Sir William Blackstone on Law and Marriage
What shall we say then? Is the law sin? God forbid. Nay, I had not known sin, but by the law: for I had not known lust, except the law had said, Thou shalt not covet.
Sir William Blackstone is among the most influential men in English and American law, so is worth studying in order to discover the influence he had on American founding fathers, and the American nation.
In this article I want to take an excerpt from Book 1, Chapter 15 from his ‘Commentaries on the Laws of England (1765-1769),’ offering up my thoughts on what Blackstone wrote concerning the law and marriage.
I. OUR law considers marriage in no other light than as a civil contract. The Holiness of the matrimonial state is left entirely to the ecclesiastical law: the temporal courts not having jurisdiction to consider unlawful marriages as a sin, but merely as a civil inconvenience. The punishment therefore, or annulling, of incestuous or other unscriptural marriages, is the province of the spiritual courts; which act pro salute animae [for the health of their souls]. 1 And, taking it in this civil light, the law treats it as it does all other contracts; allowing it to be good and valid in all cases, where the parties at the time of making it were, in the first place, willing to contract; secondly, able to contract; and, lastly, actually did contract, in the proper forms and solemnities required by law.
There are a lot of things to consider in Blackstone’s brief comments. I’m only going to cover several that are important for Christians to understand in the times we’re living in.
Let’s look first at his opening statement in the paragraph: “Our law considers marriage in no other light than as a civil contract. The Holiness of the matrimonial state is left entirely to the ecclesiastical law:…”
What’s valuable about this is the idea that there were separate jurisdictions and parameters of authority in regard to the state and the church. In our time, and far into the future until Jesus returns, we need to once again embrace the idea of the church operating in its God-given authority.
The fact that Blackstone recognizes the separate authorities points to it being a regular part of life in the generation he lived in. He took it as a matter of fact that there is ecclesiastical (church) and state authority, with each dealing in different ways with lawlessness and sin.
Next he says: “… the temporal courts not having jurisdiction to consider unlawful marriages as a sin, but merely as a civil inconvenience. The punishment therefore, or annulling, of incestuous or other unscriptural marriages, is the province of the spiritual courts; which act pro salute animae [for the health of their souls].”
Again, note Blackstone confirms the church as spiritual authority to punish unscriptural marriages within “spiritual courts.”
One area Blackstone gets it wrong is in his assertion that “temporal courts” or state courts don’t have jurisdiction to consider unlawful marriages as sin; that’s the reason I included Romans 7:7 at the top of the article. The law defines sin, and whether the state or the church, it is to be acknowledged as sin, and in the case of marriage, not just “a civil inconvenience.”
What Blackstone was attempting to do there was keep the two sphere’s of authority separate from one another, but in doing so, he separated the idea of sin and law from one another as it relates identifying them as sin both by the church and state. Just because the state has authority to wield the sword and the church doesn’t, doesn’t change the fact that breaking the law and sin are one and the same from a biblical point of view.
Marriage: contract or covenant?
When Blackstone opens up is comments with this, “Our law considers marriage in no other light than as a civil contract,” I at first thought he may has been using the word in a way that many of us would consider a covenant in our day. But after examining the rest of this commentary in the paragraph, it’s readily apparent he in fact did mean contract and not covenant.
He finishes with this:
“And, taking it in this civil light, the law treats it as it does all other contracts; allowing it to be good and valid in all cases, where the parties at the time of making it were, in the first place, willing to contract; secondly, able to contract; and, lastly, actually did contract, in the proper forms and solemnities required by law.”
What’s extraordinary to me is that Blackstone cheapened marriage by lumping it together in a way that made it no different than a contract. This was a huge blunder and mistake on his part. Marriage is a convenant and not a contract, and to treat it any other way is to open the door to all sorts of legal mischief those entering into contracts engage in.
Blackstone was a brilliant man that heavily influenced the laws of England and America, so it’s important to take a look at many of the things he said in order to understand the foundations of British and American law.
With his opening comments concerning the law and marriage, there were pros and cons concerning his view on the matters. Importantly, he recognized the separate authority invested by God in the church and the state, and noted the spiritual authority the church had, in which the state had no jurisdiction in.
On the other hand, his attempt to define sin was inadequate and confusing, giving the impression that illegal marriages based upon the bible and rejected by the church aren’t to be considered sin by the state. The law of any nation is to recognize that breaking the law (biblical law) is sin, even though the church has certain guidelines given by God to deal with it within their authority, as does the state.
Finally, Blackstone’s big error here was to define marriage as nothing more than a contract that has been entered into; rather, it’s a covenant which has much stricter expectations and requirements than a contract does.
Blackstone says a lot more about law and marriage in his commentary, but this is his opening statement on the matter, and it’s built on a weak foundation.
If you haven’t read anything Blackstone has written, don’t assume there aren’t lot of significant and important legal insights he writes about. That said, the idea is we can’t just accept anyone’s input in history uncritically. We must examine influential and powerful people in light of the scriptures; we still have a lot to learn about the bible, law and how to apply it to the various areas of life we engage in.
There are a lot of digital books you can get free by Blackstone if you want to do further research, but if you want an excellent physical book on his commentaries, The Oxford Edition of Blackstone’s: Commentaries on the Laws of England: Book I, II, III, and IV (Amazon) is a good one.