Commentary on Romans; Systematic Theology

The questions which call for, at least a brief consideration, under this head are, (1.) What is divorce, and what are its legitimate effects? (2.) What are the Scriptural grounds of divorce? (3.) What are the Romish doctrine, and practice on this subject? (4.) What are the doctrine and practice of Protestant Churches and countries? (5.) What is the duty of the Church and of its officers in cases where the laws of the state on this subject are in conflict with the law of God? Works on civil and canon law, when treating of divorce, take a much wider range than this, but the points above indicated seem to include those of most interest and importance to the theologian.

Divorce is not a mere separation, whether temporary or permanent, "a mensa et thoro." It is not such a separation as leaves the parties in the relation of husband and wife, and simply relieves them from the obligation of their relative duties. Divorce annuls the "vinculum matrimonii," so that the parties are no longer man and wife. They stand henceforth to each other in the same relation as they were before marriage. That this is the true idea of divorce is plain from the fact that under the old dispensation if a man put away his wife, she was at liberty to marry again. (Deut. xxiv. 1, 2.) This of course supposes that the marriage relation to her former husband was effectually dissolved. Our Lord teaches the same doctrine. The passages in the Gospels, referring to this subject, are Matthew v. 31, 32; xix. 3-9; Mark x. 2-12; and Luke xvi. 18. The simple meaning of these passages seems to be, that marriage is a permanent compact, which cannot be dissolved at the will of either of the parties. If, therefore, a man arbitrarily puts away his wife and marries another, he commits adultery. If he repudiates her on just grounds and marries another, he commits no offence. Our Lord makes the guilt of marrying after separation to depend on the ground of the separation. Saying, that if a man puts away his wife for any cause save fornication, and marries another, he commits adultery'; is saying that the offence is not committed if the specified ground of divorce exists.' And this is saying that divorce, when justifiable, dissolves the marriage tie.

Although this seems so plainly to be the doctrine of the Scriptures, the opposite doctrine prevailed early in the Church, and soon gained the ascendancy. Augustine himself taught in his work "De Conjugiis Adulterinis,"¹ and elsewhere, that neither of the parties after divorce could contract a new marriage. In his "Retractions," however, he expresses doubt on the subject. It passed, however, into the canon law, and received the authoritative sanction of the Council of Trent, which says,² "Si quis dixerit, ecclesiam errare, cum docuit et docet, juxta evangelicam et apostolicam doctrinam, propter adulterium alterius conjugum matrimonii vinculum non posse dissolvi; et utrumque, vel etiam innocentem, qui causam adulterio non dedit, non posse, altero conjuge vivente, aliud matrimonium contrahere; moecharique eum, qui, dimissa adultera, aliam duxerit, et eam, quæ, dimisso adultero, alii nupserit; anathema sit." This is the necessary consequence of the doctrine, that the marriage relation can be dissolved only by death. The indisposition of the mediæval and Romish Church to admit of remarriages after divorce, is no doubt to be attributed in part to the low idea of the marriage state prevailing in the Latin Church. It had its ground, however, in the interpretation given to certain passages of Scripture. In Mark x. 11, 12, and in Luke xvi. 18, our Lord says without any qualification: "Whosoever putteth away his wife, and marrieth another, committeth adultery; and whosoever marrieth her that is put away from her husband, committeth adultery." This was taken as the law on the subject, without regard to what is said in Matthew v. 31, 32, and xix. 3-9. As, however, there is no doubt of the genuineness of the passages in Matthew, they cannot be overlooked. One expression of the will of Christ is as authoritative and as satisfactory as a thousand repetitions could make it. The exception stated in Matthew, therefore, must stand. The reason for the omission in Mark and Luke may be accounted for in different ways. It is said by some that the exception was of necessity understood from its very nature, whether mentioned or not. Or having been stated twice, its repetition was unnecessary. Or what perhaps is most probable, as our Lord was speaking to Pharisees, who held that a man might put away his wife when he pleased, it was enough to say that such divorces as they were accustomed to, did not dissolve the bonds of marriage, and that the parties remained as much man and wife as they were before. Under the Old Testament, divorce on the ground of adultery, was out of the question, because adultery was punished by death. And, therefore, it was only when Christ was laying down the law of his own kingdom, under which the death penalty for adultery was to be abolished, that it was necessary to make any reference to that crime.

It has been earnestly objected to the doctrine that adultery dissolves the marriage bond, that both parties, the guilty as well the innocent become free, and either may contract a new marriage. If this be so, it is said, that all that a man, who wishes to get rid of his wife, has to do, is to commit that offence. He will then be at liberty to marry whom he chooses. To this it might be a sufficient answer to say that the objection bears rather against the wisdom of the law, than against the fact that it is the law; or in other words, the objection is against the plain meaning of the words of Christ. But it is to be remembered, that adultery is a crime in the sight of man as well as in the sight of God, and as such it ought to be punished. Under the old dispensation it was punished by death; under the new, it may be punished by imprisonment, or by prohibition of any future marriage. Christ leaves the punishment of this, as of other crimes, to be determined by his disciples in their civil capacity. All He does is to teach what its effects are, "in foro conscientiæ," as to the marriage bond.

As already stated, marriage is an indissoluble compact between one man and one woman. It cannot be dissolved by any voluntary act of repudiation on the part of the contracting parties; nor by any act of the Church or State. "Those whom God has joined together, no man can put asunder." The compact may, however, be dissolved, although by no legitimate act of man. It is dissolved by death. It is dissolved by adultery; and as Protestants teach, by wilful desertion. In other words, there are certain things which from their nature work a dissolution of the marriage bond. All the legitimate authority the state has in the premises is to take cognizance of the fact that the marriage is dissolved; officially to announce it, and to make suitable provision for the altered relation of the parties.

Under the preceding head it has already been shown that according to the plain teaching of our Saviour the marriage bond is annulled by the crime of adultery. The reason of this is, that the parties are no longer one, in the mysterious sense in which the Bible declares a man and his wife to be one.³ The Apostle teaches on this subject the same doctrine that Christ had taught. The seventh chapter of his First Epistle to the Corinthians is devoted to the subject of marriage, in reference to which several questions had been proposed to him.

He first lays down the general principle, founded on the Word of God and the nature of man, that it is best that every man should have his own wife and every wife her own husband; but in view of the "present (or imminent) distress," he advises his readers not to marry. He writes to the Corinthians as a man would write to an army about to enter on a most unequal conflict in an enemy's country, and for a protracted period. He tells them: This is no time for you to think of marriage. You have a right to marry. And in general it is best that all men should marry. But in your circumstances marriage can only lead to embarrassment and increase of suffering.' This limitation of his advice not to marry, to men in the circumstances of those to whom the advice is given, is not only stated in so many words in verse 26, but it is the only way in which Paul can be reconciled with himself or with the general teaching of the Bible. It has already been remarked, that no one of the sacred writers speaks in more exalted terms of marriage than this Apostle. He represents it as a most ennobling spiritual union, which raises a man out of himself and makes him live for another; a union so elevated and refining as to render it a fit symbol of the union between Christ and his Church. Marriage, according to this Apostle, does for man in the sphere of nature, what union with Christ does for him in the sphere of grace.

Having thus given it as a matter of advice that it was best, under existing circumstances, for Christians not to marry, he proceeds to give directions to those who were already married. Of these here were two classes: first, those where both husband and wife were Christians; and secondly, those where one of the parties was a believer and the other an unbeliever, i.e., a Jew or a heathen. With regard to the former he says, that as according to the law of Christ the marriage is indissoluble, neither party had the right to repudiate the other. But if, in violation of the law of Christ, a wife had deserted her husband, she was bound either to remain unmarried, or to be reconciled to her husband. The Apostle thus impliedly recognizes the principle that there may be causes which justify a woman's leaving her husband, which do not justify a dissolution of the marriage bond.

With regard to those cases in which one of the parties was a Christian and the other an unbeliever, he teaches, first, that such marriages are lawful, and, therefore, ought not to be dissolved. But, secondly, that if the unbelieving partner depart, i.e., repudiates the marriage, the believing partner is not bound; i.e., is no longer bound by the marriage compact. This seems to be the plain meaning. If the unbelieving partner is willing to continue in the marriage relation, the believing party is bound; bound, that is, to be faithful to the marriage compact. If the unbeliever is not willing to remain, the believer in that case is not bound; i.e., bound by the marriage compact. In other words, the marriage is thereby dissolved. This passage is parallel to Romans vii. 2. The Apostle there says, a wife "is bound by the law to her husband, so long as he liveth; but if the husband be dead, she is loosed from the law of her husband." So here he says, A wife is bound to her husband if he is willing to remain with her; but if he deserts her, she is free from him.' That is, wilful desertion annuls the marriage bond. This desertion, however, must be deliberate and final. This is implied in the whole context. The case contemplated is where the unbelieving husband refuses any longer to regard his believing partner as his wife.

