to be withheld because the husband had married the woman either without or against the father's confent. In short, the man was not to take advantage of his own wrong. But,

* whether the father refused or not, the dowry must be paid according to law, and thus the contract be publicly ratified.

Having feen what was to be done where a man enticed a maid, and took actual poffeffion of her, against the father's confent; let us next fee what was to be done when a man took a maid, without even the father's knowledge; not by a seduction or enticement, but on a fudden and unexpected interview, by meeting her without any previous intent.

Deut. xxii. 28, 29.

If a man find a damfel that is a virgin, which is not betrothed, and lay hold † on her

and

"think the Gods are married." This was called among the Romans-coëmptio nuptialis, and was reciprocal, as well on the woman's fide as on the man's. To this Virg. Georg. I. 1. 31. feems to allude:

Teque fibi generum Tethys emat omnibus undis.

This is alfo one fenfe of the Hebrew particle an― utrùm-whether or not-of which Noldius gives many examples. See Nold. p. 65. No. 2. edit. 1734. It is to be remarked, that Noldius has not mentioned Exod. xxii. 17. as an example of any of the fenfes here given, viz. either as fi-quamvis-or utrùm.

+ The word feems here to be rightly rendered by lay hold on her-Prendra Fr.-take her.-The Jewish doctors conftrue this into that fort of violence and conftraint, which we call a rape. But this is fpoken of at ver. 25, where the word is ufed; which is a much ftronger expreffion than won to take, or lay hold on; and' fo our tranflators have (ver. 25.) obferved, in their

3

tranflating

and lie with her, and they be found; the man that lay with her fhall give unto the damfel's father fifty fhekels of filver, and she shall be his wife; BECAUSE HE HATH HUMBLED HER, be may not put her away all his days.

The word fhekels is not in the original, but inferted by our tranflators; in the paffage of Exod. xxii. 17. there is the fame word D filver, or filver-money; there it is faid in general, according to the dowry of virgins. Here it is faid on Quinquaginta argenteos, fifty pieces of filver-money. By comparing the two paffages, we may therefore look upon this as the affeffment of

.does חזק

tranflating pm by-force her. That this is the true idea of the word, may be seen by comparing 2 Sam. xiii. 11, 14. when Amnon commits a rape on Tamar. The word won does not neceffarily fignify violence, which Omnis fignificatio eft vehementia, fortitudo. Calafio, fub voc. This place of Deut. xxii. 28. is rather to be understood of "defiling a maid, that being "occafionally laid hold on, did prefently yield, not be "ing folicited before-hand, and drawn to it by de

grees. But Exod. xxii. 16. fpeaks of fuch as did "entice a maid, with promife of marriage, and then de"filed her." Clark. The two paffages taken together fhew, that in neither case shall the man abandon the virgin he hath taken. We must conclude there is a reason for ufing different words at ver. 25, and ver. 28, in the Hebrew text, though the I XX. tranflate them both by Biardμev-probably won is a more general word than pin, and fignifies laying hold on, or apprehending, whether by violence or otherwife. Among the Athenians, if a man had ravished a young woman (fo fhe were free born) he was fined 1000 drachma, and, befides that, was obliged to marry her, unless it could be made appear, fhe had taken fomething of him in confideration. Rous's Archæol, Atticæ, 190.

the

the ufual dowry of virgins paid to the father. It was to be paid in this cafe as well as the former, for in both the father's confent was precluded; but in no cafe was he to be defrauded of the n or dowry. This was as much to be paid when his daughter was taken against his confent, as when with it, and fo when taken without his knowledge and confent, as in this latter cafe. But on whatever account the money was to be paid, it alters not the point in queftion, for, faith GOD, She fhall be his wife, or woman-Fr. Elle lui fera pour femme-BECAUSE HE HATH HUMBLED HER, he may not put her arway all his days. This is clearly explanatory of the original institution-they shall be one flesh, and what God hath joined together (by pronouncing them one flesh) let not man (either the parties themselves, or any human power whatsoever) put afunder.

I fhould rather chufe to let the fcripture anfwer for itself, than appeal to human authority for its explanation. I will only here juft obferve, that I am by no means fingular in my views of these things. Our ecclefaftical courts have proceeded on this principle, have called this personal intercourse, previous to any outward ceremony, a marriage de facto, and have compelled the parties to a public recognition of it in facie ecclefiæ, in the face of the church. See Blackstone's Comment. vol. i. 435, 439:-and in Burn's Ecc. Law, Tit. Marriage, there is this remarkable paffage, "Nor was he or fhe to be dif" miffed

10

"miffed or abfolved, if thofe fpoufals de futuro, by reason of carnal knowledge, or "fome other act equivalent, did become ma"trimony." By this it does appear, that, in the judgment of our canon law, if a man had promised a woman to marry her at a future time, and in the mean time lay with her, or used the freedoms of an bufband with her, fuch promife did, by fuch acts, become matrimony.

So facred have our canonifts efteemed this act, that where one of the parties have forfaken the other, and married another than the perfon to whom they have been thus joined, the ecclefiaftical courts have pronounced fentence of divorce, with regard to the fecond marriage, caufâ precontractus, by reafon of precontract. With what authority will appear by-and-by.

There

In Bacon's Abr. vol. iii. p. 574, we find the following cafe :-A. contracts himself with B. and after marries C. B. fues A. on this contract in the fpiritual court. fentence is given that A. shall marry and cohabit with B. which he does accordingly, They are baron and feme, without any * divorce between A. and C; for the marriage of A. and C. was a mere nullity .

That

* In the time of H.VIII. an act was paffed, that marriages folemnized and confummated fhould ftand good, notwithstanding any precontract that had not been confummated. But this was done only to gratify the King, and therefore in the next reign (2 Éd. VI.) this act was repealed.

+ The law fince 26 Geo. II. c. 33. is quite the reverfe, the precontract between A. and B. would be a

nullity,

That I am not fingular in my opinion, refpecting the one divine ordinance of marriage, will alfo appear from the remarkable flatute of Henry III; which, as it is very fhort, I will transcribe.

66

"To the king's writ of bastardy, whether one born before matrimony may inherit in "like manner as he that is born after matrimony: all the bishops answered, that they would not nor could not answer to it, "because it was against the common order "of the church. And all the bishops in"ftanted the lords, that they would con"fent, that all fuch as were born * before.

matrimony,

nullity, and the marriage between A. and C. valid. Such are the liberties which mortals have prefumed to take with the ordinance of Heaven. But this cannot alter either the thing itself, or God's views of it.

Conftantine, to difcourage concubinage, and to encourage matrimony in perfons who lived together in "that way, ordered, that if a man married his concubine, "the children which he had by her before marriage, "fhould become legitimate. But the church meddled "not with thefe diftinctions of the civil laws, but re"garding only the law of nature, approved every con<< junction of one man with a woman, if it was with one woman and perpetual; and the more fo, because the holy fcriptures employ the name of wife or of concu"bine indifferently.

"The first council of Toledo, A. D. 400, hath this "canon, He who with a believing wife hath a concubine, "is excommunicated: but if his concubine is in the stead "of a wife, and he adheres to her alone, whether fhe "be called wife or concubine, he is not to be rejected "from communion." See Jortin Rem. vol. ii. p. 294, 295; who adds-"This canon fhews that there were "concubines approved by the church."

I would here add, that Austin, De fide & oper. c. 19. fays- If a concubine fhould profefs to know no other

man,