The Marriage Celebration in Europe

IN the United States, few social questions have in recent years caused more anxiety and elicited more discussion than that of the family. The prominent and startling fact has been the rapid increase of divorce ; and it is to the investigation of its cause, and to the discovery of means of checking it, that this discussion has been chiefly directed. But the integrity of the family is dependent no less upon its legal inception than upon its legal termination, — upon the celebration of marriage than upon divorce ; and to the former very little of our attention has been given. “ The law makes clear and full provision for contracts affecting the sale of houses and lands, horses and dogs, and goods and chattels of every description; and why marriage, the most important of all human contracts, should not be as anxiously defined and provided for, and thus placed beyond the reach of both fraud and doubt, appears to me to be one of the greatest anomalies in the law of a Christian country.” These are the words of an eminent Scotch lawyer, with reference to the law of Scotland. They equally apply to the common law of the United States.

But our common law is a heritage from the past. It has descended from nation to nation, in the course of modern jurisprudence. To Europe, and thence to America, it came as an inheritance from the Roman law, through the mediæval church or canon law. In the leading nations of Europe, the Roman law has been so modified by statute as to give a system of marriage celebration conducive to the protection of individuals and to the stability of society. In the United States, however, there has been not progress, but retrogression ; and today our common law is looser than was the law even in later Rome. Statute law we have, indeed, but only too much; for not only does it contain within itself great conflict and confusion between the various States, but, in addition, the courts have generally held the statute law to be ineffective and inoperative to increase the scanty requirement of the common law. To this subject Congress has recently directed its attention, to the extent of providing for an investigation and report ; and the question, What amendment, if any, of our law is practical and expedient ? may soon come under discussion. Too often, in the consideration of social and legal questions, is our attention restricted to our own law and experience ; but it is believed that on a subject like the present — at the foundation of society, and of deep interest to every human life — it will be both pertinent and timely to set forth the European development above referred to, especially as it involves the early history of our fundamental law.

Among the early Romans, the celebration of marriage wras a solemn religious ordinance. It could take place only when the divine approval had been obtained through the auspices. When these were favorable, the priest, in the presence of ten witnesses, sacrificed an ox, and in a set form of words divided between the man and the woman a cake of wheaten bread, as an emblem of the consortium vitce, or life in common. This ceremony, called confarreatio, was at first the only nuptial rite, and was open only to the patricians or aristocratic class. The marital union of the plebeians, or dependent class, though tolerated, was not recognized as legal marriage. But the absorption of surrounding nations caused a great relative increase of the plebeians, and, as the confarreatio remained restricted to the patricians, the former obtained for themselves a less formal marriage ceremony. As the wife was in law’ but a chattel of her husband, it was provided that she might be acquired, like any other chattel, by purchase (coemp-tions’), Coemptio was then a fictitious or symbolical purchase in a set form of words. Though no real price was paid, the ces, or piece of money simulating a price, was weighed out at the home of the bride by the balance-holder, in the presence of tlie parties and of five witnesses. This fiction of a sale wTas carried out by a public delivery called the domum duetto,— a leading of the bride in public procession from the 1 louse of her father to that of the bridegroom. The domum ductio took place, it seems, in the confarreatio also, and was significant chiefly as a public expression by the parties of their consent, — the fundamental requisite to the constitution of the marriage state.

But even before the Twelve Tables there had grown up among the plebeians a custom of tying the marriage knot in a still less formal and less expensive fashion. In this, too, as in coemptio, an existing legal form of acquiring chattels was copied, — that of prescription or long possession (usus). If a man and a woman lived together as husband and wife uninterruptedly for a year, ipso facto the marriage state arose, with all the legal consequences.

By any one of these three forms, confarreatio, coemptio and usus, if with the consent of the respective patres familiarum, or heads of families, the so-called strict marriage of the early Roman law was constituted, and “ the husband acquired,” says Sir Henry Maine, “ a number of rights over the person and property of his wife, which were, on the whole, in excess of such as are conferred on him in any system of modern jurisprudence.” Her person and property came absolutely into his power, and at his death she passed into the tutelage of a guardian appointed in his will.

The Roman matrons soon became restless under this strict discipline and severe oppression, and about the time of the Twelve Tables they obtained concessions which revolutionized their legal condition, and the theory and celebration of marriage. This came about through a modification of the above form of “strict marriage ” called usus. It was provided, for the benefit of the wife, that if, during the first year of the consortium vitæ, she were absent from her husband’s house for three successive days, the constitution of the marriage state should not indeed be prevented, but the vesting in the husband of the power over the wife’s person and property should be avoided. Speaking of this later development, Sir Henry Maine says, “ The three ancient forms of marriage fell gradually into disuse, so that at the most splendid period of Roman greatness they had almost entirely given place to a fashion of wedlock, old, apparently, but not hitherto considered reputable, . . . amounting in law to little more than a temporary deposit of the woman by the family. The rights of the family remained unimpaired.”

In Justinian’s time, to constitute the marriage state there was required merely the consent of the parties and of their respective patres familiarum. At first a solemn religious ordinance, and then a quasi-mercantile transaction, though still attended with public ceremonies, the celebration of marriage became at length only a private bargain, a civil contract, requiring no ceremony, civil or ecclesiastical. “ Christianity,” says Maine, “ tended somewhat, from the very first, to narrow this remarkable liberty. Led at first by justifiable disrelish for the loose practice of the decaying heathen world, but afterward hurried on by a passion of asceticism, the professors of the new faith looked with disfavor upon a marital tie which was, in fact, the laxest the Western world had seen.” The law of the Eastern Empire did, it seems, break away from the precedent set by Justinian ; and the Emperor Leo, A. D. 886, declared the ecclesiastical benediction essential to the creation of the marriage state. But in the Catholic countries that arose on the ruins of the Western Empire, the Roman law of Justinian became the mediæval church or canon law. In the transfer, however, one important change was made. The Roman law had always required the consent of the patres familiarum as essential to constitute matrimony. In the canon law, however, the consent of parents was not required. The requirements of the Church were soon adopted as those of the State ; and hence, by the general law of Western Europe, from the thirteenth century to the middle of the sixteenth, merely the consent of the parties themselves made them husband and wife.

