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the established Church there was then no essential difference in points of doctrine, to conform in that particular to the ritual of the Church”.”
The avowed principle upon which the dissenters profess to conform, and upon which they justify themselves under the charge of inconsistency in conforming, with the prescribed ritual of the Church is, that “they consider marriage as a civil affair, and therefore can submit to the will of the magistrate in regard to the place o as well as other circumstances of this rite.” It might not be unreasonable to enquire, how many marriages of dissenters are contracted in entire ignorance of this principle, and on considerations perfectly distinct ; but it is sufficient for the present occasion to know, that this principle is very different from the motive alleged by Unitarians for the acquiescence of dissenters, and that if it does not expressly admit the legal necessity, it offers
- Ibid. See Appendix, No. II.
• Nonconformists' Catechism, pt. ii. qu. 84. “The marriage ceremony is performed at the altar; an evident relic of popery, which makes matrimony one of the seven sacraments. If it be objected that dissenters are inconsistent in submitting to be married at the altar, it is answered, they consider marriage,” &c. The rubric requires but a very small part of the service to be performed at the Lord's table, and practical convenience only has led to the alteration. The word altar, which was retained only in the first Book of Edward VI. was succeeded in the second Book by the word the Lord's table, (see Appendix, No. III.) and the offensive word does not now occur in any of the rubrics, prayers, or exhortations of the Church of England. It is notorious that many of the Romish sacraments were not performed at the altar. Such insinuations would justify the most rigid severity in examining the validity of the excuse.
no objection to the use of the religious ratification of marriage.
The principal position of the Unitarians, that after the Toleration Act and before the Marriage Act the marriages of dissenters in the face of their own congregations were considered valid in the courts of law, seems to limit the investigation which is required, and may be sufficiently refuted, if it can be shewn that the supposed validity was unknown before the Toleration Act; that it was not established by the Toleration Act; that it was not recognized in the interval between that Act and the Marriage Act; and that the Marriage Act did not interfere with any existing privileges of the dissenters.
Under the ordinance of the Usurpation the liturgy was proscribed, the religious celebration of marriage was made a penal offence, and a legal character was given to marriages contracted before a justice of the peace, who was to declare the parties husband and wife, and it was ordained that such marriage should be good and effectual in law. The last provision was unnecessary if the legal validity of the civil contract had been the previous doctrine of the law. The Act of the Restoration (12 Charles II. c. 33.) gives additional force and perspicuity to this argument, by enacting that any marriage had and solemnized, since the first day of May 1642, under colour of certain ordinances in some other manner than hath been formerly used and accustomed, shall be of the same and of no other force and effect, as if such marriages had been solemnized according to the rites and ceremonies in the Church and kingdom of England, any law, custom, or usage, to the con
trary notwithstanding. The Act records at once the ancient practice and the recent innovation in respect of marriages had in some other manner than hath been formerly accustomed : it implies, that by law, custom, and usage, these marriages were liable to be disputed; and it gives to them the validity which was wanting by the neglect of the ancient law. It is puerile to argue that these marriages “ were declared legal without any fresh solemnization,” for in many cases the solemnization must have been rendered impracticable by the decease of the parties; in many more it must have been retrospective in reference to the issue ; and in all it must have contracted the grace of the Act, which alone dispensed with the necessity of the solemnization. To the positive argument may be added the negative proof, which is implied in the omission of all notice of marriages celebrated according to the suspended ritual of the Church, and which did not want any new confirmation, because they were originally valid in themselves. The Act proceeds to provide, that the issue upon the lawfulness of these marriages contracted during the Usurpation shall be tried by jury at the common law, any law, usage, or statute, to the contrary notwithstanding, thus particularly exempting them from the jurisdiction of the ecclesiastical courts, to which they ordinarily and properly belonged, and in which as religious acts they would have been tried without this exceptive provision. It is conceived, that this is an irrefragable proof of the invalidity of the merely civil contract in the
• Freethinking Christians' Quarterly Register, No. iii. p. 273. VOL. I.
beginning of the reign of Charles II. in which was also passed the Act of Uniformity confirming all the liturgical provisions which had previously existed in respect of marriage, and particularly the trine publication of banns in the church, which alone gives a certain connexion between religion and marriage, and which had been suspended during the Usurpation, when by a very consistent practice banns were published in the market place on the market day, and the marriage was contracted before a justice of
It is not pretended that any other Act of Charles II. or any Act of James II. counteracted these legal provisions for the religious celebration of marriage and the prevention of the merely civil contract: but an argument, which it may be proper to notice, has been drawn from a passage in the life of Judge Hale, recorded by Bishop Burnet, in which that good man is said to have shewn his moderation towards dissenters in the care he took of preserving the quakers from that mischief that was like to fall on them by declaring their marriages void, and so bastarding their children: but he considered marriage and succession a right of nature, from which none ought to be barred, what mistake soever they might be under in the points of revealed religion. And therefore in a trial that was before him, when a quaker was sued for some debts owing by his wife before he married her, and the quaker's counsel pretended that it was no marriage that had passed between them, since it was not solemnized according to the rules of the Church of England, he declared he was not willing on his own opinion to make their
children bastards, and gave directions to the jury to find it special. It was a reflexion on the whole party, that one of them, to avoid an inconvenience he had fallen in, thought to have preserved himself by a defence that, if it had been allowed in law, must have made their whole issue bastards and incapable of succession ... because he would have thought it a hardship, not without cruelty, if among papists all marriages were nulled which had not been made with all the ceremonies of the Roman ritual, so he, applying this to the case of the sectaries, thought all marriages made according to the several persuasions of men ought to have their effects in law."
It will not be denied that the plea of the defendant was most flagitious, and worthy of the most adverse interpretation which the law would allow ; but how cautious and deliberate under such circumstances was the conduct of the judge ? he could act upon his own principles only by avowing them : but, notwithstanding the natural bias of his mind in favour of moderation towards the dissenters, con. firmed by his experience of the validity of the civil contract under the Usurpation, and by the flagitiousness of the case before him, he only directed the jury to find it special; he did not take upon himself, he had not the perfect conviction in his own mind, he had not the authority of precedents to justify him in giving a construction to the law according to his private opinion and desire, and he therefore reserved the point for further argument and a more competent jurisdiction than his individual judgment, and was willing to give the plaintiff the