Remarriage After Divorce




What is the proper attitude of the churches toward persons divorced for their own fault and then marrying again? It may give definiteness to my discussion, if I put the question more concretely. Let me instance a case, — whether it be a real one or not is nothing to my present purpose.

A man is divorced by a New York Court upon the ground of his own adultery — an adultery committed after the offender has been admitted to membership in a church, let me say, in a Baptist church; committed, however, three or four years before what he now believes to have been his real conversion. The New York statute forbids him to marry again. But immediately after this divorce, and in order to evade the prohibition of the New York law, he crosses the line into the State of Connecticut, where parties divorced for any cause may lawfully remarry, and in Connecticut he marries another wife. Bringing this second wife back at once into the State of New York, he begins preaching to a Baptist church, has apparent success in his work, and after a time applies to be regularly ordained as a Baptist minister. The question now arises, What answer the Baptist church, and the Council composed of representatives of Baptist churches, shall make to his application? I propose to examine his status, both according to the laws of this State and according to the law of Christ, and this, not for the sake of determining upon a particular case, so much as for the sake of setting forth the principles which should govern our ministers and our churches in their response to similar applications. This examination may suggest to us the need of more definite interpretation of our present laws, if not of important modification of them.

The Revised Statutes of New York provide that:

"No second or other subsequent marriage shall be contracted by any person during the lifetime of any former husband or wife of such person, unless the marriage with such former husband or wife shall have been annulled or dissolved for some cause other than the adultery of such person." "Every marriage contracted in violation of the provision of this section shall [with an exception where one of the parties has been absent five years, etc.] be absolutely void." (2 Ret'. Stal., 139, 8 5).

At first sight this statute would seem to settle the legal status of the person whose case we are considering, and to determine that he is now living with a person who, according to the laws of this State, is not his wife. And so certain of the Courts of inferior jurisdiction have decided. In the case of Marshall vs. Marshall (2 Hun, 238), Mr. Justice Westbrook, of the

* Printed in the Examiner, February 17 and February 24,1881.

Supreme Court, held to be null and void a marriage contracted in Pennsylvania by a man who had been previously divorced in New York for his own adultery, and who immediately after his remarriage in Pennsylvania resumed his residence in this State. The principle was here asserted that the validity of a marriage is to be determined, not by the law of the place where the marriage is contracted, but by the law of the place which constitutes the domicile or actual residence of the parties who contract the marriage. Judge Davis concurred in this opinion, though Judge Daniels, for reasons which we shall consider hereafter, dissented.

On the last Wednesday of the year just closed, in New York city, as the newspapers inform us, Judge Sedgwick, in the case of Oould H. Thorp vs. Laura M. Thorp, followed this majority opinion of the general term just mentioned, and dismissed the suit for divorce on the ground that the marriage wus itself void. Mr. Thorp was first married in 1855. Iu 1861 the couple was separated by absolute divorce, and several years later Mr. Thorp, though lying under the prohibition of the New York Court, married in Phildelphia the defendant in the present suit. By Judge Sedgwick's decision, the defendant has not been a wife. In a similar case in North Carolina, where a divorced wife, in order to evade the North Carolina law, wont into another State and there married, the marriage was declared null and void ( Williams vs. Oales, 5 Iredell, N. C, 535 ).

In all these eases, the decisions of the Courts have implied that the mere transfer of one's person or of one's goods to another State for the purpose of securing a divorce does not give a man domicile in that State, nor alter in the least the claims of his own State law upon him. This principle a New Jersey Court has affirmed in determining upon an application for divorce, refusing to regard as domiciled in' New Jersey any suitor whose manifest purpose in sojourning in that State is only to get a divorce ( Winship vs. Winship, 1 C. E. Green, 107-110). It is a settled rule of law that there can be no jurisdiction without domicile, and it may be safely asserted as an inference from it, however Legislatures or Courts may have been tempted to ignore it, that in order to give the applicant for divorce a standing in the Courts of any State, there must be the fixed purpose of not returning to the place of his original residence, in case this residence was previously in another State (Bishop, Marriage and Divorce, 2 :122).

