Thursday Morning, August 16, 1838
The Marriage Act was passed on Tuesday the 7th last., after much ineffectual opposition on the part of Chief Justice Pedder and Mr. Gregory. The latter put in the following protest against the measure : —
Mr. Gregory’s reasons for dissenting from the resolution of this council that the bill for regulating Marriages in V. D. Land do pass into a law. First, Because it renders marriage a mere civil contract, whereas up to the present time it has invariably been solemnised in this colony, as a religious contract.
Secondly, Because I do not believe that any portion of the community is desirous of dispensing with the religious part of the ceremony, and because, at all events, it will be time enough to dispense with it when the legislature is appealed to for that purpose, which hitherto has not been the case.
Thirdly, because it appears to me that a penal settlement is the very portion of her Majesty’s dominions in which it is most essential that the sanctity of the marriage contract should be upheld by every means within the reach of the legislature.
(signed) John Gregory,
With the worthy Treasurer’s permission, we purpose to examine the validity of these reasons for protesting against the Marriage Act ; and as we shall give Mr. Gregory credit for being a candid politician, we doubt not that we shall be able to convince him that his three propositions are respectively either unfounded in Act, or do not warrant the conclusions which he has been pleased to draw from them.
With respect then to reason the first We have al ways understood that the law of England never regarded marriage in any other light than as a civil contract. It is true the law has consented that the civil contract shall be entered into and as it were authenticated by means of an ecclesiastical ceremony ; but this nevertheless leaves the legal character of marriage untouched. It simply shows that the law considers the people or the Church, as holding the contract a religious, as well as a civil one, and is therefore content to allow the religious rite to evidence of the civil obligation, indeed, in days of yore, in England, as in Scotland at the present day, the simple acknowledgement of parties that they were married, was evidence of a good civil marriage, as no deeper than Black stone’s will inform any man ; and though more modem legislation had rendered the intervention of a priest necessary in England to the legality of marriage, such intervention is held merely as an arbitrary law, and not as either “jus naturale aut divinum.” For ell legal purposes then, the ceremony of marriage in the Church has been merely an authentication of the civil contract. It is useful to bear all this in mind, since it shows that in this colony, while marriage has been celebrated as a religious contract, it is nevertheless, in law, only a civil one; and that the religious nature of the contract has never been recognised in ancient or modern times as indispensably and indissolubly united with the civil obligation, however much it may have been considered, in foro consicentia, desirable among a Christian people, to accompany the civil contract with religious vows, or even, for that matter, to make the latter precede the former.
The particular laws, however, by which priests, and priests too of a particular church, are rendered the only legal functionaries in the celebration of marriages, as defering to the presumed tense of the nation, which regarded marriage as a religious contract, may have been very commendable laws in their day : but a state of things has long since arisen in the British dominions which makes them now no longer applicable or just. Such a thing as dissent being unknown, the canonical forms of marriage at once satisfied the Church and the State; and the necessity for drawing the distinction which the law really prescribes, never presented itself But when once dissent became extensive— and the principles of religious freedom being recognised, by the self same rule that the imposition of the Church of England ceremony of marriage became desirable, as the civil evidence of the contract, the abrogation of that ceremony as the only evidence becomes equally desirable; while the necessity at length presents itself of recurring in full force to the distinction between the civil and the religious contract
When then Mr. Gregory says that the Marriage Act has rendered marriage a mere civil contract. We reply that in law it never has been anything more than a mere civil contract; and when he says,- ” Whereas It has been invariably solemnised in this Colony as a religious contract,” we reply that however “solemnised,: it was still a civil contract and that there is nothing to prevent its being so solemnised in future. And we think we shall be able to show, as we proceed, that there is “much greater chance of a religious feeling entering into the contract of marriage-literally of a more strict solemnisation” taking place in the majority of marriage contracts— now more than formerly.
In the second place Mr. Gregory protests, because he does not believe that any portion of the community is desirous of dispensing with the religious part of the ceremony. Now if this be the case, as we believe it is, it would be an unanswerable reason for protesting against the law, if the law did not leave to this community uncontrolled power to contract marriages by means of a religious ceremony. The community are not anxious to dispense the religious ceremonies; we fully believe it; they are, to speak in positive terms, anxious to make use of them, and having the power, they will avail themselves of it ; but it is one thing to be religious by choice, and another by compulsion. The new law, conceived in the spirit of the times, is founded on the former principle and is therefore an improvement on the old law, which is founded on the latter. Persons of all classes can now be married without any violence to their religious principles: none will have to submit to religious ceremonies which they ridicule or abjure ; none will see the ceremonies of their particular Church profaned by being reduced to the order of mere police regulations; the law is on so broad a basis that no impediments are opposed to the marriage of the heathen, of Jews, of Unitarians,— so wonderfully just is the law that even these can marry without self-debasement : and by rendering “the religious part of the ceremony” no longer compulsory on any, the character of a purely conscientious duty is given to what has hitherto been too much regarded, even in its most favorable light, as mere matter of routine.
The religious part of the ceremony is now in truth likely to become religious : hitherto even those who were imbued with religions sentiment, however them selves impressed with the sanctity of the marriage con tract, were seen by the world at large as complying with mere acustom–a prescribed usage–the only legalised ceremonies. Here then was no example. Henceforth conscientious persons will marry in the bosom of their own church, and, as will be seen, as a matter of duty and conviction. Here will be example ; and it will be come at least respectable to follow it.
And what if the people have not “appealed” to the legislature for this Act. Has Mr. Gregory lived so long in Van Diemen’s Land, without knowing that the quietude of the Colonists is far from conclusive proof that a law may not be just and necessary, or even much desired by them? And how long, we would further ask, has it become received doctrine in the Council Chamber, to wait for a popular movement before a law shall be brought under its notice? A people without political leaders, without any political franchises to exercise them in the tactics of useful agitation, are not the people to stir of a sudden upon points of principle, political or religious. Look to the Police Appropriation, for one example. To this day the Colonists have never come forward in a body to remonstrate against that grand larceny ; but is it supposed that the efforts of the non-official members of the Council are not appreciated by all independent men ? Let it not then be supposed for a moment that the recent Marriage Act has been viewed with indifference. To men of the highest political principles in the Colony, the daily propress of religious liberty in England is a source of delight, not alone for the good which will result from it in England, but because where England leads her Colonies must fol low ; and the introduction of the late Marriage and Registration Acts into this Colony has appeared to them as being quite in the common current of events, which they were fully prepared for, and fully expected.
But thirdly, Mr. Gregory objects to the Act, be cause this is a penal settlement. To this we shall answer briefly, that the Colonists are not to be identified with the Convicts : that, if the present law be good for the Colonists, and questionable tor the Convicts, there are ample powers vested in the Executive to restrict the law as far as it applies to the latter.
The objections raised by the Chief Justice against the bill, as encouraging in some of its clauses clandestine marriages, appear to have been triumphantly replied to by the Colonial Secretary.
The Marriage and Registration Acts are now the law of the Colony. The latter measure was passed on the same day with the other. Every lover of civil and religious liberty will rejoice with us on the occasion.