troduced as speaking of in Xenophon's memorabilia, in his conversation with Alcibiades, as a thing of common course. The general reputation of this man, ranks with me among the literary paradoxes: but I most wonder at the praise bestowed on him by my deceased friend (the first man of his day in the philosophical and literary world) Dr. Priestley. That the Jews practised polygamy, and that their laws regulated it, is well known, Deut. 21. 15. 17. In the year 1780 the Rev. Martin Madan published his "THELYPTHORA;" in which, taking for granted that the axiom of the canonists, Concubitus non consensus facit nuptias, is founded on scripture, he proposed the introduction of licensed polygamy in cases of female seduction, as a remedy for prostitution. He was a man of learning, but a religious fanatic, of the sect of Calvinist-methodists. His arguments are deduced principally from 21. Deut. 15. 18. 22. Deut. 28, 29. 22. Ex. 16, 17. He notices very truly that marriage was first introduced among the Sacraments, and put under the custody of the priesthood, by Pope Innocent the third. He refers particularly to the cases of Hannah, Rachel and Bathsheba, who are mentioned in the bible in terms of respect, as well as Joseph, Samuel, and Solomon, who were the issue of polygamous marriages. Madan built and officiated at the Lock chapel which was annexed to the Lock hospital for venereal patients, near Hyde-park corner, in London. He was the composer of that fine tune "Before Jehovah's awful throne:" and the compiler of the best collection of popular church music now known, for the use of that chapel.

The civil law forbad polygamy. Inst. 1. 10. 6. Dig. 3. 2. 1. par. 8. Dig. 40. 2. 15. L. 2. Cod. de incest. et inut. nupt. Cic. de orat. 40. and even bina sponsalia, Dig. 3. 2. 1. fin. Polygamy was introduced by Valentinian first, as appears from Socrates, Nicephorus, Paulus Diaconus, and Jornandes, see the citations in Taylor, 347: but it did not continue long. But licensed concubinage amounted to it, which seems to have continued for many years. Heinecc. ad leg. Jul. et Pap. Poppœam, Dig. 25. 2. 11. sub. fin. and Julius Cæsar is said by Suetonius to have instigated Helvius Cinna the tribune, to introduce a law in favour of unlimited polygamy. Suet. in Jul. Cæs. § 52.

Concubinage however was discouraged by the digest, 32. 49. 4. and the law prohibited concubinage, at the same time with matrimony, as well as more concubines at a time than one. Dig. 45. 1. 121. Cod. 5. 26. unic. Cod. 7. 15. ult. Nov. 18. 74. and 89.

Christianity, has settled the question of polygamy among christians, notwithstanding the practices recorded in the old testament. 1 Corinth. ch. 7. and has settled also the subordinate situation of the wife :

herein conforming to the law of nature as it appears to me. For generally speaking, there is a natural prevalence of mental energy, as well as of corporeal force in favour of the man, independent of the means of acquired knowledge. But by discouraging fornication, and by denouncing polygamy and concubinage, christianity has greatly tended to ameliorate the situation of women in society, and thereby to civilize society itself. I am glad to see the wavering decisions of the British courts brought to something like system by the case of Marshall and Rutton, 8 Term Rep. 545. I consider the very able argument of judge Hide in Manby v. Scott, 1. Mod. 129. (notwithstanding some harsh observations) as embracing the soundest principles upon this subject, and placing the relative situation of the two parties upon the best footing for each of them, and as being most in unison with the law of England, the precepts of christianity, and the dictates of natural reason and civilized expedience. I appréhend it also to be conformable to the general spirit of the laws throughout this country. In Great Britain, the courts, as I think, instead of looking with a jealous eye upon every kind of precontract that tends to impair the unity of interest between married people, and the dependance of the wife upon the husband, have leaned somewhat too strongly in favour of pre-contract by marriage-settlement, trust-estates, testamentary powers to be exercised by the wife, and by enforcing equivalent settlements on the receipt after marriage of a wife's property.

As to marriage contracts of infants, and espousals per verba de præsenti, et per verba de futuro, and Scotch and other foreign marriages, see Harg. Co. Litt. 80. a. n. 2 H. Blacks. 147. 10 East. 286. and 1 Johns. cases in N. York 424. 2 Burr. 1079. and 2 Burns Eccles. Law, 401. 420. where the subject is discussed at length.

