Thelyphthora/Volume 1/Chapter I

WHEN the great and all-wise Creator had formed man upon the earth, male and female, He blessed them, and said unto them, Be fruitful and multiply, and replenish the earth. Gen. i. 28. This command was to be fulfilled in a way of God's own appointment; that is to say, by the union of the man and woman in personal knowledge of each other. This is the only ^[1] marriage-ordinance which we find revealed in the sacred scriptures. Wherever this union should come to pass, though two distinct and independent persons before, they now were to become as one. They shall be one ^[2] flesh, Gen. ii. 24. and so ​indissolubly one, as to be inseparable. What God hath joined together, let not man put asunder. Matt. xix. 6.

That this oneness arose from this act of union, and from the command consequent upon it, that they should be one flesh, is evident from the Apostle's reasoning, 1 Cor. vi. 15, 16. Know ye not that your bodies are the members of Christ? Shall I then take the members of Christ, and make them the members of an ^[3] harlot? God forbid! What, know ye not that he that is joined to an harlot is one body? for two, saith he, shall be one flesh.

This question of the Apostle's—Know ye not that he that is joined to an harlot is one body? and what follows, being taken together, have a plain reference to what Adam said, Gen. ii. 24. and seems very fully to determine, not only the strictness of the marriage-union, but that which constitutes it in the sight of God. In all which there is not the least hint, or most distant allusion, to any outward rite or ceremony administered by any person whatsoever; but the whole is made to rest simply and only in the ​personal ^[4] union of the man and woman. It is this alone which, according to the Apostle, makes them one flesh.

​If the licentious and temporary union with an harlot, makes a man to become one body, and one flesh with her, we may suppose that the sin of fornication receives no small share of its malignity, from the abuse thereby committed of the ordinance of marriage as established by God: as entering into it without any intention of abiding by it, but merely to gratify a transient lust, and that with a woman who departs from one to another, as gain or evil desire may lead her. Nevertheless the Apostle, on the authority of Gen. ii. 24. says, that he that is joined to an harlot, is one body, and one flesh with her, by being engaged in that ordinance, of which these things are declared, in the passage referred to, to be the inevitable consequences.

From what has been said, it appears, that marriage, as instituted of God, simply consists (as to the essence of it) in the union of the man and woman as one body; for which ​plain and evident reason, no outward forms or ceremonies of man's invention, can add to or diminish from the effects of this union in the sight of God. What ends these things may serve, as to civil purposes, I shall not dispute but I cannot suppose that the ^[5] ma​trimonial-service in our church, or any other, can make the parties more one flesh in the sight of God, supposing them to have been united, than the burial-service can make the corpse over which it is red more dead than it was before.

Supposing they have not been united, they are not one flesh in the sight of God, by any virtue in the words of the service, any more than a piece of wafer becomes flesh and blood by a Popish priest's consecration. It is not man, but God, which makes the twain one flesh; neither is it man's ordinance, but God's institution, which brings that to pass. If this be not so, why, notwithstanding the words of the service, does incapacity, inability, or impotency, in either party, render all that has been done null and void? See Burn, Eccl. Law, vol. ii. p. 39.

By observing the outward ordinance, the intention of the parties is publickly recognized, and they are pronounced man and wife in the sight of the world; but they are not so in God's sight, unless by anticipation, as it were, with respect to the mutual promises made to each other, which the sacred scriptures call betrothing or espousing; but the ​contract is then, and only then, complete in the sight of God, when the only ordinance which He has appointed has passed between them; and therefore it is very properly styled—the consummation.

As to the person celebrating the marriage—the place where—the manner how; it is very certain, that these things are wholly of human invention, and therefore not only various in different parts of the world, but also in the same country. We have amongst us Jews, Papists, Quakers; all these observe an outward form or ceremony different from each other. As for the church of England, we have differed from ourselves; for the same ceremony which would have constituted a legal marriage before the 26th of the late King George II. will not do it now, unless certain circumstances, introduced and insisted upon by act of parliament, be observed.

