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PRACTICAL RESULTS OF THE ADMISSION OF MARRIAGE TO BE A MERELY CIVIL con. TRACT.
The principle, which it has been attempted to establish, that marriage is not merely a civil contract, and the views which have been exhibited of the practical expedience of adhering to this principle, may be confirmed by a brief review of the disorder and instability which are found to prevail in marriage, wherever that relation is held to be a civil contract and nothing more.
In this review there is no occasion to take advantage of extreme cases ; and it is not therefore desirable to insist on the authority of Beza“, who was amazed at the wonderful artifice of the great deceiver of mankind, in suggesting, that whatever is bound by the mutual consent of parties, may like other contracts be dissolved by their mutual consent. The facilities of divorce under the merely civil contract are admitted by Paley.
It was a similar principle which possessed the mind of Milton. He denied that there was “ any shadow of reason” or “even the feeble semblance of presumption derived from the Levitical law, for assigning to the ministers of the Church the celebration of marriages ;” and maintaining that conjugal
• De Repudiis et Divortiis.
love was the prime end and form of the institution of marriage, he inferred, that the perpetual interruption of peace and affection by mutual differences and unkindness, must be a sufficient reason for granting the liberty of divorceb." He held also that “indisposition, unfitnesse, or contrariety of mind arising from a cause in nature unchangeable, hindring and ever likely to hinder the main benefits of conjugal society, which are solace and peace, are a great reason of divorce.” Some of the grounds on which he supported these opinions are at least worthy of the superstructure. Christ hath said that “ the sabbath was made for man; and I ask what was more made for man than marriage : and as he dis. pensed with the law of the one, so would I with the law of the other: I want not pall or mitre, yet in the firm faith of a knowing Christian, which is the best and truest endowment of the keys, I pronounce the man who so binds the ordinance of marriage not to have the Spirit of Christ d.” Thus, without denying the divine institution of marriage, he would have superseded its religious solemnization, and have ex. tended the licence of divorce. His practical exposition of these principles is well known. His wife left him, and neglected his invitations to return; and he resolved to repudiate her for disobedience, and justified his inclination by argument in various publications, and proceeded to offer his addresses to another woman, but was eventually reconciled to his wife,
Treatise on the Christian Doctrine. Discipline of Divorce. Tetrachordon. Life of Milton.
It does not appear that much was written against bim, or any thing by any writer of eminence. His doctrine was indeed denounced as one of “many horrid and prodigious opinions,” one of those “stupendous errors,” which Satan had been “ the grand agent in propagating with all his power and policie,” and which the ministers of Christ in that day were confident that they might, “ without the least breach of charity to any the authors, fautours, or abettours of them, utterly loath, execrate, and abhorref.” But whether the strange doctrine was otherwise treated with contempt, and thought more worthy of derision than confutation ; whether, when he was summoned before the Lords, his doctrine was approved, or his accusers not favoured, and he was therefore dismissed 5, the silence of his advocates and his adversaries is the more remarkable, in the prevailing unsettledness of religious opinion, and especially as the Commonwealth were about to supersede the religious celebration of marriage, and to degrade it to a civil contract, attested before a civil magistrate.
It would seem that republics have been prone to degrade the sacred character of marriage. The National Assembly of France, in the Constitution of 1791, decreed, that the law considered marriage only as a civil contract ; and it appears from the Moniteurs of 1797, that in the interval of the six or seven following years there were twenty thousand divorces.
"Testimony to the Truth of Jesus Christ against the errours, heresies, and blasphemies of these times, subscribed by the Ministers of Christ within the Province of London, Dec. 14, &c.
Johnson's Life of Milton.
“ Before the Revolution the form of marriage in that country was of a mixed nature, so that it was doubted whether the essence of marriage consisted in the civil contract, or in the sacrament or religious solemnization ; for the marriage law of France was derived from the ancient canon law, and agreeably to the independence of the Gallican Church, from the provincial councils of the kingdom, subject to the civil regulation of the monarch. The substitution of the civil magistrate for the ecclesiastic constitutes the principal difference between the rules laid down by the Ancien Regime and the Code Civil.:..
- According to the civil code of France, it seems that a domicil of six months is a necessary qualifi. cation for marriage, after which the municipal officer of the commune of the domicil, at the door of the hall of the commune, publishes the names, domicil, and age of the parties intending to marry, and the name and domicil of their parents. After the publication a public act is drawn up, setting forth the description of the parties,' and the day, time, and place, of the publication, a copy of which remains affixed on the door of the hall of the commune, until the end of eight successive days, when the publication is to be repeated with the same formalities. ." After the lapse of three complete days from the last publication, the marriage is celebrated on a day appointed by the parties, at the hall of the commune, by the municipal officer of the domicil of one of the parties, in the presence of four witnesses. The officer, after having addressed the parties on the subject of their relative duties, receives their separate declaration, that they take each other for husband
and wife, and then “in the name of the Law” pronounces them to be united in marriage, and an act is immediately drawn up and recorded.
« According to the law of France it is only in virtue of this act that the rights belonging to marriage can be maintained in that country: so that, like the Marriage Act of England, the regulations of France, as to the form of marriage, are not merely directory, but prohibitory also ; admitting no marriage to be valid which has been contracted within the territory according to any other form than that prescribed by the civil code of the kingdomh."
The law, which substitutes the civil for the ecclesiastical officer in the contract of marriage, has also made provision for divorce and the dissolution of marriage before the civil tribunals, and authorized the forms for the revocation as it were of the civil engagement. By the Code Civil, marriage is dissolved by death ; for adultery by the wife, and by the husband also, if he retains the adulteress in his house; for exces, cruelty, or grievous injury of either to the other; upon sentence of either to an infamous punishment, or a punishment implying civil death ; and upon the mutual consent of the parties in the manner prescribed by law; and upon exhibition of proof of the incompatibility of their tempers, which renders them incapable of living together, and forms a peremptory ground of divorce. Preliminary to the divorce is required evidence of the age of the parties ; of a certain interval
"Poynter's Doctrine and Practice of the Eccl. Courts, c. xvi. Code Civil, art. 217-233.