COUNCILS OF ELIBERIS AND NEO-CESAREA.

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The Council of Eliberis, held in 305, annexed (canon Ixi.) the same penalty to marriages of this kind as to an aggravated case of repeated fornication, or of once falling into adultery-excluding from communion for five years; a penalty more severe than for what is known among us as antenuptial fornication. The penalties prescribed by the Canons of Basil were the same as for less aggravated cases of adultery. Canon lxxvii., with other things, excludes for seven years. Canon Ixxviii. says "Let the same form be observed in those also who marry two sisters, although at different times." The lxxix. enjoins the same penalties in the case of a stepmother as in that of a sister-all expressive of abhorrence of crimes of incest by affinity as well as by consanguinity.

The second canon of the Council of Neo-Cæsarea, A.D. 315, is as follows-"If a woman marry two brothers, let her be excommunicated till death. But at death, for humanity's sake, (dia v piñavegotiav) if she say that on being restored to health she will dissolve the marriage, she may be admitted to repentance. But if the woman die while such a marriage exists, or the man, admission to repentance to the survivor is difficult."

Let it be observed, in regard to these canons, that they proceed on custom recognised as law. An attempt has been made to turn their force aside by affirming that the marriages in question were not so much crimes prohibited, as errors to which penance was assigned.* But Dr Pusey, in his published evidence, has very properly remarked-"The whole objection (Preface, p. xlvii.) is founded on a false view of these canons. They are not employed in laying down what is sin, but in annexing penalties to what was acknowledged to be sin. The Councils of Eliberis or Neo-Cæsarea, or the Canons of St Basil, did not first make these incests to be such. This, St Basil says, they received from their fathers. But when some persons ventured upon them, punishment was annexed to them, as well as to other notorious sins. Had the canons been a simple prohibition of the sin, we should have been told that these marriages were now for the first time prohibited. Now that it is assumed in the canon that it is a sin, and the punishment only is annexed to it, we are told that it is not so much mentioned among things prohibited, as among those errors for which penance is assigned. By the same rule, neither would murder, adultery, perjury, nor any other sin. The church has only spiritual punishments. But would it be thought no severity now, if a person were enjoined to place himself for six years among public penitents, with fornicators and adulterers, and only at the close admitted to communion?" In fact, they seem to have dealt with these crimes of incest on the same principle as that on which they dealt with what the advocates for these marriages seem now to account a very light thing indeed-viz., polygamy. Canon marked xc., in the Letter to Amphilochius, though following lxxix., says, that the fathers passed it by in silence as "incident to wild beasts and alien to human beings," showing at least very clearly that, wherever it existed, or by whomsoever practised, it was a frightful excrescence on humanity.

The testimony of Augustine is very important as to the principle upon which the early church proceeded in their prohibitions. "In another work, supposed to have been written about A. D. 419, and so containing his maturest judgment, St Augustine speaks of the prohibitions in Lev. xviii. as things without all doubt to be kept under the New Testament." He raises the question why the particular command (Lev. xviii. 19) is repeated

* See Evidence of Rev. R. C. Jenkins before the Royal Commission of 1847. No. 1017.

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TESTIMONY OF AUGUSTINE-CANON LAW.

there, whereas the act forbidden had always been sufficiently prohibited before; and he says "Is it, perhaps, lest what was already said above should be thought to be understood figuratively, that it is set down here also (chap. xviii. -the chapter containing the prohibited degrees), where things of that sort are forbidden, as in the time of the New Testament also, when the observation of the ancient shadows is done, are certainly to be observed ? "—(Quæst. in Lev., qu. 64.) And in a work later (A.D. 427), consisting of extracts from holy Scripture for popular use, as to "those things which, whether as commanded or forbidden, or allowed, are so laid down in holy Scripture, that now also-i.e., the time of the New Testament-they belong to the leading of a holy life, and to morals."

