the union of one man with one woman. Upon this fuppofition he argues, Rom. vii. 2. 3. "Know ye

not, brethren, for I fpeak to them that know the law, how that the law hath dominion over a man, as long as he liveth? For the woman which hath an hufband, is bound by the law to her husband fo long as he liveth; but if the hufband be dead, fhe is loofed from the law of her husband: fo then, if while her husband liveth fhe be married to another man, fhe fhall be called an adulterefs." When the fame Apostle permits marriage to his Corinthian converts (which " for the prefent diftrefs," he judges to be inconvenient) he restrains the permiffion to the marriage of one hufband with one wife: "It is good for a man not to touch a woman; neverthelefs, to avoid fornication, let every man have his own wife, and let every woman have her own huf band."

The manners of different countries have varied in nothing more than in their domestic constitutions. Lefs polifhed and more luxurious nations have either not perceived the bad effects of polygamy, or, if they did perceive them, they who in fuch countries pof feffed the power of reforming the laws have been unwilling to refign their own gratifications. Polyg amy is retained at this day among the Turks, and throughout every part of Afia in which Chritianity is not profeffed. In Chriftian countries it is univer fally prohibited. In Sweden it is punished with death, In England, befide the nullity of the fecond marriage, it fubjects the offender to tranfportation or imprifonment and branding for the first offence, and to capital punishment for the fecond. And whatever may be faid in behalf of polygamy, when it is authorized by the law of the land, the marriage of a fecond wife, during the lifetime of the first, in countries where fuch a fecond marriage is void, must be ranked with the most dangerous and cruel of thofe frauds, by which a woman is cheated out of her fortune, her perfon, and her happiness.

The ancient Medes compelled their citizens, in one canton, to take feven wives; in another, each woman to receive five hufbands: according as war had made, in one quarter of their country, an extraordinary havock among the men, or the women had been carried away by an enemy from another. This regulation, fo far as it was adapted to the proportion which fubfifted between the numbers of males and females, was founded in the reafon upon which the moft improved nations of Europe proceed at present.

Cafar found amongst the inhabitants of this island a fpecies of polygamy, if it may be fo called, which was perfectly fingular. Uxores, fays he, habent deni duodenique inter fe communes, et maxime fratres cum fratribus, parentefque cum liberis : fed fi qui funt ex his nati, eorum habentur liberi, quo primum virgo quæque deducta eft.

Chapter VII.

OF DIVORCE.

By Divorce, I mean, the diffolution of the marriage contract, by the act, and at the will, of the hufband.

This power was allowed to the husband, among the Jews, the Greeks, and latter Romans; and is at this day exercifed by the Turks and Perfians.

The congruity of fuch a right with the law of nature, is the queftion before us.

And in the first place, it is manifeftly inconfiftent with the duty, which the parents owe to their children; which duty can never be fo well fulfilled as by their cohabitation and united care. It is alfo incompatible with the right which the mother poffeffes, as well as the father, to the gratitude of her children, and the comfort of their fociety; of both

which fhe is almoft neceffarily deprived, by her dif miffion from her husband's family.

Where this objection does not interfere, I know of no principle of the law of nature applicable to the question, befide that of general expediency.

For, if we fay, that arbitrary divorces are excluded by the terms of the marriage contract, it may be anfwered, that the contract might be fo framed as to admit of this condition.

If we argue with fome moralifts, that the obligation of a contract naturally continues, fo long as the purpose which the contracting parties had in view, requires its continuance; it will be difficult to fhew what purpose of the contract (the care of children excepted) fhould confine a man to a woman, from whom he feeks to be loofe.

If we contend with others, that a contract cannot, by the law of nature, be diffolved, unless the parties be replaced in the fituation which each poffeffed before the contract was entered into; we shall be called upon to prove this to be an univerfal or indifpenfable property of contracts.

I confefs myself unable to affign any circumstance in the marriage contract, which effentially diftinguishes it from other contracts, or which proves that it contains, what many have afcribed to it, a natural incapacity of being diffolved by the confent of the parties, at the option of one of them, or either of them. But if we trace the effects of fuch a rule upon the general happiness of married life, we fhall perceive reafons of expediency, that abundantly juftify the policy of thofe laws which refufe to the husband the power of divorce, or restrain it to a few extreme and fpecific provocations and our principles teach us to pronounce that to be contrary to the law of nature, which can be proved to be detrimental to the common happiness of the human fpecies.

A lawgiver, whofe counfels are directed by views of general utility, and obftructed by no local ipediment, would make the marriage contract indiffoluble

during the joint lives of the parties, for the fake of the following advantages:

I.

Because this tends to preferve peace and concord between married perfons, by perpetuating their common intereft, and by inducing a neceffity of mutual compliance.

There is great weight and substance in both thefe confiderations. An earlier termination of the union would produce a separate intereft. The wife would naturally look forward to the diffolution of the partnership, and endeavour to draw to herself a fund, against the time when she was no longer to have access to the fame refources. This would beget peculation on one fide, and miftruft on the other; evils which at present very little disturb the confidence of married life. The fecond effect of making the union determinable only by death, is not lefs beneficial. It neceffarily happens that adverse tempers, habits, and tastes, oftentimes meet in marriage. In which cafe, each party muft take pains to give up what offends, and practise what may gratify the other. A man and woman in love with each other, do this infenfibly: but love is neither general nor durable; and where that is wanting, no leffons of duty, no delicacy of fentiment, will go half fo far with the generality of mankind and womankind, as this one intelligible reflection, that they must each make the best of their bargain; and that feeing they must either both be miferable, or both share in the fame happiness; neither can find their own comfort but in promoting the pleasure of the other. Thefe compliances, though at firft extorted by neceffity, become in time eafy and mutual; and though lefs endearing than affiduities which take their rife from affection, generally procure to the married pair a repofe and fatisfaction fufficient for their happiness.

II. Because new objects of defire would be continually fought after, if men could, at will, be reD D

leafed from their fubfifting engagements. Suppofe the husband to have once preferred his wife to all other women, the duration of this preference cannot be trufted to. Poffeffion makes a great difference: and there is no other fecurity against the invitations of novelty, than the known impoffibility of obtaining the object. Did the caufe, which brings the fexes together, hold them together by the fame force with which it first attracted them to each other, or could the woman be restored to her perfonal integrity, and to all the advantages of her virgin eftate; the power of divorce might be deposited in the hands of the husband, with lefs danger of abufe or inconveniency. But conftituted as mankind are, and injured as the repudiated wife generally must be, it is neceffary to add a stability to the condition of married women, more fecure than the continuance of their hufband's affection; and to fupply to both fides, by a fense of duty and of obligation, what fatiety has impaired of paffion and of perfonal attachment. Upon the whole, the power of divorce is evidently and greatly to the difadvantage of the woman; and the only question appears to be, whether the real and permanent happinefs of one half of the fpecies fhould be furrendered to the caprice and voluptuoufnefs of the other?

We have confidered divorces as depending upon the will of the hufband, becaufe that is the way in which they have actually obtained in many parts of the world: but the fame objections apply, in a great degree, to divorces by mutual confent; efpecially when we confider the indelicate fituation, and fmall profpect of happiness, which remains to the party, who oppofed his or her diffent to the liberty and defire of the other.

The law of nature admits of an exception in favour of the injured party, in cafes of adultery, of obftinate desertion, of attempts upon life, of outra geous cruelty, of incurable madness, and, perhaps,