The Church had always recommended that for the sake of decency and order marriage should be celebrated publicly, with the intervention of the priest. But as her canons required merely the consent of the parties, there was frequent resort to the celebration of marriage by the private interchange of consent, without the presence of witnesses and without any religious rites ; and this “ free marriage,” inherited from the Roman law, spread so rapidly that it brought upon the Church abuses, scandals, and laxity of discipline. Immediate and radical reform was demanded in selfprotection. The canon law was changed, and what before had been recommended was strictly enforced with spiritual sanctions. For the Council of Trent, summoned by the Pope in the middle of the sixteenth century, after admitting that the clandestine celebration had been valid, affirmed that marriage was one of the sacraments, and decreed that in the future it should be solemnized in facie ecclesiæ, — “ in the presence of the parish priest and two witnesses.” This is to-day the ecclesiastical law of Roman Catholic communities.

This famous decree made an epoch in the celebration of marriage. For in Spain, in Italy, and in other Catholic countries of Europe, it was promulgated by the State, and thus acquired the force of municipal as well as of ecclesiastical law; and though not received in Protestant states, it helped to bring about in them the later reaction toward religious rites. In Protestant countries of Europe, the law long remained as it was before the Council of Trent; and it was not till the eighteenth century that a religious ceremony was generally regarded as indispensable. Such ceremony was then ordained by law, and the minister celebrating it was made the delegate of the civil power.

In France, the ordinances of Trent were not promulgated by the civil authorities ; but a decree of Louis XIII., in 1639, directed that the priest should celebrate marriage “ according to the forms practiced in the Church.” In this indirect way, the German municipal law also adopted the Catholic reform. In fact, ere the close of the eighteenth century this great reform had, directly or indirectly, found expression in the law and policy of most Continental nations ; and the concurrent belief that the marriage celebration was primarily a religious rite, to be solemnized and controlled by the Church, under the recognition and protection of the State, seems to have been shared, in various degrees, by the several bodies of Christians.

At this point came the French Revolution, bringing radical changes in the theory and the celebration of marriage. Indeed, a new epoch was then inaugurated, second in importance only to that of the Council of Trent. To this transition there were two stages. In 1787, a decree of Louis XVI., while recognizing the Church of Rome as the established church, exhibited toward Protestants a new spirit of tolerance. It gave to them the option of celebrating their marriages before the civil authorities, — such le mariage civil facultatif to be equally valid noth the ordinary le mariage religieux, celebrated before the clergyman.

But in 1792 the second and more important step was taken, quite in accord with the spirit of the time. It made the civil celebration obligatory, thus introducing le manage civil obligato ire. It was declared that marriage was a civil institution, its celebration a civil transaction, requiring in no case the offices of religion. Of course to this position the Romish Church did not assent. Ever since the Council of Trent that church had held marriage to be a sacrament, to he celebrated by its clergy, without interference from the State ; and in this view civil forms could not constitute the marriage state. Hence, because Napoleon and Josephine had been united by the civil officer, the Pope refused, in 1804, to crown Josephine, on the ground that by so doing he would give the divine consecration to an estate of concubinage; and that the coronation might not be delayed, the night preceding it, Napoleon, yielding, permitted this sacrament to be solemnized in the chapel of the Tuileries.

But in spite of clerical resistance, the principle that marriage is primarily a civil institution, to be governed and celebrated by the State alone, survived the French Revolution, and was incorporated, in 1804, with the Code Napoléon. According to this code, before the celebration can take place, the registrar — the mayor or municipal officer — must cause the publication of the banns on two distinct occasions, separated by an interval of eight days, in the commune or communes where the contracting parties have their domicile, — that is, have last resided for six successive months; if the domicile is not yet obtained in the place of present abode, then in the commune of the last domicile ; and if the consent of any person is indispensable to the marriage, then also in the commune of such person. The banns, containing the Christian names, surnames, trades or callings, and domiciles of the contracting parties and of their parents, are posted on the door of the town-hall. If opposition is made to the proposed marriage, the registrar is forbidden, under heavy penalty, to proceed to its celebration until the opposition has been withdrawn, or annulled by a decision of a competent court. Before the ceremony, each contracting party must present to the registrar, first, a certificate of birth, or, if this cannot be obtained, a declaration, made before a justice of the peace and sanctioned by the court, by seven witnesses who remember the birth; and secondly, an affidavit, made before a notary, of the consent of the proper person or persons, — parent, grand-parent, or family. W hen three days have elapsed after the second publication of banns, the ceremony may take place in the commune of the domicile of one of the parties. The registrar in the town-hall, in the presence of four witnesses, reads to the contracting parties the certificate of birth, etc., and the laws detailing the rights and duties of husband and of wife. He then receives from the parties the declaration of consent, and pronounces, in the name of the law, that they are united in marriage. Immediately thereafter, the act or registration of marriage is drawn up by the registrar, is read to the contracting parties, and is signed by him, by them, and by the witnesses. This act contains the legal description of the parties, of their parents, and of the witnesses, and recites a detailed account of all the transactions before the registrar and other civil authorities. A subsequent religious ceremony is optional. But the French penal code punishes with fine (in aggravated cases, with imprisonment or banishment) the clergyman who proceeds with such ceremony before receiving the marriage certificate of the civil officer. Professor Carrard, of Lausanne, said in 1874, “European law tends continually more and more to approach a common type, which can be seen to detach itself from local diversities, then to grow, and to take the place more and more of national manifestations.” Especially in the celebration of marriage does recent history show such a tendency in European law, and the “ common type ” is the French le manage civil obligatoire.

