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• These laws,' he says, ' are not now, nor ever were they, obligatory but by the consent of the people and the allowance of princes. For bishops in their mere spiritual impresses have no proper legislative power, where princes are Christian ; and if the prince please he may enlarge or restrain their power, so that he make no entrenchment on the divine law, and do what is useful and profitable. But when the prince does not bind, the subjects are free.
“ These laws are neither allowed by the prince nor by the ecclesiastical state in England, and because they were useless or burdensome they were laid aside ; for they were but drains for money, and levies of rents.*
It was the laying them aside' that imposed upon the popish reformed bishops of the English Church the necessity of making the best of the Levitical degrees—the only canons left them after the rubbish of Rome had been swept away: and thus originated their famous expedient of interpreting these degrees by a 'parity of reason. This flimsy subterfuge of episcopal tyranny.in á Protestant church, the author of the Observations on the Prohibition of Marriage in certain cases of Relationship by Affinity' has entirely demolished, and has clearly shown, even on the assumption that the prohibitions in the eighteenth chapter of Leviticus relate to marriage, that if the canons of 1603 and Archbishop Parker's table had all the support of legislative enactments, they are without the confirmation of the Levitical code, and therefore ought to be regarded as the mere arbitrary imposition of the priesthood, in obedience to the will of a still more arbitrary sovereign.
After arranging the degrees in Leviticus into a table where they are seen at one view, he observes that it contains no prohibition of marriage in three cases, namely, with a wife's sister, or a wife's brother's or sister's daughter. He then reasons with the ultra prohibitionists.
We are told by the defenders of Archbishop Parker's table, that because marriage is forbidden with a brother's wife by ver. 16, it must be conceived to be forbidden also, by parity of reason, with a wife's sister; and because it is forbidden with a father's sister by ver. 12, and with a mother's sister by ver. 13, it must therefore be conceived to be forbidden, by parity of reason, with a wife's brother's
It is no trifling consideration, that the body of the canon law was made by the worst and most ambitious popes. Alexander III., who made Gratian's decree to become law, was a schismatical pope, an antipope, and unduly elected; the rest were Gregory IX., Boniface VIII., Clement V., and John XXII. ; persons bloody and ambitious, traitors to their princes, and butchers of Christendom by the sad wars they raised, and therefore these laws were likely to be the productions of violence and war, not of a just and peaceable authority.'-Ductor Dub. book üi. chap. iv.
daughter, and with a wife's sister's daughter. But what authority, it has been well asked, do we possess for this extraordinary extension of these restrictions ? In ver. 6, a general prohibition is given against marriage with near kindred :' in the verses which follow, seventeen cases are mentioned as being included in it ; 'but,' say the advocates of the doctrine we are examining, these are not all: it is evident that there are three other cases comprised in the general prohibition, though Moses omitted to mention them.'
* In considering this subject, it must, we think, immediately strike every inquirer, as a very remarkable fact, if it be one, that in stating, in obedience to the divine command, and with great precision of language, several relatives with whom he declared it to be unlawful for any Israelite to contract marriage, Moses should leave it to the ingenuity of his countrymen to discover, that there were three other relatives with whom it was equally unlawful that he should ally himself in the bonds of wedlock. This surely is not the manner in which the Deity has usually dealt with his creatures, and it is scarcely possible to believe that the Israelites could have been expected by God to conclude that more was intended by these prohibitions than was expressly stated by the mouth of his servant Moses. Had the general prohibition in ver. 6 stood alone, that is, had no particular instances in which it was to be observed been given, the case would have been different: it would then doubtless have been the duty of those to whom this general prohibition was given to endeavor to discover the partieular cases comprised in it; but a general prohibition against marriage with near kindred having been given them, and several instances enumerated in which this prohibition was to be observed, and nothing being added to lead the Israelites to suppose that there were any other instances to which the prohibition applied, it was only natural and reasonable that they should consider, that if they observed it in the instances which were specified, they would do all that was required of them.
* This, however, is not all that we have to advance upon this point. For it may be further remarked, as Michaelis has justly observed, that there is another argument against the extension of these prohibitions in the manner which has been noticed, in this circumstance—that Moses
does not appear to have framed his marriage laws with any view to our deducing conclusions from them ; for if this were his view, he cannot be acquitted of having made several very useless repetitions in them. For what reason had he, for example, after forbidding marriage with a father's sister, to forbid it also with a mother's, if this second prohibition was included in the first, and if he meant, without saying à word on the subject, to be understood as speaking, not of particular marriages, but of degrees.'
