spirit that maketh alive. So, as respects moral truth, it must continue to be.

He

These remarks are pertinent to the proposition that the original law of marriage unity-" they twain shall be one flesh". repeated by Christ, binds a pair till death, save in the two specified cases. That is, these are made to exclude all others; which in effect is to say they involve no principle, or that there is no additional case with like reason; which clearly is not true. My answer to this argument as one of construction is, that it proves too much, and therefore nothing. Christ gave a right of divorce only to the man, if we keep to the exact case. left the woman, as she was under Jewish law, without remedy. "It is not granted her in Deut. xxiv, where divorce is regulated by law. All legislation on the subject bears upon what the husband may or may not do. And in the New Testament neither Christ nor Paul sanctions or refers to any such proceeding. We read only of the man's 'putting away' his wife, never of the reverse."* Nor on this mode of interpreting his words did Christ allow divorce in case of unnatural vice, which then festered in the Orient, and in places burrows there still.

President Woolsey, who admits only the ground of divorce named by Christ, felt the force of all this when writing his work on the subject, and so concedes that the literal case does not fix the rule to be followed. Hence to enable a wife to get divorce, and that both parties may not be remediless as against nameless sins, he argues that the case stated implies a principle which wife as well as husband may invoke, and which applies in the instances alluded to, as of like reason with the one given. In other words, to avoid the consequence of "unilateral” divorce, for which Dr. Gray contends, and that must follow a limitation of the law to the formal case, Dr. Woolsey is forced to assert the principle of interpretation here maintained.

Taken with strict adherence to the letter, Paul allows divorce only in case of desertion by an originally unbelieving partner. But will any one say that the moral law of marriage is affected by the circumstance that a party was an unbeliever when entering the relation? If so, what is to be the consequence if one, who a believer when marrying, becomes an infidel and then deserts? Or is there no real marriage when a party to its Husband and Wife, by G. D. Gray, D.D., pp. 85, 86.

form and consummation is a skeptic? Evidently, neither Paul nor Christ is to be construed as putting an exclusive case, but one resting on a principle, and so possibly having its moral equivalent.

Christ, then, named one ground, St. Paul another wholly different. Consequently neither stated the moral law of divorce. Each, however, gave a case within, and which illustrates it. The law itself, evidently, must be broad enough to cover both cases, in which event it may, and as shown does, include others. But the Scriptures nowhere declare this law. Therefore it is to be deduced from the nature, right to, and obligations of the marriage union, the two cases given justifying its severance in connection with the consequences of these or like misdeeds to a faithful mate, if divorce were denied. I state it thus: Adultery, desertion, and other acts which, like the first, destroy the sexual purity of marriage, or, like the second, operate to deny to an innocent partner and to society the substantial benefits of, and so what is essential in, the right to marriage, if its bond be held indissoluble are in morals, as on sociological grounds, valid causes for annulling it.

The gist of this obviously is in the principle, resting equally upon reason and Scripture, that the right to marriage in what it implies becomes paramount to the rule relating to its permanence in cases of wrong to an innocent partner, whereby a primal law of the relation is abnegated, and one or more of the fundamental objects of the union is defeated.

This view of the subject makes the great ends of marriage, moral and social, more important than its naked bond, as manifestly they are. It looks on the union, also, in its real character of a means designed to work noble results for those within it, and not a chain to fetter the good after the bad break and repudiate it. Moreover, it leaves to the innocent escape from propagation with the moral rot of adultery or kindred vices, and from celibacy forced upon them otherwise by the wickedness of desertion or like crime. Finally, we profoundly believe it accords perfectly with the Scriptures, so read as to give the life of their teaching on the whole law of marriage.

Nicam & Sibley
2.

THE REMEDY.

Ir is not the purpose of this paper to discuss the question whether divorce can rightfully be permitted. That is a question upon which the fathers of the Church have divided. While St. Augustine denied this right, St. Ambrose and Epiphanius admitted it. If the Church of Rome has placed divorce under the ban, the Greek Church as well as the Protestant Churches have allowed it. At this late day, and in this country, it would be useless to enter upon any such discussion. But, assuming that divorce is sometimes "a sorrowful and imperative necessity," the question which is now to be considered is, as to how the remedy can best be applied. And to this phase of the subject the reader's attention is invited.