The French principle was first spread by means of Napoleon’s conquests. The French Empire, at its formation in 1804, included Belgium, and in 1811 it absorbed Holland. In both countries le mariage civil obligatoire was adopted; and with but slight interruptions it has survived the subsequent political revolutions, and become the basis of their marriage laws. It was recognized in the Belgian constitution of 1831, and incorporated with the civil code of the Low Country in 1833. As in France, it is the celebration before the magistrate, preceding any religious rites, which establishes the legal status of marriage.

But Italy was the first important European nation to copy the French model tlu-ough the study of comparative legislation ; and this was done in the new Italian civil code, which went into effect January 1, 1866, for the whole Italian peninsula. Up to that date, there existed within those limits several distinct systems of constituting marriage. Only Tuscany, the Pontifical States, and the Duchy of Modena had continued to rely directly upon the canon law; but indirectly, through the Code Alberti n, the laws of the Church were followed also in the States of Sardinia. In the two Sicilies and in the Duchy of Parma, there was a system partly civil, partly religious; and the Lombardo-Venetian territory was governed by the Austrian law, which subjected the form of the nuptial celebration to the religion professed by the parties. In all these systems, however, it was recognized that marriage was primarily an institution of divine origin, drawing from this source its nature, its formalities, and its effects. But the new Italian civil code took from the Code Napoléon, on which chiefly it was based, not only the forms, blit also the fundamental principle, of civil marriage. For it affirmed that marriage is first of all a civil institution, and, like other civil institutions, it is to be governed by the State, independently of the Church; and that the marriage state can, therefore, be constituted only by a civil celebration, to which religious rites are wholly unnecessary. But while in the Code Napoléon the civil ceremony must precede any religious formalities, in the Italian civil code it may precede or follow them at the option of the parties. As a consequence, in Italy many unions solemnized by the priest never become legal marriages by the confirmation of the magistrate, the civil celebration being neglected; and a man secretly joined to one woman by a clergyman may be legally married to another by the judge, and at the same time not be a bigamist in the eye of the law. Cases of this sort have been so numerous as to attract the attention of the government, and as a remedy the adoption of the French rule has been strongly urged.

In Germany, the transition from the religious to the civil celebration of marriage, though beginning earlier than in Italy, went through more stages, and has but recently been accomplished. The Allgemeines Landrecht, or common law of Germany, at the close of the eighteenth century required for the creation of matrimony a religious ceremony, of a form, in each religious sect, to accord with its ritual. This was interrupted, in 1806, by the forcible introduction of the French civil code, including le manage civil obligatoire, into those German states which Napoleon either subjected to, or incorporated with, his French Empire. On the left bank of the Rhine, the civil form thus introduced has been maintained. But elsewhere, on the expulsion of the French in 1813, the German states restored their ancient law. By this law the clergy were the delegates of the civil power in the celebration and registration of marriage. First of all came the publication of the banns from the pulpit. The neglect to do this did not make the marriage void, but was punishable with fine, and in some cases with imprisonment. The consent of parents or of other legal guardians was required ; but when unjustly withheld, it could be dispensed with, at the discretion of the local court. The celebration was completed by the nuptial benediction.

To this ordinary celebration the growth of tolerance soon required exceptions. There were in Germany large numbers of Jews and dissenters. In Some states, the former were allowed to publish banns and celebrate their marriage in their synagogues according to their customs. But for those persons not belonging to sects whose clergy had similar authority, and for those for whom their clergy, though legally authorized, refused to perform the office for a reason not deemed by the state an obstacle to marriage, there was introduced le mariage civil subsidiaire, a celebration at the last resort before the civil authority. In 1848, this form was adopted in Prussia for dissenters and for Jews. To render marriage possible between a Jew and a Christian, it was admitted in 1848 in Brunswick and in Hesse-Hombourg ; in 1849, in Hombourg ; and in 1855, in Oldenbourg. It was allowed for Jews and dissenters, in 1851, by Anhalt-Bernbourg; in 1855, by Würtemberg ; in 1863, by Nassau ; in 1864, by Saxe-Weimar ; in 1867, by Hanover ; in 1868, by Bavaria ; and in 1872, by Reuss. This civil celebration was made obligatory for dissenters, in 1863, by Saxe-Cobourg-Gotha; in 1870, by Saxony; and in 1872, by SchwarzbourgSandershausen. The above statutes concerned classes of citizens; but in two states comprehensive laws were enacted. In Hamburg, civil officers made the publications and kept the registers, and in 1865, the civil celebration was made optional for all. In the Grand Duchy of Baden, in 1869, obligatory civil forms were adopted, and the registries were put in charge of the burgomasters.

Although these numerous statute modifications of the Allgem eines Landrecht were progressive steps toward the civil celebration of marriage, they brought about great complexity and confusion. For this reason, they early engaged the consideration of the imperial government. Moreover, the great conflict with the Church (Kultur-Kampft) had begun, and the desire to lessen the clerical power was an important inducement for interfering with the matrimonial laws. It was also thought that upon the matter of marriage, before all others, it was important to arrive at legislative unity. In 1869, the congress of jurisconsults at Heidelberg adopted a report by Professor Gneist upon this subject. “ Civil marriage,” says this report, “ ought to be regarded as the only form of marriage possible in the actual relations of the Church and State in Germany... . Marriage demands first complete publicity of formalities which precede it. This publicity is no longer secured by the reading in the pulpit of promises of marriage. The State alone, with the concurrence of the press, can secure it. The proof of the union — that fact so important to the life of the State — can be made only by officers responsible to the State and controlled by it. . . . The only acceptable measure is le manage civil obligatoire.”

After the formation of the German Empire, the agitation for a general law upon this subject was continued in the Reichstag. Finally, the law of February 6, 1875, applying to all parts of the German Empire, was adopted by a large majority. This was intended to be the first chapter in a common civil code then forming for all Germany; this law was based on the Code Napoléon, and adopted le mariage civil obligatoire substantially as therein set forth. As in the case of France, the penal code of the German Empire, adopted in 1871, punishes with fine or with imprisonment a minister of religion who proceeds to the religious celebration before proof is presented to him of the completion of the civil ceremony.