To make my statement more complete, it should be mentioned that in 1879 the Legislature of New York so modified the law of divorce, as to grant the guilty party liberty to marry again, upon furnishing to the Court decreeing the divorce sufficient proof that the complainant has remarried, that five years have elapsed from the date of the decree, and that the conduct of the defendant since the decree has been uniformly good (Laws of New York, 1879: 321). This modification of the statute has l>een so recent that only a single case has, to my knowledge, thus far come before our Courts. Though this case is a very different one from that which we are examining, there is a lesson to be learned from it which may help our present investigation.

In December, 1879, on petition of one Green, who had been divorced for his own adultery, and who professed to bring evidence of five years's subsequent good conduct, Judge Gilbert, of Brooklyn, granted the applicant liberty to marry again. It was afterwards found that prior to his divorce he had already married again, and that after the divorce from the first wife he had deserted the second. His application to the Court for permission to marry again was made in order that he might marry yet a third person, who at the time had a husband still living with whom he had agreed to "trade wives." I am happy to say that, upon these facts being represented to the Court, the permission to remarry was revoked. But the case shows the ease with which, especially in a great city, evidence of so-called "good conduct" can be procured by very immoral persons, and what shameful results may follow even the partial repeal of our only penalty for adultery, namely, the prohibition of remarriage.

Thus the New York Revised Statutes until 1879 absolutely forbade the remarriage of the guilty party to a divorce during the lifetime of the innocent complainant, and the main judicial decision under the statute had declared null and void a marriage contracted outside of this State in order to evade the prohibition of our law. From this last decision, however, there lay a possible appeal, but so far as I am aide to learn, the case was not carried up, and the question at issue had not been finally adjudicated by the Court of Appeals. There are not wanting persons who claim that the judgment in the case of Marshall vs. Marshall, to which we have referred, is not warranted by the law as it stands.

An able essay recently published {Albany Law Journal, June 18, 1880: 486-488) takes this ground. It maintains that the law of marriage is a part of international law, and that from its very nature marriage must have a legal ubiquity of operation. As in a civil contract the law of the place of contract prevails over the law of the domicile, so the validity of a marriage is to be decided by the law of the place where it is celebrated. If valid there, it is valid everywhere. This general rule cau indeed be modified in Massachusetts. There the statute expressly declares null and void the remarriage of the guilty party to a divorce decreed in Massachusetts, even when this remarriage takes place outside of the State, and Chief Justice Gray admitted in one of his decisions that, but for this express prohibition of the statute, marriage contracted in evasion of the laws of that Commonwealth would not be invalid. But in the New York statute there is no express declaration that such marriages contracted outside of (he State shall be null and void. Upon the principle, therefore, that penal laws can have no force outside of the territory which enacts them, and that the statute can apply to foreign marriages only in case of a special prohibition, which here is certainly not expressed, it is argued that the Courts of New York must recognize as valid even the remarriage of its own divorced citizens, provided this remarriage has been valid according to the law of the Stat9 in which it was contracted.

This principle of interpretation, if it were true, would settle the legitimacy of the marriage we are considering,— for it is beyond question that according to the law of Connecticut, where that marriage was contracted, the whole procedure was formally correct. How much of authority is there for this view? We have a decision of the Tennessee Supreme Court which is in point. The Tennessee law makes it a felony for any person to marry who has a former husband or wife living,— yet the Tennessee Court did not hold a woman, divorced in Kentucky and forbidden by Kentucky law to marry, to have violated any law when she evaded the Kentucky statute by marrying in Tennessee (Bishop, 2 : 701); in other words, a person forbidden to marry in one State may lawfully marry in another.

