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modern marriage acts, with a canon, it is binding upon us as a vow or those acts could not be repealed with obligation taken upon ourselves as out getting the convocation previously Churchmen, shew us when and how to remove its canon. Happily it is the obligation was taken ; but before not necessary, therefore, to enter upon you talk about accepting with unthe question of the revival of con dissembled humility the word of God vocation. Whether that would be a as interpreted by the Church, you good or a bad thing, its advocates had better ask yourselves the plain may rest assured of this, that if a question, and try to give an honest convocation were summoned for the answer to it, whether, if a convocation despatch of business' to-morrow, it met now and made a canon propoundwould have no power to alter the ing some doctrine, about baptism, for law of marriage in the smallest par instance, which you do not happen ticular, as regards either the laity or to believe, you would accept it with the clergy. Indeed no such altera undissembled humility for the word tion is needed ; for as regards the of God as interpreted by the Church?' persons to be married, the 99th The truth is, that ninety-nine times canon, 'No person shall marry out of a hundred, when people prowithin the degrees,' &c. is already fess great respect for the opinion of only so much waste paper, for the any body, corporate or sole, what several reasons just now stated ; and they really mean is, that they have by a strange enough blunder, after a great respect for their own opinion making this law which they had no in the mouth of somebody else, whose power to make, they forgot to make name they think will add weight to one which they had power to make,
it. imposing penalties on any clergyman We have said nothing about the who celebrated such marriages; as they prohibition having the authority of did forcelebrating marriages of minors, the Prayer-book, by reason of the and that in such an unreasonable Tables of Degrees being inserted and unjust manner that the penalty therein. It appears to be necessary was afterwards repealed, -not by con to explain, for the information of those vocation but by parliament (26 Geo. who do not understand the difference II. c. 33), except in cases where the between the Book of Common clergyman offended wilfully. And Prayer and a common prayer-book, the general Marriage Act (4 Geo. IV. that though the table is frequently c. 76) renders the clergy liable to to be found in the latter, it is no part ecclesiasticul censures in various cases, of the former, as Sir Robert Inglis and exempts them from such censures, may see if he will only look at the as well as civil prosecutions, in other • Contents of this book' in the first cases. So little ground is there for Prayer-book he lays his hand upon. the notion that parliament could not
Whoever else may have power to meddle with the canons
make laws for the Church, there regards the clergy.
can be little doubt that the printers But it is said, the repeal of some or sellers of prayer - books have canons, the universal neglect of not; and theirs is the only auothers, the partial contradiction thority that exists for the insertion of one of them (the 68th) to the of the Table of Degrees in prayerPrayer-book, and the invalidity of all books. Not that we have the least of them, except as regards less than objection to anybody calling the proa thousandth part of the nation, are
hibition a law of the Church if he all of no consequence, because in this likes; provided he will remember 99th canon the Church pronounces that parliament, and not convocaan interpretation of the word of God, tion, made it in Henry the Eighth's which all Churchmen at least are reign, and repeated it in Edward the bound to accept as true. Without Sixth's, and unmade it in Mary's, entering into the question whether and remade it in Elizabeth's, and the canon contains, or professes to altered it in William the Fourth's contain, any such interpretation, the reign; and that the lawfulness of any answer we have to make to that given marriage is as much a matter argument is this. If the canon is of common-law cognizance as the binding upon us as a law, shew us settlement of a pauper or the conhow it acquired that authority. If viction of a thief.