This interpretation of the passage is given not only by the older Protestant interpreters, but also by the leading modern commentators, as De Wette, Meyer, Alford, and Wordsworth, and in the Confessions of the Lutheran and Reformed Churches. Even the Romanists take the same view. They hold, indeed, that among Christians marriage is absolutely indissoluble except by the death of one of the parties. But if one of the partners be an unbeliever, then they hold that desertion annuls the marriage contract. On this point Cornelius à Lapide, of Louvain and Rome, says, "Nota, Apostolum permittere hoc casu non tantum thori divortium sed etiam matrimonii; ita ut possit conjux fidelis aliud matrimonium inire." Lapide refers to Augustine, Thomas Aquinas, and Ambrose in support of this opinion.⁴ The Canon Law, under the title "Divortiis" teaches the same doctrine. Wordsworth's comment on the passage is, "Although a Christian may not put away his wife, being an unbeliever, yet if the wife desert her husband (chorizetai) he may contract a second marriage."

The Romanists indeed rest their sanction to remarriage in the case supposed, on the ground that there is an essential difference between marriage where one or both the parties are heathen, and marriage where both parties are Christians. This, however, makes no difference. Paul had just said that such unequal marriages were lawful and valid. Neither party could legitimately repudiate or leave the other. The ground of divorce indicated is not difference of religion, but desertion.

There is a middle ground taken by many, both ancients and moderns, in the interpretation of this passage. They admit that desertion justifies divorce, but not the remarriage of the party deserted. To this it may be objected, —

1. That this is inconsistent with the nature of divorce. We have already seen that divorce among the Jews, as explained by Christ, and as understood in the apostolic Church, was such a separation of man and wife as dissolved the marriage bond. This idea was expressed in the use of the words apoluein, aphienai, chorizein and these are the words here used.

2. This interpretation is inconsistent with the context and with the design of the Apostle. Among the questions submitted to his decision, was this, Is it lawful for a Christian to remain in the marriage relation with an unbeliever?' Paul answers, Yes; such marriages are lawful and valid. Therefore if the unbeliever is willing to continue the marriage relation, the believer remains bound; but if the unbeliever refuses to continue the marriage, the believer is no longer bound by it.' To say that the believer is no longer bound to give up his or her religions which seems to be Neander's idea, or is not bound to force himself or herself upon an unwilling partner, would be nothing to the point. No Christian could think himself bound to give up his religion, and no one could think it possible that married life could be continued without the consent of the parties. The question, in this sense, was not worth either asking or answering.

3. Desertion, from the nature of the offence, is a dissolution of the marriage bond. Why does death dissolve a marriage? It is because it is a final separation. So is desertion. Incompatibility of temper, cruelty, disease, crime, insanity, etc., which human laws often make grounds of divorce, are not inconsistent with the marriage relation. A woman may have a disagreeable, a cruel, or a wicked husband, but a man in his grave, or one who refuses to recognize her as his wife, cannot be her husband.

It is said, indeed, that this doctrine makes marriage depend on the option of the parties. Either may desert the other; and then the marriage is dissolved. The same objection was made to our Lord's doctrine that adultery destroys the marriage bond. It was maid that if this be so, either party might dissolve the marriage, by committing that crime. As the objections are the same, the answer is the same. As adultery is a crime, so is desertion; and both should be punished. The question is not what these crimes deserve, but what are their legitimate effects, according to the Scriptures, on the marriage relation.

That desertion is a legitimate ground of divorce, was therefore, as before mentioned, the doctrine held by the Reformers, Luther, Calvin, and Zwingle, and almost without exception by all the Protestant churches.⁵

Marriage is thus defined in the Roman Catechism: "Matrimonium est viri, et mulieris maritalis conjunctio inter legitimas personas, individuam vitæ consuetudinem retinens." The clause "inter legitimas personas," is explained by saying, "Qui a nuptiarum conjunctione legibus omnino exclusi sunt, ii matrimonium inire non possunt; neque, si ineant, ratum est, exempli enim gratia: qui intra quartum gradum propinquitate conjuncti sunt, puerque ante decimum quartum annum, aut puella ante duodecimum, quæ ætas legibus constituta est, ad matrimonii justa foedera ineunda apti esse non possunt." The clause, "Individuam vitæ consuetudinem retinens," it is said, "indissolubilis vinculi naturam declarat quo vir, et uxor colligantur."⁶

Marriage is to be contemplated under two aspects. It is an institution founded in nature, and therefore exists wherever men exist. It is a lawful institution among the heathen as well as among Christians. But as it is an ordinance of God it has a character among those who know the true God and thus regard it, far higher than it has for those who are the worshippers of false gods. And, therefore, marriage, under the old dispensation, had a much higher character than it had among the heathen. Nevertheless, among Christians marriage is something far more sacred than it was under the Mosaic economy. Christ had raised it te the dignity of a sacrament.⁷

The word sacrament is one of vague and various meaning. Sometimes it means that which is sacred or consecrated; sometimes that which has, or is intended to have a sacred meaning; i.e., an external sign of some religious truth or grace; sometimes a divinely appointed external rite instituted to be a means of grace; and sometimes a divinely appointed external sign that contains and conveys the grace which it signifies. It is in this last sense that the word is used by Romanists; and it is in this sense they teach that marriage is a sacrament. The principal Scriptural authority for this doctrine they find in Ephesians v. 32, where, as they understand the passage, the words to musterion touto mega estin, rendered in the Vulgate, "Sacramentum hoc magnum est," are spoken of marriage. According to this version and interpretation, the Apostle does indeed directly assert that marriage is a mystery. But (1.) The words do not refer to marriage, but to the mystical union between Christ and his people as appears from the Apostle's own explanation in the following clause: "I speak concerning Christ and the Church." The two subjects, the union of husband and wife and the union between Christ and his people, had been so combined and interwoven in the preceding verses, that it would have been difficult to determine to which the words, "This is a great mystery," were intended to refer, had not the Apostle himself told us. But (2.) Even if the Apostle does say that the marriage union is a great mystery, which in one sense it clearly is, that would not prove that it is a sacrament. The word "mystery," as used in the Bible, means something hidden or unknown; something which can be known only by divine revelation. Thus the Gospel itself is repeatedly said to be a mystery (Eph. iii. 3-9); the future conversion of the Jews is said to be a mystery (Rom. xi. 25); the incarnation is said to be the great mystery of godliness (1 Tim. iii. 16); and anything obscure or enigmatical is called a mystery (Rev. xvii. 6); thus the mystery of the seven candlesticks is their secret meaning. If, therefore, Paul says that marriage is a great mystery in the sense that no one can fully understand what is meant when God says that husband and wife are one, or even in the sense that marriage has a sacred import, that it is a symbol of a great religious truth, this is what all Protestants admit and what is clearly taught in Scripture. Paul had himself just set forth marriage as the great analogue of the mystical union of Christ and the Church. (3.) Admitting still further that marriage was properly called "sacramentum," that would prove nothing to the purpose. That Latin word had not the sense attached to it by Romanists until long after the apostolic age. It has not that sense even in the Vulgate. In 1 Timothy iii. 16, the manifestation of God in the flesh is declared to be the "great mystery of godliness," which the Vulgate translates "magnum pietatis sacramentum;" but Romanists do not hold that the incarnation is a sacrament in the ecclesiastical sense of that term. The Latin Church, however, having gradually come to attach to the word the idea of a divinely appointed rite or ceremony, which signifies, contains, and conveys grace, and finding, as the words were understood, marriage declared in Ephesians v. 32 to be a "sacramentum," it came to teach that it was a sacrament in the same sense as baptism and the Lord's Supper.

Romanists then teach that marriage is a sacrament not merely because it is the sign or symbol of the union of Christ and his Church. The Roman Catechism says,⁸ (1). That no one should doubt "quod scilicet viri, et mulieris conjunctio, cujus Deus auctor est, sanctissimi illius vinculi, quo Christus dominus cum Ecclesia conjungitur, sacramentum, id est, sacrum signum sit." If this were all, no Protestant could object. (2). But Romanists teach that marriage is a sacrament because it not only signifies but also confers grace. The ceremony, including the consent of the parties, the benediction, and the intention of the priest, renders the bride and groom holy. It sanctifies them. "Ex opere operato," it transforms mere natural human love into that holy spiritual affection which renders their union a fit emblem of the union of Christ and the Church. On this point the Council of Trent says:⁹ "Gratiam, vero, quæ naturalem illum amorem perficeret, et indissolubilem unitatem confirmaret, conjugesque sanctificaret, ipse Christus, venerabilium sacramentorum institutor, atque perfector, sua nobis passione promeruit." It would be a great blessing if this were so. Facts, however, prove that the sacramental efficacy of matrimony no more so sanctifies husbands and wives as to make their mutual love like the holy love of Christ for his Church, than baptism confers (to those not opposing an obstacle) all the benefits, subjective and objective, of the redemption of Christ. If the sacramentarian theory were true, all Christians would be perfect and Christendom would be paradisaical.