In the case of Ponsford vs. Johnson (2 Blalch. 51), the United States Circuit Court asserted that a marriage contract would be valid, even if both parties should go into another State for the express purpose of evading the law of New York; and Judge Macomber, of the New York Supreme Court, has very recently decided, in the case of Kerrison vs. Kerrison, that the petitioner for the annulling of a marriage of this sort in another State could claim nothing of the Court, so long as she could not come with clean hands, that is, show that she was not herself a party to this evasion of the New York law {Albany Law Journal, Dec. 25, 1880: 502). In denying the petition, Judge Macomber expressed himself as agreeing with the dissenting opinion of Judge Daniels in the Marshall case, that the validity of a marriage is to be determined solely by the law of the place where the marriage waa contracted.

In his well-known work on Marriage and Divorce, Bishop, after citing the two cases first mentioned in this paragraph, sums up the whole matter in the following words:

"Thus it is held that, notwithstanding this statute, If a person divorced in New York goes into another State and there marries, the marriage is good in New York."

And in other places, with reference to the same matter, he declares that

"No New York statute should be construed to repeal or change international law." "It is a question whether all prohibitions of marriage to the divorced party should not be construed as operating merely by way of penalty, not as rendering the marriage void, unless express words of nullity are employed" (Bishop, 2 : 703).

We have now got before us whatever of argument and of authority has been thus far adduced in favor of the proposition that the New York Courts are compelled to recoguize as valid those marriages which have been contracted in other States in defiance of their decrees. It is interesting to see that much of this argument was anticipated, and that at least an attempt was made to answer it, in the first and the chief case which has come before our Courts — the case of Marshall vs. Marshall, already twice alluded to. In his decision, Judge Westbrook replied to the assertion that, without express declarations of the statute that such foreign marriages were null and void, they must be held valid — replied by citing the celebrated case of Brook vs. Brook in the English House of Lords. Here an Englishman had gone to Denmark to marry his deceased wife's sister. Lord Chancellor Campbell pronounced the marriage null and void, although there was no special prohibition of foreign marriages of this sort in the English statute, and pronounced it null and void upon the ground that the law of the domicile followed the parties. Judge Daniels, in his dissenting opinion, attempted to offset Judge Westbrook's citation by remarking that Lord Chancellor Campbell was led to his conclusion by the fact that, according to English law, such marriage of a deceased wife's sister is an incestuous marriage, and so, opposed to the ecclesiastical policy of the kingdom. But, so far as appears, this consideration was not mentioned by the Lord Chancellor, and no intimation is given that the same rule of domicile would not apply to any other attempt to evade English law by marriage abroad.

Judge Westbrook's decision goes on to say that no other rule than that which he enforces will enable a State to make its own laws of marriage and divorce effectual, and place that relation beyond the legislation of others. Story, in his Conflict of Laws, approves of this rule, and declares that, otherwise, "there is produced a state of anarchy and confusion upon the subject of this fundamental relation of society, whereby any State may be compelled to recognize the perfect validity and binding force of polygamous marriages." I may add to this statement of Story that to grant that marriage is to be judged solely by the law of the place of contract might conceivably compel the Courts of New York to recognize as lawfully married all the forty wives of Brigham Young, or the three thousand of the King of Dahomey. Incestuous and polygamous marriages must certainly be excepted from the operation of this rule. Is it not a serious question whether marriages contracted outside this State in fraud of our laws are not also to be excepted from its operation?

Since the cases which have been cited have none of them been carried up to the highest judicial tribunal, it becomes matter of great interest to know what view would probably be taken of them by the Court of Appeals. There are two official utterances of this Court which bear upon the present subject. Mr. Justice Johnson, by way of dictum, not of decision, has said of this statute prohibiting the remarriage of the guilty party to divorce (Cropsey vs. Ogden, 1 Kernan, 228, 235, 236):

"Its subject-matter is the prohibition of marriages within this State to certain persons who come within its terms. It covers the case of one married abroad and divorced abroad for his own adultery, just as plainly as it does the case of a marriage and divorce for the same cause here."