In the Scandinavian peninsula, the history of our subject has been much as it was in Germany. The Swedish ecclesiastical code of 1686 and the civil code of 1734 established the rule that all marriages should be celebrated with the nuptial benediction, under the auspices of the Lutheran Church. From the acceptance of the Reformation, in the sixteenth century, the Swedes had associated the preservation of their civil and religious liberty with the subjection of Catholics and dissenters. Moreover, they are conservative in customs and in legislation. Hence it was not till 1860 that the above strict and intolerant rule was relaxed. In that year the Edict of Tolerance allowed those belonging to a non-Lutheran sect to have their marriages celebrated by their own clergymen. But the banns were still required to be published and the marriages to be recorded by the national Church. The Lutheran clergy always deemed themselves debarred from using the nuptial rites prescribed by their liturgy in a marriage between a Christian and a Jew; and this fact hastened the evolution of le mariage civil. In 1863, for these mixed marriages there was introduced le mariage civil de necessité, — a celebration in the cities before the municipal authorities, and in the rural districts before the officer of the bailiwick, — no religious rites being available.

The liberty thus granted was soon coveted by other classes, and the second stage of development was finally obtained. The Baptists and other nonLutheran sects were rapidly growing, and were unwilling to submit in any respect to the nuptial rites of the Established Lutheran Church. But the masses of the people were Lutherans, and were attached to their ancient religious forms. They would not accept the substitution of le mariage civil obligatoire. It was proposed, therefore, to extend the right of a civil ceremony by the adoption of le mariage civil subsidiaire. A law to that effect was promulgated in 1873. In case both parties to be married belonged either to the Established Church, or to some non-Lutheran sect recognized by law and authorized through their clergy to celebrate marriage, the preëxisting religious rites were retained. But a civil ceremony, in the form already required in a union between a Christian and a Jew, was allowed in the following cases : where the parties were members of different non-Lutheran sects recognized by law, where one party was a Lutheran and the other a non-Lutheran Christian, where but one party was of a recognized sect, and where neither party was of such a sect. In 1880, the provisions of this law were extended to the ease of parties professing no Christian faith. Likewise in Norway, a civil celebration before a notary, allowed in 1845 in a union between dissenters, was permitted, in 1863, in that between a Jew and a Christian ; and in Denmark, le mariage civil de necessité, introduced in 1851 for those who belonged to no religious body, was joined with le mariage civil facultatif for members of any recognized sect. But neither country was yet prepared to adopt from the French the obligatory civil celebration.

In Austria, the development of our subject was considerably influenced by the prevalence of the Catholic faith. The decrees of Trent were promulgated by the civil authority, and until the reign of Joseph II. the ecclesiastical courts governed the celebration of marriage, while only its pecuniary effects were regulated by the civil tribunals. No Cathlic sovereign had dared to antagonize Rome by asserting it to be the right of the secular power to legislate generally upon marriage. But Joseph II., in 1783, wishing to subject the Church to the State, declared that, “ marriage in itself being considered as a civil contract,”the rights and obligations proceeding therefrom should he governed by the State. In this he anticipated the action of France in 1792, and of Germany in 1875 ; but, unlike those countries, he ordained that, the celebration of marriage being a sacrament, the offices required therein should be performed by the Church. Three publications of the banns were prescribed, and the nuptial benediction was preserved.

The Austrian code of 1811 copied the ordinances of Joseph II.; and this religious form long continued to be the only one recognized by the State. But the new constitution of 1848, by assuring to all citizens full liberty of faith and of conscience, rendered necessary more liberal marriage laws in the form of a civil celebration. Hence, in 1868, le mariage civil subsidiaire was introduced, and Austria entered a stage analogous to that seen in many of the German states prior to 1875. For by this law, when ministers, charged by the civil code with celebrating marriages, refused to perform this office, for a reason not admitted by the State as an impediment, it was declared to be “lawful for the parties to demand the publication of their banns by the civil authorities, and to make before the same the solemn declaration of their common desire to be married.” In that case, all the powers and duties usually belonging to the priest devolved upon the civil officer. Harum, an Austrian jurist, commenting upon this law, said, “ Our recent legislation upon marriage has created an intermediate situation, which bears in it the source of incessant clashings and conflicts between the civil and the ecclesiastical powers. . . . All the inconveniences are obviated by le mariage civil obligatoire.”

This subject came up in the Chamber of Deputies as early as 1867, and a committee was instructed to draw a new matrimonial law, “ in which the celebration of marriage should be considered as a civil act, independent of religious limitations.” The law was drafted and submitted, but was not enacted. The following substitute was, however, adopted in 1870, with reference to those not belonging to any recognized sects : “ All the functions which the law gives, in respect of marriage and the keeping of marriage registries, to the ministers of religion shall be discharged, in the case of a man who belongs to no church or religious community recognized by law, by the chief officer of the district,” clothed with civil functions.

In the session of 1874—5, a committee of the Austrian Reichsrath was charged with considering the advisability of introducing le mariage civil obligatoire. Moreover, the Hungarian Chamber of Deputies has several times, with the approval of the leading men of all parties, pronounced itself in favor of the French system. Professor Hoffmann, of the University of Buda-Pesth, states that in Hungary, in the matter of marriage, there are almost as many rules of law in force as there are different religious sects. To obviate this “ chaos,” as he terms it, he deems it “ necessary to make a uniform rule, rigorously conformed to the dignity and the importance of this institution.”

