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"matrimony, as to the fucceffion of inheritance, should be legitimate, as well as they that be born within matrimony, for fo "much as the church accepteth SUCH TO "BE LEGITIMATE. And all the earls and "barons answered with one voice—that they "would not change the laws of the realm, "which hitherto have been used and approved."
Here was a strong push made, that the ordinance of GOD fhould be in fome measure recognized, as to its fcriptural import and validity, in our municipal laws; but human wifdom forbad it!
In antient Rome, there were three kinds of marriage, diftinguished from each other by the names of confarreation, coëmption, and ufe. -the last of these came very near to the fimplicity of the divine institution. It was,
man, although fhe fhould be difmiffed from him to "whom she is subjected, it may well be doubted whether "fhe ought not to be admitted to receive baptifm." So that it appears very plainly, there was a time, when the conjunction of the man and woman did not depend, for its validity and lawfulness, upon human ceremonies and inventions.
In how many matters, as well as in many of the above circumftances, hath the church (as it is called) changed it's notions of things! I have often thought, that if Methufelah had begun his long life with the era of the Chriftian church, and had lived his 969 years in the Chriftian world, his life muft have been a very miferable. one, unless, like the vicar of Bray, of famous verfatile memory, he could have changed with the times, and have held at least as many different opinions as he was years old.
when the accidental living together of a man and woman had been productive of children, and they found it neceffary or convenient to continue together; when, if they agreed on the matter between themselves, it became a valid marriage, and the children were confidered as legitimate.
By the first law of the 12th table, relative to marriages, it is declared, that "when a 66 woman fhall have cohabited with a man for "a whole year, without having been three. nights abfent from him, fhe fhall be "deemed his wife." By which it appears that the Romans confidered living together, or conjugal cohabitation, as the very effence of matrimony. Broughton Hift. Lib. tit. Marriage. This may be reckoned one instance, in which, to the difgrace of us Chriftians, the Gentiles, which had not the law, did, by nature, the things contained in the law. Rom. ii. 14.
According to the laws of Scotland, cohabitation with a woman for fome time, and openly acknowledging of her as a wife, confirms the marriage, and renders it valid in law. Mem. of Cranstoun, p. 30. So where a man and woman have lived together 'till they have children, if the man marry the woman, even upon his death-bed, all the antinuptial children become legitimated, and inherit the honours and eftate of their father.
The cafe is the fame in Holland; with this difference only, that all the children to be legitimated, muft appear with the father and mother in the church, at the ceremony of
their marriage. See the Hiftory of Women, by W. Alexander, M. D. vol. ii. p. 252, 267.
Our fyftem in England is very injurious and cruel, as it destroys one grand inducement to matrimony, where a man and woman have lived together and had children, by ftamping baftardy on the iffue without remedy. Whence fo inhuman a plan fhould be derived into the common law of the realm, cannot well be devised; but it must be fuppofed to have commenced in fome of the darkest ages of ignorance and barbarifm; for at the latter end of the twelfth century, Pope Alexander III: made a conftitution, that "children born "before the folemnization of matrimony, "where matrimony followed, should, to all "intents and purposes, be as legitimate as
those born after matrimony." By which it fhould feem that the inftitution of Conftantine had been totally laid afide; alfo, that the church thought very differently of marriage, from what it did in the fourth century. See before, p. 31, note.
Upon the whole, it may be concluded, that fuch laws as are above mentioned, would never have been thought of, unless the propofers and framers of fuch schemes of postlegitimation, had been convinced, that the conjugal cohabitation of the man and woman was a lawful marriage in God's account, confequently the iffue legitimate in His fight: therefore they were willing to reconcile matters as well as they could, between human invention and divine inftitution.
Having, I truft, established this truth, that where a man and a virgin are united by the communication of their perfons to each other, they become one flesh in the fight of God, so made by his exprefs command, infomuch that the man may not put her away all his days; it follows, that they are indiffolubly united, beyond the power of difunion by any human authority whatsoever.
It is the contempt of this law, this primary law of nature, or rather of the God of nature, established from the beginning, and afterwards enforced and explained by the pofitive laws above-mentioned, which lies at the root of the evils complained of. For, if a man w which is the fcripture's way of faying any man, every man, without diftinction (for GOD makes none in the texts we have been confidering, nor in any other) was deemed the bufband of the virgin he lay with, and was obliged to make a public recognition of it, as enjoined by GOD fo to do, without any liberty to put her away all his days; if the law of the land was as pofitive as to this, as the law delivered from GOD to Mofes above-cited, we should see a wonderful change in the manners of the people, as well as a ftop put to the daily ruin of innocent girls. Would the great and opulent debauch their tenant's or labourer's daughters, or their own fervantmaids, if they knew that this put it into the power of fuch poor creatures to claim their Jeducers as their husbands? Certainly not, at least not in one instance of ten thousand where
it now happens. Muft we not fuppofe, that the great and merciful Creator enacted His laws for the protection of the weaker sex against the stronger, as well as for the prevention of confufion and every evil work, which must ensue from men and women's coming together and parting ὡς ἄλογα ζῶα φυσικά (as the Apoftle fays) like natural brute beasts which are without reafon? As therefore a contempt of the laws of Heaven, is evidently the cause of the evil, it is as evident that nothing but. restoring their due respect and efficacy can ever cure it.
How great an impediment to matrimony doth this also prove, among the profligate and licentious part of mankind? (which, as the world goes, I do not suppose to constitute fmall part of it)-for if men can gratify their paffions, and indulge their love of variety, without the leaft danger of much further trouble than it costs them to feduce a poor unwary girl, they will hardly bind them
* The Atheist and Hobbist deny any principle of right or natural justice before the invention of civil compact, which, they fay, gave being to it; and accordingly have had the effrontery to declare, that a state of nature was a state of war. See Pope's Works, quarto, 1769, vol.i. p. 534-5, note.
This feems to coincide with the vulgar notion, of throwing the marriage-union on an human outward ceremony, or civil compact, without which the fexes are in a ftate of war, and each to make what depredations they can on the other little adverting to the wife and holy provifion which the CREATOR ordained against this, long before civil compact, arifing from marriage-ceremony, was invented, or exifted.