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Causes, so for to vitiate the public opinion, that has annexed these rights and obligations to certhere is no practice of which the immorality' is so tain forins, so that they cannot be secured or unhttle thought of or acknowledged, although there dertaken by any other means, which is the case are few in which it can more plainly be made out. here (for, whatever the parties may promise to The legislators who have patronised receptacles each other, nothing, but the marriage ceremony of prostitution, ought to have foreseen this effect, can make their promise irrevocable,) it becomes in as well as considered, that whatever facilitates for the same degree immoral, that men and women nication, diminishes marriages. And, as to the should cohabit without the interposition of these usual apology for this relaxed discipline, the forms. danger of greater enormities, if access to prostitutes were too strictly watched and prohibited, it will be time enough to look to that, when the laws If fornication be criminal, all those incentives and the magistrates have done their utmost. The which lead to it are accessaries to the crime; as greatest vigilance of both will do no more, than lascivious conversation, whether expressed in oboppose some bounds and some difficulties to this scene, or disguised under modest phrases; also intercourse. And, after all, these pretended fears wanton songs, pictures, books; the writing, pubare without foundation in experience. The men lishing, and circulating of which, whether out of are in all respects the most virtuous, in countries frolic, or for some pititul profit, is productive of so wbere the women are most chaste.
extensive a mischief from so mean a temptation, There is a species of cohabitation, distinguish that few crimes, within the reach of private wickable, no doubt, from vagrant concubinage, and edness, have more to answer for, or less to plead which, by reason of its resemblance to marriage, in their excuse. may be thought to participate of the sanctity and Indecent conversation, and by parity of reason innocence of that estate; I mean the case of kept all the rest, are forbidden by Saint Paul, Eph. iv. mistresses, under the favourable circumstance of 29. “Let no corrupt communication proceed out mutual fidelity. This case I have heard defended of your mouth;" and again, Col. iii. 8. Put off by sme such apology as the following:
filthy communication out of your mouth." * That the marriage-rite being different in dif The invitation, or voluntary admission, of imferent countries, and in the same country amongst pure thoughts, or the suffering them to get posdifferent sects, and with some scarce any thing; session of the imagination, falls within the same and, moreover, not being prescribed or even men- description, and is condemned by Christ, Matt. v. tioned in Scripture, can be accounted for only as 28. “Whosoever looketh on a woman to lust after of a form and ceremony of human invention: her, hath committed adultery with her already in that, consequently, if a man and woman betroth his heart.” Christ, by thus enjoining a regulation and confine themselves to each other, their inter- of the thoughts, strikes at the root of the evil. course must be the same, as to all moral purposes, as if they were legally married; for the addition or omission of that which is a mere form and cere
CHAPTER III. mony, can make no difference in the sight of God, & in the actual nature of right and wrong."
Seduction. To all which it may be replied,
The seducer practises the same stratagems to 1. If the situation of the parties be the same draw a woman's person into his power, that a thing as marriage, why do they not marry ? svindler does to get possession of your goods, or
2. If the man choose to have it in his power to money; yet the law of honour, which abhors dedismiss the woman at his pleasure, or to retain ceit, applauds the address of a successful intrigue; her in a state of humiliation and dependence in so much is this capricious rule guided by names, consistent with the rights which marriage would and with such facility does it accommodate itself confer upon her, it is not the same thing. to the pleasures and conveniency of higher life!
It is not at any rate the same thing to the Seduction is seldom accomplished without fraud; children.
and the fraud is by so much more criminal than Again, as to the marriage-rite being a mere other frauds, as the injury effected by it is greater, form, and that also variable, the same may be continues longer, and less admits reparation. said of signing and sealing of bonds, wills, deeds This injury is threefold: to the woman, to her of conveyance, and the like, which yet make a family, and to the public. great difference in the rights and obligations of 1. The injury to the woman is made up of the the parties concerned in them.
pain she suffers from shame, or the loss she sustains And with respect to the rite not being appoint- in her reputation and prospects of marriage, and el in Scripture;-the Scriptures forbiū fornica of the depraration of her moral principle. tion, that is, cohabitation without marriage, leaving 1. This pain must be extreme, if we may judge it to the law of each country to pronounce what of it from those barbarous endeavours to conceal is, of what makes, a marriage; in like manner their disgrace, to which women, under such cir. as they forbid thefts, that is, the taking away of cumstances, sometimes have recourse; comparing another's property, leaving it to the municipal also this barbarity with their passionate fondness kaw to fix what makes the thing property, or for their offspring in other cases. Nothing but an whose it is; which also, as well as marriage, de-agony of mind the most insupportable can induce pend upon arbitrary and mutable forms.
