period just noticed, in order to introduce the important case of the Duke of Norfolk.

A few observations on Scotland and Ireland shall close the fourth section of this Essay.

By the laws of Scotland a similar distinction to that noticed in an earlier part of the Essay, appears to prevail on the subject of Adultery. One is called simple, the other notour Adultery. The punishment of the former is left to the discretion of the judge, and fine is the usual mode of visitation. That of the latter, or notour Adultery, by which is meant the conduct of open and incorrigible adulterers, unreformed by the censures of the church, where they keep company publicly together, and procreate issue; is a capital punishment.

This severity appears to have had an early origin. In the ecclesiastical laws of Keneth, King of Scots, anno 840, (Can. 14, 15.) the deflowering of a virgin is punishable with death," unless she desires him for a husband;" and he who adulterates another man's wife, she not dissenting, shall, together with the adulteress, suffer the severest punishment; if she were under force, she shall be acquitted."

In relation to Divorce, the writers on the Scotch law reason with great acuteness on the caution which should be employed in the permission of it, the just cause for it which Adultery furnishes, and the necessary consequences of re-marriage which flow from it. Those, say they, who would prohibit the guilty parties from marrying, ground their reasoning on incorrect legal principles: whatever moral aspect the case wears, both parties must be placed on the same ground. Either they are married, or they are not; if married, they cannot enter into a second engagement, for this would be bigamy; if not married, they are both at liberty to marry whom and when they please.* This liberty with them has indeed been abridged by special statute, for, though the law of Scotland, after the Divorce for other grounds, allows the guilty as well as the innocent person to contract a second marriage, yet, in the case of Divorce upon Adultery, such marriage is specially prohibited between the two adulterers; but the force of the general reasoning remains the same.

With the other Divorces by the Scotch law, on the ground of wilful desertion, (or non

Erskine's Institutes. pp. 118 and 835.

adherence as it is termed,) founded on the passage, 1 Corinthians vii. 15; we have now

no concern.

These Divorces compel the restoration of the Tocher, the donationes propter nuptias, as a just attendant on the punishment of that crime, by which the nuptiæ are destroyed.

We have now only to mention Ireland. By the 19th Canon of the Synod, held in Ireland by St. Patrick, and other Bishops, in 456, adulterers were to be excommunicated; and by the 26th Canon of the second Synod, a man that hath put away his wife on account of Adultery, is permitted to marry another, as if the first were dead.*

The great liberty which the ancient Irish indulged in these matters is evident, from the Letters of Pope Gregory VII. to Lanfranc, Archbishop of Canterbury, and from him to Gotric and Terdevralt, Kings of Ireland, and Anselm, another Archbishop of Canterbury, to Muriardac, another Irish King. They upbraid them with their frequent Divorces, and tell them it is as easy a matter with them to dissolve a marriage, as to contract it.

Spelm. de Synod. Sancti Patricii. Sect. 19.

From the observations of Camden, it appears, that the laws and customs of the Irish remained the same in his time.*

This brings us to the limits of the fourth division of the Essay.

We have now passed over the first four heads of this Essay. It has been endeavoured to trace the principles, severally maintained, by the Jewish, Egyptian, Greek, and Roman laws, in relation to the crime of Adultery, and the liberty of Divorce; and the influence which the customs of those several nations appear to have had, in reference to those laws; at times demanding their enactment, at others, modifying their effects, and then occasioning their repeal.

We have examined, also, the simple principle which the Divine Founder of the Christian Religion has established, as the guiding and governing principle by which we should estimate the nature of the matrimonial union and the matrimonial crime, and form our judgment of the liberty admitted in the dissolution of the one, by the commission of the other. And we have fol

Camden. Brit. p. 1420.

lowed out the observance of this principle, or the departure from it manifested by the teachers of the church, and the legislators of the world in various nations, from that period, to the bounds which appear prescribed to the inquiry, by the terms of the Thesis.

Perhaps those bounds have, in the fourth head of the Essay, been somewhat overstepped; but it has been with a view to render the investigation more connected and complete.