« PreviousContinue »
its permanence to rest on rules of policy and expedience, to the prejudice of that indefeasible perpetuity which constitutes the essence of the relation ; and to render adultery a civil injury. The opposite doctrine of the divine institution results in ascertaining and enforcing the practical virtue of marriage, and in elevating the dignity and the holiness of the state,
The terms of the divine institution in fixing the permanence of marriage justify the necessity of a public ratification, of which the origin is as ancient as the practice is universal, and corresponds with the honour of marriage without infringing its simplicity. The holy character and divine origination of marriage also suggest the inference that this public ratification should be marked by religious rites, which are appropriate to the solemn nature of the engagement, and useful in attestation of the covenant, and which, however they may appear to have been neglected in countries whose manners are barbarous, or imperfectly known, have uniformly prevailed in the most civilized nations of antiquity. The New Testament certainly offers no objection to the religious ratification of marriage, and the practice of sacerdotal benediction may be traced in the Eastern and the Western Churches from the earliest ages to the period of the Reformation ; and the most ancient and continuous evidence of all men, all ages, and all places, is agreed in upholding those religious forms of solemnization, which are at once the testimony and the consequence of the divine institution. The necessity of the sacerdotal benediction bas been familiarized by immemorial
practice to the habits of Englishmen, and been enforced in the most ancient provisions of the law, distinguishing the contract from the ratification, and allowing an efficacy to the one, which it withholds from the other. The public celebration in the Church and the invalidity of the private contract out of the Church were maintained from the Re-, formation to the passing of the Marriage Act in 1754, which makes no exemption but in favour of Jews and Quakers, and was not designed to con- . tract any privilege previously possessed by nonconformists. The impolicy of acceding to any of the propositions for abating the necessity of conformity: 1 in respect of marriage has been examined, and it has been suggested, that all the objections to the use of the ritual may be removed by a judicious revision, without any compromise of the ancient and universal practice of the religious ratification of marriage.
The terms of the divine institution imply the existence of certain impediments precluding and vitiating the contract of marriage, impediments corresponding with the natural sense of propriety, specified in the law of Moses, and recognized in the universal practice of all nations, which have for. bidden marriage to be contracted within certain degrees of consanguinity and affinity. There is not the same authority for proscribing the marriages which minors may contract without consent of their parents, and in violation of filial duty, but of which the nullity rests on no better principle than the arbitrary despotism of the Roman economy, and is foreign to the constant tenor of the English law. The nullity of the marriages of the Royal Family VOL. II.
rests on the ground of a very questionable expedience.
The divine institution and religious ratification of marriage give new force to the duties of the relation, which is contracted in terms of the most exact reciprocity, corresponding with the personal unity of the parties maintained in the Scriptures and in the English law; with their community of interest both in temporal and spiritual concerns; with their mutual society, division of domestic cares, and constant cooperation, especially in the instruction of their children ; and with the indissoluble perpetuity of the relation, of which the reciprocal duties cannot be neglected without opening a way to recrimination.
The doctrine that marriage is not a merely civil contract, but i divine institution, establishes the sinful character of adultery, which is proved in the probibitions and the penalties delivered in the Scriptures to be a sin of a very aggravated kind, a sin only less heinous than murder and idolatry. In its practical effects it includes a complication of the basest fraud and perjury, and inflicts an injury upon the woman, the liusband, and the children, which cannot be repaired, which camuot be compromised, and which no man who consults his own heart does not deprecate as the worst of sorrow and the worst of shame. The Christian religion appreciates the equal guilt of both parties; it offers no palliation of the offence of cither, and pronounces on both the sentence of eternal doom. By the Jewish law the offence was capitally punished in both parties, and the law of the bitter witor's afforded a redress in cases of some guilt which could not be obtained by
marital infidelity. The criminal character and penal consequence of adultery are approved by the common sense of mankind, and there are but few nations in which it is not punished as a crime. In the earlier stages of the English law, and at the time of the Reformation, its criminal character was also recognized, and the offence was made, or proposed to be made, liable to penal prosecution. With the only exception of a certain justification of homicide committed in retribution of adultery, and of the aggravation of the offence in a clergyman, adultery, in correspondence with the received view of marriage as a civil contract, is made a matter of civil injury, which may be satisfied by an action for trespass, and by the recovery of damages, of which the amount is estimated upon various considerations of the conduct and of the circumstances of the parties. The partiality and inadequacy of this state of the law are too plain to be denied, and various measures have been proposed for restoring it to a more just and equal operation, for recognizing the criminal character of the act, and rendering it liable to a public prosecution and to an appropriate severity of punishment.
The terms of the divine institution assert the indissoluble unity of marriage, of which the perpetuity is established upon reasons worthy of the divine wisdom and benevolence, in making the most effectual provision for the protection of the infirmity of the woman, for the continuance of the necessary solace through the whole period of human infirmity, and for the religious education of the offspring. This essential individuality of marriage
is not destroyed even by the act of adultery, of which divorce is neither the proper penalty nor the nécessary consequence, and which, however common in the practice of men, was not in the beginning, is an acknowledged deviation from the law of marriage, and originated in circumstances of remote and impenetrable obscurity. The first authentic law of divorce is a law remedial and restrictive of a prevailing abuse; a reluctant concession to the hardness of the Jewish heart; a permission granted without any approbation for the prevention of greater evils. The fluctuating and uncertain rules which betray the human origin of divorce are especially manifest in the laws of Greece; and however introduced into those of Rome, it was not for a long period adopted into practice, and in the profligacy of the declining empire its facility and extension were made to demonstrate by the most perfect experiment, that “the liberty of divorce does not contribute to happiness and virtue.” Under any interpretation the Christian scheme restricts the licence of divorce to one single cause, throwing all the blame of the consequences upon the man who divorces his wife for any other cause ; authorizing the practice only by vitiating the effects ; requiring clear proof of the adultery, if that be the meaning of the clause of exception ; insisting upon the innocence of the accuser, and permitting the man only to marry after the divorce without incurring the guilt of adultery. There are however difficulties in the ordinary interpretation which it is hardly possible to overcome ; and it has been argued upon primitive authorities, that adultery is not meant in the clause of exception;