a woman to forget her nature, and the pity which ! Laying aside the injunctions of Scripture, the even a stranger would show to a helpless and implain account of the question seems to be this: It ploring infant. It is true, that all are not urged is immoral, because it is pernicious, that men and to this extremity; but if any are, it affords an inwomen should cohabit, without undertaking cer- dication of how much all suffer from the same lain irrevocable obligations, and mutually con cause. What shall we say to the authors of such ferring certain civil rights; therefore, the law 'mischief ?
2. The loss which a woman sustains by the ruin , and affections, the most painful and incurable of her reputation, almost exceeds computation that human nature knows. In all other respects, Every person's happiness depends in part upon adultery on the part of the man who solicits the the respect and reception which they meet with chastity of a married woman, includes the crimne in the world; and it is no inconsiderable mortifi- of seduction, and is attended with the same miscation, even to the firmest tempers, to be rejected chief. from the society of their equals, or received there The infidelity of the woman is aggravated by with neglect and disdain. But this is not all, nor cruelty to her children, who are generally inthe worst. By a rule of life, which it is not easy volved in their parents' shame, and always made to blame, and which it is impossible to alter, a unhappy by their quarrel. woman loses with her chastity the chance of mar If it be said that these consequences are chargerying at all, or in any manner equal to the hopes able not so much upon the crime, as the discovery, she had been accustomed to entertain. Now mar we answer, first, that the crime could not be disriage, whatever it be to a man, is that from which covered unless it were committed, and that the every woman expects her chief happiness. And commission is never secure from discovery; and this is still more true in low life, of which con- secondly, that if we excuse adulterous connexions, dition the women are who are most exposed to whenever they can hope to escape detection, solicitations of this sort. Add to this, that where which is the conclusion to which this argument a woman's maintenance depends upon her cha- conducts us, we leave the husband no other seracter (as it does, in a great measure, with those curity for his wife's chastity, than in her want of who are to support themselves by service,) little opportunity or temptation; which would probably sometimes is left to the forsaken sufferer, but to either deter men from marrying, or render marstarve for want of employment, or to have re- riage a state of such jealousy and alarm to the course to prostitution for food and raiment. husband, as must end in the slavery and confine
3. As a woman collects her virtue into this ment of the wife. point, the loss of her chastity is generally the The vow, by which married persons mutually destruction of her moral principle ; and this con- engage their fidelity,“ is witnessed before God," sequence is to be apprehended, whether the cri- and accompanied with circumstances of solemnity minal intercourse be discovered or not.
and religion, which approach to the nature of an II. The injury to the family may be understood, oath. T'he married oftender therefore incurs a by the application of that infallible rule, “ of do crime little short of perjury, and the seduction of ing to others, what we would that others should a married woman is little less than subornation do unto us." -Let a father or a brother say, for of perjury ;-—and this guilt is independent of the what consideration they would suffer this injury discovery, to a daughter or a sister; and whet
All behaviour which is designed, or which even a total, loss of fortune, could create equal knowingly tends, to captivate the affection of a affliction and distress. And when they reflect married woman, is a barbarous intrusion upon upon this, let them distinguish, if they can, be the peace and virtue of a family, though it fall tween a robbery, committed upon their property short of adultery. by fraud or forgery, and the ruin of their happiness The usual and only apology for adultery is, the by the treachery of a seducer.
prior transgression of the other party. There are III. The public at large lose the benefit of the degrees, no doubt, in this, as in other crimes: woman's service in her proper place and destina- and so far as the bad effects of adultery are antition, as a wife and parent. This, to the whole cipated by the conduct of the husband or wife community, may be little ; but it is often more who offends first, the guilt of the second oflender than all the good which the seducer does to the is less. But this falls very far short of a justificacommunity can recompense. Moreover, prostitu- tion; unless it could be shown that the obligation tion is supplied by seduction; and in proportion of the marriage-vow depends upon the condition to the danger there is of the woman's betaking of reciprocal fidelity; for which construction there herself, after her first sacrifice, to a life of public appears no foundation, either in expediency, or in lewdness, the seducer is answerable for the mul- the terms of the promise, or in the design of the tiplied evils to which his crime gives birth. legislature which prescribed the marriage-rite.