Marriage between Christians, according to Romanists, is indissoluble. Neither adultery nor desertion justifies divorce. Death alone can sever the bond. It is not to be inferred from this, however, that marriage is a more sacred institution among Romanists than among Protestants. Any departure from Scriptural rules is sure to work evil. The denial that adultery destroys the marriage bond, leads naturally, and in fact has led, not only to render that crime more frequent, but also to unscriptural devices to remedy the injustice of forcing a husband or wife to maintain the conjugal relation with a guilty partner. One of these devices is the multiplication of the causes of separation "a mensa et thoro"; and another still more unscriptural, is the multiplying the reasons which render marriage null and void "ab initio." No less than sixteen causes which render marriages null are enumerated by Romish theologians.¹⁰

The causes which justify separation without divorce, are vows, adultery, apostasy, and crimes. Under the last head they include cruelty and prodigality. If the parties had not been baptized, divorce "a vinculo" was allowed when one of the partners became a Romanist and the other refused to, and also for any serious crime. The whole matter is in the hands of the Church, which claims the right of making and unmaking impediments to marriage at pleasure. "Si quis dixerit Ecclesiam non potuisse constituere impedimenta, matrimonium dirimentia, vel in iis constituendis errasse; anathema sit."¹¹ At one period the Church of Rome made consanguinity within the seventh degree an impediment to marriage; at present it forbids marriage within the fourth degree inclusive. "The old Catholic theory of marriage," says President Woolsey, "was practically a failure in all its parts, in its ascetic frown on marriage, in its demand from the clergy of an abstinence not required from the Christian laity, in teaching that nothing but death could release the married pair from their obligations. When it sought for impracticable virtue, and forbade to some what God had allowed to all, it opened a fountain of vice with the smallest incitement to virtue."¹²

Laws of Protestant Countries concerning Divorce.

It has already been shown that Protestants, making the Scriptures their guide, taught that the dissolution of the bond of marriage was allowable only for the two offences of adultery and wilful desertion. So far as the churches and their confessions are concerned, this is still the doctrine of almost all Protestant denominations. When, however, marriage came to be regarded as essentially a civil contract, it gradually fell under the jurisdiction of the state, and laws were passed varying in different countries, as legislators were influenced by mere views of justice or expediency. The legislation of all European nations was greatly influenced by the old Roman law; and, therefore, when marriage was removed from the exclusive jurisdiction of the Church, the laws concerning it were more or less adopted from the ancient code. The Roman laws concerning divorce were very lax. Mutual consent was, even after the Roman emperors became Christian, regarded as a sufficient reason for dissolving the bond of marriage. When the Church gained the ascendancy over the State, and the pope became the virtual legislator of Christendom, divorce for any reason was forbidden; and when and where the pope in his turn was dethroned, there was a general tendency to return to the laxity of the Roman legislation.

England was an exception to this rule. It discarded less of popish usages than any other Protestant nation. For a long time after the Reformation no special law concerning divorce was passed. The ecclesiastical courts could decree separation "a mensa et thoro," but a full divorce "a vinculo" could be obtained only by a special act of Parliament. Under the reign of the present sovereign all such questions were removed from the ecclesiastical courts and remitted to a civil tribunal. That tribunal is authorized to grant judicial separation "a mensa et thoro" on the ground of adultery, or cruelty, or desertion without just cause for two years and upward; and dissolution of marriage on account of simple adultery on the part of the wife, or aggravated adultery on the part of the husband. Such divorce gives both parties liberty to contract a new marriage. "On the whole, with serious defects," says President Woolsey, "it seems to us to be an excellent law. It does honour to the Christian country where it is in force, and it is certainly a great improvement on the former mode of regulating divorce in England."¹³ It may be a good law in comparison with the lawlessness that preceded it, and in comparison with the lax legislation of other Protestant nations, but it is not good so far as it is not conformed to the Scriptures. The New Testament makes no such distinction as is made in this law, between adultery on the part of the wife and the same offence on the part of the husband. And it is not good in not allowing wilful desertion to be a legitimate ground of divorce, if, as Protestants almost universally believe, the Bible teaches the contrary.

In France the laws of the Romish Church were in force until the Revolution. That event threw everything into confusion, and the sanctity of marriage was in a great degree disregarded. Under the empire of the first Napoleon, the civil code allowed divorce, (1.) for simple adultery on the part of the wife; (2.) for aggravated adultery on the part of the husband; (3.) for outrages and cruelty; (4.) for the condemnation of either party to an infamous punishment; and (5.) for mutual persistent consent. The restoration of the Bourbons put an end to these laws and led to the entire prohibition of divorce.

Among the Protestants of Germany, the views of the Reformers, as a general thing, controlled the action of the several states on this subject until about the middle of the eighteenth century, when the laws of marriage were greatly relaxed. Göschen attributes this change in a great measure to the influence of Thomasius ( 1728), who regarded marriage as merely a civil institution designed for the purposes of the state, and which, therefore, might be set aside whenever it failed to answer the desired end.¹⁴ The present law of Prussia, although an improvement on the previous legislation, is far below the Scriptural standard. Besides adultery and wilful desertion, it makes many other offences grounds of divorce, for example, plots endangering the life or health of the other party; gross injuries; dangerous incompatibility of temper; crimes entailing an infamous punishment; habitual drunkenness and extravagance; and deliberate mutual consent, if there be no children fruit of the marriage to be dissolved.

The laws of the several states of this Union on the subject of divorce vary from the extreme of strictness to the extreme of laxness. In South Carolina no divorce has ever been given. The effect of refusing to regard adultery as a dissolution of the marriage bond is, as proved by the experience of Catholic countries, to lead the people to regard that crime as a pardonable offence. It was indictable. In New York adultery is the only ground of divorce; but separation from bed and board is granted for cruelty, desertion, and refusal on the part of the husband to make provision for the support of the wife. In several of the other states, besides adultery and desertion, many other grounds are made sufficient to justify divorce; of these grounds the following are the principal: imprisonment, neglect to provide for the maintenance of the wife, habitual drunkenness, and cruelty. In some states the whole matter is left to the discretion of the courts. In the laws of Maine it is said that divorce "a vinculo" may be granted by any justice of the Supreme Court, "when in the exercise of a sound discretion, he deems it reasonable and proper, conducive to domestic harmony, and consistent with the peace and morality of society." The law of Indiana says divorce may be granted for any cause for which the court deems it proper.¹⁵ In Rhode Island to the enumeration of specific causes is added, "and for any other gross misbehaviour and wickedness in either of the parties, repugnant to and in violation of the marriage covenant." In Connecticut the statute passed in 1849 allows divorce for "any such misconduct as permanently destroys the happiness of the petitioner and defeats the purpose of the conjugal relation."¹⁶

There are certain principles bearing on this subject which will be generally conceded, (1.) Every legislative body is bound to conform its enactments to the moral law. This may be assumed as a self-evident proposition. (2.) Every Christian legislature is bound to conform its action to the laws of Christianity. By a Christian legislature is meant one which makes laws for a Christian people. It is not necessary that it should represent them as Christians, to be their agents in teaching, propagating, or enforcing the principles of the Christian religion. It is enough to constitute it a Christian legislature that the great body of its constituents who are bound to obey its laws are Christians. No one hesitates to say that Italy, Spain, and France are Catholic countries; or that England, Sweden, and Prussia are Protestant. As all the powers of legislatures are derived from the people, it is irrational to suppose that the people would delegate to their representatives authority to violate their religion. No legislature of a Christian state, therefore, can have the right to make laws inconsistent with the Christian religion. This principle, so reasonable and obvious, is conceded in the abstract. No state in this Union would dare to legalize adultery or bigamy. Before the Reformation all questions concerning marriage were under the jurisdiction of the Church; after that event they were, in Protestant countries, referred to the authorities of the state. "It never, however," says Stahl, "entered the minds of the Reformers, to assert that marriage was purely a civil institution, to be determined by civil, and not religious laws, or that the testimony of the Church as to the divine laws of marriage was not a binding rule for the legislation of the state."¹⁷ And in still more general terms he declares that "What the Church as such [the body of Christians] testifies to be an unchangeable divine law, jus divinum,' and upholds within its sphere, is the impassable rule and limit for the legislation of a Christian state."¹⁸

3. No act of any human legislature contrary to the moral law can bind any man, and no such act contrary to the law of Christ can bind any Christian. If, therefore, a human tribunal annuls a marriage for any reason other than those assigned in the Bible, the marriage is not thereby dissolved. In the judgment of Christians it remains in full force; and they are bound so to regard it. And on the other hand, if the state pronounces a marriage valid, which the Bible declares to be invalid, in the view of Christians it is invalid. There is no help for this. Christians cannot give up their convictions; nor can they renounce their allegiance to Christ. This state of conflict between the laws and the conscience of the people, is the necessary consequence, if a body making laws for a Christian people disregards an authority which the people recognize as divine.

