or upon the
occurrence of
any other cir-
cum(lance on
which it may
be conditionally
fufpend-
ed;
provided it
Be pronounced
during
an aflual, or
with reference
to an
eventual, pof-
feflion of authority.
divorce only, and not of that which is fufpended upon the occurrence
of a future poffible event.
If a man annex divorce to a condition fpecified, by laying to his
wife “ i f you enter this houfe you are under divorce,” the divorce
takes place upon the occurrence of the condition. This is univerfally
admitted by the learned, becaufe of the exigence of the matrimonial
authority, at the time of the hufband’s declaration; and it is
evident that this declaration remains in force until the condition be
accomplifhed.
B ut the annexing o f divorce to marriage is- not lawful, unlefs the
vower be either authorized at the time, or annex divorce to a future
pofleffion of authority; as it is indifpenfably requifitc that the penalty
be a thing o f probable occurrence, in order that the apprehenlion of it
may operate upon the fears of the vower, and that thus the property
of Tameen, (viz. reftraint from the apprehenlion o f penalty,) do
really exift at the time of declaring the condition, in virtue either of
prefent authority, or o f a reference to a fu tu re authority.
O bjection.— What is now faid appears to contradidl the do&rine
advanced in the preceding cafe, of a man annexing divorce to marriage,
by faying to a ftrange woman “ if I marry you, you are di-
“ vorced,” for in that cafe he is neither in prefent authority, nor does
he annex divorce to the future pofleffion of it.
R e p l y .— Although he does not annex the divorce to an exifting
right, yet he annexes it to the caufe of a right which may exift,
(namely, marriage * ,) and annexation to the caufe ia the lame as to
the right itfelf, becaufe in the former the latter is involved.— But if a
man lay to a ftrange woman “ if you enter fuch an houle you are
“ divorced,” and he afterwards marry her, and Ihe. then enter the
* Marriage being the caufe of the right to divorce.
faid
faid houfe, divorcé does- not take place, becaufe in this cafe he is
neither inverted with any prefent right, nor does he annex the divorce
either to a future right or to the caufe thereof. .
T he conditional particles areas follows, viz. “ i f ” — “ when,”— Fivecondi-
“ whenever, ” — “ whenfoever,” — and “ as often a s” — O f thefe the tides'rfva-
particle “ if \ is fblely conditional ; in the ufe of the others condition ™U5effea-
is implied.— And under the four fir-ft of thefe expreffions, upon the
condition being fulfilled, the Tameen, or vow, is completed, and no
longer exifts ; that is to fay, if the condition Ihould again occur, the
penalty is not incurred a fécond time, becaufe the words abovemen-
tioned do not involve all future a£ts of the kind expreffed in the condition,
nor do they demand a repetition of the penalty; and hence,
where the act which conftitutes the condition is once found to occur,
the condition is fulfilled, and no longer remains ; and the vow does
not continue in force without the condition ; but from this rule mull
be excepted the expreffion “ as often as,” which applies univerlally,
and fuch being the cafe, it is requifite that the penalty be repeatedly
incurred ;— in every cafe, therefore, where divorce is the penalty derived
from the ufe of “ as often as,” it repeatedly takes place upon the
recurrence of the condition.
If a man fay to his wife “ you are divorced as often as you enter"
“ the houfe,” and ffie enter it three times, and then marry another
man, and afterwards again marry her firft hulband, and the condition
Ihould then occur, divorce does not take place, as no penalty remains
on account of its having been completely incurred in the three
divorces which followed the repetition of this a£t in the firft marriage ;
and as the continuance of a Tameen, or conditional vow, depends upon
the continuance o f the condition and the penalty, when thefe no longer
remain the vow difeontinvies alfo.
M m 2 If