Again, in the case of The People vs. Baker (76 iV. K, p. 78), in which the defendant had pleaded as a bar to his conviction for bigamy that a divorce had been decreed against him in Ohio for his own adultery, though at the time of the decree he was an actual resident of this State, our Court of highest resort, Mr. Justice Folger delivering the judgment, decided the New York Court could not allow the status of one of its own citizens to be determined by the laws or decisions of Ohio; in other words, the Ohio divorce might be valid in Ohio and as respects the party that resided there, but it could have no force in New York and as respects the party that resided here. The effect of this decision is the present incarceration in the Penitentiary of a man who, before his second marriage, and while residing here, had been divorced from his first wife in Ohio.

New York, in short, will not judge the dlvorces of its citizens by any other law than its own. But by the same rule, must not New York refuse to judge the marriages of its citizens by any other law than its own? Judge Folger does not say that marriages contracted outside this State in order to evade the prohibition of the New York statute, will be null and void, but it seems to me that this conclusion is implied in his reasoning. If the law of the domicile prevails in case of a divorce decreed against one of our citizens by the Court of another State, then the law of the domicile ought also to prevail in case of a marriage contracted by one of our citizens in another State; and, since New York is the domicile aud New York law declares the marriage invalid, the Court of Appeals would, in consistency, seem compelled to decide that such marriage is null and void.

Although, as has been seen, I am inclined to regard this as the intent of the law, and although the tendency of the judicial decisions seems to me to be in this direction, there aro many competent critics (as Bishop, 2: 703 ), who deny that the law of domicile applies to marriage, even if it applies to divorce. For my own part, I must confess that the question whether such marriages are invalid is yet open to doubt — a doubt which has already led, and may still lead, to very unfortunate practical consequences. But whatever doubt may exist with regard to the nullity of such marriages, there can be no doubt as to one thing,—the guilty party to a divorce, who marries again, is a law-breaker, and though the Courts may possibly be compelled, according to our present law, to recognize his unlawful marriage as valid, yet he is under judicial ban, and may be made to suffer for his wrong doing.

It is to be feared, however, that in practice this suffering will be slight. It seems on the whole, probable that such transgressors will practically go unwhipped of justice. To marry again contrary to the express decree of the Court, provided it be done in some other State where the marriage of the guilty party to divorce is lawful, will, of course, not be recognized as biganry by the New York Courts, at least where the divorce has been granted in this State. It is a violation of New York laws and a misdemeanor, but it is not bigamy. This Judge Folger declares, in the decision just alluded to. The reason is set forth in the case of The People vs. Hovey (5 Barb., 117), and the reason is that divorce frees both parties. There cannot be a wife without a husband, nor a husband without a wife. If divorce makes both parties once more single, then neither party in marrying again can be called guilty of either bigamy, polygamy, or adultery, and therefore cannot be punished for any one of these crimes.

As a matter of fact there is no punishment, except in cases where the offender is compelled to ask for some relief from the Court whose decree he has violated, and on account of his coutempt of court is refused. We have before us, indeed, the spectacle of a Judge of one of our metropolitan tribunals, who in defiance of a decree of the Courts, has contracted a foreign marriage, and who still, with soiled ermine, attempts to administer to others the justice which he himself has treated with derision. So far as pains and penalties are concerned, the prohibition of the Courts is only a brutu'm fulmen, "full of sound and fury, signifying nothing." And thus our society is taught contempt for law. Is it not evident that we need both a final judicial interpretation and a legislative modification of our present law, which shall on the one hand give it the definiteness of the law of Massachusetts, so that marriages contracted in evasion of our statutes shall be expressly declared null and void, and on the other hand shall ordain fixed pains and penalties for disobedience to our judicial decrees?*

♦ Since the above was written, decisions have been rendered by the Court of Appeals of the State of New York, iis follows:—

October 4, 1881, in the case of VanVoorhis w. Brintnall (86 iV. 1'., p. 18), to the effect that prohibition of remarrlage has no effect outside this State, and does not render invalid such remarriage. The child of such second marriage, born in this State, is legitimate.

December 28, 1882. in the case of Thorp vs. Thorp (90 iV. Y., p. 602), to the effect that marriage valid under the law of another State in which it was contracted is valid also in New York, even though it was contracted in disobedience of the prohibition of the

But what the law of the State, on account of its present defects, may not be able to punish, public opinion, and especially Christian sentiment, can punish and ought to punish. From the law of the State, therefore, I appeal to the law of Scripture.