But whatever may be the validity intimidated by such language as this. of these ecclesiastical objections as We have no doubt the clergy themagainst Churchmen, the most selves would be the first to cry out travagant High-churchman will not for the repeal of the clause which deny that they cannot be pleaded as they now propose, when they found against Dissenters; the majority of that it taught people the way into whom, the Commissioners say, are meeting-houses instead of the church, in favour of the repeal of the pro and that they themselves were conhibition. And as nobody could pre tinually deceived into celebrating vent Churchmen from acting as Dis pretended and good-for-nothing marsenters pro hâc vice, and getting riages between persons who had been married at · Salem Chapel' or the or intended to be married before the Registrar's Office, there is practically Registrar to make their marriage real an end of the ecclesiastical objections and valid. as any real impediment to the repeal Petitions on any subject have come of the law, even if they were defen to be regarded as evidence of little sible in theory; and they merely more than the activity of those who drop into the question whether some get them up; and we cannot be acclergymen should be allowed to pro cused of prejudice in saying so, besecute others in the ecclesiastical cause the majority of the petitioners courts for performing marriages last session was greatly in favour of which are in themselves lawful. For this bill. But we must remind those among the many unfounded assump who think this circumstance overtions made by the opponents of the balanced by the majority of the bill a very common one is, that clerical petitioners being on the other hardly any of the clergy will per side, that the clergy have taken the form the marriages when they are very way to deprive their petitions allowed to do so. Why, if every of any special value ; for instead of clergyman who has signed a petition confining them to the theological against the bill on any ground what objections, they have spread their net ever were to refuse, there would still as wide as possible to catch all kinds be such a number of non-recusants of objectors; and we know that at that nobody who wanted to marry some meetings of the clergy got up his wife's sister would have to go for the purpose (in the manner dethree miles from his own or his in scribed by the Bishop of London in tended wife's parish for the purpose. his speech on the Canonries' SuspenBut except the comparatively few sion Bill in 1840, a description which clergymen who do sincerely believe we hope he has not forgotten), the that these marriages are not merely theological grounds of objection inexpedient, but contrary to the law stated in the petitions were struck out; of God, it is most improbable that and except upon those grounds, of they will refuse to perform them course the objections of the clergy when they are made lawful, as they are worth no more than those of any could have no possible motive for body else. refusing We are fully aware that We now have only to consider they have been told, with no small those other grounds, which, notwithquantity of religious newspaper' vi standing the much greater quantity tuperation, of those who are igno that has been written on the theolorant' or 'perjured' enough to think gical part of the question, are really otherwise, that they will still be those which weigh with the great bound by their ordination vows not majority of those who express so to perform such marriages. But as much alarm at this bill. What these these writers have not thought fit to persons say is this: We think as produce a copy of the vow or obliga little as you do of the theological or tion which they refer to; and as the ecclesiastical objections to the repeal law of the Prayer - book is that of the law ; but though no doubt it all persons may be married who are cannot be defended on the ground on not forbidden by God's law or the which it was made, yet, as there are laws of this realm,' it is not very many persons of both sexes to whom probable that any clergyman who it is an advantage, we think they does not believe that the marriage ought not to be deprived of it'; is forbidden by God's law will be especially as it has existed for a long
time, and it will shock the prejudices As for this prohibition being for of many people to repeal it.' The the general good there is no prefirst answer we make to this argu tence for it, except upon the hypoment is, utterly to deny the pro thesis of the marriage being malum position that we have any right in se, and a national disgrace, which to restrict the liberty of one portion the objectors on social grounds do of the nation for the benefit, not of not allege or believe. And even an the nation at large, but of another objector on religious grounds, who portion ; unless, perhaps, the dispro does think it evil in itself, if he is a portion in numbers be very excessive, rational man, will take care that the a case which we have no need to measures he adopts for its prevention consider here. If such a doctrine is do not lead to some greater or more once admitted, there is no assignable certain evil; and if he finds they do limit to the tyranny of the majority he will abandon them, and leave this over the minority, or it may be of a as most other private sins not divery small minority over a very rectly injurious to society must be large majority, if they occupy the left, to the judgment of the Judge advantageous position of haviag only of all the earth. But we suppose no to say, ‘Not content,' in certain cir one will maintain that it is any cumstances of which many examples more beneficial to the nation at may be easily imagined. Such in large that a certain number of brofringements of