CHAP. VII.
Of Marriage considered in a civil View, as the Object of Human Laws.———Examination of the Principles and Tendency of the Marriage-Act.
HAVING before considered marriage as a divine institution, as ordained of God, and by Him defined in what it shall consist (see before vol. i. p. 18–20) I cannot help once more observing, that, in this view of it, no human power has the least authority to interfere, so as to make that null and void which God hath made valid and binding; or to say that those are not one flesh whom His word hath made so; or to put asunder those whom God, by his own ordinance and command, hath joined together. Nor hath any human legislature the least authority to determine who shall, or who shall not, marry together, unless its law be declarative of or coincident with the law of God.
But forasmuch as marriage must, in the very nature of the thing, concern the outward order of society, it becomes, in that point of view only, an object of human laws in the light of a civil contract; the recognition of which, as to civil purposes, is of much consequence to the state; therefore certainly every state has a power, not only to require such recognition, but under such terms, and under such conditions, and by such means, as may appear to the legislature most expedient for the security of inheritances, family descents, pedigrees, and other wise purposes, which are to be answered thereby, still not interfering with the thing itself as between God and the parties, but leaving this as it stands in the Bible.
This distinction has not been attended to as it ought, therefore the laws of this country, like the laws of most others, have intrenched on the divine law, making crimes, and ordaining punishments, which are not only unwarranted by it, but are directly opposite to it: as a proof of this, we need only turn to the Statute Book, and read 31 Hen. VIII. c. 14. which made it "felony for a man in holy orders to marry, both in him, and in the woman." So 1 Jac. I. c. 11. which enacts, that "if a man, being married, shall marry another woman, his first wife being alive, he shall be deemed a felon, and suffer death as such."—The first of these two laws was repealed long ago, but the latter is still in force, and, but for the benefit of clergy, a man who had two wives, would be sent to the gallows with murderers and highwaymen, though there is no more warrant for this in the word of God, than there was for making a priest a felon for marrying at all, or for burning a man under the writ de hæretico comburendo, for being such an heretic as to deny that a piece of wafer, after a priest has muttered some words over it, is a human body. Vulgar errors, while remaining merely in the minds of men, however they may affect the individuals who believe them, may be very harmless things with respect to those who are wise enough to search and think for themselves, and therefore differ in judgment; but when they are obtruded upon the consciences of men, armed with the terror of sanguinary laws, even unto death itself, they are formidable to the last degree; and those are to be remembered as some of the best friends to mankind, who have had the wisdom first to form their own opinions by the scripture of truth, and then the courage to attack, and the success (under Providence) to defeat, some of these monsters, though doubly guarded and defended by laws of church and state. No opinions, however sacred in the estimation of mankind, can in the least affect the truth of God with respect to the moral world, any more than different systems of philosophy can affect or change the smallest atom in the visible creation—God's government over both is utterly unassailable by mortals, unchangeable by human power or wisdom. The phænomena of day and night, depend not on the systems of the Ptolemaic, CartesIan, or Newtonian philosophy, but on the wisdom and power of him who created all things, and upholdeth them by the word of His power. So with respect to marriage, which is as much an ordinance of God, as the ordinances of the material heavens are, (Jer. xxxi. 35, 36.) it is, with respect to itself, as uncontroulable by human power, as the rising or setting of the sun and moon. Errors in philosophy cannot change these—errors in divinity cannot affect the other: therefore that which constituted a marriage at the beginning, will constitute it to the end, though every legislature upon earth were to combine in a law to make it null and void.
I am now led to speak of a law, which I cannot mention, or even think of, but with indignation, I mean 26 Geo. II. c. 33. intitled An Act to prevent Clandestine Marriages.—This law seems to me, and I am by no means singular in my opinion of it, to go farther than any other upon the subject ever went, by striking in the very terms of it at the Divine institution, so as to render it null and void to all intents and purposes whatsoever, if certain circumstances invented by the human legislature are not complied with. As far as this law was meant to prevent clandestine marriages, from which, as the preamble sets forth, "great mischiefs and inconveniences have arisen"—it was within the jurisdiction of the legislature to enact it; that is to say, so far as the matter related to marriage in the light of a civil contract; but when it makes the marriage null and void to all intents and purposes whatsoever, so as to release the parties from the bond of marriage, with respect to each other in the sight of God (for nothing less can be understood by those words) it puts asunder those whom God hath joined together, and amounts to a repeal of the law and ordinance of the Most High; for, by this act, parties who are actually married in the sight of God, and in their own consciences, are set free from each other—the man may abandon his wife, the wife leave her husband, and marry another man. Let not the husband put away his wife, 1 Cor. vii. 11.—and Let not the wife depart from her husband, but and if he depart, let her remain unmarried, ver. 10, 11.—have now no place, where the institution of God is only concerned; for it is not the ordinance of God, but complying with the terms of an act of parliament, which makes a marriage, and which said terms are not one of them found in the Bible as constituting marriage in the sight of God. If after the words "such marriage shall be null and void," there had been added, "as touching and concerning such or such civil rights, privileges, or immunities, given to married persons by any law, statute, or custom of this realm," this might have fallen within the line of human jurisdiction; but to affect the divine institution itself, so as to make that null and void which God hath ratified by saying—they shall be one flesh, is a sacrilegious attempt to repeal the law of Heaven, just as much so as interfering with any other ordinance of God, as to its validity, unless administered according to act of parliament.