Upon the whole, if we pursue the effects of se- Moreover, the rule contended for by this plea, has duction through the complicated misery which it a manifest tendency to multiply the offence, but occasions, and if it be right to estimate crimes by none to reclaim the offender. the mischief they knowingly produce, it will ap The way of considering the offence of one pear something more than mere invective to as party as a provocation to the other, and the other sert, that not one half of the crimes, for which as only retaliating the injury by repeating the men suffer death by the laws of England, are so crime, is a childish trifling with words. flagitious as this.*
"Thou shalt not commit adultery,” was an
interdict delivered by God himself. By the JewCHAPTER IV.
ish law, adultery was capital to both parties in
the crime: "Even he that committeth adultery Adultery.
with his neighbour's wife, the adulterer and adulA New sufferer is introduced, the injured which passages prove, that the Divine Legis
teress shall surely be put to death.”—Levit. xx. 10. husband, who receives a wound in his sensibility lator placed a great difference between adultery
* Yet the law has provided no punishment for this and fornication. And with this agree the Cbris. offence beyond a pecuniary salisfaction to the injured tian Scriptures: for, in almost all the catalogues family; and this can only become at, by one of the they have left us of crimes and criminals, they his action against the seducer, for the loss of his enumerate "fornication, adultery, whoremongers, daughter's service, during her pregnancy and nurturing. I adulterers.” (Matthew xv. 19. 1 Cor. vi. 9. Gal
9. Heb. viii. 4.) by which mention of both, they demned thee ?” he certainly spoke, and was unshow that they did not consider them as the same: derstood by the woman to speak, of a legal and but that the crime of adultery was, in their ap- judicial condemnation; otherwise, her answer, prehension, distinct from, and accumulated upon “No man, Lord,” was not true. In every other that of fornication.
sense of condemnation, as blame, censure, reproof, The history of the woman taken in adultery, private judgment, and the like, many had conrecorded in the eighth chapter of St. John's Gos- | demned her; all those indeed who had brought
has been thought by some to give countenance her to Jesus. If then a judicial sentence was what to that crime. As Christ told the woman, “Neither Christ meant by condemning in the question, the do I condemn thee,” we must believe, it is said, common use of language requires us to suppose that he deemed her conduct either not criminal, that he meant the same in his reply, “Neither do or not a crime, however, of the heinous nature I condemn thee," i.e. I pretend to no judicial which we represent it to be. A more attentive character or authority over thee; it is no office or Camination of the case will, I think, convince us, business of mine to pronounce or execute the senthat from it nothing can be concluded as to Christ's tence of the law. opinion concerning adultery, either one way or When Christ adds, “Go, and sin no more," he the other. The transaction is thus related: "Early in effect tells her, that she had sinned already : in the morning Jesus came again into the temple, but as to the degree or quality of the sin, or and all the people came unto him: and he sat Christ's opinion concerning it, nothing is declared, down and taught them. And the Scribes and or can be in ferred, either way, Pharisees brought unto him a woman taken in Adultery, which was punished with death duradultery: when they had set her in the midst, ing the Usurpation, is now regarded by the law they say unto him, Master, this woman was taken of England only as a civil injury; for which the in adultery, in the very act: now Moses in the law imperfect satisfaction that money can afford, may commanded that such should be stoned; but what be recovered by the husband. sayest thou? This they said tempting him, that they might have to accuse him. But Jesus stooped down, and with his finger wrote on the ground, as though he heard them not. So when they
CHAPTER V. continued asking him, he lift up himself, and said
Incest. unto them, He that is without sin amongst you, let him first cast a stone at her; and again he In order to preserve chastity in families, and stooped down and wrote on the ground: and they between persons of different sexes, brought up which heard it, being convicted by their own con- and living together in a state of unreserved inscience, went out one by one, beginning at the timacy, it is necessary, by every method possible, edest even unto the last; and Jesus was left alone, to inculcate an abhorrence of incestuous conjuncand the woman standing in the midst. When tions; which abhorrence can only be upholden by Jesus had lift up himself, and saw none but the the absolute reprobation of all commerce of the Woman, he said unto her, Woman, where are sexes between near relations. Upon this printhose thine accusers ? hath no man condemned ciple, the marriage as well as other cohabitations thre? She said unto him, No man, Lord. And of brothers and sisters, of lineal kindred, and of he said unto her, Neither do I condemn thee ; go, all who usually live in the same family, may be and sin no more."