4. The laws of many of the states of this Union, on the matter of divorce, are unscriptural and immoral. If the former, they are the latter in the view of all who believe in the divine authority of the Bible. If the Scriptures be the only infallible rule of faith and practice, they contain the only standard of right and wrong. The moral law is not something self-imposed. It is not what any man or body of men may think right or expedient. It is the revealed will of God as to human conduct; and whatever is contrary to that will is morally wrong. If this be so, then there can be no doubt that the divorce laws of many of our states are immoral. They contravene the law of God. They annul marriages for other reasons than those allowed in Scripture, and even, in some cases, at the discretion of the courts. They pronounce persons not to be man and wife, who by the law of God are man and wife. They pronounce those to be legally married, whose union Christ declares to be adulterous. That is, they legalize adultery. This is a conclusion which cannot be avoided, except by denying either the authority of the Bible, or that it legislates on the subject of marriage. If marriage were a mere civil compact, with regard to which the Scriptures gave no special directions, it might be regulated by the state according to its news of wisdom or expediency. But if it be an ordinance of God; if He has revealed his will as to who may, and who may not intermarry, and who, when married, may or may not be released from the marriage bond, then the state has no more right to alter these laws than it has to alter the decalogue, and to legalize idolatry or blasphemy. There is no use in covering this matter over. It is wrong to regard anti-Christian laws as matters of small importance.

The action of the state in this matter is not merely negative. It does not simply overlook or refuse to punish the violation of the Scriptural law of divorce, but it intervenes by its positive action, and declares that certain parties are not man and wife, between whom, according to the law of God, the bond of marriage still subsists. It condemns bigamy, but it sanctions what the Bible pronounces bigamy. The law of the state and the law of God, in this regard, are so opposed to each other, that he who obeys the one violates the other.

5. As the Church and its officers are under the highest obligations to obey the law of Christ, it follows that where the action of the state conflicts with that law, such action must be disregarded. If a person be divorced on other than Scriptural grounds and marries again, such person cannot consistently be received to the fellowship of the Church. If a minister be called upon to solemnize the marriage of a person improperly divorced, he cannot, in consistency with his allegiance to Christ, perform the service. This conflict between the civil and divine law is a great evil, and has often, especially in Prussia, given rise to great difficulty.

As all denominations of Christians, Romanists and Protestants, are of one mind on this subject, it is matter of astonishment that these objectionable divorce laws are allowed to stand on the statute-books of so many of our states. This fact proves either that public attention has not to a sufficient degree been called to the subject, or that the public conscience is lamentably blinded or seared. The remedy is with the Church, which is the witness of God on earth, bound to testify to his truth and to uphold his law. If Christians, in their individual capacity and in their Church courts, would unite in their efforts to arouse and guide public sentiment on this subject, there is little doubt that these objectionable laws would be repealed.

This is not a subject to be discussed in these pages; a few remarks, however, in reference to it may not be out of place.

1. It is obviously Utopian to expect that all violations of the seventh commandment can be prevented, any more than that the laws against theft or falsehood should never be disregarded.

2. The history of the world shows that the instinct which leads to the evil in question can never be kept within proper limits, except by moral principle, or by marriage.

3. To these two means of correction, therefore, the efforts of the friends of virtue should be principally directed. There can be no efficient moral culture without religious training. If we would reform our fellow-men, we must bring and keep them from the beginning to the end of their lives under the influence of the truth and ordinances of God; to accomplish this work is the duty assigned to the Church. Besides this general moral culture, there is needed special effort to produce a proper public sentiment with regard to this special evil. So long as the seventh commandment can be violated without any serious loss of self-respect or of public confidence, one of the strongest barriers against vice is broken down. If loss of character as certainly followed a breach of the seventh commandment, as it follows theft or perjury, the evil would be to a good degree abated. This is already the fact with regard to certain classes. It is so with regard to women; and it is so in the case of the clergy. If a minister of the gospel be guilty of this offence, he is as certainly and effectually ruined as he would be by the commission of any other crime short of murder. The same moral law, however, binds all men. Theft in the case of one man is, in its essential character, just what it is in the case of any other man.

4. The divinely appointed preventive of the social evil is laid down in 1 Corinthians vii. 2: "Let every man have his own wife, and let every woman have her own husband." That there are serious difficulties, in the present state of society, in the way of frequent and early marriages, cannot be denied. The principal of these is no doubt the expensive style of living generally adopted. Young people find it impossible to commence life with the conveniences and luxuries to which they have been accustomed in their fathers houses, and therefore marriage is neglected or postponed. With regard to the poorer classes, provision might be made to endow young women of good character, so as to enable them to begin their married life in comfort. Arrangements may also be made in various ways to lessen the expense of family living. The end to be accomplished is to facilitate marriage. Those who are so happy as to find in a dictum of Scripture the ultimate reason and the highest motive, may see the end to be attained, although, as in the present case, they are obliged to leave the means of its accomplishment to experts in social science.

That certain marriages are prohibited is almost the universal judgment of mankind. Among the ancient Persians and Egyptians, indeed, the nearest relations were allowed to intermarry and in the corrupt period of the Roman Empire, equal laxness more or less prevailed. These isolated facts do not invalidate the argument from the general judgment of mankind. What all men think to be wrong, must be wrong. This unanimity cannot be accounted for, except by assuming that the judgment in which men thus agree is founded on the constitution of their nature, and that constitution is the work of God. There are cases, therefore, in which the "vox populi" is the "vox Dei."

The Ground or Reason of such Prohibitions.

The reason why mankind so generally condemn the intermarriage of near relations cannot be physical. Physiology is not taught by instinct. It is, therefore, not only an unworthy, but is an altogether unsatisfactory assumption, that such marriages are forbidden because they tend to the deterioration of the race. The fact assumed may, or may not be true; but if admitted, it is utterly insufficient to account for the condemnatory judgment in question.

The two most natural and obvious reasons why the intermarriage of near relations is forbidden are, first, that the natural affection which relatives have for each other is incompatible with conjugal love. They cannot coexist. The latter is a violation and destruction of the former. This reason need only be stated. It requires no illustration. These natural affections are not only healthful, but in the higher grades of relationship, even sacred. The second ground for such prohibitions is a regard to domestic purity. When persons are so nearly related to each other as to justify their living together as one family, they should be sacred one to the other. If this were not the case, evil could hardly fail to occur, when young people grow up in the familiarity of domestic life. The slightest inspection of the details of the law as laid down in the eighteenth chapter of Leviticus, shows that his principle underlies many of its specifications.

J. D. Michaelis, in his work on the law of Moses, makes this the only reason for the Levitical prohibitions. He goes to the extreme of denying that "nearness of kin" is in itself any bar to marriage. His views had great influence, not only on public opinion, but even on legislation in Germany. That influence, however, passed away when a deeper moral and religious feeling gained ascendancy.¹⁹

Augustine advanced a theory on this subject, which still has its earnest advocates. He held that the design of all these prohibitory laws was to widen the circle of the social affections. Brothers and sisters are bound together by mutual love. Should they intermarry the circle is not extended. If they choose husbands and wives from among strangers, a larger number of persons are included in the bonds of mutual love. "Habita est ratio rectissima charitatis, ut homines quibus esset utilis atque honesta concordia, diversarum necessitudinum vinculis necterentur; nec unus in uno multas haberet, sed singulæ spargerentur in singulos; ac sic ad socialem vitam diligentius colligandam plurimæ plurimos obtinerent." Thus it would come to pass, "Ut unus homo haberet alteram sororem, alteram uxorem, alteram consobrinam, alterum patrem, alterum avunculum, alterum socerum, alteram matrem, alteram amitam, alteram socrum: atque ita se non in paucitate coarctatum, sed latius atque numerosius propinquitatibus crebris vinculum sociale diffunderet."²⁰