The Popes of Rome have made very free with the laws of God, even to the striking the second commandment out of the Decalogue, because it bore a little too hard on the idolatry of the church of Rome; but instead of one, we have struck out many of God's commandments—viz. Gen. ii. 24. Exod. xxii. 16. Deut. xxii. 28, 29. because clandestine marriages bore hard upon the pride and ambition of the nobility and gentry.———But to return to the main point—
To illustrate what has been said on the subject of intermeddling with God's ordinances, let us suppose a case—Baptism is a divine ordinance, ordained, both as to the sign and thing signified, by Christ according to the prophecies of the Old Testament. The words by which this ordinance was set forth, are to be found Matt. xxviii. 29. Go ye therefore, and teach all nations, baptizing them in the name of the Father, and of the Son, and of the Holy Ghost. This is the whole ordinance of baptism, and our church rightly declares—Can. xxx.—that "when the minister, dipping the infant in water, or laying water upon the face of it, hath pronounced these words—I baptize thee in the name, &c. the infant is fully and perfectly baptized, so as the sign of the cross being afterwards used, doth nothing add to the perfection and virtue of baptism; nor, being omitted, doth detract any thing from the effect and substance of it."—Now let us suppose that ministers should scruple to use the sign of the cross in baptism, that this should grow so general, as almost to amount to an abolition of the ceremony; this being complained of to the higher powers, they enact a law for the restoration of it, in which is the following clause—"And be it further enacted by the authority aforesaid, that no persons who shall be baptized, not having the sign of the cross made upon their foreheads, shall be deemed or reckoned members of the Christian church, but such baptism shall be null and void to all intents and purposes whatsoever." Can any person, who has a true regard for the word and ordinances of God, maintain that such a law could in the least affect the state and condition of a person so baptized, before God, or that he would be, in the divine account, less a member of the Christian church because of such a law? Would it not be a sacrilegious attempt to alter God's own ordinance, and to make it subject to the law and will of man, and as such to be despised and abhorred by all the faithful?—Where then is the difference?—God is as express and determinate as to the one marriage ordinance, as to the one ordinance of baptism: therefore by no rule of sound reason can it be proved, that both are not equally out of the reach of human authority, so as that man can neither add to nor diminish from either, in the sight of God.
That human authority may order an outward marriage ceremony, or a public baptism, to be used or administered at such a given time or place, I do not dispute; nor do I doubt but those may be punished who transgress such order—but that such things can affect the validity of a divine institution, with respect to itself, must surely be denied by all who will allow God to have a sole exclusive jurisdiction and authority over His own appointed ordinances. When therefore God says that if a man lies with a virgin not betrothed, she shall be his wife, because he hath humbled her, he may not put her away all his days, which is but an explanatory way of saying—they shall be one flesh—an human law which adds—"provided such and such conditions be observed, as banns or licence, otherwise such marriage shall be null and void to all intents and purposes whatsoever (which is but an explanatory way of saying they shall not be one flesh") is as palpable a denial of God's institution, as to its validity, as can well be conceived; as also an absolute contempt of the words of Christ, in the conclusion which he draws from the divine declaration—What God hath joined together let not man put asunder. It would be a most absurd attempt, and what all the world besides would laugh at, if the parliament of Great Britain were to pass an act to alter the laws of France and Spain; but it is more absurd, and what we ought to grieve at, because it is wicked, when men enact laws which in their aim and tendency would alter or repeal the fixed, established, and immutable laws of heaven.
The solemnity of that sort of engagement which the scriptures call betrothing, insomuch that it was death to defile a betrothed virgin, was held in great veneration in the church of Israel; so was it amongst us antecedently to what is called the Marriage-act, 26 Geo. II.—our ecclesiastical courts would have compelled the solemnization of a marriage so contracted by verba de futuro or verba de præsenti (but more especially where it became a marriage de facto by carnal knowledge) in facie ecclesiæ: but all this is now set aside, and the most solemn contract that can be entered into between the parties, signifies just nothing at all; they may forsake each other just as they please, for it is enacted, that, "in no case whatsoever, shall any suit or proceeding be had in any ecclesiastical court in order to compel a celebration of any marriage in facie ecclesiæ, by reason of any contract of matrimony whatsoever, whether per verba de præsenti, or verba de futuro, any law or usage to the contrary notwithstanding." Here, we may say, is a coup de grace given to the small remains of female security which had been preserved in our laws; for now, let the contract be what it may, the injury arising from the breach of it ever so great, the consequences to the enticed virgin ever so horrible, it is out of her power even to aim at that justice which the law of God so positively commands to be done. This act of parliament, taken all together, amounts to a repeal and utter abolition of the law of God, almost in every point where marriage is concerned. First—as to betrothment, which I take to answer, in some measure at least, to what we call a contract per verba de futuro, as where the man says "I will take you to be my wife," and the woman says—"I will take you to be my husband." This was held so sacred by the ordinance of God, and persons thus contracted, were in God's account so bound to each other, that a defilement of the betrothed woman was reckoned the defilement of a man's wife. Deut. xxii. 23, 24. Nor could such a woman contract marriage with any other man—Exod. xxii. 16. Deut. xxii. 28.—of course the man who had betrothed the woman was bound, and therefore compellable by the law, to carry such a contract into execution. On this principle our ecclesiastical courts proceeded, till the parliament tied up their hands, and took the business of marriage into their own, any law (either of God or man) or usage to the contrary notwithstanding.
Espousal—I take to answer, in some degree, to our contract per verba de præsenti, as when the man says to the woman—"I do take thee to be my wife," and the woman says—"I do take thee to be my husband."—If the betrothment by words in the future tense amounted in God's sight to so solemn and binding a contract, a contract arising from words in the present tense, must, if possible, be more so; for this is the other contract so far executed—therefore, a fortiori, the ecclesiastical courts would compel the parties to a public recognition of this contract in the face of the church; but this is also set aside, and made null and void to all intents and purposes whatsoever.
But farther—marriage itself, which, according to the Bible, is the consummation of the whole by carnal knowledge, which makes the parties in the sight of God, and by His positive command, one flesh, even this signifies no more than the others—our ecclesiastical courts heretofore called this by its right name, a marriage de facto—or in fact—and so they well might; for it is the only ordinance of marriage which God ever revealed:—where this happened, divorce or putting away was forbidden—A man shall forsake father and mother, and cleave to his wife, and they shall be one flesh—What therefore God hath joined together, let not man put asunder. But we may say of all these bonds, as was said of the seven green withs wherewith Samson was bound—Judges xvi. 8, 9.—that as a thread of tow is broken when it toucheth the fire, so were they broken.