In Spain, Philip II., in 1564, adopted the decrees of Trent as the municipal law. This policy was followed in Portugal. In both countries, ancient legislation embodied the sacramental theory of the marriage celebration, and Catholic influence thus firmly established has seriously retarded the introduction of civil forms. Spanish legislation before the revolution of 1868, says M. Emile Roux, docteur en droit de Paris, “ was inspired with the theory that marriage was instituted by God and ruled by the Church. . . . Under the regency of Marshal Prim, a law was enacted which, on the contrary, made the validity of the nuptial tie to depend, as to its legal effects, no longer so much on the conditions prescribed by the Church as on those newly introduced by the State.” This law of 1870, modified by that of 1875, established a civil registration for all marriages, but otherwise left intact the ancient religious celebration. Unions solemnized by the Church were required to be recorded on the civil registry within eight days thereafter, upon the presentation of a certificate from the priest; and this certificate of the sacrament, when thus recorded, became proof of the celebration. At the same time there was instituted by the side of this ancient form of marriage, and of equal validity with it, a civil form based upon the French system, and substantially embodying most of its principles. Accordingly in Spain is seen a new phase of the subject, — a double system. For all, Catholics and non-Catholics alike, there is the option of solemnizing their unions before the clergyman or before the magistrate, — in either case, however, going for proof to the civil authorities.

A similar plan was discussed in the Portuguese parliament in 1875. It was advocated by the liberal publicists and jurisconsults, who emphasized the civil aspect of marriage ; but, as it was vigorously opposed by the clerical party, a compromise measure was adopted, and, together with a law for the civil registration of all marriages, was made a part of the new civil code. This code makes the celebration of marriage for Catholics a sacrament, for non-Catholics a civil contract. The unions of the former can be solemnized only according to the forms of the Church, those of the latter only before the civil authorities. The legal status and legal effects will not ensue from a civil ceremony between Catholics, or from a religious celebration between non-Catholics. Hence this, like many compromises, is full of anomaly and contradiction, and may foreshadow the early adoption of a consistent measure.

As a learned writer has said, “ However small the Swiss Confederation may be, its geographical and political situation, its historical formation, its remarkable nature, at once one and many, simple and complex, progressive and conservative, — all these circumstances combined give a special importance to the changes which take place in its fundamental institutions.” By the compact of 1815, the Helvetian Confederation was composed of twenty-two cantons or separate states, each retaining most of the powers of sovereignty, and possessing its own legal and administrative system. But by the constitution of 1848, the cantons were to be “sovereign in so far as their sovereignty is not limited by the federal constitution,” and thus Switzerland, before a confederation of states (Staatenbund), became a federal state (Bundesstaat). But this tendency toward centralization did not yet disturb the regulation of marriage by the cantons. Most of these recognized only le mariage religieux. Others had admitted some civil form. Vaud and Glaris had le mariage civil facultatif. Zürich, Shaffhausen, Aargau, and Thurgau had le mariage civil subsidiaire. But le mariage civil obligatoire existed only in Geneva, Bern, Ticino, and Neufchâtel. The registration of marriage by the civil authorities had been imported from France into Neufchatel, Geneva, Ticino, Saint-Gall, and Bâle-Ville. Elsewhere, ecclesiastics either had unlimited control over the registries, or in that function were under the commission and direction of the State. Moreover, some cantons permitted a general jurisdiction in the Church parallel with that in the State, over the subject of marriage. Hence many conflicts arose.

In 1867 anti 1869, the intervention of the federal authorities was invoked to secure uniform matrimonial laws. It was denied, however, that the federal jurisdiction embraced this subject, and so the movement was unsuccessful. But the new federal constitution of 1874 further enlarged the powers of the confederation at the expense of the states, and declared expressly that “ marriage is placed under the protection of the confederation,” and that " the ecclesiastical jurisdiction is abolished.” This established beyond question the competence of national legislation upon marriage, and a new law on this subject for all Switzerland went into effect January 1, 1876. It provides that the ceremony must be preceded by the publication of banns, not from the pulpit by the minister of religion, but by the civil officer, upon the official bulletin or in the official newspaper. After the lapse of fourteen days, if the marriage is not opposed, and the proper certificates of birth, consent, etc., are presented, it may be solemnized publicly at the town-hall by the civil officer, in the presence of witnesses ; and the whole transaction is then enrolled upon the registry. Only after these formalities, and upon the presentation of the civil certificate thereof, can a religious ceremony take place. As with the German imperial law of 1875, the execution of the law was left to the separate states, and their statutes, through revision and modification, were harmonized with the federal law.

Thus Switzerland, like France, Germany, Italy, Belgium, and Holland, has carefully separated the civil from the religious celebration, prescribing the former as the only source of the legal status, and the civil registry as the only means of proof. Even where this French principle has not yet been adopted, steps preparatory to this have been taken, and its substantial acceptance by most Continental countries seems near. That marriage is at least an institution of society, and as such its celebration must be guarded and regulated by the State for the common good, has become a fundamental principle.

Prior to the Council of Trent, the law of England, on the celebration of marriage, radically differed from that on the Continent. The latter, adopting the canon law, made mere consent sufficient to constitute matrimony : but in the former the canon law was amended, and, besides the consent of the parties, the presence of a clergyman was always required. In England, a marriage by mere consent was indeed indissoluble, and its solemnization in facie ecclesiæ could be enforced at the suit of either party. “ Such marriages,” says Eversley, “were regarded by the ecclesiastical court as complete in substance, but not in ceremony, and the ceremony was enjoined to be celebrated as a matter of discipline ; whereas they were not so regarded by the temporal courts unless celebrated by some one in Episcopal orders. If so celebrated, the temporal courts would adopt the marriage, and hold it good ab initio.”

By the English common law, therefore, down to 1753, there were but two forms of constituting a marriage complete in all respects. The first was by solemnization in facie ecclesiæ,— requiring banns, or an Episcopal license dispensing with banns; religious rites solemnized by a priest (before the Reformation), or by a person in holy orders (after the Reformation) ; and, if the parties were minors, the consent of guardians. The other form was by clandestine celebration,—requiring simply the presence of a priest, or of a person in holy orders.