liberty would be bad thers and sisters-in-law should be able enough if they affected only civil to live together unmarried than that rights, which are created by the laws another number should be able to of man; but they are infinitely worse marry and live together, supposing when they affect natural and moral (what we shall shew to be a comrights, which are determined by the plete delusion) that the possibility of laws of God. If such a restriction the former depended upon the proas this were proposed for the first hibition of the latter. time on the grounds on which it is But first let us see who they are now defended, it would be scouted as for whose supposed advantage this no more defensible than a proposal to improvement upon the divine law is prevent, not the brother-in-law, but to be maintained. They are, first, any body except the brother-in-law of course, the widowers who are defrom marrying a woman who could termined not to marry again, but live with him and take care of his wish to have their wives' sisters children ; which, after all, would be a living with them unmarried, - of much more rational and certain me whom the Bishop of London, by the thod of securing her services to her license of rhetorical arithmetic, prosister's family than the present one. nounced to be • fifty to one' of those And if such a proposal would not be who wished to marry their sisterstolerated as a new one, how is it pos in-law. We do not suppose that his sible to defend the law, which the lordship, after having read the Repersons we are now arguing with port signed by the Bishop of Lichadmit to have lost every ground on field and the Judge of his own Conwhich it was originally enacted ? It sistory Court, and the evidence on would be difficult enough to defend it which it is founded, would make any if it had been originally enacted on such assertion now. But as other that ground in times when every class persons seem inclined to go as near got all the laws it could made for its it as they can, let us ask any one to own benefit at the expense of any forget all that is contained in the body else. That doctrine, however, Report, and merely look around him though it is not likely to be ever at all the cases of widowers living banished from the secret desires of with their sisters-in-law within his men, is no longer openly avowed ; own knowledge, and say what proand he must be a bold man who portion of them are not either acnowadays undertakes to defend any tually living together as man and wife, restriction on the liberty of others or notoriously willing to do so if merely for his own advantage, and they could lawfully. And even this not for the general good, which we is not the right comparison to make need not say all laws for the protec if we wish really to know what protion of existing rights of property are. portion of the widowers — and, of
VOL. XLI. NO, CCXLI.
course, the corresponding sisters-in without paying duty should sponlaw-are really benefited by the ex taneously turn into cotton and cabisting law. For nobody can tell that bage - leaves.
But in the sense of a widower, who has married
any preventing what it is intended to other woman, would not have pre prevent the law is as ineffectual as if ferred marrying his sister-in-law if people persisted in using the smugit had been lawful; at any rate the gled silks and tobacco in spite of Bishop of London cannot say of him, their conversion by the operation of that his affections so linger over the this magical law. For we suppose grave of his deceased partner as to even those who only advocate the shut out altogether from his mind law upon social grounds will not thoughts of a future marriage. We deny that what it is intended to prebelieve that the above-mentioned vent is concubinage between brothers proportion of 50 to 1 would be a and sisters-in-law, and not merely good deal nearer the truth if it was marriage. And if it is found that it inverted.
does not prevent this, it obviously Now the whole argument in favour fails as much for social as it does for of the law enabling these persons to religious purposes. Indeed, as far live together is founded on two hy as the social objects of it are conpotheses: first, that it is the impos cerned, it does not signify the least sibility of their marrying lawfully whether the parties are justifiable or which enables them to live together not in a religious sense in so diswithout scandal ; and secondly, that regarding the law; for however unthe law is effectual for the purposes justifiable they may be in forming for which it was intended, —which such connexions, it must be rememwere, firstly, to prevent their falling bered that the whole of this social in love, for if to contract the marriage argument is founded upon the hypobe to commit incest, he who desires thesis that the law will deter people it has already committed incest in his from forming them or thinking of heart; and secondly, to prevent the them; and whether it does so or not completion of the desire or cohabita is a simple question of fact, not of tion without lawful marriage. The morals or religion. The witnesses in hypothesis that the law is effectual favour of the law admit the true for these purposes is manifestly un answer to that question as fully as true, because its falseness is the whole the witnesses on the other side proveit. cause of the present agitation, and of And if the law is ineffectual for the evils which the Commissioners these purposes, it is evident that it report. We know that whatever cannot be the law which really enArchdeacon Hale and his friends may ables brothers and sisters-in-law to say about the facility with which live together as brothers and sisters brothers and sisters-in-law could ab when they really do so, as no doubt stain from that weakness, they do they do in some cases, and entirely fall in love, in all ranks of life, without scandal. This is almost too whenever (as the Report says) they clear for argument; but if any one are placed in situations likely to doubts it let us ask him whether a create such attachments. Indeed, law that second cousins shouid not Mr. Tyler much more sensibly ad marry would make it safe and proper mits that it must depend upon every