But the all-wise Legislator of the universe hath not left His divine institutions on so vague, so precarious, so uncertain a footing. But see, said He to Moses, that thou make all things according to the pattern shewn thee in the mount. Heb. viii. 5. We find every particular, down to the very pins in the tabernacle, every rite and ceremony, even to the minutest circumstance, exactly delineated and revealed. But we find no marriage-service, or religious ceremony of an ^[6] outward kind, so ​much as mentioned. The business of marriage, by which I understand, the parties actually becoming one flesh in God's sight, was left as at first ordained, to the one simple act of union. A conclusive proof this, that nothing else is of divine institution; consequently, that nothing else is essential to constitute a marriage in the sight of God, but that this is.

Should the Reader retain the least doubt of the truth of what has been said, or be under any difficulty in understanding what is meant by those words—They shall be one flesh, we may refer to a very clear explanation of the matter, not only by reviewing St. Paul's words, I Cor. vi. 15, 16. but also by considering more minutely what is meant by those passages mentioned before, from the law of Moses; but as the texts are not cited at length, I will here set them down as they stand in the places referred to.

If a man entice a maid that is not betrothed, and lie with her, he shall surely endow her to be his wife. If her father utterly refuse to give her unto him, he shall pay money according to the dowry of virgins.

By this passage, as from many others in the sacred scriptures, it appears, that fathers, during the minority of their daughters, as in every other instance (see Numb. xxx. 3, 4, 5.) so in the business of contracting marriage, ​had a negative in their own power: therefore if a woman being in her father's house in her youth, i.e. being under age, as we term it, betrothed or espoused herself to a man, the former by ^[7] verba de futuro, the latter by verba de præsenti, as the civilians speak; both which were held so facred, that defiling either a betrothed or espoused woman was a species of adultery, and to be punished with death:—yet if the father withheld his consent, neither the betrothing nor espousals, nor any contract arising from them, could lawfully be carried into execution. But in the passage before us, matters were gone too far to be recalled. The man had not only enticed the maid, but had actually lain with her; and therefore God commands that he shall SURELY endow her לו לאשת sibi in uxorem. Mont. for his wife. For now the primary institution took place, they shall be one flesh; and what God had joined together (by pronouncing them one flesh) man could not put asunder. Therefore the 17th verse doth not say—"If the father utterly refuse to give her unto him, such marriage shall be null and void; but—​if—or—^[8] though the father utterly refuse to give her unto him, he shall pay money according to the dowry of virgins. Which is but explanatory of what goes before, he shall SURELY endow her to be his wife, by paying מהר the dower, into the hands of the father after becoming one flesh with her, as he ought to have done, and was usually done, before-hand. מחר is supposed to be a dowry or portion which the husband paid into the hands of the bride, or her father, as a kind of purchase of her person. This is, to this day, the practice of several ^[9] eastern nations; and this was not ​to be withheld because the husband had married the woman either without or against the father's consent. In short, the man was not to take advantage of his own wrong. But, אם ^[10] whether the father refused or not, the dowry must be paid according to law, and thus the contract be publicly ratified.

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

If a man find a damsel that is a virgin, which is not betrothed, and lay hold ^[11] on her ​and lie with her, and they be found; the man that lay with her shall give unto the damsel's father fifty shekels of silver, and she shall be his wife; BECAUSE HE HATH HUMBLED HER, he may not put her away all his days.