said to be forbidden by the law of nature. "This they said tempting him, that they might
Restrictions which extend to remoter degrees have to accuse him;" to draw him, that is, into an of kindred than what this reason makes it necesexercise of judicial authority, that they might have sary to prohibit from intermarriage, are founded to accuse him before the Roman governor, of usurp in the authority of the positive law which ordains ing or intermeddling with the civil government. them, and can only be justified by their tendency This was their design; and Christ's behaviour to diffuse wealth, to connect families, or to prothroughout the whole affair proceeded from a mote some political advantage. knowledge of this design, and a determination to The Levitical law, which is received in this defat it. He gives them at first a cold and sullen country, and from which the rule of the Roman toorption, well suited to the insidious intention law differs very little, prohibits* marriage between with which they came: “He stooped down, and relations, within three degrees of kindred; comFrith his finger wrote on the ground, as though puting the generations, not from, but through the he hrard them not.” “When they continued ask- common ancestor, and accounting affinity the ing him," when they teased him to speak, he dis- same as consanguinity. The issue, however, of mized them with a rebuke, which the impertinent such marriages, are not bastardised, unless the malice of their errand, as well as the sacred cha- parents be divorced during their life-time. tarter of many of them, deserved: "He that is with The Egyptians are said to have allowed of the out sin (that is, this sin) among you, let him first marriage of brothers and sisters. Amongst the cast a stone at her.” This had its effect. Stung Athenians, a very singular regulation prevailed; with the reproof, and disappointed of their aim, brothers and sisters of the half-blood, if related by they stole away one by one, and left Jesus and the father's side, might marry; if by the mother's the woman alone. And then follows the con- side, they were prohibited from marrying. The versation, which is the part of the narrative most same custom also probably obtained in Chaldea so Faterial to our present subject. "Jesus said unto early as the age in which Abraham left it; for he ber, Woman, where are those thine accusers ? and Sarah his wife stood in this relation to each kuth no man condemned thee? She said, No man, Lord And Jesus said unto her, Neither do Í The Roman law continued the prohibition to the condemn thee; go, and sin no more.” Now, when the Levitical and English law, there is nothing to hin
descendants of brothers and sisters without limits. In Christ asked the woman, "Hath no man con- der a man froin marrying his great-niece.
other: "And yet, indeed, she is my sister; she is their own, upon which the increase and succesthe daughter of my father, but not of my mother; sion of the human species in a great degree and she became my wife.” Gen. xx. 12.
depend; this is less provided for, and less practicable, where twenty or thirty children are to be supported by the attention and fortunes of one
father, than if they were divided into five or six CHAPTER VI.
families, to each of which were assigned the indusPolygamy.
try and inheritance of two parents.
