cannot well be determined what length of time, or what refusals of returning, are sufficient to make the desertion obstinate.

void.

VII. It is a question, upon which people are much I usage does not divided, whether ill usage on either side is naturally a make a marriage sufficient reason for the party which suffers, to claim a release from the bond of marriage, or to divorce him or herself from the person who is the author of such usage.

Certainly the happiness of the parties is one of the principal ends which each of them proposes in marriage. But this is so far from being a reason, why ill usage after marriage should be sufficient to make the contract void, that it proves the direct contrary; it proves, that the marriage contract must, in its own nature, be of such a sort, as is most likely to secure this end, and that it excludes all such conditions as are likely to prevent this end from being obtained. And if the nature of the contract requires this to be the intention of the parties, they cannot be supposed, at the same time, to design, that the contract should be void, if either party found themselves less happy after marriage, than they expected: because such a condition as this would plainly make the happiness of the married state precarious. Whoever wanted to get rid of a present wife, that he might be at liberty to marry another, would be sure to use the former ill, that he might, by these means, compel her to give him his liberty. Whereas, if ill usage is likely to occasion no disturbance but in his own family, and he is upon that account under a necessity of feeling some of the effects of it, without being able to bring about any of his private purposes; he will be much more likely to use his wife well, and to endeavour, as much as he can, to promote her happiness, when he finds his own so closely connected with it. But if this is the nature of the contract, then whatever unhappiness either or both parties may meet with, after they have entered into it, they must look upon such unhappiness as a natural misfortune, and must either submit to it with patience, or endeavour on each side, by good behaviour, to soften the temper of one another, and lessen or remedy that evil, which they can remedy no otherwise, consistently with their contract.

But as the contract itself gives each party a right to the person of the other, for the purposes of producing children, so the condition, under which each of them makes over this right to the other, gives each of them likewise a right to good usage from the other; it may, therefore, be asked, why a violation of the latter right, by ill usage, should not have the same effect upon the marriage contract, that a violation of the former right by adultery would have upon it. In answer to this inquiry, we must observe, that the law of marriage, in one respect, is-Thou shalt not commit adultery.-The law of it in the other respect, is-Husbands, love your wives; and let the wife see that she reverence her husband. The right arising out of the former law is a perfect one; because the precept is negative, and the matter of it for that reason is precise and determinate: whereas, the right arising out of the latter is imperfect, as the precept is affirmative, and consequently the matter of it is more vague and uncertain. As there is no medium between committing adultery and not committing it; no one can be at a loss to determine, when the right, which each party has to the person of the other, is violated. But good or bad usage admits of

many degrees; some of which are so slight, that it would be ridiculous. to mention them as sufficient reasons for dissolving a marriage. And where there is so much latitude, it would be difficult, if not impossi ble, to settle the precise degree which is sufficient for this purpose.

It would be an equitable and a natural temperament in this matter, to relieve the party aggrieved by allowing a separation, without dissolving the bond of marriage, as far as that bond hinders any second marriage. This is an equitable temperament, because where there is a real grievance, it would be a hardship to compel the party aggrieved to live miserably. And it is a natural temperament; because it is most agreeable to the nature of marriage, that the bond should be perpetual, as for other reasons, so for this in particular, that a perpetual bond is, from the first, the most effectual means of securing to each party good usage from the other.

A second marri

subsists.

VIII. Having seen what will dissolve a marriage, after age is a nullity it is contracted, we are next to inquire what will make where former it a nullity from the beginning. One cause, which will make it so, has been already explained at large. *No second marriage can be valid, whilst a former marriage is subsisting. A man or woman, under the bond of a former marriage, have no power to dispose of their persons to any one else for the same purposes: because their persons are then not their own to dispose of; the right which they had in them, was made over to the first partner of their bed. It is needless here to ask, whether a pre-contract in words of present time will invalidate a subsequent marriage of one of the parties concerned in it, with any other person besides him or her with whom such pre-contract was made. The law of nature knows no distinction between a contract of marriage in words of present time and an actual marriage. The formalities which distinguish such a contract from what is commonly known by the name of marriage, are of positive institution. If a man and a woman have agreed to live together in an union of affections and interests, and each of them has given the other a perpetual right in his or her person for the purposes of producing children; this is naturally a good and valid marriage; and as long as there is no divorce upon account of adultery, such a contract is sufficient to set aside all subsequent marriages of either of them with any third person. A mutual promise of future marriage is not an actual making over a present right to each other's persons; it is only an agreement that they will make over such a right hereafter. This too may be called a contract, but then it is only of the promissory sort: and any subsequent marriage of either of the parties, engaged in such a promise, to a third person would be valid, notwithstanding the prior promise. For each party has still a right in his or her own person; this will be sufficient to make the subsequent disposal of it binding. The promise however is not without its effect; for, as in the case of buy ing and selling, it entitles the party to whom it was made, to all such damages as may be suffered by the breach of it.