If these matters above mentioned were overlooked, or not sufficiently considered, at the time of the passing of the act, it is highly proper that they should now be considered, and the act repealed, at least be materially altered from its present state of direct opposition to the word and will of God.
How the law stood before the passing this act of parliament, may be gathered from the following short case, 2 Salk. 438, and cited by Dr. Burn, Eccl. Law, Tit. Marriage, p. 30. Wigmore's case. Holt, Ch. J. said—"By the canon law, a contract per verba de præsenti is a marriage—so is a contract per verba de futuro, if the contract be executed, and he take her; this is a marriage, and they cannot punish for fornication, but only for not solemnizing the marriage according to the forms prescribed by law, but not so as to declare the marriage void."
We have several statutes against clandestine marriages; as 6 and 7 Will. III. c. 6; 7 and 8 Will. III. c. 35; 10 Ann, c. 19; also ecclesiastical laws, as Can. 62, 63; but no law till 26 Geo. II. ever presumed to vacate the contract between the parties, or to declare the marriage null and void to all intents and purposes whatsoever, even though the ceremony itself was not red, as in Wigmore's case; where, though the husband had a licence from the bishop to marry, yet Wigmore, being an Anabaptist, married the woman according to the forms of his own religion.
I cannot think of the marriage-act, as it is called—though it may more properly be styled the anti-marriage-act—without recollecting Horace's
Nil mortalibus arduum est
Cælum ipsum petimus stultitiâ.
No work too high for man's audacious pride,
Our folly would attempt the skies.
To the case above mentioned, I will add a transcript from Dr. Burn, Eccl. Law, tit. Marriage, p. 17. that the reader may be still farther convinced of our departure from that reverence towards the divine law, which our ecclesiastical courts once had it in their power to shew—"Heretofore, if any having contracted matrimony de præsenti, and being convented before the ecclesiastical judge, did refuse to execute the sentence given by him to celebrate the matrimony accordingly; after lawful admonition given in that behalf, he or she so refusing might for their contumacy therein be excommunicated, and be imprisoned on a writ de excommunicato capiendo, until he or she did submit to obey the monition of the ordinary in that behalf.
"But as for persons who had contracted spousals de futuro, if either of them did refuse to perform their promise, the judge was not to proceed to the significavit into chancery for an excommunicato capiendo, but rather to absolve that cursed party which contemned the censures of the church, albeit there be no cause of favour, but for fear of further mischief, by compelling them to go together which did hate one another: yet was not this froward party to be thus dismissed, but was to suffer penance for the breach of his promise: nor was he or she to be dismissed or absolved, if those spousals de futuro, by reason of carnal knowledge, or some other act equivalent, did become matrimony; for in that case, as in the former, where spousals were contracted de præsenti, the disobedient party was to be excommunicated, apprehended, and imprisoned, and not to be absolved or released before satisfaction, or death, or other just cause of divorce.
"But now, by 26 Geo. II. c. 33. no suit or proceeding shall be had in any ecclesiastical court, in order to compel a celebration of any marriage in facie ecclesiae, whether per verba de præsenti, or per verba de futuro, which shall be entered into after March 25, 1754."
Such was the law—such is the law—now as contrary to the law of God, as it was once conformable to it; for as far as the ecclesiastical courts went, they acted conformably to the divine law: but they did not proceed, unless there appeared some contract per verba de futuro, or per verba de præsenti; whereas God's law, more extensively calculated to preserve the female sex from seduction and ruin, determined the carnal knowledge of a virgin, in all cases, to "amount to matrimony," where she was not betrothed to another, and compelled the public recognition of it, by the only means whereby, in those days, such recognition seems to have been made, that is to say, by the payment of the מהר or dowry into the hands of the father, (see Exod. xxii. 17. Deut. xxii. 29.) most probably in the presence of witnesses; which seems to have been the case in all public transactions among the Jews. See Ruth iv. 9, 10, 11. Is. viii. 2. Jer. xxxii. 10, 12, 25, 44.
So that though betrothing or espousals might, and in most cases, as among us, did, go before marriage, and create a solemn contract between the parties; yet where this was not the case, the man's taking possession of the woman's person, though he had never seen her before that instant, created the indissoluble bond of marriage between them in the sight of God; as appears, Deut. xxii. 28, 29. The reason there given is, because he had humbled her. Whereas we mistake the betrothment or espousals for the marriage itself, and suppose, that where these are not, there marriage is not: but the contrary appears in the passage of Deuteronomy above cited. In the very nature of things it must be so, otherwise a lesser contract by words is of higher validity than a greater by deed, and the promise of the woman's person more binding than the actual possession of it; which, tho' a solecism chargeable on human systems relating to marriage, cannot be chargeable on those which are the contrivances of infinite wisdom. The more we examine the former; the more shall we discover of the leaven of the Pharisees, who made the word of God of none effect through their traditions.—The more we examine the law of God, the more shall be apprized of its harmony and consistency with itself, as well as with the peace, good order, and welfare of human society; more especially with regard to its care and watchfulness over those who stand most in need of its protection, the weaker sex, which, as matters are now ordered, seem of less value than the beasts of the field.—If a man goes into his neighbour's field, and wilfully maims or wounds his cattle, it is felony without benefit of clergy; but to seduce, and debauch his daughter, and then to look upon himself as free from all legal obligation to marry her, is the grand privilege which he finds annexed to our repeal of the laws of Heaven. As for the sufferer, if she be poor, so that her maintenance depends upon her character, this being gone, she must starve for want of employment, or plunge herself into the depths of prostitution to get food and raiment.
