« PreviousContinue »
Another observation respects the reciprocity of crime, to which the case of accuser and accused, in the last passage, being in the same predicament, naturally leads us.
Lenocinium, it is said, is a good defence for the wife against the husband; and a plea of recrimination (reciprocatio criminis) is an available bar against a claim to separation. But this is a strange maxim: the prior transgression of the one party is no apology for the Adultery of the other. It may extenuate, but it can never justify, unless it can be shewn that the obligation of the marriage vow depends upon the construction of reciprocal fidelity. Besides, the legal soundness of this opinion is open to doubt; for, while the infidelity of the one party is ground for Divorce,
was to stoop down and gather the dust off the floor of the sanctuary, which, when he had infused into the water, he was to give her to drink. He was to write also in a book the curses or abjurations that were to be proved upon her. (Numbers v. 17, 23.) In like manner, the Saviour stoops down, and making the floor itself his book, he writes something in the dust, doubtless against these accusers, which he was resolved to try in analogy to those curses and abjurations written in a book by the priest against the woman that was to be tried. The latter, intimating it was a doubtful case, blotted the curse; but Christ, to intimate that he had no doubt of the accusers' guilt, writes again a second time."
this construction makes the infidelity of both to secure the continuance of the contract; and has a manifest tendency to multiply the offence, but none to reclaim the offender. But this remark has been, in part, anticipated in considering the state of the Scotch law.
With regard to sentences of Divorce, it may be observed, that they are highly necessary, as judicial declarations of the true status of the parties.
All dissolutions of the marriage contract should be formal and notorious. The mere entering into a new league with Titia is no sufficient dissolution of the previous one with Sempronia. These solemn proceedings are therefore highly useful, and the wisdom of our laws has certainly provided for as complete an investigation of the case as circumstances admit. There must be the verdict against the adulterer at the common law, next the sentence in the spiritual court, and then the operation of an Act of Parliament is required before a Divorce, with liberty of re-marriage, can be enjoyed. The complaint could not receive a more full investigation. Far be the time when such remedies as Divorces shall be considered slight, and made
easy of attainment! We have, we trust, made it sufficiently apparent, that they are not to be hastily pronounced or sought for. If any further evidence were necessary, it might be found in a Report issued by the Abbé Gregoire, Chairman of a Committee appointed by the National Assembly of France on this subject. In that country, he states, that within three months after their celebrated law permitting Divorces had passed from the National Assembly, there were, in the city of Paris, almost as many Divorces registered as marriages; and in the whole kingdom, upwards of twenty thousand, in the short space of about a year and a half. The Abbé, not without reason, remarks, "Vraiment cette loi-ci veut bientôt desoler toute la nation.” In the town of Newhaven, in the United States of America, more than fifty Divorces had happened within five years after the extension of the Divorce laws; and in the State of Connecticut, more than four hundred, in the same period, averaging one in every hundred married couple, according to the state of population. There is also an instance recorded of a declaration made by a French soldier before a judicial tribunal in Paris, that he had married eleven wives in eleven years.
There can be no doubt of the disorders which a facility of Divorce would necessarily occasion.
If a period in the history of England should ever arrive in which a latitude should be indulged in matters of this kind, evils would be introduced more pregnant with mischief to social intercourse, and destructive of civil comfort, than are those, great indeed as they are, which the more unrestrained indulgence of the crime itself could entail; and it would be a period in which the sentiment of the poet would be wrung from the hearts of the people, weeping over the waste which the abundant use of this remedy had introduced :
"Væ nobis !
Ut olim malis, sic remediis, fessa
We now draw this Essay to a close. One inference will appear prominent in the reflections that have preceded. A wish to revive the ancient spirit of penal visitation against the seducer; a dread of limiting that penalty to the prohibition of his intermarriage with the adulteress, as a measure altogether inadequate to the prevention of the crime, but a recommendation of such a punishment of her,
as, while it may keep at a distance the enemies of her virtue, may also impress a salutary caution on her own mind, and a continual apprehension of the loss of her fortune, and the inspection of her moral conduct.
These things might tend to repress that lightness of speech, if not that depravity of heart, which can smile at offences so grave in their criminal complexion, and so deplorable in their results, as if they were of the most trivial and transitory nature, and which, by a perversion of language, can appropriate the most soft and gentle epithets to the arts of seduction, for which the harshest terms are far too mild. To this may be traced, perhaps, much of the disregard of the social obligations, and the violations of the conjugal tie, that prevail in what is called civilized life. Alas! what are our advantages of improvement in science, literature, and art, if they preserve us no better from excesses like these; when nations, destitute of such aids, have yet displayed a circumspection and fidelity well worthy of the study of modern times? There is not a more beautiful delineation of the simplicity of a people, in reference to these matters, than Tacitus gives of his ancient Germans, when he describes them, though destitute of learning and knowledge, yet as cha