A writer in Hengstenberg's "Evangelische Kirchen-Zeitung," adopts and elaborately vindicates this theory. He endeavours to show that it answers all the criteria by which any theory on the subject should be tested. These marriages are called "abominations;" and he asks, Is it not shameful that the benevolent ordinance of God for extending the circle of the social affections should be counteracted? They are called "confusion," because they unite those whom God commands to remain separate. It also accounts for the propriety of the intermarriage of brothers and sisters in the family of Adam; for in the beginning the circle of affection did not admit of being enlarged. It even meets the case if the Levirate law which bound a man to marry the childless widow of his brother. The law which forbids the marriage of relations, holds only where the relationship is close. There must, therefore, be cases just on the line beyond which relationship is no bar to marriage. And with regard to those just within the line, there must be considerations which sometimes outweigh the objections to a given marriage. That God dispensed with the law forbidding the marriage of a man with his brother's widow, when the brother died without children, this German writer regards as impossible. "Evil," he says, "may be tolerated, but not commanded." He adds that it provokes a smile (man muss es naiv nennen) that Gerhard finds an analogy between the case in question and the permission given to the Israelites to despoil the Egyptians.²¹ It is probable that the venerable Gerhard would smile at the writer's criticisms. In the first place, God can no more allow evil than He can command it. An act otherwise evil, ceases to be so when He either allows (i.e., sanctions) it, or commands it. If He commands a man to be put to deaths it ceases to be murder to put him to death. There are two principles of morality generally accepted and clearly Scriptural; one of which is, that any of those moral laws which are founded, not on the immutable nature of God, but upon the relations of men in the present state of existence, may be set aside by the divine law-giver whenever it seems good in his sight; just as God under the old dispensation set aside the original monogamic law of marriage. Polygamy was not sinful as long as God permitted it. The same principle is involved in the words of Christ, God loves mercy and not sacrifice. When two laws conflict, the weaker yields to the stronger. It is wrong to labour on the Sabbath, but any amount of labour on that day becomes a duty, if necessary to save life. In the case of the Levirate law, the prohibition to marry a brother's widow, yielded to what under the Mosaic economy was regarded as a higher obligation, that is, to perpetuate the family. To die childless was considered one of the greatest calamities.

The question, however, concerning the rationale of these laws is one of minor importance. We may not be able to see exactly in all cases why certain things are forbidden. The fact that they are forbidden should satisfy the reason and the conscience. The two important questions in connection with this subject, to be considered, are, first, is the Levitical law respecting prohibited marriages still in force? and, second, how is that law to be interpreted, and what marriages does it forbid?

Is the Levitical Law of Marriage still in force?

1. It is a strong à priori argument in favour of an affirmative answer to that question, that it always has been regarded as obligatory by the whole Christian Church.

2. The reason assigned for the prohibition contained in that law, has no special reference to the Jews. It is not found is their peculiar circumstances, nor in the design of God in selecting them to be depositaries of his truth to prepare the world for the coming of the Messiah. The reason assigned "is nearness of kin." This reason has as much force at one time as at another, for all nations as for any one nation. There was nothing peculiar in the relation in which Hebrew parents and children, Hebrew brothers and sisters, and Hebrew uncles and nieces, stood, which was the ground of these prohibitions. That ground was the nearness of the relationship itself as it exists in every and in all ages. There is, therefore, in the sight of God, a permanent reason why near relations ought not to intermarry.

3. If the Levitical law be not still in force, we have no divine law on the subject. Then there is no such sin as incest. It is an offence only against the civil law, and a sin against God only in so far as it is sinful to violate the law of the state. But this is contrary to the universal judgment of men, at least of Christian men. For parents and children, brothers and sisters, to intermarry is universally considered as sin against God, irrespective of any human prohibition. But if a sin against God, it must be forbidden in his Word, or we must give up the fundamental principle of Protestantism, that the Scriptures are the only infallible rule of our faith and practice. As such marriages are nowhere in the Bible forbidden except in the Levitical law, if that law does not forbid them, the Bible does not forbid them.

4. The judgments of God are denounced against the heathen nations for permitting the marriages which the Levitical law forbids. In Leviticus xviii. 8, it is said, "After the doings of the land of Egypt, wherein ye dwelt shall ye not do: and after the doings of the land of Canaan, whither I bring you, shall ye not do; neither shall ye walk in their ordinances." This is the introduction to the law of prohibited marriages, containing the specification of the "ordinances" of the Egyptians and Canaanites, which the people of God were forbidden to follow. And in the twenty-seventh verse of the same chapter, at the close of these specifications, it is said, "All these abominations have the men of the land done, which were before you, and the land is deified." Again, in ch. xx. 23, still in reference to these marriages, it is said, "Ye shall not walk in the manners of the nations which I cast out before you: for they committed all these things, and therefore I abhorred them." This is a clear proof that these laws were binding, not on the Jews alone, but upon all people and at all times.

5. The continued obligation of the Levitical law on this subject is also recognized in the New Testament. This recognition as involved in the constant reference to the law of Moses as the law of God. If in any of its parts or specifications it is no longer obligatory, that is to be proved. It contains much which we learn from the New Testament was designed simply to keep the Hebrews a distinct people; much which was typical; much which was a shadow of things to come, and which passed away when the substance was revealed. It contained, however, much which was moral and of permanent obligation. If God gives a law to men, those who deny its perpetual obligation are bound to prove it. The presumption is that it continues in force until the contrary is proved. It must be hard to prove that laws founded on the permanent social relations of men were intended to be temporary.

Besides this general consideration, we find specific recognitions of the continued obligation of the Levitical law in the New Testament. John the Baptist, as recorded in Mark vi. 18 and Matthew xiv. 4, said to Herod that it was not lawful for him to have his brother Philip's wife. It matters not, as to the argument, whether Philip was living or not. The offence charged was not that he had taken another man's wife, but that he had taken his brother's wife. It may be objected to this argument that during the ministry of John the Baptist the law of Moses was still in force. This Gerhard denies, who argues from Matthew xi. 13, "All the prophets and the law prophesied until John, that the Baptist's ministry belongs to the new dispensation.²² This may be doubted. Nevertheless John expressed the moral sentiment of his age; and the record of the fact referred to by the Evangelists whose Gospels were written after the Christian Church was fully organized, is given in a form which involves a sanction of the judgment which the Baptist had expressed against the marriage of Herod with his brother's wife. It is also to be remembered that the Herodian family was Idumean, and therefore, that a merely Jewish law would have no natural authority over them.

The Apostle Paul, moreover, in 1 Corinthians v. 1, speaks of a man's marrying his step-mother as an unheard of offence. That this was a case of marriage and not of adultery is plain because the phrase gunaika echein is never used in the New Testament except of marriage. This, therefore, is a clear recognition of the continued obligation of the law forbidding marriage between near relations, whether the relationship was by consanguinity or affinity.

6. The Bible everywhere enforces those laws which have their foundation in the natural constitution of men. That this Levitical law is a divine authentication of a law of nature, may be inferred from the fact that with rare exceptions the intermarriage of near relations is forbidden among all nations. Paul says that the marriage of a man with his step-mother was unheard of among the heathen; i.e., it was forbidden and abhorred. Cicero exclaims, "Nuoit genero socrus..... O mulieris incredibile et præter hanc unam in omni vita inauditum!"²³ Beza says, It must not be overlooked that the civil laws of the Romans agree completely in reference to this subject with the divine law. They seemed to have copied from it.²⁴

No Christian Church doubts the continued obligation of any of the laws of the Pentateuch, of which it can be said that the reason assigned for their enactment is the permanent relations of men; that the heathen are condemned for their violation; and that the New Testament refers to them as still in force: and which heathen nations under the guidance of natural conscience have enacted.

How is the Levitical Law to be interpreted?

Admitting the Levitical law of marriage to be still in force, the next question is, How is it to be interpreted? Is it to be understood as specifying the degrees of relation, whether of consanguinity or of affinity, within which intermarriage is forbidden? or, is it to be viewed as an enumeration of particular cases, so that no case not specifically mentioned is to be included in the prohibition?

The former of these rules of interpretation is the one generally adopted; for the following reasons: —

1. The language of the law itself. It begins with a general prohibition of marriage between those who are near of kin. Nearness of kindred is made the ground of the prohibition. The specifications which follow are intended to show what degree of nearness of kindred works a prohibition. This reason applies to many cases not particularly mentioned in Leviticus xvii. or elsewhere. The law would seem to be applicable to all cases in which the divinely assigned reason for its enactment is found to exist.

2. The design of the law, as we have seen, is twofold: first, to keep sacred those relationships which naturally give rise to feelings and affections which are inconsistent with the marriage relation; and secondly, the preservation of domestic purity. As the natural affections are due partly to the very constitution of our nature, and partly to the familiarity and constancy of intercourse, and the interchange of kindly offices, it is natural that in the enumeration of the prohibited cases regard should be had, in the selection, to those in which this familiarity of intercourse, at the time the law was enacted, actually prevailed. In the East the family is organized on different principles from those on which it is organized in the West. Among the early Oriental nations especially, the males of a family with their wives remained together; while the daughters, being given in marriage, went away and were amalgamated with the families of their husbands. Hence it would happen that relatives by the father's side would be intimate associates, while those of the same degree on the mother's side might be perfect strangers. A law, therefore, constructed on the principle of prohibiting marriage between parties so related as to be already in the bonds of natural affection and who were domesticated in the same family circle, would deal principally in specifications of relationships on the father's side. It would not follow, however, from this fact, that relations of the same grade of kindred might freely intermarry, simply because they were not specified in the enumeration. The law in its principle applies to all cases, whether enumerated or not, in which the nearness of kin is the source of natural affection, and in which it leads to and justifies intimate association.