It is a remarkable evidence of the profound view which the Hebrew nation had attained of the sanctity of the marriage relation, that the adulterer was not simply divorced,— the penalty was death. Such was the provision of the Mosaic law; and although the corruption of the Jewish people led to wide departures from the original idea of marriage as the union of one man and one woman, and divorce for trifling causes was permitted, we are to remember that this was "for the hardness of their hearts," and that "from the beginning it was not so."

Yet even during these days of obduracy there was a beueficent and disciplinary effect resulting from the Mosaic legislation. While the wife had no right of divorce, and might be put away for uncleanness, she could not be dismissed except by the writing and the delivery of a bill of divorcement. This was intended, as a late writer remarks, "to restrain a bad practice which had gone far to annul the original law of marriage, and which still prevails among the Arabs, who by a word may dissolve the marriage tie. To correct this custom, Moses allows a wife to be divorced only by a legal document, and forbids her husband to take her back after she has been married to another." As in those times the preparation of such a document was not the easiest or commonest of tasks, this provision of the law protected the wife, by giving time for the husband's anger to cool; while the permission accorded the woman to marry again, and the irrevocableness of the decision when once made, put serious hinderances in the way of sudden and unjust separations.

It is not, however, to the Mosaic law that I refer, when I speak of the Scriptural teaching with regard to marriage and divorce, but to the original

Now York Court, and was contracted In that other State for the purpose of evading the New York law.

October 7,1884, In the ease of Erkciihrach m. Erkcnhraeh (96 N. 1'., p. 456), to the effect that Courts in New York have no common law jurisdiction over the subject of divorce, thi ir authority being confined altogether to the exercise of such express and Incidental powers as are conferred by statute.

December 22, 1885, In the case of O'Tka vs. O'Den (1012V. F., p. 23), to the effect that a husband, married in this State, deserted by his wife, and obtaining a divorce in Ohio, the marriage of the wife subsequently to another man in this State is declared to be void.

These decisions make it plain that the hope expressed when the above article was written has not been realized, and that one of our most respected Justices declares himself none too strongly, when, in a letter to the author, he speaks of these same decisions as illustrating "the wretched condition of the law in regard to the important relations to which they refer."

In the last case cited, the Court of Appeals has itself added a most significant comment. It is as follows: "In other States, judgments contrary to the authorities followed in this State have been rendered. This conflict of opinion, however much to be regretted, continues, and it yet remains for some ultimate authority to relieve the point from the difficulties now attending it, and determine the civil rights of parties whose relations, as legally denned by different State tribunals are liable to be regarded on one side of the State line as matrimonial, and on the other side as meretricious."

May we not add further, that national legislation seems the only remedy for this conflict of Mate laws, and that such legislation, if constitutional and practicable, would be a most worthy subject for debate and settlement by Congress?

law of the marriage relation, instituted at the Creation, to which Christ goes back, as to the ultimate norm and authority, and of which we have an exposition in his own words and in the words of his apostles. In this original institution of marriage there is an unmistakable intention to define it as the union of two, and of two only, so that they become, as it were, one being, and that for life. "Therefore shall a man leave his father and his mother, and shall cleave unto his wife, and they two shall be one flesh."

When Christ comes to expound these words, it is plain that he regards the union as dissoluble only by death, or by that which, as respects the meaning and purpose of the relation, is the same as death. Let us take the fullest report of his teaching on the subject, in Matthew 19 : 9, by which we may fairly interpret the more condensed utterances in the other evangelists. "Whosoever shall put away his wife, except it be for fornication, and shall marry another, committeth adultery, and whoso marrieth her which is put away, doth commit adultery." Here it is plain that fornication — a general term implying an outward act wrought with a third person, a term, moreover, which includes adultery, interrupted or complete, or any of the unnameable and abominable vices — is, according to Christ's law, the sole valid ground of divorce.