With regard to the business of clandestine marriages, how far they are or are not "mischievous or inconvenient to the kingdom," may admit of much doubt; much may be said on both sides of the question: but I cannot help thinking with the learned Judge Blackstone, who thus expresses himself on the subject, vol. i. 438. Quar. Edit.—"Restraints upon marriages, especially among the lower class, are evidently detrimental to the public, by hindering the increase of people; and to religion and morality, by encouraging licentiousness and debauchery among the single of both sexes, and thereby destroying one end of society and government, which is—concubitu prohibere vago."—It is beside my purpose to enter deeply into the consideration of this law in a temporal view; but it hardly can be supposed to increase marriage, unless in the parish-registers, by many persons marrying in the parish churches and chapels, because they cannot marry elsewhere. Doubtless numbers there are who would have married elsewhere, but now never marry at all, because their peculiar circumstances or situations may be such, as to prevent their compliance with the terms of the act; many of whom are most probably hurried by their passions into something worse than a clandestine marriage.
That ingenious foreigner Mr. de Lolme, in his Examen Philosophique des loix relatives aux marriage, ch. 4. and 5, proves, that "every obstacle to marriage is a vice in government, and an injury to the rights of citizens." Under this head he shews, that the "English act of parliament of 1753, is contrary to the law of nature," and explains the reasons of that truly Patrician act.
The passing such a law as this, in a maritime and commercial island, whose external strength, by which it can annoy its numerous enemies, and whose internal strength, by which it is to defend itself against their invasions, must depend on the numbers of its people, is surely a capital solecism in our political system. The wiser Heathens took every measure they could, to discourage celibacy, to promote marriage, and, of course, to increase the numbers of their people. Plato lays it down, that in a well-ordered republic, the first consideration should be to make laws for the promotion of marriage, that every one should marry, not merely to please himself, but as a benefit to the public; therefore he would have every unmarried man punished annually by a fine of so many drachmæ, and some mark of infamy, who lived to thirty years of age without marrying. De LL. lib, vi. Lycurgus, the Spartan lawgiver, would not admit unmarried men to the public games, spectacles, and feasts. Plut. in Lycurg. and an action was given against those who did not marry at all, or too late to have children. Among the Romans, they were liable to a mark of ignominy or disgrace set on them by the Censors. Val. Max. lib. ii. c. 9. Augustus rejected the testament of a man who died under a state of celibacy. Ib. lib. vii. c. 7. On the other hand, married men (especially those who had children) had many privileges—they were exempted from being sent on embassies, and had the first voice in all public decrees or sentences. In any canvassing or making interest for magistracy, or any other office, the number of children which a man had, was considered as a very prevalent recommendation. Appian, lib. ii. de Bell. Civ. In all the public theatres, they were seated in an honourable place. Suet. Augustus was for their receiving presents every year. They were exempt among the Spartans from keeping watch, if they had three children; if five, from all public offices whatsoever. Herod. l. iii. The like privileges were among the Romans with respect to the tutelæ and curatelæ—wardships and guardianships—from the burden of which a man was exempted at Rome, if he had three children—in any other part of Italy, if he had four—and in all the provinces, if he had five. Instit. lib. i. tit. 25. Athenæus speaks of a festival, at which the women laid hold of all the old batchelors they could find, and dragged them round an altar, beating them with their fists.
Many more instances might be mentioned, to shew what all wise states have thought on the subject of marriage; that it was the means of enriching them with people, and therefore all encouragement was given to it: whereas we have, by act of parliament, narrowed, in many instances, its bounds within the circle of family pride, and personal avarice; and in order to this, have laid difficulties in its way which are insuperable to thousands, who might otherwise have contributed their portion of increase to the public riches.
I have elsewhere mentioned the late Duke of Bedford's motion for a repeal of the marriage-act—His Grace spake near three hours upon the subject, and in the course of his speech expatiated much on the preference which is given to private inclination, humour, pride, and caprice, beyond public utility—"The riches of this, as of every country," said he, "are the people.—The grand object, which we are to consider, is this—the law in question, by being restrictive of marriage, must in course be restrictive of population. What is the consideration of this or that individual, where the welfare of the public, which is chiefly promoted by the increase of the people, is at stake? I have a daughter" (meaning the present amiable Dutchess of Marlborough) "who is deservedly my delight; any misfortune which could happen to her by an imprudent or unsuitable marriage, would be a most sensible affliction to me; but," said the noble patriot, "what is this to the public? What is it to the public whom she may marry—or whom any body's daughter or son may marry? Population is the grand point to be considered with respect to the public; therefore an Act, which makes public utility subservient to the mere consideration of preventing here and there a private inconvenience, is an impolitic, an injurious, a mischievous law; it ought never to have been made, it ought now to be repealed."
This is pretty near the substance of what was reported to me to have been the conclusion of his Grace's speech on the occasion. However, his motion was lost by one single voice. He said, that "he should make it again the next year"—but, before that time, he went out of administration, and he dropped his intention, as perhaps having little hope of succeeding as a private Lord in opposition, after having failed while in public office.