Whether simultaneous polygamy was permitThe equality* in the number of males and fe- ted by the law of Moses, seems doubtful ; males born into the world, intimates the intention but whether permitted or not, it was certainly of God, that one woman should be assigned to one practised by the Jewish patriarchs, both before man: for if to one man be allowed an exclusive that law, and under it. The permission, if there right to five or more women, four or more men were any, might be like that of divorce, “ for the must be deprived of the exclusive possession of hardness of their heart," in condescension to their any: which could never be the order intended. established indulgences, rather than from the
It seems also a significant indication of the di- general rectitude or propriety of the thing itself. vine will, that he at first created only one woman The state of manners in Judea had probably to one man. Had God intended polygamy for the undergone a reformation in this respect before the species, it is probable he would have begun with time of Christ; for in the New Testament we it; especially as, by giving to Adam more wives meet with no trace or mention of any such practhan one, the multiplication of the human race tice being tolerated. would have proceeded with a quicker progress. For which reason, and because it was likewise
Polygamy not only violates the constitution of forbidden amongst the Greeks and Romans, we nature, and the apparent design of the Deity, but cannot expect to find any express law upon the produces to the parties themselves, and to the pub- subject in the christian code. The words of lic, the following bad effects; contests and jealou- Christ + (Matt. xix. 9.) may be construed, by an sies amongst the wives of the same husband; dis- easy implication, to prohibit polygamy: for, if tracted affections, or the loss of all affection, in the whoever putteth away his wife, and marrieth husband himself: a voluptuousness in the rich, another, committeth adultery," he who marrieth which dissolves the vigour of their intellectual as another without putting away the first, is no less well as active faculties, producing that indolence guilty of adultery: because the adultery does not and imbecility both of mind and body, which have consist in the repudiation of the first wife (for, long characterised the nations of the East; the however unjust or cruel that may be, it is not abasement of one half of the human species, who, adultery,) but in entering into a second marriage in countries where polygamy obtains, are degraded during the legal existence and obligation of the into mere instruments of physical pleasure to the first. The several passages in St. Paul's writings, other half; neglect of children; and the mani- which speak of marriage, always suppose it to fold, and sometimes unnatural mischiefs, which signify the union of one man with one woman. arise from a scarcity of women. To compensate Upon this supposition he argues, Rom. vii. 1, 2, for these evils, polygamy does not offer a single 3."" Know ye not, brethren, (for I speak to them advantage. In the article of population, which it that know the law,) how that the law hath has been thought to promote, the community gain dominion over a man, as long as he liveth? For nothing it for the question is not, whether one the woman which hath an husband, is bound by man will have more children by five or more wives the law to her husband so long as he liveth; but if than by one; but whether these five wives would the husband be dead, she is loosed from the law not bear the same or a greater number of children of her husband: so then, if while her husband to five separate husbands. And as to the care of liveth she be married to another man, she shall be the children, when produced, and the sending of called an adulteress.” When the same apostle them into the world in situations in which they permits marriage to his Corinthian converts, may be likely to form and bring up families of which," for the present distress," he judges to be
inconvenient,) he restrains the permission to the * This equality is not exact. The number of male marriage of one husband with one wife :-" It is infants exceeds that of females in the proportion of good for a man not to touch a woman ; neverthenineteen to eighteen, or thereabouts which excess pro: less, to avoid fornication, let every man have his faring, and other dangerous or unhealthy occupations. own wife, and let every woman have her own
† Nothing, I mean, compared with a state in which husband." marriage is nearly universal. Where marriages are less
The manners of different countries have varied general, and many women unfruitful from the want of husbands, polygamy might at first add a little to popular in nothing more than in their domestic constitution, and but a little; for, as a variety of wives would tions. Less polished and more luxurious nations be sought chiefly from temptations of voluptuousness, it have either not perceived the bad effects of polythan for the sex at large. And this little would soon be gamy, or, if they did perceive them, they who in made less by many deductions. For, first, as none but such countries possessed the power of reforming the opulent can maintain a plurality of wives, where the laws have been unwilling to resign their own polygamy obtains, the rich indulge in it while the rest gratifications. Polygamy is retained at this day tue, when they had nothing for which to reserve it, but Asia in which Christianity is not professed. In secondly, women would grow less jealous of their vir: among the Turks, and throughout every part of a chamber in the haram; when their chastity was no Christian countries, it is universally prohibited. longer to be rewarded with the rights and happiness of a wife, as enjoyed under the marriage of one woman to * See Deut. xvii. 17; xxi. 15. one man. These considerations may be added to what f I say unto you, Whosoever shall put away his wife, is mentioned in the text, concerning the easy and early except it be for fornication, and shall marry another, settlement of children in the world.