The author does not deem it necessary for his present purpose to prosecute this particular point of the opinions of the early church any further. Those who wish to follow it out, will find the subject most learnedly and ably discussed, in all its bearings, in the evidence of Dr Pusey before her Majesty's Commission of Inquiry. It is given, with much more that is truly valuable on the subject, in his work entitled "Marriage with a Deceased Wife's Sister Prohibited by Holy Scripture, as understood by the Church for 1500 years," &c.-Oxford, 1849. He follows the subject out, in all its bearings, during the whole history of the Popish Church.

The following is the general principle of the Canon Law :-In the "Corpus Juris Canonici," affinity is defined to be, "The proximity of persons proceeding from 'coitu,' wanting any blood relationship. This according to the Canons; but according to the laws it is proximity proceeding from marriage; and it is required, according to the laws, that the marriages be lawful and not forbidden, that affinity may be contracted." The Canons hold that it may be contracted by connections that are unlawful, whether by marriage or not. The Canon Law holds that "sister and brother are in the first degree of consanguinity, and the brother and husband of the sister are in the first degree of affinity." While, from the cases of the descendants of our first parents and of Noah, the Canon Law does not hold such relations to be forbidden by divine abstract natural right, yet it holds that they were prohibited by divine positive right; and at length positive Canon Law extended the prohibition "even to the seventh degree."

The writer would remark, for the sake of those not much versant in this controversy, that they must not imagine they have got any very strong reason for disregarding this testimony, when writers on the opposite side get quit of the whole by the words "Canon Law," or by the sneering allegation that these same early Christians and canonists disapproved of the marriage of first cousins, and established prohibitions which are universally repudiated by Protestants. That they did so, does not disprove the historical fact, which is all we are now attempting to establish. Neither would it invalidate the substantial soundness of their arguments-for they did argue, and that too from the law of nature and the Word of God, and made a manifest distinction between what was obligatory on these grounds, and on the ground of ecclesiastical authority merely. It would lead us beyond all just bounds to enter into the discussion of the several grounds on which the Romish canonists decided the marriages in question to be unlawful. The almost universal judgment seems to have been that they were prohibited by divine law-that that law is found in Leviticus xviii.,

* See "Corpus Juris Canonici. Lipsiæ, 1839." Pars. ii., cc. 1238–39.

PRINCIPLE OF THE CANON LAW-SANCHEZ.

21

and that the Pope could not dispense with it.* It was on this ground that Henry VIII. was encouraged to get the dispensation of a previous Pope declared to be contrary to the law, as it really was, whatever was the character of the man who now took advantage of it, when it would serve his passions. Those who wish to see an admirable discussion of this point, and cannot wade through the voluminous intricacies of the Canonists, may consult Dr Pusey's evidence on the subject. Or, if they have Sanchez at hand, they will find a full statement of the argument, and an enumeration of authorities at great length. The author has examined it, but has neither space to give it, nor courage to labour through its translation for the reader. "They all go," says Dr Pusey, "upon that ground that Leviticus xviii. was the divine law. You will find also that it is said that Leviticus xviii. applies to twelve cases, and among these is 'the wife's sister.'" There were some, though comparatively few, who had no doubt as to the prohibition and the propriety of it, but doubted as to the point whether the Levitical law was still binding, as being in its nature moral. But the almost universal language in regard to Leviticus xviii. was "The DIVINE Law."