The Episcopal Church, however, never deemed the presence of the clergyman alone sufficient to secure the notoriety, certainty, and sanctity of the marriage ceremony. It always required, on pain of ecclesiastical censure, the above solemnization in facie ecclesiæ. The strict discipline of the Church, reinforced by the convictions of the people, at times influenced the civil courts; for in the reign of Edward IV. it seems to have been held that a scrupulous observance of the prescribed ecclesiastical forms was essential.

On the other hand, the arrogance and ritualism of Episcopacy aroused to revolt a large party among its adherents ; and in the issue was deeply involved the theory and the celebration of marriage. Out of these religious dissensions came a new system, which, carried to America, has existed to this day. But to understand this change and its bearing on our problems, we must examine briefly the principles beneath it, and its stages of progress. In separating from Rome, the Church of England, though adopting in the main the Protestant theology, had retained many Catholic forms and usages ; and for her purification from these relics of popery there gradually arose within the Church a large party, calling themselves Puritans. United only in antipathy to popish tendencies, the Puritans differed among themselves in opinions and in measures, and soon split into a number of sects. Of these, the most noted was formed about 1581, by one Robert Brown. The Brownists, holding extreme views regarding the nature of the Church and the rules of ecclesiastical government, met with severe persecution, and finally took refuge in the Netherlands. While there, mainly through the influence of John Robinson, one of their pastors, the more severe, more uncharitable features of the founder’s plan were modified. They took the name of Independents, and from Holland a body of them came to America as the Pilgrims in 1620.

Meanwhile, Henry Jacob, an associate of Robinson at Leyden, had returned to London. There he founded a church, from which Independency spread throughout England. Its main doctrine was that “ each congregation of Christians, with its office-bearers, which meets in one house for public worship, is a complete church; has sufficient power to act and perform everything relating to religious government within itself; and is thus independent of all extraneous control in spiritual matters.” Besides this democratic church government and the principle of religious freedom, Independency possessed all the old Puritan hostility to popish tendencies ; and in all these respects it came into conflict with Episcopacy. Between the two the seventeenth century witnessed a long and mighty contest. Under the Commonwealth, the Independents became the dominant power in the State, Cromwell himself being of their number. Obtaining control of Parliament, they disestablished the English Church, instituted a policy of broad religious toleration, and sought to effect a national reformation toward freedom and purity in religion, in politics, and in society.

In this comprehensive scheme, as well as in the downfall of Episcopacy, there was necessarily involved a fundamental change in the institution of marriage. On the one hand, the law of the celebration of marriage, both in origin and in administration, had been inseparably connected with the Established Church. Through the influence of that Church, the canon law, which on the Continent required, to constitute matrimony, only the exchange of consent between the parties, when adopted into the English common law was made to require in addition that this consent be exchanged in the presence of a clergyman, and that too a clergyman ordained by the Church of England. These privileges, as they were gained through the alliance of the Church with the State, could not be retained after that alliance was dissolved. On the other hand, Independency could not, consistently with its plan of reform, permit marriage to be celebrated and controlled exclusively by any single denomination, especially by Episcopacy, which it deemed the synonym for ecclesiastical oppression and popish tendencies. Indeed, the Independents did not deem the presence of any clergyman at all essential to the sanctity or to the security of the ceremony. Denying the Episcopal doctrine that Christ had instituted a permanent order of ministers in his Church, they believed that while the minister or pastor should indeed feel himself called to his work, and should be gifted with a “ mightiness in the Scripture,” yet he otherwise differed from the members of his congregation only in being chosen by them to lead in devotion, and to communicate public instruction. Hence they saw but little, if any, reason why a minister rather than any other Christian should be required at the celebration of marriage.

Moreover, the Independents believed that marriage was primarily an institution of the State, not of the Church, and on the principle of complete separation of Church and State, should be in the control of the civil authorities. Hitherto no marriage had been valid unless celebrated in the presence of a clergyman ordained by the Church of England. This law was obnoxious to the reformers, not in principle alone, but in practice also ; for there already existed those flagrant abuses which, a century later, compelled the enactment of Lord Hardwicke’s Act. Hence one of the first proceedings of Cromwell’s Barebones Parliament was, in 1653, to abolish the ancient religious rites, and to institute what was unknown in modern Europe, the civil publication, solemnization, and registration of marriage. First, a publication of the banns by the registrar — a civil officer chosen by the parish householders — had to be made, either in the church on “ three several Lord’s days,” or, if the parties preferred, in the marketplace next to the church, on a marketday in each of three successive weeks. The parties were then required to present to “ some justice of the peace ” of their town or city a certificate of such publication, and, if they were minors, proof of the guardians’ consent. The justice, in the presence of at least two witnesses, receiving the parties’ declaration of “ consent unto marriage,” declared them husband and wife. A certificate, signed by justice and by witnesses, could then issue, and the registrar entered the transaction upon the parish registry. “ And no other marriage whatsoever, within the Commonwealth of England, . . . shall be held or accompted a marriage according to the laws of England.”

This, then, was the first statute in modern Europe to embody a system of civil celebration. In England, it seems to have effected no permanent change; for in 1661, the monarchy being restored, Episcopacy and the former religious rites were reëstablished. Not until the French Revolution, over a hundred years later, did Europe obtain a model for the development of the civil celebration of marriage.

Although at the Restoration the former law was regained, the religious discipline which had reinforced that law was not so easily restored. Clandestine marriages increased, especially the socalled Fleet marriages, celebrated by clergymen of low character near the Fleet prison, at any time of day or night, without publication, witnesses, or guardians’ consent. These clergymen being " in holy orders,” the marriages were valid. The consequent demoralization of society brought about, after a century of delay, the enactment, in 1753, of Lord Hardwicke’s Act, so called because presented by the Lord Chancellor Hardwicke. This law was truly called by Blackstone “ an innovation upon our ancient laws and constitutions; ” for it provided that no longer should marriage by mere consent be indissoluble, nor its solemnization in facie ecclesiæ enforcible. It declared that all marriages celebrated in any other place than a church of the parish where the parties dwelt, VOL. LXI. — xo. 364. 17 unless by special license, or without publication of banns or the Ordinary’s license, should be null and void, and the parties celebrating it liable to fourteen years’ transportation.