The word shekels is not in the original, but inserted by our translators; in the passage of Exod. xxii. 17. there is the same word כסף silver, or silver-money; there it is said in general, according to the dowry of virgins. Here it is said חמשיס כסף Quinquaginta argenteos, fifty pieces of silver-money. By comparing the two passages, we may therefore look upon this as the assessment of ​the usual dowry of virgins paid to the father. It was to be paid in this case as well as the former, for in both the father's consent was precluded; but in no case was he to be defrauded of the מהר or dowry. This was as much to be paid when his daughter was taken against his consent, as when with it, and so when taken without his knowledge and consent, as in this latter case. But on whatever account the money was to be paid, it alters not the point in question, for, saith God, She shall be his wife, or woman—Fr. Elle lui sera pour femme—BECAUSE HE HATH HUMBLED HER, he may not put her away all his days. This is clearly explanatory of the original institution—they shall be one flesh, and what God hath joined together (by pronouncing them one flesh) let not man (either the parties themselves, or any human power whatsoever) put asunder.

I should rather chuse to let the scripture answer for itself, than appeal to human authority for its explanation. I will only here just observe, that I am by no means singular in my views of these things. Our ecclesiastical courts have proceeded on this principle, have called this personal intercourse, previous to any outward ceremony, a marriage de facto, and have compelled the parties to a public recognition of it in facie ecclesiæ, in the face of the church. See Blackstone's Comment. vol. i. 435, 439:—and in Burn's Ecc. Law, Tit. Marriage, there is this remarkable passage, "Nor was he or she to be dis​missed or absolved, if those spousals de futuro, by reason of carnal knowledge, or some other act equivalent, did become matrimony." By this it does appear, that, in the judgment of our canon law, if a man had promised a woman to marry her at a future time, and in the mean time lay with her, or used the freedoms of an husband with her, such promise did, by such acts, become matrimony.

So sacred have our canonists esteemed this act, that where one of the parties have forsaken the other, and married another than the person to whom they have been thus joined, the ecclesiastical courts have pronounced sentence of divorce, with regard to the second marriage, causâ precontractûs, by reason of precontract. With what authority will appear by-and-by.

In Bacon's Abr. vol. iii. p. 574, we find the following case:—A. contracts himself with B. and after marries C. B. sues A. on this contract in the spiritual court. There sentence is given that A. shall marry and cohabit with B. which he does accordingly. They are baron and feme, without any ^[12] divorce between A. and C; for the marriage of A. and C. was a mere nullity ^[13].

​That I am not singular in my opinion, respecting the one divine ordinance of marriage, will also appear from the remarkable statute of Henry III; which, as it is very short, I will transcribe.

"To the king's writ of bastardy, whether one born before matrimony may inherit in like manner as he that is born after matrimony: all the bishops answered, that they would not nor could not answer to it, because it was against the common order of the church. And all the bishops instanted the lords, that they would consent, that all such as were born ^[14] before ​matrimony, as to the succession of inheritance, should be legitimate, as well as they that be born within matrimony, for so much as the church accepteth SUCH TO BE LEGITIMATE. And all the earls and barons answered with one voice—that they would not change the laws of the realm, which hitherto have been used and approved."

Here was a strong push made, that the ordinance of God should be in some measure recognized, as to its scriptural import and validity, in our municipal laws; but human wisdom forbad it!

In antient Rome, there were three kinds of marriage, distinguished from each other by the names of confarreation, coëmption, and use.—the last of these came very near to the simplicity of the divine institution. It was, ​when the accidental living together of a man and woman had been productive of children, and they found it necessary or convenient to continue together; when, if they agreed on the matter between themselves, it became a valid marriage, and the children were considered as legitimate.

By the first law of the 12th table, relative to marriages, it is declared, that "when a woman shall have cohabited with a man for a whole year, without having been three nights absent from him, she shall be deemed his wife." By which it appears that the Romans considered living together, or conjugal cohabitation, as the very effence of matrimony. Broughton Hist. Lib. tit. Marriage. This may be reckoned one instance, in which, to the disgrace of us Christians, the Gentiles, which had not the law, did, by nature, the things contained in the law. Rom. ii. 14.

