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Virginia, her courts will pronounce them husband and wife, and hold the marriage valid; giving to it all the legal effect and consequences of a lawful marriage.—On what ground ?-the lawfulness of the marriage where contracted; holding it to be a principle of universal justice, that the laws where an act is rightfully done, determine its character and legal effect. The argument upon this point applies with greater force to a church judicatory than to a state government. Virginia is a sovereign state: in her independent power of legislation she has prohibited marriage with a deceased wife's sister ; making it unlawful and void : those who remove and settle within her limits, by their own act, of their free will, subject themselves to her laws. Yet with respect to such persons, she holds as principle because of justice, that their acts shall be judged according to the laws where they were done, not merely to exempt from penal consequences, but to sustain as valid for all legal purposes. But the church has no independence analogous to state sovereignty: it exists within the structure of government, is dependent upon the laws for protection, and owes allegiance to them; and it acknowledges, in the principle discarding union of church and state, the right of legislation to be in the state exclusive of any participation on its part. The obligation and propriety requiring the church to pay deference to the laws to which it owes allegiance, and from which it receives protection, are more obvious, than any principle requiring one independent state to respect the laws of another in relation to acts done under them. How then can it be sustained, that the church judicatory in this case shall not only refuse to allow the validity of the marriage in question according to the law under which it was contracted, but shall go beyond this, and although the marriage has the full sanction of these laws, condemn it as an offence and visit it with punishment?
Marriage necessarily is the subject of law :—who may marry ; what are impediments to marriage including probibitions on account of kindred and other disabilities; what constitutes a valid marriage; what are its legal incidents and effects; in what manner and for what cause it can be dissolved; are all matters of law, involving all inheritances and transmissions of property, the character and legal capacity of all persons as legitimate or illegitimate, and all the rights and duties, obligations and responsibilities arising from the relation of husband and wife :law most extensive in its operation, continually called for, vital
to society. This law, in these United States, must proceed from the Civil POWER : there can be no law on the subject except what this power pronounces and administers. In the Old World ECCLESIASTICAL COURTs have jurisdiction over matrimonial causes; taking cognizance of marriage and divorce. In this country, the fundamental principle of our government securing social order and civil and religious liberty, discards union of church and state: of course, the state alone, exclusive of the church, makes and administers law.
In our Union, the law of marriage belongs to the municipal codes of the individual states: it is enacted by their legislatures, and pronounced and administered by their courts. The states are in the common exercise of this jurisdiction; every matter in respect to marriage or divorce is determined by their legislatures or courts. If in any state the legislature have made no enactment, and a question of marriage arise, it must be decided according to general principles recognised by the structure of government, which it is the province of the judiciary to investigate, pronounce and apply. In 1820 a case under such circumstances came before the chancellor (Kent) of New-York. Remarking " the singular situation” of that state, “probably unexampled in the Christian world,” in “having no statute regulating marriage, or prescribing the solemnities of it, or defining the forbidden degrees," he says, there must be a tribunal to apply“ the principles of jurisprudence” to these matters, “ otherwise there would be a most deplorable and distressing imperfection in the administration of justice;"_and he determines, that in NewYork the Court of Chancery was the tribunal. Since that time the legislature of New-York have enacted a law upon this subject.
The six eastern states, Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, Connecticut; the five middle states, New York, New Jersey, Pennsylvania, Delaware; of the southern states, Mississippi, Louisiana, Alabama ; and of the western states, Kentucky, Arkansas, Missouri and Michigan, (eighteen out of twenty-six,) have legislated concerning marriage, and prescribed the prohibited degrees evidently in view of xviiith Leviticus: in neither of these states is marriage forbidden with a deceased wife's sister; but in every one of them that marriage is lawful, the right of the citizen, as fully established and as well secured as any other right. Virginia has enacted a law of marriage; and a deceased wife's sister is a prohibited
The other seven states cannot be spoken of with absolute certainty. It is confidently believed from researches made, that in all of them with at most one exception, there is a law of marriage enacted by the legislature, and that in all of them marriage is lawful with a deceased wife's sister. Virginia is believed to be the single exception to the law of the states upon this point; an exception obviously attributable to the entire predominance of the Episcopal church in that state, as shown by the Memoirs of President Davies, and other notices of its early history, and the usual insertion formerly in the book of Common Prayer and the authorized Bible, of the table canonically established by that church of the prohibited degrees in marriage. This table, part of such books, prohibiting marriage with a deceased wife's sister, the prohibition became an article of religious belief, pervading the common mind; the marriage was thus associated with incest--an opprobrious name: it is not necessary to suggest how strong and lasting would be a prejudice so formed, eren if utterly groundless. The following passages quoted in a late able “ View of the doctrine and practice of the ecclesiastical courts in England relative to marriage and divorce," from a work in 1674, of Dr. Dixon, Doctor of Divinity of the Episcopal church in England, place this table in a point of light proper and useful to be regarded. He says, “In respect of marriage, the Levitical degrees do, in fact, bind us; yet they do not bind us by Divine authority; because their obligation by Divine authority ceased, expired and died at the death of Christ; and therefore all Christian churches were left to their several liberties to follow such rules, orders, measures and degrees, as by right reason and Christian prudence should be established. For the determination whereof, the church of England conceived it the most prudent course to make the Levitical laws her precedent and pattern; and at last assumed them, and adopted them into her own canons and statutes; reviving with them an obligation, not of Divine authority, as once they had from God, but of human authority, by the secular and ecclesiastical power of our princes and bishops after the reformation.” Of similar import is the authority of Paley, a name entitled to no common respect : “Upon this principle the marriage as well as other cohabitation of brothers and sisters, and lineal kindred, and of all who usually live in he same family, may be said to be forbidden by the law of na
Restrictions which extend to remoter degrees of kindred
than what this reason makes it necessary to prohibit from intermarriage, are founded in the authority of the positive law which ordains them."