In speaking of marriage, it may not be improper to say a few words on the subject of DIVORCE among the Romans. Justinian in this section of the Institutes, defines marriage to be Viri et mulieris conjunctio individuam vitæ consuetudinem continens in conformity to the digest 23. 2. 1. Conjunctio maris et Fœmina; consortium omnis vitæ; divini et humani juris communicatio. Expressions, which must be referred. to the intent of the parties at the time. It was (so far as I know) reserved for the English law to take cognizance of a pre-contract, in which the parties contemplate the possibility of a separation in express terms, and make it one of the considerations of the Deed. This was done in Rex v Meade, 1 Burr 542. and Rodney v. Chambers, 2 East. 283. I am sincerely glad these cases have been shaken by the lord-chancellor in St. John v. St. John 11 Vez. Junr. 526.`

I am well aware, that different states of civilization require different principles of legislation on this, as well as on every other subject; that the considerations arising from the Institutions of hereditary rank, the privileges of primogeniture, and the importance attached to accumulated property, may require the admission of marriage settlements, jointures, trust-estates, and most of the many other complicated regulations which croud the law books of England; but I know of no state of society in which the laws ought to weaken the public sentiment of the indissolubility of the marriage contract, unless upon urgent necessity, grounded upon facts judicially established. But to sanction the foresight of adultery, cruelty, or desertion, upon the very face of the marriage contract, is to sanction the crimes themselves. Upon the subject of divorce, see Dig. 24. 2. Cod. 5. 17 and 24. and Nov. 22. and 117. Caus. 28 Quæst. 1 and 2. Grotius II. 5. 9. Puffend. VI. i. 21 et seq. Selden's Uxor Hebraica. See also Code Civil Napol. avec les Discours, Rapports, et Opinions, &c. Tom. 1. from page 329 to 432. where the subject is well discussed.

It has been said that Repudium is the proper expression for the dissolution of the sponsal contract or espousals; and Divortium for the dissolution of the Marriage contract. Dig. 50. 16. 101. and 191; but Repudium is used synonimously with divorce in Dig. 24. 2. 2. as it appears to me from the expressions employed; and certainly in Cod. 5. 17. 8. and Nov. 22. 15 and elsewhere.

Divorce, seems not properly applicable to a judicial decree declaring an unlawful marriage, void ab initio; for persons cannot well be said to be divorced, who were never legally married. But it is used exclusively in this sense in the English law, wherein divorce a vinculo matrimonii can only take place by authority of the courts, in cases where the marriage was originally void from objections of consanguinity, affinity, or impotence: for by the marriage act of 26 Geo. 2. precontract, has ceased to be of the number of causes that would induce a Divorce a Vinculo Matrimonii. The other divorces for matter subsequent to marriage, operate only a separation a mensa et thoro. In cases even of Adultery, the party complaining is driven to parliament for redress.

In the time of Romulus, if we may believe Plutarch (in vit. a husband might dismiss his wife at pleasure; and in the case of adultery, or intoxication, he had the power of putting her to death, as was done by Egnatius Mecenius, who was acquitted by Romulus for it: not pardoned (condonatus) but acquitted, (absolutus.) Nay, it seems to have been a just cause of divorce if the wife drank any strong liquor. Hence

perhaps the custom of "saluting the Bride;" for Tertullian in his apologet. P. 7. fol. says Idcirco et oscula propinquis offerre necessitas erat ut spiritu judicarentur (i. e. Uxores.) To this purpose there are many authorities.

Antiently, the husband alone enjoyed the privilege of divorce; Forbidden by Romulus to wives. In the time of Cicero however, and, probably long before (Juv. Sat. 9. and Mart. 1. Ep. 41.) the wives appear to have exercised this right; thus Calius writes to Cicero that Paula Valeria had divorced herself from her husband, the day of his return from the Province, and was to be married to D. Brutus : this too without assigning any reason, sine causa 8. Famil. 7.

For a long time, the disputes between husband and wife were settled on a hearing before mutual relations. Dion. Halic. II. 25. Valer. Max. II. 1. 8. Suet. Tib. 35. &c. This kind of interposition sometimes took place on the exercise of paternal jurisdiction. Liv. II. 41. Val Max. V. 8. 2. V. 9. 1. &c. &c.