Whatever may be the supposed ill consequences of clandestine marriages, however "mischievous or inconvenient to the kingdom" they may, in some instances, have been found, yet no mischief or inconvenience could possibly arise from them, which might not have been obviated without intrenching on God's prerogative, without attacking the validity of His holy ordinances. The sixty-second canon prohibits "ministers from solemnizing matrimony without licence or banns, or at any other times than between eight and twelve in the forenoon"—the breach of this canon is attended with the "suspension of the offending minister for three years ipso facto," but it does not offer to affect the validity of the contract between the parties. The 6th and 7th of W. III. c. 6. ordains a penalty on the minister for marrying without licence or banns, of one hundred pounds, and for the second offence to be suspended, ab officio et beneficio, for three years. By the 7th and 8th of W. III. c. 35. the penalty of one hundred pounds is extended to every offence of the minister, likewise ten pounds is laid on every man who is married without banns or licence. The 10th of Anne, c. 19. has a clause to prevent clandestine marriages, and lays one hundred pounds on the minister—and if such marriage be solemnized in any gaol, by any minister who is a prisoner there, one hundred pounds upon him, and one hundred pounds upon the gaoler suffering the marriage to be solemnized in the prison without banns or licence.—These were revenue acts, and only attacked clandestine marriages with a view to the duties payable on licences; but still they keep clear of calling in question the validity of the marriage, wheresoever or howsoever solemnized. This was reserved for the 26th of Geo. II. c. 33. which, as has been observed, is levelled at the validity of the ordinance itself, if not administered as therein required. To prevent clandestine marriages by punishing the minister, either by pecuniary or even corporal punishment, or to lay a fine on the parties so married, would not have exceeded the authority of the legislature, any more than by interfering in any other matter of outward order and decency; but when they declare—such marriage null and void to all intents and purposes whatsoever, so as utterly to dissolve the contract between the parties, they interfere with God's own immediate ordinance, which mortals have no right to do. Human legislators may have power over ecclesiastical persons, to provide that they discharge their office, but have no power themselves to interfere in holy things. When King Hezekiah began the reformation of the Jewish church, and brought in the priests and Levites, and gathered them together, and gave them order to execute their office, he did lawfully and rightly. But when King Uzziah himself attempted to burn incense before the Lord, thus interfering with the appointed ordinance of God, which made it only lawful for the priests the sons of Aaron to burn incense, he did wrong, he exceeded his own authority, and usurped the authority of God, and God struck him with leprosy to the day of his death. Comp. 2 Chr. xxix. 4, 5. with 2 Chr. xxvi. 16, &c.
If the parliament were to lay a duty upon the register of every baptism, and, in order to secure it, were to lay a penalty on every minister registering a baptism on unstamped parchment, they would have authority so to do; but if they went on, and said, that "all baptism so registered should be null and void to all intents and purposes whatsoever, so that children so registered should be no members of the Christian church," such a law would be as absurd and shocking as the marriage-act is, but not at all a greater insult upon the divine ordinance of baptism, than this is upon the divine ordinance of marriage.
So with regard to the Lord's supper, if an act was made that for greater decency and order in the administration thereof, the minister should give notice on the Sunday before, upon a penalty of £. 5 for every omission; no doubt the parliament might make such a law; but if the act went on and said, that "where any persons shall receive the sacrament from the hands of any minister who hath neglected to give such notice aforesaid, such receiving shall be null and void to all intents and purposes whatsoever; and no benefit accrue to the receivers thereby"—how would such a law as this be distinguishable, in point of folly and impiety, from the act which we have been considering? No distinction in these respects can be fairly made, till it can be proved, that the sacrament of the Lord's supper is an appointed ordinance of God, but that the ordinance of marriage is not. In the mean time, I must profess my faith to be, that the parliament of Great Britain had no more a right to pass the marriage-act, in its present form, than it had to pass an act to repeal the ten commandments.
I don't mean, by any thing I have said, to put ministers, in the business of solemnizing marriages, on the same footing with priests under the law of Moses, with regard to the ceremonial ordinances; these last were ordained and appointed of God to those services, which shadowed forth good things to come; but it does not appear, that either the priests under the Old Testament, or the apostles or other ministers under the New Testament, were ever employed in marrying people (as it is called) or had any thing to do in the matter. Marriage was appointed, and its essentials settled, before there was a priest, or church, or ceremony so much as mentioned, wherefore nothing of this kind can be wanting to its completeness and perfection in the sight of God. The interference of priests, and the appointment of a set form of words to be read over the parties by that priest, are purely of human, and comparatively (as I shall shew in the sequel) of modern invention, therefore can have no more effect upon the divine ordinance itself, as between God and the parties, than the other human inventions of services for the burial of the dead, and the administration of the sacraments, can have upon the state of the dead, or on the validity of the sacraments, to those who receive them: if it were otherwise, the efficacy of God's ordinances no longer depend on His appointment, but on the will of man. A Papist may be brought to believe that the validity of the sacrament depends on the intention of the priest; but to believe this, is not a greater error, than to believe that any ordinance of God whatsoever depends on any thing else, as to its validity and efficacy, but the mind and will of God as revealed in His word:—If He has said they shall be one flesh—it is not for man to say they shall not—if He has thus joined them together, it is not for man to put them asunder.
