a compulsory declaration of nullity for the uncertain procedure of the Ecclesiastical Courts. If this be true, it is a matter much to be regretted; like most compromises of principle, it served, perhaps, a temporary purpose, but it drew after it disastrous consequences not realised at the time. The impregnable position of the historic identity, for purposes of marriage, of consanguinity and affinity is weakened; and the advocates for relaxing the laws have not been slow to remind us of it. Furthermore, the exemption of all unions within the prohibited degrees existing at the passing of the Act from the operation of the Spiritual Courts, gave, at least, an apparently legal approval to what was unquestionably illegal. It cannot be denied that the Act condoned an offence; but it was distinctly on the ground that the defective machinery of the existing law had helped to encourage it. However much this condonation may be pressed, its importance on the side of relaxation is almost wholly taken away by the emphasis it gave to the utter illegality of all such unions in the future, which were henceforward pronounced in every respect absolutely null and void. It has been declared on very high legal authority that it left their incestuous character untouched, and that an action in the Ecclesiastical Court lay precisely as before.1 The immediate effects of the Act, it is true, were limited to one generation; but, though the legal mind may be able to distinguish between a judicial declaration of the validity of such marriages and the staying of proceedings to make them null and void; yet the common belief that the Act did the former as well as the latter will not easily be dispelled.2 1 Cf. Sherwood v. Ray and Harris v. Hicks, Phillimore's Appendix to the Royal Commission, and Southend, p. 548. 2 The error has been aggravated by the title of the Bill, "An Act to render certain Marriages valid," but it is acknowledged by all lawyers that the wording of the title or preamble is of no force unless the substance of the Bill supports it. It does not do so in this case. It has been said that no legislative enactment whatever has been so much misrepresented as this. Cf. Bp. Philpotts in a Speech before the Lords, 1851. The result of relaxing the Marriage Laws in other countries. Prussian XII. Consequences to be feared from a change of the Laws. MANY attempts have been made in later years to induce the English Parliament to alter the unbroken tradition of our Ecclesiastical Law on the Prohibited Degrees. There can be little question, if experience may be trusted as a safe guide in regard to the probable consequences of relaxation, that there is every discouragement against any unsettlement of the existing legislation.1 Prussia and France deserve especial attention. In the former the long-existing prohibition was assailed as far back as the 17th century, under the inspiration of the rationalistic Grotius, who tried to substitute the law of nature for the Law of God as the fittest basis for marriage rules and regulations. Nature, he asserted, knew nothing of any laws of affinity created by marriage, 1 The reader is referred to an excellent treatise on the whole subject in German, which might be very profitably translated, by Thiersch, entitled-Das verbot der Ehe innerhalb der nahen Verwandtschaft. and imposed no bar to union save between brother and sister, or blood relations in the direct ascending or descending line. He failed to win the legislators of his country to his opinion, but there is no doubt that his teaching left its mark behind. His principles were eagerly caught up and developed by Voltaire in the following century; and Frederick the Great, who came under the spell of his evil genius, did not hesitate largely to relax the Prussian laws. No one, however, did so much as the eminent German scholar, Michaelis, to overthrow the authority of Scripture on the whole subject. He went so far as to maintain that there is nothing inherently more sinful in incest than in any illicit intercourse; and the Legislature in 1794 so far accepted his revolutionary principles as to limit restrictions to marriage within three kinds of relationship, viz.: blood relations in direct ascent and descent; brothers and sisters; step-parents and parents-in-law. It legalised marriage between uncle and niece, nephew and aunt, brother-in-law and sister-in-law. England may well pause before assimilating her standard of Marriage Law to that of a country, of which it was said by a professor and philosopher, that it was such as "makes a German cover his face with his hands for shame." 1 1 Roy. Commiss. Report, p. 53. French In France the general law and practice of ChrisLegislation. tendom prevailed till 1792, at which revolutionary period many restrictions were removed, but with most disastrous results; indeed the change is said to have let loose such a flood of immorality, that within little more than a year no less than 20,000 divorces were granted. The famous Code Napoleon checked the evils for a time. The debates which preceded its enactment have been preserved, and the evidence of a number of French Jurists upon the operation of the relaxed laws has been collected The opinion together. It testifies to a general disapprobation of marriages of affinity, such as between brothers-inlaw and sisters-in-law, uncles and nieces, nephews and aunts, but for the most part with a saving clause that the government "for grave reasons may set aside the prohibitions." The grand judge and minister of justice, whose opportunity of testing the effect of the altered laws upon the crime of the country is unquestionable, spoke in terms of the strongest condemnation, asserting that the permission granted by the law of 1792 had brought in its train many domestic troubles, and was "the chief cause of the demands for divorce then before the Courts."1 of French Jurists on the consequences of relaxation. 1 Evidence of Claude Regnier, afterwards President of the Corps Législatif. Cf. French Experience of the Law of Marriage in the year 1803. Published by Didot, 1805. |