It is said on many authorities (Dion. Halic. II. 25. Aul. Gell. Noct. Att. IV. 3. Plutarch in Numa et Lycurgi. Vit. et in Quæst. Rom. 14.) that no divorce took place at Rome, from the founding of the city for 420 years till Spurius Carvilius Ruga, divorced his wife for barrenness: for which he was much blamed. The practice of divorce however, for good causes, for trifling causes, and for no cause at all, soon became common. Sulpicius Gallus divorced his wife because he had seen her abroad with her head uncovered, Val. Max. VI. 3. 10. Pub. Sempronius Sophus, because his wife had been at a shew without his knowledge. Ib. n. 12. Quint. Antistius Verus, because he saw his wife conversing with a woman of low condition. Ib. n. 11. Marc Antony because he suspected his wife of an intrigue. Plut. in Vit. Ant. Julius Cæsar, because he would not have his wife to be suspected. Plut in Vit. Jul. Cæs. Augustus, because he did not like his wife's temper. Suet. in vit. Another wife, because he quarrelled with her mother. Ib. Claudius dismissed one, for trifling faults, levibus offensis. Suet. in Vit. Presently it became the fashion both with. husbands and wives, to dismiss each other without assigning any rea son. These were repudiations and divorces bona gratia; sine causa ; sine querela; sine causa sontica. Dig. 24 1. 62. Dig. 40. 9. 14. 4. Nov. 22. 4. and 98. 2. 2. see also, cases relating to the wife's fortune, where the woman procured the divorce in Dig. 24. 3. 4. and 38. This practice was attempted to be restrained by Augustus (Suet. in vit.) but without effect. Seneca III. de Benef. 16. says that women now reckon their age, not by their years, but by their husbands; and Juve

nal (no friend to the sex) fiunt octo mariti quinque per autumnos VI.

228.

Divorces however, by the law Julia de Adulteriis, required to be made with certain formalities certo modo, Dig. 38. 11. and were to be attested by seven witnesses of the age of puberty, Dig. 24. 2. 9. and certain forms of words were employed. Iforas mulier. Tuas res tibi habeto, agito. Edibus facessi. so Juvenal, Collige sarcinulas (dicit libertus) et exi. VI. 146. Bag and Baggage, according to the homely expression of the English. See Dig. 24. 2. 2. 1 and 2.

In the Repudium, the words were Condicione tua non utor. Dig. ub. sup. Conditio, is properly applicable to some state or condition previous to marriage: and sometimes for a treaty of marriage, as Dr. Taylor has shewn in several instances Justinian prohibited all divorces unless on account of chastity, Nov. 17. 10. and ordained that the children should not be prejudiced, Nov. 117. 7. 8. By what forms (certis modis) the marriage that took place Ab Usu, by a years cohabitation, was dissolved, I do not find. The marriage by Confarreatio, was dissolved by Diffarreatio. The separation in consequence of divorce, was Discidium; and the Tabulæ nuptiales (attestation of the marriage as I construe' it) and Dotales (marriage articles, settlement of jointure) were broken: the keys taken from the wife (Claves adimebantur) and the forms of expression above stated or some of them were used toward her. If the husband was absent, he sent his wife a bill of divorce nuncium remittebat: this was matrimonii RENUNCIATIO. Divorces were recorded in the public registers (Acta.)

Widows could not marry within ten months of their husband's decease. L. 2. Cod. de sec. Nuptiis. See Taylor's elements. Civ. Law. 348. et seq. and Adam's Roman Antiquities 468. where the preceding and additional authorities are collected.

The following causes of divorce I have translated from Cod. 5. 17. 8. Nov. 22 15. and 117.8.

A man may repudiate his wife, if she be 1st an adultress. 2ly a sorceress, 3ly a man slayer, 4ly a kidnapper, 5ly a robber of sepulchres, or 6ly of churches, 7ly if she harbours thieves, 8ly or goes feasting with strangers, without the knowledge or against the consent of the husband, 9ly or walks out at night, against his inclination without justifiable reason, 10ly if she frequents the circus, the theatres, or the places where combats of wild beasts are shewn, against the directions of her husband, 11ly if she attempts her husband's life, by weapons or by poison 12ly if she conceals treason, or 13ly commits perjury (or brings false accusation) against her husband, or 14ly attempts to beat