Now, to apply what has been said to the subject of this chapter, it will be necessary for us to keep the ideas of marriage, as it is a divine ordinance with respect to God, and as it is a civil contract with respect to the public, distinct in our minds. It is the first only which constitutes the indissoluble union in God's sight, but it is the second which recognizes and ratifies that union in the sight of the world; and this is a sort of security which (as so much depends upon it with respect to society) the world has a right to require, consequently to exact, and those who wilfully refuse to give it, deserve to lose every privilege and benefit which are annexed to it. Were the consciences of men what they ought to be, the fear and love of God would reign within them, and a strict observance of His commandments be the measure and rule of all their dealings towards God and each other. But in this corrupt state of things this is not the case, therefore human laws are necessary to enforce the divine law, in no instance, perhaps, more necessary than in the case before us. If no contract of a public nature was insisted upon, but all left to the private agreements and determinations between the parties, men might take women, and women men, and keep or put one another away as humour or fancy suited;—the woman who was the wife of A. today, might become the wife of B. to-morrow; in short, it is impossible to conceive, much more so to express, the confusion which must ensue on such a plan. Therefore, when human laws are made to exact a public contract between the parties in the face of the world, which contract cannot be broken nor dissolved but for the one cause which God's word allows, such laws are in affirmance of the law of God, and therefore are righteous laws; and, as such, ought to be obeyed; nor have any persons a right to that respect, and to those privileges, which are due to married persons, who despise such an ordinance of man as creates a civil contract in the sight of the world, by way of recognition of that private contract which they have entered into between themselves in the sight of God. Those who wilfully live together, as man and wife, without this, are deservedly reckoned infamous, and as deservedly cut off from the benefits of marriage, so far as civil society is concerned: therefore to discourage, and even to punish such a conduct, is certainly within the authority of all civil government, nor would any government be justified in not doing it, for without this, men and women would be living like the beasts of the field. No fault is therefore to be found with our laws for enforcing the public recognition of God's ordinance, but for not enforcing it in all cases, and for making it null and void in any, where God's law hath not made it so. Instead of shutting up the ecclesiastical courts against the complaints of deserted females, or preventing their enforcement of that redress which God's law commands, every court in Westminster Hall, and every magistrate's house in the kingdom should be open to them, and on pain of death, or at least of perpetual imprisonment till compliance, every man who had seduced a woman, whether with or without a promise of marriage, should be obliged to wed her publicly. Under what rite or ceremony this is done, is of very little consequence, so that it be effectual for the notoriety of the contract, and the prevention of causeless divorce. That which makes the marriage before God is the same every where, that which recognizes it in the sight of men, is, and may be different, but all tending to one point, that of affording to the state, as well as to the parties themselves, such a security for their cohabitation, as is necessary for the peace, good order, and welfare of the whole. Something like what Q. Curtius reports Alexander to have said when he cut the famous Gordian knot, I would say on the tying the nuptial knot, as far as public ceremony is concerned—so it be done, no matter how. The interference of priests, and the service which is red over the married couple, are purely of human invention, no such thing appears in the scripture, and therefore, though both subject to human controul, yet neither being of divine appointment, can have any effect on that which is, so as to add to it, or diminish from it in the sight of God. As I shall have something very particular to observe on this subject under the head of superstition, I shall say no more upon it in this place, than that all attempts to alter, change, or make void a divine institution, as to its force, power, and efficacy, with respect to itself, before God, are so far from being binding on the consciences of men, that they ought to be abhorred. The only matter in which the 26 Geo. II. c. 33. seems to be deficient, is; that it does not more plainly express its meaning and tendency, and after the words—"such marriage shall be null and void to all intents and purposes whatsoever," it does not add any thing in the scripture to the contrary notwithstanding"—it all but says this in the clause about precontracts, and it must quite mean this, for the act to have its full force and effect.
Still the divine law is one and the same, still therefore ought it to commend itself to every man's conscience in the sight of God. 2 Cor. iv. 2. and this upon its own authority.—If, therefore, human laws have put marriage, as to itself, on a different footing than it stands upon in God's word; if impediments to marriage have been raised up by human contrivance, which are not to be found in that word; in these, and the like instances, human legislature exceeds its authority.
When a man, having one wife, takes another to her, the ecclesiastical courts pronounce such second marriage null and void—our courts of criminal judicature pronounce him a felon—but if God's word be the criterion of right and wrong, our laws have no more authority to say that a man shall not have two wives, than the Popish laws have to say that a priest shall not have one, neither have our ecclesiastical courts any more authority to divorce such second woman from the man who has married her, than the Pharisees had to put away a wife for every cause; for no such cause of divorce is to be found in God's word. Such a thing would never have been thought of, had the Bible maintained its due weight in the church—then had not men dared to have made matters of divine institution subject to their caprice—changeable with their fancies, as if the fixed and unalterable will of God was as variable as their own. To set this matter in its true light, let us reflect a little on the changes which have been made, touching God's institutions in this country—31 Hen. VIII. c. 14. makes a priest that marries, as also his wife, felons; and so even to affirm that a priest might marry by the law of God, with death and forfeiture of estate.—5 and 6 of Ed. VI. c. 12. repeals all this, and declares it "as lawful for priests as for all other Christian men, to marry." See Art. Ch. of Eng. 32. These two contrary propositions were determined with equal solemnity by the two above-mentioned kings, by and with the advice of their several parliaments, and this all within the space of thirteen years. Then came Queen Mary, in 1553, and priests could not marry—In 1558 the embargo was once more taken off, on Queen Elizabeth's accession, and then priests might lawfully marry. See Ratification of the 39 Articles of Religion.
So with regard to the sacrament of the Lord's supper—to deny the doctrine of transubstantiation, was heresy; for which the offender was to "be burnt to death, and forfeit as in cases of high treason." This was law and sound divinity in 1539, 31 Hen. VIII. c. 14; but in the year 1547, 1 Ed. VI. all was repealed and set aside. In 1553 Queen Mary came to the crown, and all revived again; hundreds were burnt alive—but in 1562, 5 Eliz. this monstrous doctrine (with the laws which taught and supported it) was abolished, and declared to be "unproveable by holy writ—repugnant to the plain words of scripture—to overthrow the nature of a sacrament—and to have given occasion to many superstitions." See Art 28. of the Ch. of Eng. Amidst these strange, confused contradictory systems of religious opinion, what part may we suppose to have been taken by the great and unchangeable Jehovah? shall we imagine Him such an one as ourselves? that he was of one mind in the reign of Hen. VIII.—of another in the reign of Ed. VI.—that he changed again at the accession of Queen Mary, and veered about again in the reign of Queen Elizabeth. Absurd as such questions may appear, they are not more so than to imagine His mind and will can change on one subject more than on another. To affirm, therefore, that His will can change touching the institution of marriage, either with respect to the thing itself—the impediments against it—or cause of divorcement from it; that these were one thing in the days of Moses—another in the days of Jesus Christ, and as many others as the fancies of men chose to make them, in the several periods of the Christian church, just as Papists or Protestants happened to be uppermost, and to get the legislative power into their hands; and especially since the invention of marriage-ceremonies to be performed by priests,—must involve the affirmant in difficulties from which he can never extricate himself, but by totally renouncing so unscriptural, so senseless an hypothesis, and allowing that marriage, as in God's sight, in all the respects above mentioned, stands on the same foundation as ever—the word of God. Dryden says somewhere—"God never meant His works for man to mend." This is doubtless as true of His law as it is of his other works; concerning this we may also say—He spake, and it was done, He commanded, and it stood fast. The rejection and contempt of this law, are the causes of numberless evils, which it was revealed and established to prevent in that most important business the commerce of the sexes.—Adultery, or the defilement of a betrothed or married woman, is, by God's law, a capital offence, to be punished with the death of both the parties; but being no crime at all in the eye of our penal statutes, it stalks abroad as it were at noon-day, fearless and careless, and seems now to be a fashionable method of a wife's getting rid of her husband, that she may marry her gallant.
