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• One readily apprehends,' says Mr. Hallam, 'the facilities of abuse to which all this led. History is full of dissolutions of marriage obtained by fickle passion and cold-hearted ambition, to which the church has not scrupled to pander on some suggestion of relationship. • It is so difficult to conceive, continues Mr. Hallam, “I do not say any reasoning, but any honest superstition which could have produced such monstrous regulations, that I was at tirst inclined to suppose them designed to give, by a side wind, that facility of divorces which a licentious people demanded, but the church could not avowedly grant.
“This refinement would, however, be unsupported by facts. The prohibition is very ancient, and was really derived from the ascetic temper which introduced so many other absurdilies.t The fourth Lateran Council, in 1215, removed a great part of the restraint, by permitting marriages beyond the fourth degree, or, what we call, third cousins; and dispensations have been made more easy, when it was discovered, that they might be converted into a source of profit. They served a more important purpose, by rendering it necessary for the princes of Europe, who seldom could marry into one another's houses without transgressing the canonical limits, to keep on good terms with the court of Rome, which, in several instances hurled its censures against sovereigns who lived, without permission, in what was considered an incestuous union.'—Considerations on the state of the Law regarding Marriages, &c. pp. 35–39.
Even so late as the tenth century marriage was reprobated by the church as a crime, and every art and terror was employed to induce the laity to follow the example of the clergy, to whom it was absolutely forbidden. Nor was it till the twelfth century that the sacerdotal benediction and the intervention of the offices of the church were required to establish its validity. Then it was that Peter Lombard discovered the institution of seven sacraments, or the sevenfold operation of the Spirit of God in baptism, the Lord's Supper, confirmation, penance, orders, extreme unction, and matrimony; and the church of Rome soon countenanced his doctrine. This brought marriage,' says Archdeacon Reynolds, which was originally of civil jurisdiction, ‘under spiritual cognizance; and put the scales of domestic peace into the hands of the Pope, that his holiness might have power to separate those whom no man ought to put asunder,
* Cette discipline, qui etendoit la défence des mariages entre parens, étoit sujette à de trés grands inconvéniens ; elle donnoit lieu à de fréquente demandes en cassation de mariage, sous prétexte de quelque parenté eloignée, qui des personnes dégoutée de leur mariage decouvroient ou supposoient.'Pot. v. II. Traité du Contrat de Mariage, p. 198.
+ Gregory I. pronounces matrimony to be unlawful as far as the seventh degree; and, if I understand his meaning, as long as any relationship could be traced ; which seems to have been the maxim of strict theologians, though not absolutely enforced.'-Hallam's Mid. Ages, vol. ii. p. 295.
and perpetuate conjunctions which reason and religion forbid.'* It was in this century that the Waldenses and Albigenses made their appearance; they were the first Protestants of whom history gives us any account, and the first who resisted the popish doctrine on the subject of marriage. They condemned the law which prohibited the marriage of the clergy, refused to acknowledge the spiritual alliance of godfathers and godmothers, and the other impediments of affinity and consanguinity appointed by the church, and taught that the consent of a willing couple 'made a lawful marriage without the formality of any sacerdotal 'benediction.'
In the fourteenth century the Council of Trent decreed that ‘if any shall say the church hath not power to add impediments 'to marriage which are not in the book of Leviticus, or to dis'pense with those that are, let him be accursed.'
The Wickliffites or Lollards, who at the commencement of this period were become a powerful party in the kingdom, were not content with bearing a general testimony against the abominations of popery, but endeavored also to arrest the attention of the legislature in favor of a reform on the subject of marriage. For this purpose they presented a remonstrance to the House of Commons, in which they stated, among other things, that the 'causes of divorce on account of consanguinity and affinity as ' established by the church were utterly groundless. Early in the sixteenth century Martin Luther contended that the priests ought to approve of all marriages contracted against the
ecclesiastical laws, with which the Pope can dispense, except “the marriages of those which are expressly forbidden by the
Scriptures, and so great was the influence of the reforming spirit in England, and to such an extent had theologians and civilians departed from the strict canons of the church, that long before the agitation of the question of the divorce of Henry VIII. from queen Catherine, Jeremy Taylor tells us, there was almost a general consent upon this proposition, that the Levitical degrees do not by any 'law of God bind Christians to their observation.'+ And he shrewdly observes upon that violent and disgusting proceeding—' it very much employed and divided the pens of learned men, who upon that occasion gave too great testimony with how great weaknesses men that have a bias do determine questions, and with how great a force a king that is rich and powerful can make his own decisions. It is true that Henry appealed to the universities of the continent and of England,
* Historical Essay on the Government of the Church of England, p. 70.
† Ductor Dubitantium, book ii. ch. 2.
.and that they at length, considering the prohibitions of the * eighteenth chapter of Leviticus to refer to marriage, decided upon their perpetual obligation, and that the marriage which the king had contracted with the widow of his deceased brother Arthur was forbidden by Scripture. It is however to be observed, that there are the strongest reasons for believing, notwithstanding what Burnet has said to the contrary, that the acquiescence of the foreign universities in such a decision was purchased by large sums of money, distributed amongst them by the agents of Henry. Cavendish, in his Life of Wolsey, says, that the foreign universities were fed with such large sums of money, that they easily condescended to the requests
of the commissioners;' and Crook, the king's agent in Italy, writes that he found the greatest part of the divines in all Italy mercenary,' and tells Henry, that he doubts not but all Christian universities, if they should be well handled, would earnestly conclude with his Majesty ;' adding, that if he had • been in time sufficiently furnished with money, though he had procured, besides the seals which he then sent, 110 subscriptions, yet it had been nothing in comparison of what he might and easily would have done.
