social system which was destined to take place; and the violation of marriage, by adultery, incurred a punishment, which was the necessary consequence of the temporal superintendance of the Deity as king of the Jews. This was death.* Lesser causes of divorce were, indeed, allowed, such as might fairly be interpreted from the objection of "uncleanness to the wife, whether this arose from some bodily inaptitude to the purpose of marriage, on her part, or some fixed moral depravity which yet did not

* In the later times of the Jewish state, when, from the great frequency of adultery, this punishment of it became impracticable; there were certain substitutes for it, and some of them of a very strange nature. Extraordinary fasting was one, and, indeed, might well enough be expected; but who, except the Rabbins, could have thought of exposing the adulterer naked, 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, &c. They have a notion that Adam, after his transgression, was subject to this latter punishment, for 130 years together! Buxt. Synag. De quibusdam Judæorum Pœnis.

rise to the crime of adultery.* But in the execution of divorces, that was now to be done with certain forms, and some share of publicity, which before was practised in solitude, and at will. The wife could no longer be sent away but after a declaration in presence of grave and authentic witnesses;†

*The school of Sammah is generally thought to have been wrong in affirming this "uncleanness" to be "adultery." The Jewish nation went mostly with their favourite Hillel, who interpreted it with a latitude which their corrupt practice carried to its utmost bounds. He held the word to signify "any cause of dislike." And this is the opinion we shall presently see expressed to the Saviour, by the Pharisees. St. Matt. xix. Lightfoot, however, whose Rabbinical acquirements were so conspicuous, thought with Sammah. Harm. Ap. And on St. Matt. v. he says, "Our Saviour did not abrogate Moses's permission of divorce, but tolerates it; yet, keeping within the Mosaic bounds, that is, in the case of adultery, condemning that liberty in the Jewish canons which allowed it for ́any cause.

+ Maimonides de Divort. Lib. i. gives a list of ten conditions to be performed by the husband, for the divorce he desired. By the 8th of them, he must make his determination before witnesses. Buxtorf states the number of these to be three, "trium gravium," &c. Synag. Jud.

and a written instrument, prepared by a public notary, and signed and sealed by the witnesses (for such was the practice), succeeded to a verbal order. It is in this guarded sense we are to understand that provision which has given so much cause of impure triumph to the levity of some, and of religious offence to the simplicity of others. "When a man 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 her; then let him write a bill of divorcement, and give it in her hand, and send her out of his house." Deut. xxiv. 1. It was the practice also to exhibit the declaration before the judge. However, he had no power to overrule the proceeding, since (in the phrase adopted by our own lawyers) it was of voluntary, not of contentious, jurisdiction. He was obliged to accept the husband's official notice, which being thus made, whether

with his approbation or without it, was valid in law. The judge could only take cognizance in questions concerning her marriage portion, which the woman, on certain occasions, was made to forfeit, either entirely, or in part, as her conduct seemed to deserve. But in divorces, where no litigation of property occurred (for much was done by private arrangement), the practice was as has been described. Grotius has compared this application to the judge, with that of the Romans to the prætor, for the purpose of manumission. He knew the will of the master, and partook in the forms of the liberation; but he had no controul over it, nor so much as the power of advice concerning it.*

Such was the prescription of the Jewish

* Adnot. in Serm. Dom. the law was satisfied as to the

It is supposed here that age, &c. of the person who

received manumission. I am speaking only of the will of him who resolved to grant the liberty. For the other qualifications, see Instit. Lib. i. tit. 5, 6.

law. Let us now inquire what was the object of it. Generally speaking, it was the safeguard of the woman; since an act, thus deliberately executed, must afford a longer time for reflection on its consequences, than a hasty rejection by a word pronounced under the influence of passion. “Cum libellus iste," says Spencer, who catches the true meaning of this part of the provision,

nisi subductâ ratione et animo sedatiore scribi potuerit, multis inde divortiis obstaculo fuit.”*

But there is a more particular reason still for the written record of this act. A woman, thus divorced, was at liberty to marry another person. "She may go and be another man's wife.” Deut. xxiv. 2. But the bill, itself, of divorcement, might be for ever a bar in the hands of the wife (if she would so use it) against the resumption of her by the husband who had caused it to be exe

* De Rit. Heb. p. 654.