Men being under no obligation by our law, as by God's law, to marry virgins they seduce—and if married men, being under a legal disability so to do—turn these deluded and helpless females out upon the wide world, either to starve, or to support a wretched existence by prostitution. God's law positively says, that every man, be his situation what it may, shall protect the virgin he seduces—that he never shall put her away all his days. So that (as in the case of adultery) we do not punish, as a public offence, what God condemns—and we do punish, in other cases, what God commands; for if the married man who seduced a virgin, &c. was to marry her, he would (but for the benefit of the clergy) be hanged for his pains. We may laugh at the absurdities of Popery, and condemn those tenets of the church of Rome which gave birth to the 31 Hen. VIII. c. 14. wherein a priest's living with a wife is made worse than keeping a concubine, the first being made felony in the first instance, the other not till a second; we may reproach such monstrous opinions with every term which can express abhorrence and detestation; but are our laws less absurd, less contradictory to every principle of the divine law?—We make laws to hang a man for having two wives of his own—let him only debauch an hundred wives of other people, and he's safe from all criminal prosecution! We also determine that if a man hath two wives, he is a capital offender; but let him debauch and ruin an hundred virgins, or keep a dozen concubines—he shall be free!
I will not say "Risum teneatis?"—but rather—"Quis talia fando temperet a lachrymis?"———
These things, and others which might be observed on these subjects, may serve to shew how far superstition hath supplanted the religion of the Bible, and the traditions of men the commandments of God. What makes matters even still worse, is, that the authority of Christ is pleaded for much of this. He who came to fulfil the law, is represented as an innovator and destroyer of it. His apostles are called in as His coadjutors:—though, when we hear them speak for themselves, they utterly disavow the charge—"I came not to destroy the law," saith Christ—and saith St. Paul, in his own name, and in those of his fellow-labourers—Do we destroy the law through faith? God forbid!—Yea—we establish the law.—Was such the language of all our municipal laws, it would be happy for the world, as the torrent of lust, profligacy, and cruelty, could no longer ravage far and wide, and spread its desolation over thousands and tens of thousands of deluded and forsaken females, and, by their means, over the young and thoughtless of the other sex. Then might we hope that the pure truth of God might find its way back to the now dark regions of Asia, which, till then, is humanly speaking, impossible; and the followers of Mahomet would no longer have it in their power (like Cerinthus) to charge the God of the Christians "with opposing the God of the Jews."—Even China itself might listen to the truth, when unadulterated with human inventions, unsophisticated with pious lyes. Whereas they may now say to us, as Christ said to the Pharisees—Ye have made the commandment of God void by your traditions. Matt. xv. 6. Ye teach for doctrines the commandments of men. Mark vii. 7.
I do not mean by this, that any missionary would be justified in allowing the laws of the seraglio, or of the haram, as agreeable to the law of God. Buying women as slaves, and shutting them up as prisoners, forcing them against their inclinations, and detaining them against their consent, under bolts and bars—the mutilating men, and making them eunuchs, that they may be guards and centinels over these unhappy women, is all monstrously inhuman, wicked, and abominable, and so ought to be represented. It is so far from having a single ingredient in it of the true idea of the holy ordinance of marriage, that it is no other than a most horrid scheme of rape and debauchery, and these multiplied according to the number of those wretched females who become the hapless victims of the pride, lust, and tyranny of their oppressors.
Where each fair neck the yoke of slavery galls,
Clos'd in a proud Seraglio's gloomy walls;
And taught, that levell'd with the brutal kind,
Nor sense, nor souls, to women are assign'd.
Duncombe—Feminiad, p. 8.
Was the truth of God received, did real affection unite the parties, the prison-doors would be thrown open, the unhappy guards dismissed, and numbers bless the day, when choice established the union, when faithfulness was secured by affection, and all seduction and dereliction prevented by the guardianship of the divine law. On the other hand, were a missionary to go into those countries where polygamy is allowed, and open his commission with declaring, that—"though polygamy was allowed under the law, yet Christ forbad it under the gospel"—he would go with a lye in his right hand. Is. xliv. 20. He would have nothing to do but to take the plan of the marriage-act in his left, and tell the people, that "unless banns were published in the mosque, or ten zinger lees were given to the Musti, or some lesser sum to the chief Imams for a licence, and unless the ceremony be performed in such a particular place, the marriage is void to all intents and purposes whatsoever, the positive institution of God to the contrary notwithstanding." This would make the lye complete, and probably procure the missionary, what he would richly deserve, an hearty bastinado for his pains. That any rational beings can be brought to believe such absurdities in any part of the globe, is one sad proof of the ascendency which superstition has over the minds of men, and of the small pains which in general are taken by them to inform themselves in matters of the highest consequence; of which I shall next proceed to treat, in the following chapter.
I will only observe here, however strange it may seem, that our notions relative to the commerce of the sexes, are by far more friendly to polygyny, than the Turkish system of polygamy is. A Turk may take one or more wives; but then they are kept in his haram as his inviolable property—no eye of a stranger can ever behold them, and they are maintained and provided for, as liberally as the man's circumstances will permit. Whereas, among us, a man may take as many women as he can seduce, and abandon them whenever he pleases; they can claim no property in him, nor he in them; he turns them upon the common, either to starve with hunger, or rot by prostitution.—That this is against the law of God, is very clear; but there is nothing in our law which can either prevent or remedy it. Had we, at the Reformation, adopted the law from Mount Sinai, instead of that from the council of Trent, relative to marriage, such things could not exist.