3. Another consideration in favour of the principle of interpretation usually adopted, is, that the opposite rule would introduce the greatest inconsistencies into the law. The law forbids marriage between those near of kin; and, according to this rule, it goes on alternately permitting and forbidding marriages where the relationship is precisely the same. Thus, a man cannot marry the daughter of his son; but a woman may marry the son of her daughter; a man cannot marry the widow of his father's brother, but he may marry the widow of his mother's brother; a woman cannot marry two brothers, but a man may marry two sisters. These inconsistencies might be intelligible if the law were a temporary and local enactment, designed for a transient state of society; but they are utterly unaccountable if the law be one of permanent and universal obligation. A rule of interpretation which brings uniformity and consistency into these enactments of Scripture, is certainly to be preferred to one which renders them confused and inconsistent.

The cases specifically mentioned are: 1. Mother. 2. Stepmother. 3. Grand-daughter. 4. Sister and half-sister, "born at home or born abroad," i.e., legitimate or illegitimate. 5. Aunt on the father's side. 6. Maternal aunt. 7. The wife of a father's brother. 8. Daughter-in-law. 9. Brother's wife. 10. A woman and her daughter. 11. A wife's grand-daughter. 12. Two sisters at the same time.

The meaning of Leviticus xviii. 18, has been much disputed. The question is, Whether the words 'sh 'l'tth, "a woman to her sister," are to be understood in their idiomatic sense, "one to another," so that the law forbids bigamy, the taking of one wife to another during her lifetime; or, Whether they are to be taken literally, so that this law forbids a man's marrying the sister of his wife while the latter is living. It is certain that the words in question have in several places the idiomatic sense ascribed to them. In Exodus xxvi. 3, "Five curtains shall be coupled together one to another," literally, "a woman to her sister;" so in verse 5, the loops take hold, "a woman and her sister;" ver. 6, the taches of gold unite the curtains, "a woman and her sister." Also in ver. 17. Thus also in Ezekiel i. 9, it is said, "their wings were joined one to another," "a woman to her sister;" and again in ch. iii. 13. The words therefore admit of the rendering given in the margin of the English version. But it is objected to this interpretation in this case: (1.) That the words in question never mean "one to another," except when preceded by a plural noun; which is not the case in Leviticus xviii. 18. (2.) If this explanation be adopted, the passage contains an explicit prohibition of polygamy, which the law of Moses permitted. (3.) It is unnatural to take the words "wife" and "sister" in a sense different from that in which they are used throughout the chapter. (4) The ancient versions agree with the rendering given in the text of the English Bible. The Septuagint has gunaika ep adelphe autes; the Vulgate, "sororem uxoris tuæ."

In this interpretation the modern commentators almost without exception agree. Thus Maurer renders the passage: "Uxorem ad (i.e., præter) sororem ejus ne ducito,' i.e., Nolli præter tuam conjugem aliam insuper uxorem ducere, quæ illius soror est."²⁵ Baumgarten's comment is: "From the fact that the prohibition of the marriage of a wife's sister is expressly conditioned on the life of the former, we must infer with the Rabbins, that after the death of the wife this marriage is permitted. True, the degree of affinity is here the same as in ver. 16, but there the relationship is on the male, here on the female side; this makes a difference, because under the Old Testament the woman had not attained to the same degree of personality and independence as the man."²⁶ Rosenmüller says: "Uxorem ad sororem ejus ne ducas, duas sorores ne ducas in matrimonium, scil. vhyyh in vita ejus, i.e., uxore tua vivente. Non igitur prohibet Moses matrimonium cum sorores uxoris mortuæ."²⁷ Knobel says: "Finally, a man shall not marry.... the sister of his wife, so long as the latter lives..... To marry one after the other, after the death of the other, is not forbidden."²⁸ Keil understands v. 18 in the same way. It forbids, according to his view, a man's having two sisters, at the same time, as his wives. "After the death of the first wife," he adds, "marriage with her sister was allowed."²⁹

The inference which these writers draw from the fact that in this passage the marriage of a wife's sister is forbidden during the life of the wife, that the marriage of the sister, after the death of the wife, is allowed, is very precarious. All that the passage teaches is, that if a man chooses to have two wives, at the same time, which the law allowed, they must not be sisters; and the reason assigned is, that it would bring the sisters into a false relation to each other. This leaves the question of the propriety of marrying the sister of a deceased wife just where it was. This verse has no direct bearing on that subject.

The cases not expressly mentioned in Leviticus xviii., although involving the same degree of kindred as those included in the enumeration, are: 1. A man's own daughter. This is a clear proof that the enumeration was not intended to be exhaustive. 2. A brother's daughter. 3. A sister's daughter. 4. A maternal uncle's widow. 5. A brother's son's widow. 6. A sister's son s widow. 7. The sister of a deceased wife.

As nearness of kindred is made the ground of prohibition, and as these cases are included within "the degrees" specified, the Church has considered them as belonging to the class of prohibited marriages. It is, however, to be considered that the word "prohibited," as here used, is very comprehensive. Some of the marriages specified in the Levitical law are prohibited in very different senses. Some are pronounced abominable, and those who contract them are made punishable with death. Others are pronounced unseemly, or evil, and punished by exclusion from the privileges of the theocracy. Others again incur the penalty of dying childless; probably meaning that the children of such marriages should not be enrolled in the family registers which the Jews were so careful to preserve.

As this distinction is recognized in the law itself, so it is founded in the nature of the case. As nearness of kin varies from the most intimate relationship to the most distant, so these marriages vary in their impropriety from the highest to the lowest degree. Some of them may, in certain cases, be wrong, not in themselves, but simply from the obligation to uphold a salutary law. That is, there may be cases to which the law, but not the reason of the law applies. For example; a man may go thousands of miles from home and marry: his wife would stand in a very different relation to her husband's brothers, than had she lived in the same house with them. The law forbidding a woman to marry the brother of her deceased husband, would apply to her; but the reason of that law would affect her in a very slight degree; nevertheless, even in her case, the law should be observed.

There is another obvious remark that ought to be made. Strong repugnance is often felt and expressed against the Levitical law, not only because it is regarded as placing all the marriages specified on the same level, representing all as equally offensive in the sight of God, but also from the assumption that all the marriages forbidden are, if contracted, invalid. This is a wrong view of the subject. It is inconsistent with the law itself, and contrary to the analogy of Scripture. The law recognizes a great disparity in the impropriety of these marriages. Some, as just remarked, are utterly abominable and insufferable. Others are specified because inexpedient or dangerous, as conflicting with some ethical or prudential principle.

It is in this as in many other cases. The Mosaic law discountenanced and discouraged intermarriage between the chosen people and their heathen neighbours. With regard to the Canaanites, such intermarriages were absolutely forbidden; with other heathen nations, although discountenanced, they were tolerated. Joseph married an Egyptian; Moses, a Midianite; Solomon married Pharaoh's daughter. Such marriages, in the settled state of the Jewish nation, may have been wrong, but they were valid. Even now under the Christian dispensation, believers are forbidden to be unequally yoked together with unbelievers. It does not follow from this that every marriage between a believer and an unbeliever is invalid. These remarks are not out of place. The truth suffers from being misapprehended. If the Bible is made to teach what is contrary to the common sense, or the intuitive judgments of men, it suffers great injustice. No man can force himself to believe that a man's marrying the sister of a deceased wife is the same kind of offence as a father's marrying his own daughter. The Bible teaches no such doctrine; and it is a slander so to represent it.

The laws of God are sacred. They are founded, not only on his infinite wisdom, but also on the nature of his creatures, and, therefore, should be sedulously observed. There may, in some cases, be honest difference of opinion as to what the law or will of God is, but when ascertained, it is our wisdom and duty to make it the rule of our conduct. This is so obvious that the statement of it may seem entirely superfluous. It is so common. however, for men professing to be Christians to make their own feelings, opinions, and views of expediency, the rule of action for themselves and others, that it is by no means a work of supererogation, to reiterate on all proper occasions the truism that there is no wisdom like God's wisdom, and that men are never wise except when they follow the wisdom of God as revealed in his Word, even when they have to do it blindly.