It has been held by the Roman Catholic Church, otherwise so strict in matters of divorce, that the apostle Paul modifies Christ's teaching by allowing both divorce and second marriage to a Christian separated from a heathen partner by the agency of the latter, and many Protestants have drawn from this an apostolic justification of divorce in case of malicious desertion, whether the guilty party be heathen or not. In his admirable work on Divorce and Divorce Legislation (66, 71), President Woolsey has shown conclusively, as I think, on the one baud that Paul, like our Lord, started out, in his discussion, from the indissoluble nature of marriage, and admitted as the only exception that adultery which of itself caused the married pair no longer to be one flesh, and so violated the very idea of marriage. The only reason why Paul did not mention the exception is, as in the case of two of the evangelists, that he regarded the exception as a matter of course, and so passed it over in silence.

Dr. Woolsey has shown, on the other hand, that in 1 Cor. 7 : 15, as in the whole passage of which this verse forms a part, the apostle, in case of willful desertion of one partner by the other, permits separation but not remarriage. When he declares that in case the husband desert the wife, the latter "is not under bondage," he simply denies that the wife is bound at all hazards to continue living with the quarrelsome heathen husband. As in verse 10 he had said of the wife compelled to depart from her husband, "If she depart, let her remain unmarried, or be reconciled to her husband," so here, where the husband departs from the wife, the implication is that she is to remain unmarried also. Paul advances beyond Christ's position in only a single particular, namely, in conceiving of, and to a certain degree authorizing, separation without license of remarriage. The unwarrantable extension of Paul's principle so as to include all cases of desertion — we are still giving the substance of Dr. Woolsey's remarks — has opened a wide door of divorce in Christian countries.

Let all Christians understand that what Paul permits in cases of desertion is simply separation a mensa et thoro, without a separation a vinculo matrimonii,—in other words, separation from bed and board, but not absolute divorce with the right of remarriage. "This third state, midway between full marriage union and divorce, has the sanction of the apostle Paul, and may be introduced into the law of Christian lands." Whatever legislation gives greater license than this, is false in principle, and opens the way for all manner of immorality. For I can only repeat the words of Christ — words whose reasonableness and truth are only made more clear by the pernicious results of recent experiments in law-making in the various States of the Union: "Whosoever shall put away his wife, except it be for fornication, and shall marry another, committeth adultery, and whoso marrieth her which is put away, committeth adultery." "And if a woman shall put away her husband and be married to another, she committeth adultery." (iMat. 19 : 9; Mark 10: 12.)

We come once more to the case which we set out to examine. What is the law of Christ with regard to the remarriage of persons who have been absolutely divorced, and divorced upon Scriptural grounds? We may answer at once, that the remarriage of the innocent party is permitted. Our Saviour's words imply this when he declares that, in every other case but this one of divorce for adultery, remarriage is unlawful. Such divorce just us completely frees the woman as does the husband's death, in which last case, as Paul tells us, she is free from the law of her husband, "so that she is no adulteress, though she be married to another man" (Rom. 7 : 3).

But may the guilty party marry again? Wo can only reply that Christ says nothing about the guilty party, and therefore our conclusions with regard to him must be mainly inferential and conjectural. We are not on this account, however, wholly without light upon the question. It was not so necessary that our Lord should treat of the rights of the guilty party to divorce, for the Mosaic law was there as the coustant presupposition of his precepts — a law which he did not come to destroy, but to f ullfll. According to that law, the guilty party to a divorce had no rights, unless it were the right to suffer death as the penalty of adultery. The case of the woman taken in adultery, even if we regard it as belonging to the sacred narrative, is no proof that Christ abrogated that penalty, for it was not solemn judicial process that he discountenanced, but the mob-violence of Pharisees, when he said, "He that is without sin among you, let him first cast a stone at her!" Nor does the fact that the power of life and death had been taken from the Jews by their Roman masters show that adultery was uniformly allowed to go unpunished. There were theocratic penalties, such as excommunication from the synagogue, which to a Jew had almost the bitterness of death.