According to the laws of Scotland, cohabitation with a woman for some time, and openly acknowledging of her as a wife, confirms the marriage, and renders it valid in law. Mem. of Cranstoun, p. 30. So where a man and woman have lived together 'till they have children, if the man marry the woman, even upon his death-bed, all the antinuptial children become legitimated, and inherit the honours and estate of their father.

The case is the same in Holland; with this difference only, that all the children to be legitimated, must appear with the father and mother in the church, at the ceremony of ​their marriage. See the History of Women, by W. Alexander, M. D. vol. ii. p. 252, 267.

Our system in England is very injurious and cruel, as it destroys one grand inducement to matrimony, where a man and woman have lived together and had children, by stamping bastardy on the issue without remedy. Whence so inhuman a plan should be derived into the common law of the realm, cannot well be devised; but it must be supposed to have commenced in some of the darkest ages of ignorance and barbarism; for at the latter end of the twelfth century, Pope Alexander III. made a constitution, that "children born before the solemnization of matrimony, where matrimony followed, should, to all intents and purposes, be as legitimate as those born after matrimony." By which it should seem that the institution of Constantine had been totally laid aside; also, that the church thought very differently of marriage, from what it did in the fourth century. See before, p. 31, note.

Upon the whole, it may be concluded, that such laws as are above mentioned, would never have been thought of, unless the proposers and framers of such schemes of post-legitimation, had been convinced, that the conjugal cohabitation of the man and woman was a lawful marriage in God's account, consequently the issue legitimate in His sight: therefore they were willing to reconcile matters as well as they could, between human invention and divine institution.

​Having, I trust, established this truth, that where a man and a virgin are united by the communication of their persons to each other, they become one flesh in the sight of God, so made by his express command, insomuch that the man may not put her away all his days; it follows, that they are indissolubly united, beyond the power of disunion by any human authority whatsoever.

It is the contempt of this law, this primary law of nature, or rather of the God of nature, established from the beginning, and afterwards enforced and explained by the positive laws above-mentioned, which lies at the root of the evils complained of. For, if a man כי איש which is the scripture's way of saying any man, every man, without distinction (for God makes none in the texts we have been considering, nor in any other) was deemed the husband of the virgin he lay with, and was obliged to make a public recognition of it, as enjoined by God so to do, without any liberty to put her away all his days; if the law of the land was as positive as to this, as the law delivered from God to Moses above-cited, we should see a wonderful change in the manners of the people, as well as a stop put to the daily ruin of innocent girls. Would the great and opulent debauch their tenant's or labourer's daughters, or their own servant-maids, if they knew that this put it into the power of such poor creatures to claim their seducers as their husbands? Certainly not, at least not in one instance of ten thousand where ​it now happens. Must we not suppose, that the great and merciful Creator enacted His laws for the protection of the ^[15] weaker sex against the stronger, as well as for the prevention of confusion and every evil work, which must ensue from men and women's coming together and parting ὡς ἄλογα ζω̃α φυσικά (as the Apostle says) like natural brute beasts which are without reason? As therefore a contempt of the laws of Heaven, is evidently the cause of the evil, it is as evident that nothing but restoring their due respect and efficacy can ever cure it.

How great an impediment to matrimony doth this also prove, among the profligate and licentious part of mankind? (which, as the world goes, I do not suppose to constitute a very small part of it)—for if men can gratify their passions, and indulge their love of variety, without the least danger of much further trouble than it costs them to seduce a poor unwary girl, they will hardly bind them​selves to the painful œconomy of a family-life, or confine themselves to the attention, and concern which a family must require.

In every point of view, the contempt of God's law is very shocking; but be it remembered, that, though we have no municipal law to enforce its obligation, it ought to be binding and obligatory on every man's conscience in the sight of the divine law-giver.