There are certain principles which underlie the marriage laws of the Bible, which all men in their private capacity and when acting as legislators, would do well to respect, —

1. The first is, that marriage is not a mere external union; it is not simply a mutual compact; it is not merely a civil contract. It is a real, physical, vital, and spiritual union, in virtue of which man and wife become, not merely in a figurative sense, but really, although in a mysterious sense, one flesh. This is not only expressly declared by Christ himself to be the nature of marriage, but it is the doctrine which underlies the whole Levitical law on this subject. Nearness of kin is expressed constantly by saying that one is "flesh of the flesh" of the other, s'r vsrv, "Carnem carnis suæ s. corporis sui esse cognatam propinquam, quæ est ut caro ejusdem corporis."³⁰ According to the Scriptures, therefore, husband and wife are the nearest of all relations to each other. According to the spirit, and most of the legislation of the present age, they are no relations at all. They are simply partners. If one member of a business firm die, his property does no; go to his partner, but to his own family; so if a wife die, without children, her property does not go to her husband, but to her third or fourth cousins. They, in the eye of the law, are more nearly related to her than her husband. This is not the light in which God looks upon marriage.

2. The second principle which underlies these marriage-laws is, that affinity is as real a bond of relationship as consanguinity. Fully one half of the marriages specified in Leviticus are prohibited on the ground of affinity. The same form of expression is used to designate both kinds of relationship. Those related to each other by affinity are said to be "flesh of the flesh," one of the other, just as blood relations; because all the specifications contained in the eighteenth chapter of Leviticus are included under the general prohibition contained in the sixth verse, "None of you shall approach to any that is near of kin to him;" under this head are included step-mothers; mothers-in-law; step-daughters; sisters-in-law (as when a man is forbidden to marry the widow of his brother); uncle's wife, etc. These relationships are traced out in the line of affinity, just as far as they are in that of consanguinity. The declaration, therefore, contained in the Westminster Confession,³¹ "The man may not marry any of his wife's kindred nearer in blood than he may of his own, nor the woman of her husband's kindred nearer in blood than of her own," is a simple and comprehensive statement of the law as laid down in Leviticus. In saying that affinity is as real a bond of relationship as consanguinity, it is not meant that it is as strong. A daughter is a nearer relation than a step-daughter, or daughter-in-law; a mother than a step-mother; a sister than a sister-in-law. This, as we have seen, is recognized in the law itself. The Bible asserts nothing inconsistent with fact or nature. In making affinity a real bond of kindred, it is meant that it is no merely nominal, or conventional, or arbitrary. It has its foundation in nature and fact.

Mr. Bishop, in his elaborate work on "Marriage and Divorce," says, " A truly enlightened view will doubtless discard altogether affinity as an impediment, while it will extend somewhat the degrees of consanguinity within which marriages will be forbidden."³² He also teaches³³ that "the relationship by affinity" ceases "with the dissolution which death brings to the marriage..... If, when a man's wife dies, she is still his wife, then, of course, her sister is still his sister..... If, on the other hand, the wife is no more the wife after her death, then is her sister no more the sister of the husband. And though men who have no other idea of religion than to regard it as a bundle of absurd and loathed forms, may not be able to see how the termination of the relationship by the death of the wife is of any consequence in the case, yet men who discern differently and more wisely, will discover nothing unseemly in practically acting upon a fact which everybody knows to exist."

It is very evident that Mr. Bishop never asked himself what, in the present connection, the word "relationship" means. Had he had any clear idea of the meaning of the word, he never could have written the above sentences. By relationship is here meant the relation in which parties stand to each other; and that, in the case supposed, is a matter of feeling, affection, and intimacy. This relationship is not dissolved by the death of the person through whom it arose. A wife's sister continues to cherish to her widowed brother-in-law the same sisterly affection after, as before her sister's death. She can live with him, guide his house, and take charge of his children, without the slightest violation of her self-respect, and without fear of incurring the disrespect of others.

Besides, if relationship by affinity is dissolved by death, then a son may, on the death of his father, marry his step-mother, which Paul says (1 Cor. v. 1) was not tolerated among the heathen. We have not come to that yet. On the principle of Mr. Bishop, a man may marry his mother-in-law, his daughter-in-law, and, on the death of the mother, his step-daughter. All this the Bible forbids; and whatever religion in some of its manifestations may be, the Bible, surely, is not "a bundle of absurd and loathed forms." It is the wisdom of God, in the presence of which the wisdom of man is foolishness.

3. The great truth contained in these laws is, that it is the will of God, the dictate of his infinite and benevolent wisdom that the affections which belong to the relation in which kindred (whether by consanguinity or affinity) stand to each other, should not be disturbed, perverted, or corrupted by that essentially different kind of love which is appropriate and holy in the conjugal relation; and that a protecting halo should be shed around the family circle.

Hæc socianda vetant connubia, facta retractant." Dens, Theologia Moralis et Dogmatica, De Matrimonio, N. 70, edit. Dublin, 1832, vol. vii. p. 194.

§ 12. The Eighth Commandment.

This commandment forbids all violations of the rights of property. The right of property in an object is the right to its exclusive possession and use.

The foundation of the right of property is the will of God. By this is meant, (1.) That God has so constituted man that he desires and needs this right of the exclusive possession and use of certain things. (2.) Having made man a social being, He has made the right of property essential to the healthful development of human society. (3.) He has implanted a sense of justice in the nature of man, which condemns as morally wrong everything inconsistent with the right in question. (4.) He has declared in his Word that any and every violation of this right is sinful.

This doctrine of the divine right of property is the only security for the individual or for society. If it be made to rest on any other foundation, it is insecure and unstable. It is only by making property sacred, guarded by the fiery sword of divine justice, that it can be safe from the dangers to which it is everywhere and always exposed.

Numerous theories have been advanced on this subject. These theories have had a twofold object: the one to explain the nature and ground of the right; the other to explain how the right was originally acquired. These objects are distinct and should not be confounded.

1. The modern philosophical theory that might is right, that the strongest is always the best, includes indeed both these objects. If being is the only good, and if it is true the more of being the more of good, then he who has the most of being, he in whom the infinite is most fully revealed, has the right to have and to hold whatever he chooses to possess.

2. If a regard to our individual well-being be the only ground of moral obligation, then a man has the right to whatever will make him happy. He may, and he certainly would, make a great mistake, if he supposed that taking what does not belong to him would promote his happiness; but he is restrained from such injustice only by a sense of prudence. He is entitled to have whatever in fact would make him happy, and for that reason.

3. If regard to the general good, the greatest happiness of the greatest number, or expediency, as Paley makes it, be the rule and ground of duty, then it will always be a matter of opinion, a matter on which men will ever differ, what is, and what is not expedient. One might think that a community of goods would promote the greatest good, and then he would, at least in his own conscience, be entitled to act on that principle. Others might think that agrarianism, or the periodic distribution of all the land of the country in equal portions among the people, would promote the general good, and then that would be to them the rule of action. There would be no end to the devices to promote the greatest good, if the rights of men rested on no other foundation than that of expediency.

Some of the most distinguished legal and philosophical writers of the present age teach that "property is founded on utility." With some, however, utility is not the ground, but rather the test of human rights and duties. The fact that an institution or a course of conduct is conducive to the public good, is not so much the reason why it is right, as a proof that it is right and in accordance with the will of God. "God designs the happiness of all his sentient creatures. Some human actions forward that benevolent purpose, or their tendencies are beneficent and useful. Other human actions are adverse to that purpose, or their tendencies are mischievous or pernicious. The former, as promoting his purpose, God has enjoined. The latter, as opposed to his purpose, God has forbidden. He has given us the faculty of observing; of remembering; and of reasoning; and by duly applying those faculties, we may collect the tendencies of our actions. Knowing the tendencies of our actions, and knowing his benevolent purpose, we know his tacit commands."³⁴ It is no doubt true that it is a fair and conclusive argument that a thing is right or wrong in itself and conformed or opposed to the will of God, that its tendency is of necessity and always to produce, on the one hand, good. or, on the other, evil. But this is a roundabout way of getting at the truth. Whether an institution or a course of action be useful or not, must be a matter of opinion. And if a matter of opinion, men will differ about it; and the opinion of one man, or even of the majority of men, will have no authority over others. God has revealed his will in his Word, and in the constitution of our nature. Paul says that even the heathen "do by nature the things contained in the law," that the law is "written in their hearts." (Rom. ii. 14, 15.) Property is sacred, not because in our opinion it is a useful institution, and hence inferentially approved by God, but He has said in the Bible, and says in every man's conscience, "Thou shalt not steal." Mr. Austin's theory does not prevent his teaching that "property jus in rem," depends on "principles of utility."³⁵

4. Paley says also that "the real foundation of our right [to property] is the law of the land." He admits, however, that the law may authorize the most flagitious injustice. He therefore makes a distinction between the words and the intention of the law; and adds: "With the law, we acknowledge, resides the disposal of property; so long, therefore, as we keep within the design and intention of a law, that law will justify us, as well in foro conscientiæ, as in foro humano, whatever be the equity or expediency of the law itself."³⁶ The law of the land has indeed legitimately much to do with questions of property; but the right itself does not rest upon that law, and is, in the sight of God, independent of it. The right exists prior to all law of the state. The law cannot ignore that right. It cannot rightfully deprive a man of his property, except in punishment of crime, or on the ground of stringent necessity, and, in the latter case, with due compensation. Property, however, is not the creature of the law. No unjust law gives a title to property, valid in the sight of God; that is, a title which should satisfy a conscientious man in entering upon its possession and use. Even when the law is not unjust, it may work, not legal, but moral injustice. A will, for example, may clearly express the wishes and intention of a testator, but for some clerical or technical error be set aside and the property go to a person for whom it was not intended. Such person would have a legal, but not a morally valid title to the property. Good men are sometimes heard to say: "We will take all the law gives us;" in saying this, they do not apprehend the full meaning of their words; it amounts to saying that in matters of property they will make the law of the land, and not the law of God, the rule of their conduct.

