especially appropriated to parties legally incorporated, and having a community of interests, secular and spiritual. Mutual society of marriage; distinct but cooperative duties; education of common children; perpetuity of the obligation; inference from the doctrine of recrimination. Page 393.

CHAPTER V.

THE SINFUL AND CRIMINAL CHARACTER OF ADULTERY.

Adultery, according to the Old Testament, a sin against God, and liable to divine judgment. How classified and denounced in the New Testament, and by the primitive writers. Adultery, a complication of fraud, perjury, and seduction, and the consummation of irreparable injury: equally criminal in the man and the woman. Penalties of adultery among the Jews, and among ancient and modern nations. The offence inadequately treated by the English law. Debates in Parliament on Lord Auckland's Bill, with recognitions of the criminal character of adultery. Suggestions for its criminal prosecution, and appropriate penalties.

Page 429.

THE

DOCTRINE AND LAW

OF

MARRIAGE, ADULTERY, AND DIVORCE.

INTRODUCTION.

THERE is a passage in the Book of Wisdom, in which the author of that apocryphal treatise enters into a copious detail of the pernicious consequences and effects of idolatry, which he concludes with specifying "changing of kind, disorder in marriages, and shameless uncleanness"."

It would be one of the most useless and unsatisfactory of labours, to insist upon the tendency of a practice, which there is no temptation to commit, to enforce the testimony of a writer, to whose authority no deference is due, or to compile an elaborate comment upon an expression which has perplexed the commentators, but in the exposition of which no man feels any interest or concern. The changing of kind, and disorder in marriages, are phrases of doubtful meaning and import. The change of kind has been variously interpreted, of unnatural affections, of the counterfeiting of sex, which was usual in some of the heathen superstitions, and of the

introduction of a supposititious and illegitimate issue, by adultery and illicit intercourse, especially of Jews with Gentile women: the disorder in marriages has been supposed to denote either incestuous marriages contracted against the rules of the Levitical law, whether within the forbidden degrees, or with the forbidden nations, or, according to the translation of the Vulgate, unsettled marriages which might be dissolved at the pleasure of the parties. The latter exposition is grounded upon the former, and comprehended under it: and it is the former sense which is most agreeable to the original expression, (αταξια γαμων, q. d. ατακτοι γαμοι, marriages out of the prescribed order,) and which would most naturally occur to the mind of a Jew, especially in deducing that disorder from idolatry. In either sense it suggests an important question; What is the order, and what is the permanent bond, of marriage? the want of which amounts to such disorder in marriages, as a Jew would ascribe to idolatry, and as is seen in the affairs of ordinary life to produce the most fatal and unhappy results.

This is a practical question, which is worthy at all times to engage the attention of the moralist and the divine, and of which, upon his own account, or for the sake of those who are dear unto him, every man is concerned to possess a clear and distinct apprehension. As the first and most ancient covenant for mutual good; as the original foundation of all human relations; as the rock upon which the goodly fabric of social happiness and social duty has been constructed; and from the roots of which issue the salutary streams of public virtue and domestic bliss;

marriage has a claim upon every man to understand its doctrine and its law, and to be acquainted at least with its primary principles and its essential obligations. It was justly argued by Lord Mansfield, that no reasonable man can contemplate the state of marriage, and not be convinced that it is a state in which all the amiable passions are engaged and interested in the cause of virtue and truth; from which the best and most essential felicities of life derive their origin; which enhances the joys and divides the unavoidable sorrows of humanity; which diffuses its beneficial influence alike through the palace and the cottage; and pours the balm of consolation into the breast that is wounded by affliction, whether resulting from sudden calamity and change of fortune, or from personal pain and individual infirmity".

It is the sound theory of another distinguished and eloquent lawyer, that "almost all the relative duties of human life will be found more immediately, or more remotely, to arise out of the two great institutions of PROPERTY and MARRIAGE: they constitute, preserve, and improve society: upon their gradual improvement depends the progressive civilization of mankind: on them rests the whole order of civil life. These two great institutions convert the selfish, as well as the social, passions of our nature into the firmest bands of a peaceable and orderly intercourse: they change the sources of discord into the principles of quiet: they discipline the

b

See Woodfall's Parliamentary Reports, vol. vii. p. 11. Sir James Mackintosh: "Discourse on the Study of the Law of Nature and Nations."

most ungovernable, they refine the grossest, and exalt the most sordid propensities; so that they become the perpetual fountain of all that strengthens, and preserves, and adorns society; they sustain the individual, and they perpetuate the race. Around these institutions all our social duties will be found at various distances to range themselves: some more near, obviously essential to the good order of human life; others more remote, and of which the necessity is not at first view so apparent; and some so distant, that their importance has been sometimes doubted, though upon more mature consideration they will be found to be out-posts and advanced guards of these fundamental principles; that man should securely enjoy the fruits of his labour, and that the society of the sexes should be so wisely ordered, as to make it a school of the kind affections, and a fit nursery for the commonwealth."

There is a feeling in the heart of every man which immediately corresponds with these eloquent descriptions, and under the influence of which it is not unreasonable to suppose, that no man will be indifferent in the search, or find any difficulty in the acquirement, of the best and most accurate information upon the doctrine and law of marriage. This reasonable expectation however is more often disappointed than fulfilled. In the intercourse of ordinary life; in the conversation of educated men, informed on every other topic; in the proceedings of the courts of law and of parliament, which on all other subjects abound with acuteness and practical wisdom; and in the marked and singular inaccuracy with which these proceedings are reported by the