According to this doctrine of Paley, all prohibitions of marriage between kindred beyond the direct line, ascending and decending (as parents and children, grand-parents, &c.), and the first collateral degree (brothers and sisters), are matters of positive law; and of course it belongs to the power invested with authority to make law upon the subject, to determine what prohibitions there shall be. This is fully corroborated by the quotation from Dr. Dixon, which by its plainness and reasonableness approves itself to every considerate mind. It might be added that, in a leading case upon the subject in England, much discussed there, in which there was strenuous, even irregular exertion on the part of the church to establish and constructively extend the Levitical degrees, one of their best and greatest judges, after consultation with all the other judges, declared, that the ground of these degrees being in force in the nation, was that their laws had adopted them : their laws were the governing principle, giving existence to the rule that applied these degrees. But we need no aid from authorities to support our state legislation. We have seen, indeed no one looking to the many vital interests and concerns arising from the marriage relation can doubt, that there must be law upon this subject; it is indispensable: and it is equally undeniable, that in the structure of our government, the power to make and administer this law is in the state, exclusive of the church. According to the very nature of government, upon first principles of polity, that which the proper authority of the state enacts or pronounces to be the law, is the law, and must be allowed all the attributes of law. Upon any other principle we legitimate that spirit of misrule, so fearful in this country, to which, that it may be treated with levity, a slang name has been given (Lynch law), and which works in secret and disguise, in the hearts of many who tremble at its gross manifestation. Therefore the law of each state upon the subject of marriage is authoritative rule for adjudicating all marriages regularly solemnized within its jurisdiction. Persons contracting marriage under this law, have its sanction and protection ; and their act must be treated as lawful and valid. We have seen, that all civil authority in all places, even where a different law prevails, recognizes this principle. Can the church
repudiate it? Can the church visit with condemnation and punishment persons under protection of the laws of the land, for their obedience to these laws, and acts in conformity to them ?
It may be answered that the church proceeds spiritually in this matter; that it imputes no secular offence, and awards no secular penalty ; but being the rightful expositor of the word of God, and determining the marriage in question sinful according to that word, it convicts of the sin and inflicts spiritual punishment. It is presumed that this is the ground on which the proceeding and sentence in McQueen's case are placed and vindicated; and it is a bold one-probably more so than those who take it imagine. One of the strongest arguments against the Roman Catholic church in this country, is, that it has spiritual laws that may contravene the laws of the land. Some of the sererest and most earnest measures in England against that church, were directed against it on this very point, receiving and acknowledging spiritual laws inconsistent with the laws of that kingdom. Is the position admissible, that in our system of government, securing equally civil and religious liberty, the church can have its spiritual laws repugnant to the municipal law, and by its judicial proceedings and sentences, so far as it can make its spiritual power felt, invalidate that law ?---requiring its members to forego or renounce the benefits thereby secured to them, or in the alternative, depriving them of their spiritual comforts, and if ministers, of their ministerial office and their livelihood! On the contrary, is it not inherent in our polity as a principle, that the church equally with others, individuals or bodies, is subject to the municipal law, and that it can have no rule nor pursue any proceeding inconsistent with this law; such rule or proceeding, from the nature of the case, being void. But the inquiry may be made: Suppose the municipal law to be contrary to the word of God, must not the church obey God rather than man ? Neither our Saviour nor his apostles make any such supposition, although living under Tiberius and Nero. Decency does not allow the supposition. It is presumed that our legislators make just laws ;-one of the highest and most estimable sanctions of law, respect, arises from this presumption. Whether a law liable to no constitutional exception, can he declared void on any other ground, is a question, in relation to which it is sufficient at present to say, that in all probability there will never be an occasion in this country to determine it.
NEW SERIES, VOL. IX. NO. I. 20