*Again, Moses,' as the author from whom we have already quoted observes, has given his marriage laws in two different places of the Pentateuch, viz. in both the eighteenth and twentieth chapters of Leviticus; but in the latter of these passages we find only the very same cases specified which had been specified in the former. Now, had they been meant merely as examples of DEGREES OF RELATIONSHIP, it would have been more natural to have varied them; and if it had been said, for instance, on the first occasion, Thou shalt not marry* thy father's sister,' to have introduced on the second the converse case, and said, “Thou shalt not marry thy brother's daughter.' This, however, is not done by Moses, who, in the second enactment, just specifies the father's sister, as before, and seems therefore to have intended that he should be understood as having in his view no other marriages than those which he expressly names, unless we choose to interpret his laws in a manner foreign to his own meaning and design.'+
This reasoning on the assumption that the prohibitions in Leviticus relate to marriage, ought to be conclusive with those who so understand them. In casting our eye over them again as they stand in the pamphlet before us, we find Sir William Jones's view, that they have no such reference, strongly confirmed. Wé refer to that contained in the sixteenth verse, • Thou shalt not uncover the nakedness of thy brother's wife,
it is thy brother's nakedness. Now, in the twenty-fifth chapter of Deuteronomy, which does apply to marriage, notwithstanding, this reason for not ' uncovering the nakedness of his
brother's wife,' the Israelite is commanded to marry his widow; which, if the former passage has the same application with the latter, is nothing short of a contradiction in terms, by the same writer, and in books equally claiming to be of divine authority. On the supposition that marriage is forbidden in Leviticus with a brother's wife, with the penalty annexed, that the contracting parties shall be 'childless,' how are we to understand the command to marry within this degree of affinity for the express purpose of raising up children ? See Lev. xx. 21 ; Deut. xxv. 5. But whether legal or not, or whether sanctioned or not sanctioned by the Levitical code, the table of Archbishop Parker and the ninety-ninth canon have operated with all the force of law. Nor do we recollect any instance of an appeal from the ecclesiastical to the civil courts, to determine whether a marriage with a brother's widow, or a deceased wife's sister, be according to God's law, as understood by the statute of the first of Mary and the thirty-second of Henry VIII.I The canon and the statute law have not on these questions been brought into collision; partly because of the hazardous nature of an appeal from the one to the other, none caring to be first to establish
Marrying, or anything implying marriage, is not once mentioned in all these prohibitions.
+ Michaelis on the Laws of Moses, vol. ii. pp. 119, 120. In the case of Hill and Good, these statutés were not referred to; and Archbishop Parker's table was the ground of the decision.
a precedent which might be fatal to themselves as well as to others; and partly because, up to the passing of Lord Lyndhurst's act, marriages of affinity, though within the tabular prohibitions, were regarded only as voidable, and to all intents and purposes legal, if not disturbed by an ecclesiastical process prior to the death of one or other of the parties.
It is a remarkable feature in the table of prohibitions, that it allows marriages of consanguinity, which are so repugnant to our moral feelings that they are of rare occurrence ;* while it forbids marriages of affinity which are contracted every day, and in every rank of life, not only without provoking censure, but with the evident approbation of the most virtuous portions of the community.
Among the most common of these is marriage with a deceased wife's sister, a wife's brother's or sister's daughter; for such marriages public opinion has supplied the place of legal sanction: and prior to the passing of Lord Lyndhurst's act it is surprising, notwithstanding their rapid increase, and the interests in every case they put in jeopardy, that so little advantage was taken of them by persons interested in their dissolution, or by the unprincipled caprice of some of the contracting parties, and that they were productive of so much virtuous happiness. For, till the intervention of this law, in 1835, it was in the power of those who had contracted a marriage of this kind, or during their life-time, of any person whatsoever, who had an interest in dissolving the marriage, to get it annulled. In this way the marriage of parties who had lived together for years in mutual love, respected by all who knew them, might at any moment have been set aside at the instigation of some malicious or interested individual, and the offspring of the marriage illegitimatized and deprived of their inheritance. Still great
inconveniences and many anxieties must have been endured by multitudes who had placed themselves in a condition where their domestic peace and status in society were at the mercy of others-perhaps their personal enemies; and as great difficulties were felt to arise from the conflict between the laws relating to marriage, as existing in different countries and in different parts of our own country, and especially in England
• If two brothers marry two sisters, their issue may intermarry. Referring to a particular case which we need not cite, the writer of the present state of the law, says, 'Had the wife been a great aunt by consanguinity, the husband's grandmother's own sister-perhaps not a very probable case-or had it been the case of a man marrying his great niece, though here there must have been a very objectionable connexion by blood, the marriage would have been good.'
+ Observations on the Prohibitions of Marriage, p. 5.
and Scotland, the time seemed to have arrived for the initiation of measures in the British parliament which should remedy the existing evils, establish clearly defined laws regarding marriage, legitimacy, and divorce, which should be of equal authority throughout the empire, and which should be so adjusted to the jurisprudence of other countries, as to obviate the intricacies and perplexities which have hitherto attached to our imperfect and unsettled legislation on these important subjects.
Indeed there was good reason to expect that their lordships the bishops would have been first in the field of reformation with some well concerted scheme of their own, under a conviction which they must all have felt, that their table of prohibited degrees exceeded the requirements of the law of the land, and was equally unsanctioned by the word of God; that they were not only repugnant to the religious and moral feeling of the country, but at variance with its every day practice; and that it was high time for the fathers of the Protestant church to repeal canons which were originally mere inventions to make a market of indulgences, and to join the legislature in forming a comprehensive civil marriage code, which, without embracing nice distinctions and metaphysical subtleties, should be based on the general principles of a just and enlightened morality.* Demonstrations made about the same period by the two learned lords the ex-chancellors on the subject of our very singular matrimonial legislation, proved that they at least were prepared to enter upon a complete revision of the marriage law. But there was no movement till the year 1835, and then what was done reflects no honor upon any of the parties concerned in it. As an act of legislation it is worthless, because it is in defiance of all moral principle. It is indeed a contradiction, which proclaims the same thing to be good and evil with the same breath. But its history sufficiently illustrates its character. It is thus given in one of the pamphlets before us:
'It is pretty well understood, and we believe accurately, that Lord Lyndhurst's statute of 1835 was in a great measure directed to the cases of a nobleman of high rank, an attack on whose marriage with a sister of a deceased wife was feared, and of some few other individuals whose names are well known, and who were similarly circumstanced.'
Is there a bishop who can lay his hand on his heart and say that he believes marriage to be forbidden by Scripture in all the cases mentioned by Parker? Not one ; yet they all acquiesce in circulating that table in the Bibles and Prayer-books published by the Society for Promoting Christian Knowledge, and Parker's table distinctly asserts that marriage is forbidden by Scripture in every case mentioned in it. The Church therefore is propagating a moral heresy, that is a lie.