Thus was abolished not only the quasimarriage inherited from the Roman law, but also the slightly improved form, — that by clandestine celebration. The solemnization in facie ecclesiæ became the only legal form. In these respects Lord Hardwicke’s Act marked the acceptance in England of the reform already begun in the Protestant countries of the Continent toward the religious celebration of marriage. But in the strictness of its provisions and the narrowness of its scope, the act worked great hardship and proved inadequate. As it operated only in England, its delays, restraints, and technicalities were avoided by thousands each year by a short trip to Gretna Green, a small village in Scotland just across the border, on the main road from the south. There, according to the law of Scotland, the parties became husband and wife by simply expressing their consent to be such before the well-known blacksmith as witness ; and " the Gretna Green marriages were recognized by the English courts,” says Mackenzie, “ though the parties had eloped to Scotland on purpose to evade the law of their own country.” This state of things continued till 1856. In that year, Lord Brougham’s Act provided that “ no irregular marriage contracted in Scotland by declaration, acknowledgment, or ceremony shall be valid, unless one of the parties had, at the date thereof, his or her usual place of residence there, or had lived in Scotland for twenty-one days next preceding such marriage.”

The omission of any one of the many formalities prescribed by Lord Hardwicke’s Act made a marriage void ah initio, though the suit for nullity was begun years after the defective celebration and after children had been born ; and such omission was not excused to ignorance of the law nor to honesty of purpose. Hence decrees of nullity increased to an alarming extent. Nevertheless, English legislation was again so tardy that seventy years elapsed before a remedy was obtained. By an act of George IV., in 1823, “ the penalty of nullity was confined to the case of persons willfully consenting to the performance of marriage before publication of banns, or before obtaining a license, or by one not in holy orders, or elsewhere than in a church or licensed chapel.”

The beneficent principle thus adopted, however, did not relieve all the grievances which resulted from Lord Hardwicke’s Act. The clergy of the Established Church were still the only persons authorized to celebrate the marriages of Catholics and of dissenters. These classes were then gradually emerging from a long period of legal and political disability, and to grant to them the privilege of solemnizing their unions according to their faith was essential to their emancipation. Thus in England, early in this century, existed the motives and the occasion for modifying the ancient religious celebration closely analogous to those seen later on the Continent. The change was accomplished in 1836 by Lord John Russell’s Act. With slight amendments, this is still the law. It introduced the optional civil celebration ; “ and for the first time in English law [Cromwell’s Act excepted], whether ecclesiastical or civil,” says Eversley, “ the purely temporal and civil element in marriage is recognized.”

Those persons unwilling to be married by Episcopal rites are permitted to resort either to the customs of any other denomination, or to a ceremony wholly civil; but in either case the presence of the civil registrar is required, except in a solemnization according to the usages of Jews or of Quakers. The rules prescribed by the rubric are still to be observed by every person in holy orders of the Church of England. But any marriage that might before have been solemnized after publication of banns may now be celebrated equally as well upon the production of the registrar’s certificate. When it is intended that the celebration shall take place in any way other than by a license from the Archbishop or from the Ordinary, or after the publication of banns, one of the parties to be married must present to the superintendent-registrar of the district where the parties have dwelt for at least seven days next preceding (if they have dwelt in separate districts, then to such officer in each district) a written notice, containing the full name, the profession or condition, and the place and length of residence, of each party, and the registered church or other building in which the solemnization is intended. The notice is then entered on the Marriage Notice Book, and for the ensuing twenty-one days is posted in the office of the superintendent-registrar. A certificate of publication may then issue. If, however, the parties can show a residence of fifteen days next preceding, a license authorizing an immediate celebration may issue on the second day after the notice is entered. But in either case, if objection has been made, it must have been obviated either by its withdrawal, or by its disallowance upon a hearing before the registrar. The certificate or license is delivered to the minister, to the registering officer of the Quakers, to the registering officer of the synagogue, or to the registrar, according as the celebration is to be by Episcopal or dissenting rites, the usages of Quakers, those of Jews, or by the civil forms. In the first three cases, the ceremony accords with the forms peculiar to each. In the last, it must take place at the registered church named in the notice, with such rites as the parties choose, or it may occur at the office of the superintendentregistrar. But whether at the registered church or at the office, there must be present a registrar of the district. In all cases, the ceremony must take place between the hours of eight and twelve in the forenoon, and in the presence of two creditable witnesses; and the contracting parties must declare that they know of no impediment to the marriage, and that they take each other for husband and wife. Thereupon the registrar enters the facts upon the Marriage Registry Book, and the entry is signed by the witnesses, the officiating minister if there be such, the registrar, and by the parties married.

The spirit and import of this legislation are thus set forth by Eversley: " Matrimony, with all its requirements, was formerly looked upon as a spiritual act within the province of the courts Christian ; but the spirit in which modern legislation affecting it has been conceived clearly evinces that its temporal and civil nature is to be held paramount, and the basis of present and future change.”

In Ireland, the Church obtained the control of matrimony on the plea of providing for the spiritual welfare of the people ; and even after the Reformation her canons governed the celebration of marriage by the Churches of England and of Ireland. This uniformity was interrupted in 1753 by the passage in England of Lord Hardwicke’s Act; and by this and subsequent statutes the ancient religious rites were made in England more nearly to accord with the requirements of modern society. To the presence of the priest there were added, as we have seen, various other safeguards as to time, place, notice, consent, and registration. Within this century, similar Irish statutes have been passed ; and hence, as to the celebration by the Protestant Episcopal Church, the former uniformity between England and Ireland again substantially exists.