Is it possible to conceive that Jesus, with the Mosaic abhorrence of adultery and the remembrance of the Mosaic command that both parties to it should be stoned with stones till they died — is it possible to conceive, I say, that Jesus could have had it for his intent to let the adulterer go unscathed, to repeat his crime, to corrupt others, and even to consummate a new marriage for the very sake of which his adultery may have been planned? The supposition seems incredible. If there be any crime against society upon which civil law needs to lay its hand, it would seem to be that crime which, in its very nature, tends to destroy the family, and turns the nursery of the child into a haunt of defilement and shame. And can there be any penalty for this great crime so obviously just, a? to prohibit those who have been recreant to their trust from entering again upon a relation to which they have been so false? It seems, therefore, most untrue to say that Christ's silence is to be interpreted as granting permission to the guilty party to divorce to marry again.

Here I am happy to have the strong support of President Woolsey's work on Divorce, to which I have already referred. I quote from him once more (page 60):

"It has been gravely argued in our country and our time that, inasmuch ns the married pairare no longer one fiesh after crime, the guilty one is free to marry again, yes, even to marry the tempter or seducer, and that this is no violation of the law of Christ. We admit that Christ observes silence on this point. He could not say that such a guilty author of a divorce committed adultery by marrying again, for she is now free from her husband. Hut it would have been idle to refer to such a case, for in the first place It had nothing to do with the immediate point on which Christ expresses an opinion, and in the second place such a person would have been punishable by the Jewish law with death. To claim for an adulterer and an adulteress the protection of law in a Christian State, so that, when free through their crime from former obligations, they may legally perpetuate a union begun in sin, is truly to put a premium upon adultery. A Herod, on that plan, after sinning with his brother's wife, would need only to wait for legal separation to convert incest into legitimate wedlock." *

It is by this time sufficiently plain that I consider the guilty party to a divorce, who'marries again, at least during the life of the former partuer, as virtually becoming a breaker of the law of Scripture as well as of the law of the State. Penitence, however, is possible, and good works may follow upon wrong-doing. Separation from the new partner, even after the State has declared the marriage null and void, may be, after years have passed, a greater wrong to the family than the continuance of the relation would be. After evidence of genuine contrition, the church may possibly receive such a person into its number, and may be benefited in many respects by his influence.

But what shall we say, when one who has passed through this sad experience feels himself called to the ministry, and asks for ordination? In the view of some, the same rule that would bar him from the ministry would bar him from the church. But we are persuaded that those who reason thus are in error. It is clear from the epistles of the New Testament, that there were special qualifications required in those who were to be teachers and leaders of the flock, which were not demanded of others. The man who is to stand before Christians as an example and an instructor must be "blameless," by which we understand free, since his professed conversion, from any such moral delinquency ns would generate suspicion with regard to the reality of his Christian character, and so would hinder his proper influence.

There are able interpreters who would give the term "blameless" a wider comprehension still, making it include the life before, as well as after, conversion, and they point to the very striking fact, that in the New Testament there is no instance where the hands of Paul, or of the other apostles, were

* In a private note to the author of this essay, received since the above was written. President Woolsey intimates that, since his book on Divorce was published, he has so far changed his view as to hold that no prohibition of such remarriage can fairly be drawn from Christ's own words, although he holds it to be contrary to good morals for either civil law or church law to permit remarriage in these cases.

laid in ordination upon the head of any man who had led an openly immoral life. I hesitate, however, to press an argument from the silence of Scripture, and there may be doubt with regard to a rule which would have cost the church the ministerial service of an Augustine. But when a man's earlier sin shows its traces still in his present spirit and conduct, it is impossible to disconnect the two parts of his history in judging of his fitness for the ministry. In the case we are considering, this seems to be the fact. The evasion of New York law by marrying in another State, the doing of an act in Connecticut for the sake of escaping a punishment which would have been visited had the act been done in the place of his domicile, indicates a lingering of the same disregard for law which was manifest in the original adultery, and compels us to judge the last offense in the light of the former.