It may not be useless to remark in a word, that the Romish Canonists made a very clear distinction between the marriages forbidden in Leviticus, of which a wife's sister was one, and those which are prohibited by Rome on the ground of spiritual affinity-viz., that the former were forbidden by divine, natural, or positive law, and the latter only by ecclesiastical law.† It is at best but a weak, as well as unfair invention, to make the canons, or laws of the church, passed before there was a Pope recognised by any section of the church, responsible for the decrees-unscriptural, tyrannical, enslaving, or persecuting, as the case might be passed by Popes and Councils 800 or 1000 years thereafter. However it may serve a turn in a difficulty, or enable a writer hard pushed to evade an argument, it will no more destroy the authority of any doctrine or precept, still less the truth of any historical fact, to finish off the question by a flourish about Popery, or even Henry VIII., than it will destroy the truth of the de ctrine of the Trinity, or the authority of the first and second commandments, that the early church had some curious fancies about them, and the Church of Rome has added to them the worship of saints and images and the Virgin Mary. After the very ample proof which Dr Pusey had brought forth with great learning and industry, he was entitled to make the following remarks on portions of the evidence given before her Majesty's Commissioners on the subject:"1. Of some of the evidence it is only necessary to state that such was given. Without any disrespect to individuals, one cannot but regret that they should, on such occasions, have given an opinion upon subjects which it has not fallen within their line of duty to investigate. It is no blame to a person not to know what was the judgment of the early church upon any point, if he be not called upon to know it; but when a very grave moral question is to be decided, it is a moral wrong to give any unconsidered opinion, which may in any

*It will afterwards appear that the Council of Trent determined that the Pope could dispense even in divine law.

Sanchez, after stating the question, says, "Hinc deducitur primo, cognationem hanc spiritualem ex baptismo et confirmatione ortam, non esse ex jure divino naturali, aut ex divino positivo, sed ex solo ecclesiastico. Quoad affirmat D. Thom. ab omnibus receptus,' &c.-See Sanchez Disput. 54, sec. 2, "De Impedimento Cognationis Spiritualis." I suspect they are not much versant with the writings of the Canonists who get quit of them by a flourish about the tedious frippery of the Canon Law." Whatever were their faults, negligent rashness was not one of them.

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TESTIMONY OF EARLY CIVIL LEGISLATION.

way influence it. The effect of the little which is said upon this subject is but to obscure the truth. For it is natural to suppose that her Majesty's Commissioners, in making their inquiries, selected those persons whom they judged best qualified to give information on the subjects on which they inquired of them; so that what is stated in answer, apart from any intrinsic weight of its own, comes in a manner recommended by them. It is then a serious evil when one witness, who is not likely from the tone of his theology to have studied Christian antiquity, is asked, 'If those marriages, in your opinion, are not prohibited in Scripture, are you at all aware that they were prohibited by any authority in the early Christian church? I am not aware that there was any prohibition of the kind.' For it is not every one who knows that such marriages were so prohibited, although this witness is not aware of it.'

6

*

"2. Again, another witness admits unhesitatingly this fact, of which the other was not aware,' yet states his belief that the early church was mistaken, as resting upon the untrue interpretation of Lev. xviii. 18: 'Do you apprehend that at an early period of Christianity a construction was put by the church upon any passages of Scripture, to the effect that such marriages ought not to be allowed? Unquestionably. I believe that the general construction of the church and of commentators has been in opposition to such marriages, founded upon what I humbly believe to be a mistaken view of the passage in the 18th of Leviticus and the 18th verse.'† Yet it may be stated confidently that no one father does rest his objec

tion upon that verse. The passage upon which they rest is that containing

the general principle, verse 6, None of you shall approach to any one that is near of kin to him, to uncover their nakedness,' under which this particular case falls, and the parallel case of the marriage with the brother's widow."-Pusey, "Evidence of the Law of Marriage," Preface, pp. xl., xli.

It is not necessary to detain the reader with more than a single remark respecting the opinion of the Greek church, and other Eastern branches of the church, viz., That they have universally given the same judgment on the question at issue. Ample proof will be found in the paper of the Rev. Mr Palmer, found in his evidence before the Royal Commission, and given also in Dr Pusey's volume. That these gentlemen have unhappily followed a course in other matters which no true Protestant can do otherwise than condemn, will not, in the view of any, but those who will lay hold of anything to gain their end, invalidate the clear proofs they may adduce of certain facts in the history of the church.‡

Section IV.-Relative Testimony of Human Legislation in the Early Ages of Christianity.