for a young lady to go and live with individual case,'-i.e. upon the natu the son of her father's cousin on the ral dispositions of the parties, which footing of brother and sister ? If not, no law and no understanding of so it is evident that the law cannot do ciety can possibly take cognizance of so in any other case, where we find
-whether it is safe or not to leave a by experience that Nature does not young brother and sister-in-law to
prevent them from falling in love. gether. In one sense, indeed, the Moreover, we must repeat that it was law is more effectual than prohibitory considered equally proper for a man laws generally are, for it does not to have his sister-in-law living in his depend upon the chances of a pro house before the Act of 1835, when secution or a conviction, but is there was practically no law against self-acting; as much so as if we their marrying in the vast majority could enact a magical law of cus of cases. toms, that silks and tobacco landed What, then, after all, is the
reason why, under both the old and upon the footing of brother and sisthe present state of the law, there ter, and, perhaps, would rather sehas been no scandal in such persons parate altogether than marry. And living together as brothers and sisters for this reason, and this reason only, if they pleased ? The best of all the world did not under the old proreasons, experience. Experience hibition which was merely nominal, shewed the world that though the and does not under the present procontrary very frequently happened, hibition which is well known to be yet that it was possible for some per ineffectual, and will not when there sons so related to live together with is no prohibition, make the unchariout any sexual feeling arising between table and absurd presumption, that them; whereas experience has long people who can live together and ago shewn that it is so nearly im appear to be living together as bropossible that the world must always ther and sister, against whom the presume against it in the case of per great kitchen inquisition which sits sons who are not already on those in every house' has found no verdict, terms of perfect familiarity which are really living in fornication ; and nothing but near relationship can it will obviously do so the less and produce. And, therefore, the Arch not the more, when, if they wish to bishop of Dublin's remark is really cohabit, they will have nothing to unanswerable, though it may appear
do but to marry. a very obvious answer to it to say It is proved by witnesses, whose that it would apply to any other testimony on that point at least canman and woman as well as a brother not be disregarded, that in most and sister-in-law living together,-- places, though not in all, the persons • Whatever scandal ever could arise who have made these marriages are would be rather promoted than pre as well received in society as they vented by the prohibition; for as were before, and that in every rank long as they were free to marry it of life. Now it is evident that the would be inferred by all charitable kind of consideration which must people that if they wished to cohabit have been given to the question of they would marry, but if prohibited the propriety of these marriages by they would be exposed to temptation
the friends of those who have made to illicit intercourse.'
them, in order to determine how they To what degree of relationship shall treat such persons, is a very this doctrine may be carried it is of different thing from a merely abstract no consequence to inquire. We do opinion delivered by people in connot pretend to draw the line, and it versation, in pamphlets, or even in is obvious that it cannot be drawn petitions to any of the branches of anywhere, because (as Archdeacon the legislature. And when we are Hale truly remarked, with that no told that such a relaxation of the law ble disregard of consequences which would offend the feelings of society, distinguished so many of his answers) we reply, Let us see how society exthese feelings depend in a great mea presses its feeling practically. We all sure upon the previous degree of know how society practically expresses communication and familiarity that its feelings respecting common cases of has existed ; and in some cases, no cohabitation without marriage; and doubt, even cousins might safely go why does it not deal with this case, on living together in perfect purity, which according to some persons has where they have been brought up the additional aggravation of incest,' together as children in great intimacy in the same way? Why, because the and familiarity. The experiment,
law has not the concurrence of soindeed, is never tried with cousins, as ciety, because society does not regufar as we know; and the same rea late its feelings on such matters by sons can hardly ever exist for trying the law, but by its own conviction of it as in the case of brothers and what ought to be the law, and besisters-in-law. It is enough for us cause men know at the bottom that to know that with them it is tried the will of God, and not their own continually, and that though the re notions of expediency, is after all the sult in the majority of cases is that true rule to determine what mar. they wish to marry, yet in some cases riages ought to be forbidden, and they are perfectly content to live that He is not a lawgiver apt to