And what we are compelled to do, the whole community in which such a man should do his ministerial work, would also be compelled to do. They have before them, as preacher of God's law, a man who has successfully defied those "powers that be" which arti "ordained of God." His example will speak louder than his precepts. It will nullify his preaching. And therefore he ought not to be a minister of the gospel. "Be ye clean, that bear the vessels of the Lord," was the demand of the priests of the Old Testament. "Having a good report of them that are without," is the demand of the ministers of the New. Such a man as we have sui>posed is not " blameless," and there is no place for him in the Christian ministry.

In the excellent little treatise of Dr. Hovey, entitled The S'-riptriral Law of Divorce (pages 61-70), I find drawn out in full an argument which I had intended to present in detail, but which, with this reference, I must content myself with simply mentioning. In the letters of the apostle Paul to Timothy and Titus, he enjoins that the bishop, presbyter, pastor, be "the husband of one wife,"— that is, as nearly all agree, husband of no more than one wife. It is evident that the injunction takes for granted that there were in the church those who were husbands of more than one wife; for if this were not so, this distinguishing requisition of pastors would be meaningless.

Now it canuot be supposed for a moment that actual polygainists were included among the number of the members of Christ's church. The only reasonable inference is, that Paul alludes to the many converted from among the heathen, who, in their unregenerate days, yielding to the loose divorce practices of their time — practices which the Romans had apparently introduced into Palestine as well as into Greece — had married different wives at different times, divorcing one that they might take another, and so had come to have two or more persons still living to whom they had sustained the relation of husband. The danger arising from such facts as these, and the evidence these facts gave of an unstable and sensual mind, were a sufficient reason, in the judgment of the apostle, why such persons should not be entrusted with the responsibilities of government and leadership in the church of God.

Do I need to apply these remarks, or to sum up what I have said? I consider that no person who has been a willful contemner of the laws of the State in which he lives, and who is now enjoying the fruits of this contempt, is a proper candidate for ordination to the Christian ministry. I have grave doubts whether a confessed adulterer, who since his connection with the church has by stratagem escaped the legal penalty of his crime, is a proper person to be ordained by an ecclesiastical council. I deny that a man who knows of two living persons whom he has called his wife, can answer to Paul's requisitions of the Christian bishop. And it seems certain to me that no person of whom all these things are true can, by any gifts or graces, make up for the lack of that "blamelessness " and "good report" which the New Testament requires of its ministers.

The matter which we have thus discussed is one of grave concern, when we remember how rife in our day is the theory that marriage is merely a civil contract, and that, like other civil contracts, it may be dissolved at the will of the parties to it. But marriage, like the State, is more than a civil contract,— it is an ordinance of God. Though entered into of free will, the relation, once formed, is clothed with divine sanctions and obligations, and is nothing less than the merging of the life of the one contracting party in the life of the other. The view that marriage is a partnership, to be dissolved for slight causes, if not at will, is one which in practice would destroy the very foundation of civilized society. The civil-contract theory of marriage has in it the germ of far greater disaster than has the social-compact theory of government. Stringent divorce laws in protecting marriage protect the State, for the purity of family life is the chief safeguard of social morality and of public justice. Contempt of these laws is a heinous offense against God and man.

Marriage is not a sacrament, as the Romanist declares it to be, nor in case of adultery is it indissoluble. But it is indissoluble for every other cause; and, when dissolved for this reason, it should be with penalties visited upon the offender such as will vindicate God's law and the law of the State. While we do not hold it a sacrament, we may hold it sacred. And this we are bound to do, as ministers, by solemnizing no marriages between persons unlawfully divorced; as members of ordaining councils, by refusing to admit to the sacred office offenders against Christ's law aud the civil statute; as members of churches, by subjecting to discipline those who violate the Scriptural rule of marriage and divorce; as citizens, by holding up the teaching of Christ as the model of human legislation, and by influencing the makers of our laws to conform their work more perfectly to the divine standard. If there is anything of the Protestant spirit left in us, it is time for us to protest against the incoming flood of immorality which takes the guise of divorce law in so many of our States, and under the leadership of the Spirit to lift up a standard against it.