Perhaps it will be most convenient to dispose of this part of the subject, in so far as it relates to the first ages of Christianity, before adverting to the testimony of the true and reformed church in succeeding times.

It is remarkable that almost as soon as it was possible to have human legislation in harmony with that of the Christian church, you have such marriages forbidden. This is pretty clear proof of what was the prevailing opinion of Christians at that time. You have these prohibitive laws in

* Dr Cox's Evidence. No. 848.

+ Evidence of Rev. John Hatchard. No. 516. I most cordially recommend Dr Pusey's volume. It is evidence worthy of the subject. The great mass of the evidence is certainly worthy of the way in which it was got up.

LAW OF ROME PAGAN-OF ROME CHRISTIAN.

23

the Codex Theodosianus. It may be useful, for the sake of the unlearned reader, to say that this was a collection by the Emperor Theodosius of all the laws of the Christian Emperors. The edition before us is that of Lyons, 1665, in four folio volumes, with the commentaries of James Godfrey, whom the title calls "a man of senatorian rank and an illustrious jurist of this age." In III. Cod. Tit. xii., there is first a law forbidding marriage with a niece, the daughter either of a brother or sister, as an abomination, and making its violation a capital crime. It is addressed to the governors of Phoenicia and the adjacent countries. It bears date 339. The law on this point among the Romans varied. Godfrey tells us that by very ancient law (antiquissimo jure), the marriage of the daughter both of a brother and sister was forbidden; but that afterwards a distinction was made between the brother's and the sister's daughter, that it was allowed to the former to marry her uncle by the father's side, but not her uncle by the mother's,-that Claudius, desirous of marrying Aggripina, his niece, procured an alteration of the law in his favour. In this he had great difficulty, and it required much management, and the aid of some subservient statesmen and imperial gold, to bring it about. The narrative is given by Tacitus (see "Annal.," lib. xii.) Godfrey refers also to Suetonius, in his "Life of Claudius," chap. 26; Seneca, in his " Octavia," act i.; and the old scholiast, Juvenal. The words of Tacitus are remarkable-that even after all had been prepared and the marriage agreed on," they dared not to celebrate the rites of marriage, there being no example of the daughter of a brother led to the house of her uncle. And moreover if the incest were despised, they were afraid it might turn out to the public damage." The sequel proved that their fears were well founded. The whole scene, as narrated by Tacitus, is a curious display of the time-serving profligacy of his senatorial agents, and the base subserviency of an immoral rabble. There was a Vitellius to talk over the one, and to corrupt the other. Parallels are not wanting in the present day.

Those who desire to see more on the Roman law may consult the Institutes of Justinian, "De Nuptiis, x., Titulus, Qui possunt nuptias Contrahere," in which they will find the doctrine of affinity maintained among heathen Romans, as it has been among Jews and Christians, Roman Catholics and Protestants. The example of Claudius was followed by Domitian. In a short time after, the ancient law was restored. Various changes occurred, as might be supposed, when the law stood in the way of the lusts of the Roman Emperors. There is no law extant by Constantine the Great. The ancient law was restored by his son, who attached capital punishment to its incestuous violation. The law of heathen Rome, then, was certainly more stringent than that of some modern legislators, who seem in this respect to have outstripped in license not only the law of Moses, but even of heathen Rome.

There is next "the law of Constantius concerning the unlawful marriage with the wife of a brother and the sister of a wife.' The law was passed

about the year 355. It is as follows:-" Although the ancients believed that it was allowable, the marriage of a brother being dissolved, that his brother should marry his wife (uxorem); and that it was also lawful, after the decease of a woman (mulieris), to contract marriage with the sister of the same, let all (universi) abstain from marriages of this sort, nor suppose that the children procreated of such unions can be legitimate; for it is proper that those who may be thus born be spurious."