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.