But besides this, there are in Ireland at least three other forms of the nuptial celebration ; and, as regards these, English legislation presents a disgraceful history of neglect, harshness, confusion, and sectarianism. By the common law, — which for Catholics in Ireland has not been changed, — the celebration of marriage, if only it be in the presence of a clergyman in holy orders, may take place in public or in private, at any time or place, and in any form or manner. No publication of banns, no notice, no previous residence, no consent of parents or of guardians, is required. In practice, it should be said, the Roman Catholic Church, in obedience to the decrees of Trent, requires the presence of witnesses and the publication of banns, or the procuring of a license or of a registrar’s certificate ; and an act of Parliament in 1863 provided for the registration of Catholic marriages. But those decrees never became part of the common law ; and the omission to register the marriage does not make it void. Hence the

“marriage by clandestine celebration,” abolished in England over a century ago, is still, if between Catholics, legal in Ireland.

But besides neglecting to give to Catholics that protection, in this matter, long since granted to other denominations, Parliament has in the past interdicted with harsh penalties the celebration of marriage by priests, except when both parties to be married were Catholics. In the reign of George I., Catholic priests were forbidden, on pain of death, to marry two Protestants, or a Papist and a Protestant. Early in the present reign, the penalty of death was superseded by that of transportation for seven years ; but marriages between Protestants and Catholics, by whomsoever celebrated, were absolutely prohibited until 1783. It was not till 1869 that this disability was wholly removed.

While Parliament restricted Catholic priests, the common law disabled nonconformist ministers ; and relief was nearly as tardy in the latter case as in the former. Such ministers, not being “in holy orders, ” could not legally celebrate marriage. By the act of 1738, however, Presbyterian clergymen obtained this privilege, though the legality of such unions was not directly affirmed. Their validity was not finally settled till 1844, over one hundred years later. In that year, the Irish Marriage Act was passed, closely following the system already provided for Protestant Episcopalians. Thereafter, a marriage between persons, one at least of whom was a Presbyterian, was to be celebrated by a minister of that denomination, in one of its certified meeting-houses, according to its usual forms, and after the publication of banns or the procuring of a license.

For those persons in Ireland not Catholics, Episcopalians, or Presbyterians, but Quakers, Jews, and others, Parliament has, within the present reign, gradually instituted a course of procedure as to notice, certificate, license, time, place, and other particulars, varying but slightly from that existing in England. At the option of the parties, the nuptial celebration may be wholly civil, or partly civil and partly religious. Likewise, as to registration, besides the parochial and other registries of the Episcopal Church, there is a civil registry, under the registrar-general in Dublin, with county districts under district registrars.

While in England and in Ireland early jurisprudence mainly grew out of native habits and customs, and but slightly copied Roman models, in Scotland it was founded on the Roman law, and the canon law of marriage, as copied from Rome, was early introduced, and lias never been changed. The provincial synods did, indeed, make some effort to adopt the reform begun at Trent; but the reformation from popery immediately came, and prevented their success. Nor was Scotland materially affected by the later English legislation and judicial decision prescribing the religious celebration of marriage. Hence Scotland alone, of European nations formerly influenced by mediæval canon law, still retains that law, and does not require the interposition either of Church or of State to constitute the status of marriage. “ A marriage may be constituted,” says Fraser, “ according to the law of Scotland, by declarations made by the man and the woman that they presently do take each other for husband and wife. No sacerdotal benediction is required to make this a valid marriage. This declaration may be emitted on any day, at any time, and without the presence of witnesses. Such a marriage is as effectual, to all intents and purposes, as a public marriage solemnized in facie ecclesiæ.” According to a recent decision of the highest court of Scotland, " the governing principle is that consent makes the marriage.”

Although these “ free ” or irregular marriages have always been valid, their celebration, especially if it included any religious ceremony, exposed the contracting parties, the witnesses, and the officiating clergyman to penalties including corporal punishment and even banishment. The severity of punishment indicates the determined opposition of the Church of Scotland and of the ruling classes to these mediæval principles. “ Public opinion,” says Eversley, " does not approve of the laxity of their regulations in matrimonial matters, or of the opportunity they offer for clandestine, improvident, and secret unions.” Accordingly, by the side of this u facile code of irregular or inorderly marriages ” there was early introduced and zealously fostered a strict system of “ regular or public marriages,” with a celebration by a minister of the Established Church, preceded by the proclamation of banns. To the latter form the intervention of a minister has always been necessary; and down to the reign of Queen Anne, this office was forbidden, on pains and penalties, to a clergyman not of the Establishment. The privilege was then extended to ministers of the Protestant Episcopal Church, and in the time of William IV. to all clergymen whatsoever. Before Queen Anne’s reign, the churches of the Establishment were the only places where banns could be proclaimed. It was then allowed Episcopalians, besides this, to publish banns in their own churches. Other dissenters, including Quakers and Jews, were still required to have their banns proclaimed only in the Established Church.

Prior to 1878, the publication of banns was indispensable to the celebration of a “regular marriage.” But by the Marriage Notice Act of 1878, “ a considerable modification in the ideas of marriage prevalent in Scotland has been introduced. For the first time it is acknowledged by legislative enactment that, it is no longer necessary to have recourse to the Established Church.” A “ regular marriage ” was formerly authorized only by a session-clerk’s certificate of the publication of banns ; it may now take place also upon a registrar’s certificate of the publication of marriage notices. Eversley states that “ the new law has been regarded as breaking down one of the barriers between regular and inorderly marriages; . . . the chief religious denominations . . . hold it to be an intrusion of the civil power on purely spiritual and ecclesiastical matters.”

Thus in the British Isles, as well as on the Continent, the development of the law is toward the adoption of the civil celebration of marriage. In both, laxity, multiplicity, and confusion are gradually giving place to strictness, unity, and definiteness. In both, the functions of the State, as compared with those of the Church, have constantly increased in extent and in importance. But while in the former the prevailing type is le mariage civil facultatif, in the latter it is le mariage civil obligatoire.

Frank Gaylord Cook.