There is no statute which punishes the defilement of our neighbour's wife, though it is a capital offence by God's law, and punished with the death of both the parties; yet surely none will say, that it is the less criminal before God: or, because the seventh commandment has no human municipal law to enforce its rigour, that therefore the consciences of individuals are under less obligation to observe it, or have more liberty to transgress it, than if it had.

But it sometimes happens, that a man having enticed a maid, &c. lives with her for a season, and then turns her off for another, not perhaps without making some provision for the first, and the conscience of the man is salved by this piece of generosity, as it is called. But the law of God is directly against such a proceeding—He shall surely endow her to be his wife, saith the most High: and the reason given for this, can never alter nor cease, because the act from which it arises can never be recalled. The law of God therefore as much remains in force against such a putting away, as against theft or murder.

​It is not unusual for women so put away, to marry other men, nay, sometimes they are portioned by the seducer for this very purpose. This fashionable way of getting rid of women, includes in it many crimes. First, It is a breach of that positive law—He shall surely endow her to be his wife—and again—She shall be his wife; because he hath humbled her, he may not put her away all his days. Secondly, It is therefore a species of unlawful, forbidden divorce. It is, thirdly, adultery in the woman so put away to marry another. And, fourthly, He that marrieth her that is put away committeth adultery.

We never allow any thing to be adultery except the outward ceremony has passed; but God's positive commands are not subject to the controul of human invention. It would be a solecism in philosophy, to talk of setting the sun to the dial, and not the dial to the sun; it is as great a one in divinity, to argue, that the law of God is to be accommodated to the law of man, and not the law of man to the law of God.

Let us suppose for a moment, that, as it is said to have been the case amongst the Spartans, theft was not to be looked upon in a scandalous point of view, but ^[16] rather ​allowable and commendable, if done so dextrously, as that the persons were not detected in the fact; Would this shake the authority of the eighth commandment, or be pleadable before God as a justification of the thief? Consider the work of God, that which is crooked cannot be made strait, and who can make that strait which he hath made crooked? Eccl. i. 15. vii. 13.

From what has been said, I think it may be fairly concluded:

That marriage is a divine institution, and, as such, to be abided by as revealed to us by its holy and blessed author.

That those who look upon it merely as a civil contract, and therefore subject to the alteration and controul of men, have different views of it from those given us in the scriptures.

That a woman's person cannot be separated from her self; wherever she bestows the one, the other is bestowed also.

That when she delivers her person, and consequently her self, into the possession of a man, she is (if not betrothed to another) by that act, inseparably united to him, so indissolubly joined, that she cannot leave him, nor may he put her away all his days.

That if these truths were received, as they are indeed the truths of God, millions ​of women (especially of the lower sort) would be saved from ruin; for, being protected, received, and provided for as God's law enjoins, as the wives of those men who first enticed them, they could not be turned out upon the wide world, with the loss of reputation, friends, and consequently all power of helping themselves, but by ways too dreadful to think of!

Before I conclude this point, I muft desire not to be misunderstood, as if I meant to undervalue or despise human ordinances; they have excellent use, and, in this mixed state of things, are necessary to maintain that order and decency, which are so necessary for the regulation of the outward actions of men. I would rather infer their use and necessity, than doubt of either. When I say that the marriage-service of the church, doth not constitute a marriage in the sight of God, I say true; because by finding no such service in the Bible, and that marriages were had and solemnized without it, I therefore conclude that cannot be it which constitutes a marriage in the sight of God; for, if so, we must suppose that people before the invention of such service, were not married at all, but lived in sin; which is absurd and impossible. That some service, or ceremony, is expedient, for many good and laudable purposes, must be allowed—as, for the public recognition of the mutual engagement of the parties to each other—to ratify their union as to ​inheritances, and many other laudable ends of civil society; and as none can live together as man and wife, without offence, unless they ^[17] submit to the ordinance of man, it ought, where it possibly can, to be submitted to for the Lord's sake. 1 Pet. ii. 13.