With respect to the English universities, it is to be remarked, that all accounts concur in stating, that very great difficulty was experienced by the king in obtaining from them an answer favorable to his wishes. It appears, from a passage in Wood's Athenæ Oxoniensis, that the decision of Oxford, in favor of the divorce, was only procured after two angry letters from the king,' and 'that when at last the judgment was obtained, it was extorted by a violent interference with the constitution of 'the university, and passed surreptitiously at night, amidst open • and fearless remonstrances.' The difficulty of obtaining a favorable answer from the university of Cambridge, appears to have been equally great; and the manner of extorting it at last very nearly the same.*
An act passed in the first year of queen Mary, session 2, chap. i., entitled, an act declaring the queen's highness to have been born in a most just and lawful matrimony, and also repealing all acts of parliament and sentences of divorce made
or had to the contrary,' is remarkable for containing a solemn legislative declaration of the purity of a marriage between a man and his brother's widow by the law of God, and therefore of all marriages in that degree, and a fortiori of all remoter affinities.
* See Collier's Eccl. Hist. part i. book i. pp. 52-58, 75, 76, and Warner's Church Hist. vol. ii. pp. 36-40.
To a certain extent this act confirms an act passed in the thirty-second year of Henry VIII. ; the spirit and policy of which was to reduce the law of marriage to the just regulation of divine and natural law, in opposition to the enormities which occurred whilst it was subject to ecclesiastical severity; the substance of it may be thus stated : ‘Every marriage consum
mated by carnal knowledge and issue, solemnized between persons not prohibited by God's law, shall be indissoluble;
and no prohibition shall operate (God's law except) to impeach 'any marriage without the Levitical degrees :' here undoubtedly the Levitical degrees are considered as the legal degrees of marriage in the divine law. But the subsequent act of the first of Mary is a direct repeal of these degrees. The declaration that the marriage of Henry with Catherine, the widow of his brother Arthur, was agreeable to the divine revealed law, and perfectly consonant to Scripture, certainly divested the Levitical code of all legal authority. And as the law in which this declaration is contained is now in force, we must conclude, in the language of the legislature, that a marriage with a brother's widow, and others of a similar affinity, are not prohibited by 'the law of God.' But such marriages.stand with God's law, and his most holy word;' and ought to be accepted and reputed, and taken of good effect and validity, to all intents and purposes.
Though this act was not formally repealed on the accession of Elizabeth, but was allowed to remain on the statute book, because it would have been indecent and insufferable to pronounce her sister Mary, who had been the de facto queen
of the realm, illegitimate, and therefore a usurper, other measures were resorted to, which, though not possessing the force of a law of parliament, operated with equal weight and authority upon the mind of the nation. The Levitical degrees in all their strictness and extent, including not only those expressly mentioned, but all others that, by a parity of reason, might be deduced from them, were solemnly declared to be of divine obligation, and enforced by the severe and costly sanctions of ecclesiastical jurisdiction. The table of prohibitions, with the admonition prefixed, which was put forth by authority, and ordered to be placed in all the churches of the kingdom, was drawn up by Årchbishop Parker, in the year 1563; and was a politic measure, which, without bringing the first and second marriages of Henry into further litigation and inquiry, assumed a principle which, by implication, established the legitimacy of Elizabeth, and consequently her right to the throne. With this parliament had nothing to do; for the opening of the subject then would have been perilous in the extreme. It was therefore confided to the clergy--for the church is ever obsequious where it
cannot be despotic. There was no opposition; though the opinions of the learned and the liberal were known to be against the perpetual obligation of the Levitical prohibitions, and the distressing case of degradation and illegitimacy which they had been made to justify, yet none dared to provoke the vengeance of the royal lioness. Moreover, it was the interest of her subjects
that the legitimacy of Elizabeth should not be called in ques'tion; and nothing could be so likely to prevent this as the
general reception of the doctrine implied in the admonition 'prefixed to the table of Archbishop Parker.**
Subsequently to the Reformation, as introduced by Henry VIII. and established by Elizabeth down to the year 1835, when Lord Lyndhurst's act was passed, the statute law of marriage, as exhibited in the thirty-second of Henry VIII. and the first of Mary, declared all persons competent to intermarry, who were not prohibited from so doing by God's law ; at the time the former of these acts was passed, the degrees of relationship as specified in the eighteenth chapter of Leviticus were conceived to be the legal degrees of marriage according to the law of God; and, therefore, all marriages without these degrees are declared to be exempt from any spiritual prohibition. Within these degrees, the act of Mary declares, that marriage with a brother's widow, and consequently marriage with a deceased wife's sister, are not included.
The canon law, however, as enacted by Archbishop Parker, revived all that could be revived of the popish restrictions on marriage, not only by insisting upon the strict letter of the Levitical prohibitions, but extending them by a parity of reason. But what weight has canonical law when not expressly sanctioned by the law of the land ? The table of Archbishop Parker and the ninty-ninth canon never had this sanction, and are binding only upon ecclesiastical persons, and those who conscientiously bow to the authority of the church, as equally valid with that of the holy Scriptures.
This is the judicial opinion of that consummate lawyer, the late Lord Hardwicke, tható no canon since the Reformation can * bind the nation at large without the authority of parliament;' and we believe there are no legislative acts since that period which operate to give force to any single ecclesiastical rule, the canons of 1603 still wanting the sanction of the legislature. Jeremy Taylor, speaking of the laws of the Roman canonists, lays down the same doctrine.
* It is said of this prelate by one of his biographers, that the great blemish of his character was his preferring the laws of the queen to the laws of God.'