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is held by Romanists, and it is held by the most distinguished advocates of Protestant truth, of whom it may be sufficient to name, Calvin, Beza, Grotius, Gerhard, and Bishop Jewel, whose name is immortalized in the Apology of the Church of England against the assumptions of the Church of Rome.

It will probably be objected, that, in the contemplation of the law of England, marriage is a civil contract; and it will be readily admitted, that the law, as explained by its luminous commentator, does contemplate the civil contract of marriage, principally, but not merely, or exclusively, or without such restrictions as are sufficient to sanction the doctrine of the divine institution.

"Our law considers marriage in no other light than as a civil contract. The holiness of the matrimonial state is left entirely to the ecclesiastical law; the temporal courts not having jurisdiction to consider unlawful marriage as a sin, but merely as a civil inconvenience. The punishment, therefore, or annulling, of incestuous or other unscriptural marriages, is the province of the spiritual courts, which act pro salute animæ. And taking it in this civil light, the law treats it as it does all other contracts; allowing it to be good and valid in all cases, where the parties at the time of making it were, in the first place, willing to contract; secondly, able to contract; and, lastly, actually did contract in the proper forms and solemnities required by law'."

There is no just objection to this state or statement of the law, if it be understood with the limita

11 Bl. Com. c. 15.

tions which are admitted and required. If by civil contract be understood no more than the mutual agreement of the parties, such an agreement is an indispensable part of the divine institution, of which the parties cannot avail themselves without it. Since the period of the first marriage, of which the terms were dictated from above, the civil contract has been engrafted upon the divine institution, and it is only requisite that the conditions of the one shall correspond with the conditions of the other, securing the permanent union of one man with one woman, in all cases not forbidden by the law of God. The freedom of marriage is secured by statute (32 Hen. VIII. c. 38.) in all cases not contrary to God's law, thus restricting the ordinance of man by the ordinance of God; and all incestuous marriages are, during the life of the parties, voidable in the ecclesiastical courts. The forms and solemnities required by law are a security for the religious celebration of marriage, by a ritual which asserts the divine institution, and which prescribes conditions in conformity with that institution; and with the only exception of the marriages of Jews and Quakers, all marriages which are otherwise solemnized in England are invalid. The doctrine of a merely civil contract of marriage is further superseded by the admission of the concurrent jurisdiction of the spiritual and temporal courts, by the reservation to the former of the right of trying the validity of marriage, and by the power which the ecclesiastical courts possessed before the passing of the Marriage Act, and both before and after the Reformation, of compelling the celebration in facie ecclesiæ of marriages

entered into per verba de præsenti, i. e. by civil contract, which are declared to be in themselves not sufficient to set aside a subsequent marriage, solemnized in the face of the Churchm. The Marriage Act, which, under pretence of some informality or defect in the mode of publishing banns or obtaining licence, voided the marriage solemnized in the face of the Church, was an anomalous innovation on the general policy of the English law of marriage, an extraordinary assumption of the power of temporal law; at once rescinding the civil contract, and counteracting the divine institution of marriage, limiting the power and the right of persons able and willing to contract, and actually contracting in all the forms required by law, except the arbitrary provisions of a statute, which inflicted the same irremediable penalties on those who ignorantly and those who deliberately transgressed its enactments.

There is a singular want of precision in the views which Paley has exhibited of the nature of the contract of marriage: "Whether it hath grown out of

m 32 Henry VIII. c. 38. entitled, "An Act for marriages to stand, notwithstanding precontracts," and providing that "all marriages, being contract and solemnized in the face of the Church, and consummate with bodily knowledge or fruit of children or child being had therein between the parties so married, shall be, by authority of this present Parliament aforesaid, deemed, judged, and taken, to be lawful, good, just, and indissoluble, notwithstanding any precontract." In the preamble it is affirmed of marriages voidable by reason of precontract, that "marriages have been brought into such uncertainty thereby, that no marriage could be so surely knit and bounden, but it should lie in either of the parties' power and arbiter, casting away the fear of God by means and compasses to prove a precontract," &c.

some tradition of the divine appointment of marriage in the persons of our first parents, or merely from a design to impress the obligation of the marriage contract with a solemnity suited to its importance, the marriage rite, in almost all countries of the world, has been made a religious ceremony, although marriage, in its own nature, and abstracted from the rules and declarations which the Jewish and Christian Scriptures deliver concerning it, be properly a civil contract and nothing more"."

If this had been a correct statement of the doctrine of the law of England, it would nevertheless have been extraordinary that such a statement, unaccompanied with any qualifications, should have fallen from the pen of an English theologian, arguing upon the office of matrimony, and upon the state of "marriage, as it is established in this country." The plain drift of the statement is to account for the religious celebration of marriage, which in its own nature is affirmed to be, properly, a civil contract. For this purpose the writer assumes the divine appointment or institution of marriage, and supposes that the general tradition concerning that appointment has contributed to render the marriage rite a religious ceremony. He appears at the same time to recognize some peculiarity in the rules and declarations of the Scriptures concerning it, which gives to marriage another character than that which it possesses abstractedly and in its own nature, in which it is properly a civil contract and nothing But is it possible, in a Christian country,

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Principles of Moral and Polit. Philos. b. iii. c. 8.

to take this abstract view of the nature of marriage, and to throw out of the consideration all which the Scriptures have taught concerning it, and the effect which common tradition and the impress of the divine institution have made upon the opinion and practice of mankind? The divine appointment of marriage, in the person of our first parents, is a fact which cannot be disputed. It is equally certain that marriage was contemplated in the divine mind when there was but one human being upon the earth, and a civil contract or mutual agreement of parties was impossible: and if there be truth in the comment of our Lord, the rule of marriage was delivered by the Deity before the woman had spoken. Marriage, therefore, in its primary origin, has no nature of its own, which can be abstracted from the rules and declarations which the Scriptures deliver concerning it and it is incompatible with the truth of the sacred history to admit that marriage is "a civil contract and nothing more." A civil contract implies the consent of two persons; the intention of marriage was conceived when there was but one, and its original and perpetual law was prescribed before man had any communication but with his Maker. The mutual society, help, and comfort, which is the great end of marriage, was devised, because it seemed not good unto God that man should be alone; and it was therefore resolved, not that man in the first instance should contract an associate to himself, which, under the existing circumstances, was impossible, but that the Lord should make an help meet for him, and should present her unto the man, upon such terms that a civil contract or mutual con

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