and

We said, indeed, in speaking of promises, that a promise gives a right over the person of the promiser: and since an actual marriage conveys no more than a right to the person of him or her, who engages in it,

* Grot. Lib. II. Cap. V. § XI.

we may be asked what difference there is between a marriage in words of present time, and a promise of marriage in words of future time. What hinders us from immediately seeing the difference is, that in marriage contracts the person and the thing are confounded: if, instead of saying that a contract in words of present time gives each party a right to the person, we say, that it gives each party a right to the body of the other for the purposes of marriage; we shall more clearly see the difference between such a contract and a promissory one. A contract in words of present time gives each party a right to the body of the other: whereas a promissory one gives each a right only over the liberty of the other, as to the future disposal of their bodies.

IX. The contract of marriage is so far complete as Want of consumto be binding upon the parties, when each has consent- mation, in what ined to give the other a present right to their bodies re- stances it voids a spectively for the purposes of marriage. Consumma- marriage.

tion is no more than taking actual possession of what, by the previous contract, each had a right to.

We are however to observe, that this contract, like all others, is binding conditionally: so that a failure of performance on one part releases the obligation on the other part. Impotency therefore on the part of the man, or incapacity on the part of the woman, will set the contract aside. The man and the woman have in words made over a right to their persons respectively for the purposes of marriage: but making over this right is in effect making over nothing, where one is impotent or the other incapable.

This seems to be what has led some to imagine that a marriage is incomplete, till after consummation. As an impossibility of consummation will set the marriage aside, they conclude it not to be complete by the mere contract. But we have shown already, that it is so far complete, as to be binding upon the parties; and that properly the want of consummation, arising from impotency or incapacity, rather invalidates by non-performance a marriage, that was otherwise complete, than makes it a nullity from the beginning by any defect in the marriage itself. However, though the law of nature gives each party a perpetual right to the person of the other; it does not determine how long the use of that right must necessarily continue: and upon this account the imperfections which are sufficient to set a marriage aside, must be from the first: whatever imperfections arise afterwards will not produce this

effect.

be

relations,

X. Marriages between persons, who are nearly relat- Marriages ed to one another either by consanguinity or affinity, are tween generally held to be null from the beginning. We call how made invalid. those relations by consanguinity, who are relations by birth; such as parents and children, brothers and sisters, uncles and nieces. Relations by affinity are relations in consequence of some former marriage; such are fathers or mothers-in-law and their children-in-law, a man and his brother's wife, or a woman and her sister's husband.

In our inquiries upon this head, it will be necessary to distinguish between kindred in the direct line, as parents and their children, and

kindred in the collateral line, as brothers and sisters, uncles and their nieces, or aunts and their nephews.

There is a plain reason in nature, why marriages between persons related by consanguinity in the direct line, should be void from the beginning. The difference of age, which some have assigned as the reason, is not satisfactory: because where the parties are not related one to another, though the difference of age between them should be the same as is usual between parents and their children, or even between grandparents and their grandchildren, such marriage is not looked upon as a nullity. But all acts are void, if the validity of them would set aside the obligation of a law of nature; it being impossible to suppose, that the law of nature can allow what would destroy its own authority. Now a marriage between a mother and her son, or a father and his daughter, is not merely contrary to that natural duty of honour which children owe to their parents, but would, if it was valid, supersede the duty and set it aside: such a marriage would make the children equal to their parents; and the necessary familiarities, which marriage supposes, are wholly inconsistent with that reverence which is implied in the notion of a child's honouring its parents.