5. It is a very common doctrine that the right of property is founded on common consent, or on the social compact. Men agree that each man may appropriate to himself a portion of what originally is common to all. But this consent only recognizes a right; it does not create it. If a man takes a glass of water from a stream common to all, it is of right his; and he has no need to appeal to any compact or consent to justify his appropriating it to himself. The question how a man acquires a right to property, and the nature of the right itself, as before remarked, are different questions, although intimately related.

6. Both are included in the common theory on the subject. If a man puts under culture a portion of unappropriated land, it is for the time being his, on the principle that a man owns himself, and therefore the fruits of his labour. Exclusive possession and use of the land in question are necessary to secure the man those fruits; he has, therefore, the right to the land as long as he uses it. If he abandons it, his right ceases. On the other hand, if his use is continued, so as to involve occupancy, his right of possession becomes permanent. It is on this principle men act in mining districts in unoccupied lands. Each man, the first comer, stakes out for himself a claim; this he works, or is entitled to keep to himself. If he abandons it and goes elsewhere, it ceases to be his. If he permanently occupies it, it is permanently his. The right of property is thus made to rest on occupancy and use; in other words, on labour. But even this, according to Blackstone, is not a natural right. "All property," he says, "must cease upon death, considering men as absolute individuals, and unconnected with civil society: for then, by the principles before established, the next immediate occupant would acquire a right in all that the deceased possessed. But as, under civilized governments which are calculated for the peace of mankind, such a constitution would be productive of endless disturbances, universal law of almost every nation (which is a kind of secondary law of nature) has either given the dying person a power of continuing his property, by disposing of his possessions by will or, in case he neglects to dispose of it, or is not permitted to make any disposition at all, the municipal law of the country then steps in, and declares who shall be the successor, representative, or heir of the deceased; that is, who alone shall have a right to enter upon this vacant possession, in order to avoid that confusion which its becoming again common would occasion." On the same page, speaking of the right of inheritance, he says: "We are apt to conceive at first view that it has nature on its side; yet we often mistake for nature what we find established by long and inveterate custom. It is a wise and effectual, but clearly a political establishment; since the permanent right of property, vested in the ancestor himself, was no natural, but merely a civil right."³⁷ He had said before,³⁸ "Necessity begat property; and in order to insure that property, recourse was had to civil society, which brought along with it a long train of inseparable concomitants; states, government, laws, punishments, and the public exercise of religions duties." This seems to be inverting the natural order of things. Disregard of the moral law would result in endless evil, and there is an absolute necessity that its commands should be observed and enforced; but the obligation of the law does not rest on that necessity; it is altogether anterior and independent of it. So the right of property is anterior and independent of the necessity of its being held sacred, in order to secure the wellbeing of mankind. The fact is, that the right of property is analogous to the right of life, liberty, or pursuit of happiness. It does not come from men; it is not given by man; and it cannot be ignored, or arbitrarily interfered with by man. It rests on the will of God as revealed in the constitution of our nature and in our relation to persons and things around us.

7. Stahl, the distinguished German jurist, gives substantially the following account of the matter. Man was formed out of the earth; but a divine spirit was breathed into him. He is, therefore, on the one hand, dependent on the material world; on the other, exalted above it. He is placed here as its lord and owner. The things of the outer world are given to him for the satisfaction of his physical wants, and of his spiritual necessities. He, therefore, has power and right over things external, and they must be permanently and securely under his control. This is the foundation of the right of property. Property is the means for the development of the individuality of the man. The manner in which it is acquired and used, reveals what the man is; his food, clothing, and habitation; his expenditures for sensual enjoyment, for objects of taste, of art, and of science, and for hospitality, benevolence, and the good of society; and the consecration of his acquisitions to the interests of a higher life, — these in their totality as they rest on the right of property, make out a man's portrait. Property, however, is specially designed to enable a man to discharge his moral duties. Every man has duties of his own to perform; duties which belong to him alone, not to others, not to society; duties which arise out of his personal vocation and standing, especially such as belong to his own family. Therefore he must have what is exclusively his own. Property, therefore, is not intended for mere self-gratification or support; nor is it a mere objectless mastery over things external; it is the necessary means to enable a man to fulfil his divinely-appointed destiny. Herein lies the divine right of property!³⁹

The right of property, therefore, is not founded on the law of the land, or on any explicit or implied contract among men; but upon the law of nature. It is true that natural, as distinguished from positive laws, have been differently explained. "As the science of ethics," says Lord Mackenzie, "embraces the whole range of moral duties, its province is evidently much wider than that of jurisprudence, which treats only of those duties that can be enforced by external law."⁴⁰ The duties, however, which can be thus enforced are of two kinds; those which arise from the natural, and those which arise from common or statute law. "By the law of nature," says Chancellor Kent,⁴¹ "I understand those fit and just rules of conduct which the Creator has prescribed to man as a dependent and social being, and which are to be ascertained from the deduction of right reason, though they may be more precisely known and more explicitly declared by divine revelation." Cicero, teaches that God is the author of natural law, and that its duties are of unchangeable obligation. He says, "Nec erit alia lex Romæ, alia Athenis, alia nunc, alia posthac; sed et omnes gentes et omni tempore una lex et sempiterna et immutabilis continebit, unusque erit communis quasi magister et imperator omnium deus."⁴²

Lord Mackenzie gives the doctrine of Cicero the sanction of his own judgment: "Where," he says, "the law of nature absolutely commands or forbids, it is immutable and of universal obligation, so that, although it may be confirmed, it cannot be controlled by human laws without a manifest violation of the divine will."⁴³

In these days, when so many are disposed to throw off the authority of God, and regard marriage and property as mere creatures of the law, which may be regulated or ignored at the caprice or will of the people, it is well to remind them that there is a law higher than any law of man, enforced by the authority of God, which no man and no community can violate with impunity.

Although the right of property involves the right of absolute control, so that a man can do what he will with his own, it does not follow that this right is unlimited, or that the civil law has no legitimate control over the use or distribution of his property. A man has no right to use his knowledge or strength to the injury of his fellow-men; neither can he use his property so as to make it a public nuisance; nor can he devote it to any immoral or hurtful object; nor can he dispose of it by will so as to militate against the public policy. Of course, as different nations are organized on different principles, the laws regulating the use and distribution of property must also differ. Among the Hebrews the land of Canaan was originally distributed equitably among the several families. The head of the family had not the unrestricted control of what was thus given him. He could not finally alienate it. His sons, not his daughters, unless there were no sons, were his heirs. The first-born had a double portion. (Deut. xxi. 15 ff.) These limitations of the right of property were ordained by God, in order that the ends of the theocracy might be accomplished. God saw fit to render it impossible that any large portion of the land should be engrossed by one or by a few families. In England public policy has assumed that it is important to maintain a powerful order of nobility. To secure that end the laws of primogeniture and entail have been long in force, with the result that the greater part of the land in Great Britain is in the hands of comparatively few families. This unequal distribution of property has gone on rapidly increasing, so that Hugh Miller, when editor of the "Edinburgh Witness," said that England was now like a pyramid poised on its apex. In France the right of a testator to dispose of his property is very much limited. "If any one die without issue or ascendants, he may leave his whole property to strangers; but if a man at his death has one lawful child, he can only so dispose of the half of his estate; if he leave two children, the third; and if he leave three or more children, the fourth." In Scotland "if a man die without either wife or issue, his whole property is at his own disposal; if he leave a wife and issue, his goods or personal property are divided into three equal parts, one of which goes to his wife as jus relictæ, another to his children as legitim (i.e., legitima portio), and the third is at his own disposal; if he leave no wife, he may dispose of one half, and the other half goes to his children, and so e converso, if he leave no children, the wife is entitled to one half, and he may bequeath the other."⁴⁴ These facts are referred to simply as illustrations of the way in which the law, both divine and human, may limit the exercise of the right of property while the sacredness of that right, as higher than any human law, is fully recognized.