With regard to the depredations which are made on married women, how may the Mahomedans shame us! So sacred are women in India, that, even in the midst of slaughter and devastation, the common soldier leaves them unmolested; the haram is a sanctuary against all the licentiousness of victory; and ruffians, covered with the blood of an husband, shrink back, with veneration, from the secret apartment of his wives. But this is not confined to India. At Constantinople, when the Sultan sends an order to strangle a state criminal, and to seize on his effects, the ruffians who execute it enter not into the haram, nor touch any thing belonging to the women. See Alexander, Hist. of Wom. p. 191.
In short, we may boast of our monogamy, and condemn polygamy—but there is not a nation under heaven, where polygyny is more openly practised, than in this Christian country; for though a man can marry but one at a time, he may have as great a variety of women as he pleases, without ever marrying at all. This is so inveterated by custom, that those laws of Heaven which were made to prevent it, seem to be totally forgotten.
However this Christian land may suffer by such comparisons as have been made above, yet I cannot refrain from carrying them still further. The just detestation and abhorrence with which we look on a Turkish Seraglio, and all the appendages relative to the management of it, ought still to increase, when carried to a survey of our Seraglios in England; I mean our public brothels; where are to be found numbers of young, beautiful, and once modest and innocent females, who have been seduced and deserted, and are now driven into the horrid necessity of common prostitution to keep them from starving. The doors of these houses of infamy are open to every comer, the women the temporary property of every visitor—filthiness and obscenity defile their conversation, and the most abandoned profligacy attends their actions:———these houses are accommodated to men of all ranks and degrees, from the highest to the lowest; and, lest the plan of lewdness should suffer by being narrowed within the boundaries of walls, every public street, after a certain time of night, exhibits a kind of itinerant Seraglio, where men are saved the trouble of going out of their way; they are met by numbers of women, whose language and behaviour are too shockingly indecent to mention, and who seem so far to have obliterated every trace of female delicacy, as to retain nothing which can bespeak them to be women, but their mere shape.
Let us, from these scenes of horror, turn bur eyes to the wards of a public hospital, to which the harpies are consigned by the force of a disease, which, after having communicated to numbers of men, threatens their own destruction. Here may be seen, female ruin in its last stage of ignominy and misery. The bloom of youth, the gracefulness of form, the beauty of features, are fled and gone; and the whole frame dissolving into corruption, rottenness, and dust. The mind, equally contaminated with the body, exhibits a hideous mixture of remorse, ignorance, guilt, stupidity, hardness, and despair.
What can the Grand Seignior's Seraglio, or the Haram of a Turkish Bassa exhibit, equally horrible, equally disgraceful (not only to all good policy and government, but even to human nature itself) with these scenes, which are the objects of common observation in this Christian country?
When it is considered, that, all this arises from a system of total irresponsibility of the seducer to the woman he seduces, it is reduced to a very simple principle, and the simplicity of the remedy speaks itself.
I will conclude this chapter with a summary of its contents, which are all reducible to one general rule.—God's ordinances, being of His own appointment, are solely under His own authority; so that men cannot change or alter them, either with respect to themselves as to the matter of them, or as to their operation, force, and effect. Marriage is an ordinance of God, of His own appointment, both with respect to the thing itself, and its operation, force, and effect, with respect to us—therefore, as to these, is solely under God's authority, and cannot be changed or altered by human laws. As the substance of the bread and wine in the Lord's supper, remained the same after consecration as before it, notwithstanding the bloody edict of Henry VIII. above mentioned; so marriage remains, as to the matter, force, effect, and obligation of it upon the parties, just the same in the sight of God now, as before 26 Geo. II. c. 33.
As no human law can change any ordinance of God, so neither can it change any truth of God.—I firmly believe, that the 39 articles of the church of England contain, in point of doctrine, the truth of God; but I do not believe this one jot the more because they are enacted by authority of parliament: nor should I believe it one jot the less, if the efforts of their Arian and Socinian adversaries were to succeed, and the parliament was to declare their obligation upon men's consciences, as well as the articles themselves, and all things contained therein—"null and void to all intents and purposes whatsoever; any law or usage to the contrary notwithstanding."
There is a statute which has been before mentioned, viz. 31 Hen. VIII. c. 14. which makes it felony, without benefit of clergy, to assert that the communion in both kinds is necessary to the laity, or ought to be administered or received—but this law could have no effect upon the nature of the ordinance as in God's sight.—So 1 Jac. c. II. makes a man a felon, and to suffer death, for having two wives together—but can this be proved to affect such a marriage, or to make it null and void or sinful in God's sight? The only way to prove that either of these laws are binding on men's consciences, is, to prove that they harmonize with God's truth as revealed in the scripture, otherwise one is just as much unauthorized as the other.
As to mere circumstantials, which respect outward order and deceney, as they are no part of the ordinances themselves, they may be under the appointment and controul of man. So when our Rubric says—that there shall be a table with a fair white linen cloth upon it," at the administration of the sacrament of the Lord's supper—and again, with respect to baptism—that "without great cause and necessity, the people shall be warned that they procure not their children to be baptized at home in their houses"—I see no sort of harm in all this; but if the act of parliament, which confirmed the Rubric, had gone on—"And be it enacted, that if the sacrament of the Lord's supper be administered without such fair white linen cloth upon the table, or baptism be administered in private houses, unless for such great cause and necessity aforesaid, such sacraments of the Lord's supper, and baptism, so administered, shall be utterly null and void to the receivers of the same, to all intents and purposes whatsoever"—this had been an attack upon the ordinances and truths of scripture—not a lawful and authorized statute. Let this reasoning be applied to the question of marriage, as it is a civil contract, and as such the object of human laws—and as it is a divine institution, and as such not the object of human laws—then it may easily be determined how far these ought to be binding on the consciences of men, where marriage is concerned.
References:
Uncharted Knowledge
Wisdom From Previous Realities
View as JSON for agents & LLMs