It will be more difficult to find a natural reason, why persons who are related to one another by affinity, or by consanguinity in the collateral line, should be under an incapacity of contracting a valid marriage. If we have been brought up from our infancy in an opinion, that it is unnatural for a brother to marry his sister, we shall be surprised to hear it asserted that no reason in the nature of the thing itself can be found, which will render such a marriage unlawful; and much less can any be found, which will make it void. Our surprise, however, at hearing this asserted, will probably be abated, if we recollect the history of the creation; from whence we may learn, that the sons of Adam could have no wives but their own sisters. And we cannot imagine that God would have contrived to place mankind in such circumstances as must either have put an end to the human species at once, or else have laid them under the necessity of doing what the law of nature forbids.

Some moralists indeed tell us of a natural abhorrence of such mixtures as these: they say, that every man's own inward sense or instinctive feeling is, in this instance, a law to him, and informs him what he may and what he may not do. One would be apt to question whether there is such an abhorrence implanted in us by nature; when we find nothing which can be called by this name, except in countries where people are bred up in an opinion, that these marriages are unlawful: in other countries where the law or custom allows of them, there seem to be no traces of any such abhorrence. In fact, if this instinct was the only cause, why a man might not marry his sister, I do not see how such a marriage could in any particular instance ever be shown to be unlawful. Whatever other men may feel, it may fairly be presumed, that the man who actually marries his sister, is not sensible of any such abhorrence. And however unlawful marriages of this sort may be supposed, where the parties have this instinct; I see not how such an instinct, where it is not felt, can make them unlawful. Unless the sense or feeling, the desires or aversions of one man, are the proper standards by which to regulate the conduct of another.

It is farther urged against marriages between two persons who are nearly related to one another; that a man enlarges his interest by marrying out of his own family: he is already connected with his own kindred; and if he marry with them, it will be of less benefit to him than if he had taken care to create new connections by marrying into another family. This however can be only matter of prudence. The most we could prove from this consideration is, that such a marriage will sometimes be less beneficial, than another might have been. But it does not by any means follow from hence, that the marriage is unlawful. All acts which are contrary to a man's immediate interest, are not for this reason to be always looked upon as criminal.

But though we may be at a loss to find out a natural reason, which renders the marriages of persons related in the collateral line unlawful; yet it seems to be very certain, that such marriages are unlawful to all mankind. These incestuous marriages are particularly mentioned as a part of the guilt of the Canaanites, and as one reason amongst others, why God was pleased to cast them out of their land, and to give it to the children of Israel. There is not the least reason for imagining, that God had ever given any positive law about this, or any other matter, to the Canaanites in particular, exclusive of the rest of mankind. But if he had not done this, and yet the Canaanites were obliged to observe such a law, and were represented as sinners for not observing it; the plain consequence is, that this law must have been universal, so as to have obliged all mankind. But because it was an universal law before the coming of Christ, and yet was no part of the law of nature; it must have been a positive law given either to Adam or to Noah. Now from the necessity that Adam's children were under to marry with one another, we cannot well imagine any such law to have been given to him by the same God who had laid them under this necessity, by making no provision for them to marry with any one else. We must, therefore, conclude, that some positive law forbidding incestuous marriages was given to Noah, and in him to all his descendants.

This observation may help to explain a difficulty in the apostolical decree upon the question, whether the converted Gentiles ought to be ircumcised. The apostles determined, that those Gentiles were free from the yoke of circumcision, but required them to abstain from fornication, from things offered to idols, from things strangled, and from blood. As three of these articles forbid things which are in themselves indifferent; the difficulty is, why the other article should forbid fornication, which the law of nature had already made criminal. One would expect, that the decree should be uniform, as to the matter of it; especially since we see no occasion for the apostles to interpose their positive authority to provide against a practice, which was naturally and in itself unlawful. Mr. Hooker here refers us to what are called the seven precepts of the sons of Noah, one of which is "To abhor all unclean knowledge in the flesh.-This precept he understands to relate to unlawful marriages, such as Moses in the law reckons up; and declares, that for his own part he thinks the apostolical canon is rather to be understood of these, than of fornication, according unto the sense of the law of nature. Words, says he, must be taken according to the