1. The remedy should not be dependent solely on the will of the parties concerned. Few will now venture to propose that married people should be allowed to divorce themselves at pleasure. But at one time, under the laws of Rome, and again, under the laws of France, such a course was practically permitted. Such a state of the law is not conducive to good morals or to public decency. The parties to a marriage who may have tired of each other cannot be permitted to go their own way and enter into such new relations as may suit their fancy for the time being. Society is bad enough at present, and it is easy to see into what it would soon degenerate should such a policy be adopted as the one above suggested.

2. Neither is it desirable that the remedy should be dependent in each particular case on the will of the legislature. Until 1857 the courts of England could not grant an absolute divorce, but recourse had to be made to Parliament. In this country it is understood that the State legislatures have the power to grant divorces except when the power has been taken from them by the State constitutions. This has been done in many of the States by express provision, and in others by implication. In the case of legislative divorces there is no necessity for any notice to the parties, for any hearing of evidence, or that the ground of the divorce should be one previously recognized as sufficient for the purpose. This is due to the fact that in granting a divorce the legislature does not act in a judicial

capacity. Moreover, the legislature, in granting a divorce, cannot make any provision for the support of one of the spouses out of the property of the other, no matter how desirable it may be that such provision should be made. No legislative body can take the property of A and give it, or any interest in it, to B. The power to grant a divorce should exist only in the courts, to be exercised upon notice given and after a judicial investigation has been made into the facts, and it has been made to appear that some matrimonial offense has been committed in violation of a law previously enacted.

In 1886 Congress prohibited the legislatures of the Territories of the United States from passing any special laws granting divorces. A like provision can be found in the constitutions of all the States except Alabama, Connecticut, Delaware, Georgia, Kansas, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont. And in some of the States named, the legislatures are prohibited, by other provisions of a more general nature, from granting such relief.

3. The remedy should be sought, as now, in the State and not in the Federal courts. At the present time, as always since the foundation of the government, the Congress has no power to legislate on the subject of marriage and divorce except to regulate it in the Territories and in the District of Columbia. In the distribution of powers under the constitution the policy was to allow the States to regulate their internal domestic affairs in their own way. It must be admitted, however, that the system of allowing each State thus to legislate for itself has evils connected with it of a serious nature. The lack of uniformity in laws regulating the execution and probate of wills, the distribution of the property of deceased persons, the execution of deeds, as well as the laws governing marriage and divorce, have been the occasion of a great deal of trouble, and in many instances have worked gross injustice. This lack of uniformity in the laws impressed Professor Bryce when in this country, and in his American Commonwealth he says:

A more complete uniformity as regards marriage and divorce might be desirable, for it is particularly awkward not to know whether you are married or not, nor whether you have been or can be divorced or not, and several States have tried bold experiments in divorce laws.

Again, the law usually requires a party to have resided for at least one year in the State in which he seeks to procure the divorce. But in Illinois a person is only required to have resided within it for the space of ninety days, and hither flock a colony of individuals whose sole purpose it is to live within the State for the three months, procure the divorce, and then return to their home and take unto themselves new spouses in defiance of the laws of their own State. Every one knows that this is scandalous, and that it should not be tolerated. At the same time all are not agreed as to how the evil can best be corrected. It has been proposed that the constitution should be amended so as to give to Congress the power to pass a uniform law on the subject of marriage and divorce, just as it now has the power to pass a uniform law on the subject of bankruptcy. The suggestion has met, however, with strong opposition. It violates, of course, the cardinal principle above referred to, that each State is to be left free to regulate its domestic affairs in its own way. The writer once heard the late Justice Miller, of the Supreme Court of the United States, express himself vigorously to the effect that a very great mistake would be committed if the time ever came when the constitution should be amended in the manner proposed. I believe the judgment of the legal profession is against any such action. The American Bar Association has already expressed itself in favor of a uniformity of the laws on this subject, but they seek to obtain this uniformity through the concerted action of the States rather than through any amendment to the constitution of the United States.

4. The remedy should be obtainable only in the State where the domicile is. To allow it to be had in the State of the residence merely has given rise to scandalous abuses, and is not justifiable from any point of view. Any one who has given. any thought to the matter knows that the cases which have brought the most reproach upon our system are those in which divorces have been granted by courts which have accepted residence as equivalent to domicile, the residence being a mere pretense for the purpose of conferring jurisdiction. It is an arrogant assumption and an impertinent intermeddling for a State to presume to alter the matrimonial status of persons whose domicile is in another State. The power to adjudicate 15-FIFTH SERIES, VOL. VIII.