But it is a great abuse of such things, to put them in the place of the institution of God; so that this is of no force or validity in God's sight without the other. Hence it is, that, men thinking they are not married, unless by a priest in a church, take advantage of their own villainy, and thus seduce women, and put them away at their pleasure; whereas God's law binds them, in the first instance, and declares the bond indissoluble. So that, as to the purposes of the divine institution, if a thousand priests were to read a thousand ​services over the parties, these cannot add to, nor diminish from their union before God, which, as in His sight, is created by the Almighty fiat—they shall be one flesh. This surely must be as evident, from the whole tenor of the scripture, as that the pouring water on a person, or dipping him in water, in the name of the Blessed Trinity, is the complete divine ordinance of baptism, though no act is done, or word said, besides.

There are no where in the Hebrew of the Old Testament, or Greek of the New Testament, any specific names for married persons, such as the English words husband and wife—but איש and אשה man and woman—So Ἀνηρ and γυνη, which also signify persons of the male or female sex in general; but when coupled with pronouns possessive, as אישה her man—אשתו his woman. Ὀ ἀνηρ σου, thy man—ή γυνη έαυτου, his woman, they then denote the marriage-relation: but how that relation is entered into, so as to become indissoluble on both sides, hath already been shewn; to which we may add some observations on the word בעל which we translate husband, married. See Gen. xx. 3. בעלת בעל maritata marito. Mont.; literally, according to our idiom, married to an husband. Isa. lxii. 4. וארצך תבעל & terra tua erit maritata. Mont.; and thy land shall be married. Now בעל signifies to have, or take possesion, or authority over, as a participal noun—Ό ἐχῳν—he who hath. ​Hence it signifies to marry, to take possession of a woman, to have her, as we say: See Deut. xxiv. 1. xxi. 13. In Niph, to be married, taken possession of as a wife. Isa. lxii. 4. with liv. 1. See Parkhurst's Heb. Lex. בעל. So Calasio. "Significat dominium, magisterium, dominatus est, habuit, possedit ut dominus, maritus fuit, rem habuit cum muliere." "It signifies dominion, the place or office of a ^[18] master or governor." "As a verb, he governed, had, possessed, as a ^[19] lord or mafter, he was married, or, had to do with a woman." By all which, taken together, it appears that this last circumstance is that which brings her into the possession, and reduces her under the dominion of the man, according to that of Gen. iii. 16. latter part. See Deut. xxii. 29, where it is expressed by ענה Compressit eam. Mont.; He hath humbled her. English translation. Surely this affords an additional and conclusive proof, that a man's taking possession of a woman in the sense above-mentioned, is in the language of scripture marrying her, or making her אשתו his woman.

This appears also from Deut. xxiv. 1, where the word בעל, according to Pagninus, is used in this sense—

Here the taking the woman, and lying with her, most clearly appears to make her the man's wife, as the rest of the verse and the three following demonstrably shew.

Bishop Patrick, on this place, observes, that "the Hebrew Doctors make a difference between these two: understanding by taking a wife, espousing her to be his wife, and by marrying her, his completing the contract by lying with her." The former signified by יקח the latter by בעלה.

There is another word which denotes a wife, viz. שגל—from the root שגל—which in Kal. signifies to lie carnally with a woman. See Deut. xxviii. 30. also Ps. xlv. 9. Neh. ii. 6. in both which latter places we have translated it Queen; but this it does not signify, in any other sense, but as the King's wife. Ar. Mont. renders it by conjunx—a yoke-fellow, or wife; συγκοιτος—Aquila. See that learned and useful work, Parkhurst's Heb. & Eng. Lex. sub voc. שגל.

I should now proceed to consider marriage, or matrimony as it is called, in another point of view, namely under civil considerations, and, as such, an object of human laws: but before this can be done in a proper manner, some incidental points must be fully understood and discussed. Therefore the subject of matrimony, as a civil contract controulable by human legislature, must be deferred for a season.