be by a special legislative enactment: for, until this happens, the nature of things requires this liberty as
the unavoidable result of the dissolution of the contract, and the permission of the privilege to one of the contracting parties. That some alteration, however, in the state of the law on this part of the subject, namely, the punishment of the guilty party, might be advantageous, can hardly be doubted, and that it is called for is equally clear. The history of the matter has been traced, and it cannot be concluded from that review, that because Adultery is now regarded only as a civil injury and a private offence, that therefore the law has always considered it such; and that the infliction of a penalty would be an innovation on the ends of justice: we have seen the contrary. The punishment was not intended to be annihilated, when it was transferred from the secular to the spiritual tribunal. Ecclesiastical judgment did but take up what either the throne felt a disinclination to continue, or an inability to retain, and what had been dilapidated from the Imperial, went to the augmentation of the Canonical law. And what is the ecclesiastical censure? Can it be supposed of much effect with criminals like these? The exposure of the person, modern refinement has prevented, and the mutilation of the features, humanity forbids; neither the ancient" demembratio," nor the " currere
nudus," are to be wished for again: and then, as to the early penances, they likewise are obsolete. Excommunication is now no longer dreaded. The fellowship of the church is no object of envy with the licentious; and as to the denial of the holy communion till the adulterer should reform, can it be thought of much terror to those, whatever ancient effect it had, who never yet regarded that ordinance as a spiritual consolation, or any thing else than an unmeaning and superstitious rite? The punishment, then, which his demoralizing habits render nugatory, as respecting his soul, (salutem animæ,) the adulterer ought to suffer in his person, and some species of corporal suffering, imprisonment, the mildest, at least, ought to be put in force against him. 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 the King and the husband may maintain the action. Surely the seduction of the woman is not such an extenuation of the crime as to justify the loss of any remedy but that which is open to a sufferer for the most trivial loss.
As to the punishment of the adulteress, more difficulty may perhaps be felt; but surely no affected amiable sympathy towards her
sex should screen one who has, by an act like this, torn from herself that quality, without which that sex would merit, and would receive no sympathy. The necessity for some legislative provision is strongly felt here. The denial of the liberty of re-marriage would do something, but a more severe measure is wanted. In the Catholic countries, convents hide the adulteress from the reproaches of the world. But we have none. By the old law of France, she was shorn, and took the veil for life; but, as an elegant writer observes, our only convent is our country, and the culprit is at large in it.
There was, however, another provision of the old ordinances of France, and which was common to the early laws of our own country, as noticed in the fourth section of the Essay, which may furnish a useful suggestion on this matter. The crime of the woman occasioned the forfeiture of her fortune to her husband.* And not only did our earlier English laws inflict the loss of the wife's dower and paraphernalia; but cases have occurred where the Adultery of the wife has been adjudged a sufficient cause of enmity for a donor or testator to have been considered to have
* Dict. de Droit. Civil.