The Continental Eeformcrs from the first denied the sacramental character of marriage. They acknowledged, indeed, matrimony as holy and instituted of God, yet considered it as partaking more of a civil than of an ec- clesiastical character — as an institution which received only a higher consecration by the blessing of the Church. They even required the Protestant civil authorities to legislate on the subject, and thus it passed entirely into the hands of the latter. The new laws were pro- mulgated in the 16th and 17th centuries, yet all stiU re- ferred to Scripture, tlie symbolic books, and canon law as their basis ; and, being general!}' tlrawn up with the assistance of the clergy, the Church still retained the higher authority over all questions pertaining to matri- mony. In all Protestant countries at present, as far as we are informed, marriage is essentially controlled by the law of the state, although the solemnization of it may be put into the hands of clerical persons. In Cath- olic countries there is a tendency to establish two kinds of marriage celebrations — one a civil, the other an eccle- siastical one ; but aU the civil consequences of marriage, in relation to property, legitimation of children, bigamy, etc., grow out of the civil marriage, and the other (or ecclesiastical) is left to the option of the parties. The Catholic Church endures this with great unwillingness ; and in this feeling the Concordat between Austria and the pope did away with the civil contract, which was restored to its former place in the laws in 1869 (comp. Richter, Kirchenr. § 263, 6th ed.). We thus are brought to the question of the relations of the state in right reason to the marriage-contracts of its citizens. Here, before touching the particidars that are within the prov- ince of state-law, we wish to make two points in regard to the office of the state : 1. Marriage is a contract, be- cause it is an agreement between two persons to live to- gether in the condition of life called matrimony. Bur, while in most other cases the contract creates or speci- fies the transaction, in the contract of marriage the matter of the contract is presupposed, and the contract has nothing to do except to introduce two persons into a definite specific state. Out of this grows the peculiar state of parentage. This, it seems to us, is one of the greatest points in hand against the institution of " Free- love." Tiie resultant of the marital relation is of a char- acter that does not admit of the dissolution of the con- tract when once it has been entered into. The offsiiring requires the care of both the contractors, as is clcarlv seen in the case of second marriages with children from the first contract. Thus there can be no contract to enter into a marriage state which is terminable by the consent of the parties, or dependent on the pleasure of either. There may be partnerships of this kind, as con- tracts of service or of agency, for the performance of specific acts for a specific time, but there are no such
contracts of marriage. This institution is unlike the passing business relations of life, and resembles the Church and State unions more closely, although not entirely. The reason for all this is tlie moral nature of the institution, and its immense importance as the foundation of the family as well as the origin of the state. In this sense the lioman law correctly pro- claimed marriage a ■' viri et mulieris conjunctio individ- uam vitte consuetudiuem continens" (to wliich canon law adds, " i. e. talem se in omnibus exhibere viro, qualis ipsa sibi est, et e converso"), or a " consortium omnis vitre, divini et humani juris communicatio."' Quite a differ- ent tendency, however, is tbund in the attempts of some modem philosophers to &s,ts\A\ih free-marriage, as e.g. the St. Simonites (q. v.), who would overthrow^ all these laws, and make marriage a mere human convention sub- ject to all the whims of the contracting parties, and who have failed hitherto from this very cause, as has also the pretended emancipation of woman which has gone hand in hand with it. The higher nature of mar- riage over any other human mstitution at once mani- fests itself not only in the fact that it has at all times been connected with religion, both as to its contracting and dissolving, but that this view has been in no wise confined to Christendom, but in a great degree has taken a like hold upon heathen communities also.
2. Our other point is that on account of the moral and religious bearings of marriage. State and Church have concurrent power over it; that is, they both may act and lay down principles in regard to matrimonial ques- tions. How are their provinces to be distinguished? In this way, as it seems to us : The State can require nothing which the Word of God forbids in a Christian countr}', although it may forbid what the Word of God does not forbid. The Church can allow nothing, per- mitted by the law, which the Word of God forbids. For illustration, we may suppose the State to have very loose divorce laws, or to have no penalty for concubin- age during regular marriage ; it is evident that the Church must keep its members pure in such respects, until its protest, loud or silent, shall change the current of legislation,