Jews; when, the law of the bitter waters was inoperative, and the subtlety of Jewish commentators had collected from that law many licences of divorce'; when the husband was unwilling to proceed to extremities, or unable to produce the proof which was required in the case of adultery, he availed himself of a common liberty to put away his wife arbitrarily and without assigning any reason, for the divorce. Joseph, if he had not been prevented by the vision, would have made use of this privilege when he was minded to put away his wife privily, because though he himself was a just man, and therefore could not consent to the dishonour of his betrothed wife, he was nevertheless unwilling to make her a public example, by bringing forward the proof which the case was supposed to admit. It is obvious however, that these private divorces cannot be considered in the light of legal consequences, or punishments of adultery, because they were evasions of the law of adultery; they waived the proof upon which alone the conviction of the adulterer depended and it is a circumstance too important to be overlooked, that divorce was so far from being the issue of adultery, that adultery was excepted among the causes and occasions of divorce, because, as the Jewish doctors maintained, there was another remedy in the case of adultery.

This opinion of the Jewish doctors may serve to obviate the hasty inference, that if the Lord commanded that the adulteress should be stoned, he much more intended that she should be divorced.

'See Ainsworth in Numbers v. 11-31.

Matt. i. 19.

It has been argued, in reply to this position, that the capital punishment requires legal conviction and public judgment; that the judge is bound to administer the law in its positive enactments, not in its remote inférences and conclusions; that the husband is under no obligation to accuse the wife; that he is free to pardon her, or to put her away privately; and that it was not unlawful to retain her in the hope of her recovery and repentance. The sentence upon adultery relates to the duty of the judge before whom the case is brought, not to the individual who suffers the wrong: and this sentence includes in its demands the adulterer and the adulteress, and cannot by any parity of reasoning be applied to the practice of divorce, which was principally the act of the man, and of which adultery was not the cause. The law of adultery was in itself a rigorous law, and its rigour may probably have been intended, that there might be no appeal to its judgments but in cases of aggravated necessity, under a conviction that there could be no mitigation of its penalties if the offence was proved: but if the husband, under any circumstances, or from any private motive, was unwilling to resort to this law, he had no authority, however he might presume of himself, to argue upon the intentions of the Deity, or to seize to himself the execution of laws which were not delivered, or which had no reference to his case. God has commanded that the blood of the murderer shall be shed by man: but if man refuses to shed the blood of the murderer, and assumes a right of

h Ductor Dubitantium, b. i. c. 5. rule 8.

'Beza de Divortiis.

inflicting the lighter punishments of mutilation, imprisonment, or confiscation, however he may flatter himself in his humanity and compassion, he has no more the sanction of divine authority, or of any legitimate inference from that authority, for the penalty which he is willing to exact. So the divine law has commanded that the adulterer and the adulteress shall be stoned, and the fulfilment of that law was, even in Beza's judgment, the most effective means of superseding all the difficulties of divorce: but there is not the remotest connexion between that divine rule and the human assumption of the licence of divorce. It may not be necessary to exact the penalties of that law; but, when the appeal is made to that law, there is no extenuation of its severity: and the inference which is claimed in favour of another system is liable to the objection, that there is no power under the law of divorce to divorce the adulterer, and that there is no authority under the law of adultery for the partial divorce of the adul

teress.

What then is the origin of the law of divorce, which, with more or less of restriction, has from a very early period prevailed in most countries of the world. It has been asserted, that the law of divorce is a natural right, traditionally derived from the law delivered to Noah, an assertion which there is the highest and the best authority for contradicting. It was not so from the beginning'. It is reasonable to suppose, that any exceptions to the primary record would have been as distinctly noticed as the permis

Ux. Ebr. 1, iii. c. 22, 26.

1 Matt. xix. 8.

sive law of divorce, delivered by Moses and no tradition however ancient, no practice however universal, which is not supported by a positive revocation of the original law, can be put in competition with the terms of the original law, recorded by Moses, and repeated by our Lord and the apostle", in proof that the true rule of marriage has always been, that the man shall cleave unto his wife, and they two shall be one flesh: wherefore they are no more twain, but one flesh: what therefore God hath joined together, let not man put asunder. The licence of divorce therefore, so far from being a natural right, is in opposition to the first law delivered to man, as a social being, and is a licence of which there is a primeval prohibition conveyed in the original terms, and not counteracted by any subsequent provision. "It must be recollected, that divorce is in reality a deviation from the original institution of marriage, which was intended to be perpetual. The perpetuity of marriage, says Lord Stair, is evident, and the dissolution of it is only natural by death"."

It is not easy to ascertain at what period this licence of divorce was assumed. It was the opinion of the learned father, Jerome, that, so far from being an original right, it was not given before the flood, or before the law, but was introduced after the deluge, as was the permission to feed upon flesh. There is no reason to believe that the patriarchs were acquainted with the practice; they lived in

m Gen. ii. 24. Matt. xix. 5. Mark x. 7, 8. Ephes. v. 31. "Fergusson, 353. • Adv. Jovinian, 1. i. apud Selden.

polygamy, but there is no record that divorce was known among them. Abraham did not divorce Sarah, although she bore him not the son, whom he so passionately desired, nor was he permitted to alienate her to Pharaoh or to Abimelech, although his life was endangered by retaining her. Rebekah

did not desire that even Esau should be divorced from his wives, although she grieved that they were of the daughters of the land; nor did Esau attempt to recover her favour by their repudiation: nor did Jacob think of divorcing Leah, although she was imposed upon him fraudulently and without his consent, and he hated her in comparison with Rachel. Hagar, whom Abraham put away, was not his wife; and it is but an apocryphal fable, which the Jewish paraphrast has invented, concerning the divorce of the Ethiopian woman or Tharbi from Moses P.

There is extant a record of remote antiquity, collected from the astrological tables of the Chaldeans and Egyptians, which affirm the permanence of the marriage of parties in whose nativity there is a certain configuration of the heavenly luminaries, and the easy dissolution, upon any pretext, of those marriages in which there is a variation in the position of the stars. It will not be denied, that the invention of such principles of divorce is the arbitrary assumption of human folly: but it would be

» Ux. Ebr. 1. iii. c. 26. Anc. Univ. Hist. vol. iii. p. 147.

...

* Διαμενουσιν, ως επιπαν αἱ συμβίωσεις, όταν αμφοτέρων των γενεσεων τα φωτα συσχηματιζομενα τυχῃ συμφωνως . . . διαλύονται δε εκ των τυχοντων και απαλλοτριούνται τελεων, όταν αἱ προειρημένας των φωτων στασεις η εν ασυνδέτοις ζωδίοις τύχωσιν η κ. τ. λ. Cl. Ptolem. apud Selden. Ux. Ebr. 1. iii. c. 22.