In Sweden, it is punished with death. In Eng. I possessed before the contract was entered into; land, besides the nullity of the second marriage, we shall be called upon to prove this to be an it subjects the offender to transportation, or im- universal or indispensable property of contracts. prisonment and branding, for the first ofience, I confess myself unable to assign any circumand to capital punishment for the second. And stance in the marriage-contract, which essentially whatever may be said in behalf of polygamy when distinguishes it from other contracts, or which it is authorised by the law of the land, the mar- proves that it contains, what many have ascribed Tiage of a second wife during the life-time of the to it, a natural incapacity of being dissolved by first, in countries where such a second marriage the consent of the parties, at the option of one of is void, must be ranked with the most dangerous them, or either of them. But if we trace the and cruel of those frauds, by which a woman is effects of such a rule upon the general happiness cheated out of her fortune, her person, and her of married life, we shall perceive reasons of expehappiness. The ancient Medes compelled their diency, that abundantly justify the policy of those citizens, in one canton, to take seven wives; in laws which refuse to the husband the power of another, each woman to receive five husbands : divorce, or restrain it to a few extreme and speaccording as war had made, in one quarter of their cific provocations: and our principles teach us to country, an extraordinary havoc among the men, pronounce that to be contrary to the law of naor the women had been carried away by an enemy ture, which can be proved to be detrimental to the from another. This regulation, so far as it was common happiness of the human species. adapted to the proportion which subsisted between A lawgiver, whose counsels are directed by the number of males and females, was founded in views of general utility, and obstructed by no local the reason upon which the most approved nations impediment, would make the marriage contract of Europe proceed at present.
indissoluble during the joint lives of the parties, Cæsar found amongst the inhabitants of this for the sake of the following advantages :island a species of polygamy, if it may be so called, I. Because this tends to preserve peace and which was perfectly singular. Urores, says he concord between married persons, by perpetuating habent deni duodenique inter se communes ; et their common interest, and by inducing marime fratres cum fratribus, parentesque cum sity of mutual compliance. liberis ; sed si qui sint er his nati, eorum haben There is great weight and substance in both tur liberi, quo primum virgo quæque deducta est. these considerations. An earlier termination of
the union would produce a separate interest. The wife would naturally look forward to the dissolu.
tion of the partnership, and endeavour to draw CHAPTER VII.
to herself a fund against the time when she Of Divorce.
was no longer to have access to the same re
sources. This would beget peculation on one side, By dirorce, I mean a dissolution of the mar- and mistrust on the other; evils which at present Tiage contract, by the act, and at the will, of the very little disturb the confidence of a married life. husband.
The second effect of making the union determinThis power was allowed to the husband, among able only by death, is not less beneficial. It nethe Jews, the Greeks, and latter Romans; and cessarily happens that adverse tempers, habits, is at this day exercised by the Turks and Per- and tastes, oftentimes meet in marriage. In which sians.
case, each party must take pains to give up what The congruity of such a right with the law of offends, and practise what may gratify the other. fiature, is the question before us.
A man and woman in love with each other, do And, in the first place, it is manifestly incon- this insensibly; but love is neither general nor sistent with the duty which the parents owe to durable; and where that is wanting, no lessons of their children; which duty can never be so well duty, no delicacy of sentiment, will go half so far fulfilled as by their cohabitation and united care. with the generality of mankind and womankind It is also incompatible with the right which the as this one intelligible reflection, that they must mother possesses, as well as the father, to the each make the best of their bargain; and that, gratitude of her children, and the comfort of their seeing they must either both be miserable, or both swirty; of both which she is almost necessarily share the same happiness, neither can find their deprived, by her dismission from her husband's own comfort but in promoting the pleasure of the family.
other. These compliances, though at first exWhere this objection does not interfere, I know torted by necessity, become in time easy and muof no principle of the law of nature applicable to tual; and, though less endearing than assiduities the question, beside that of general expediency. which take their rise from affection, generally pro
For. if we say that arbitrary divorces are ex- cure to the married pair a repose and satisfaction cluded by the terms of the marriage-contract, it sufficient for their happiness. may be answered, that the contract might be so II. Because new objects of desire would be conframed as to admit of this condition.
tinually sought after, if men could, at will, be reIf we argue, with some moralists, that the leased from their subsisting engagements. Supobligation of a contract naturally continues, so i pose the husband to have once preferred his wife long as the purpose, which the contracting parties, io all other women, the duration of this preference hal in view, requires its continuance; it will be cannot be trusted to. Possession makes a great difficult to show what purpose of the contract (the difference: and there is no other security against care of children excepted,) should confine a man the invitations of novelty, than the known impos to a woman, from whom he seeks to be loose. sibility of obtaining the object. Did the cause
If we contend, with others, that a contract can- which brings the sexes "together, hold them Dot, by the law of nature, be dissolved, unless the together by the same force with which it first parties be replaced in the situation which each ) attracted them to each other; or could the woman