3. The . State, as the guardian of the family, as the protector of the wife's and the children's rights even against the husband and father, is bound, and has in no civilized country refused, to make laws touching the pat7-ia postestas — the husband's rights over and obliga- tions towards the wife : his obUgations especially to sup- port his wife and children, and the amount of freedom he ought to have in transmitting his property. We do not intend to enter into this large subject, except so far as to say that there lies a feeling of the unity of family life at the foundation of aU righteous law on these subjects, whatever may be the specific rules of this or that code. The family being one, the wife ought to be deprived no more than the children of a portion of a deceased husband's effects ; so that the right oftestameid in his case, even if he acquired all his prop- erty himself, ought not to be absolutely free.
4. The moral feeling of the importance and sanctity of marriage lies also, in a measure, at the foundation of laws and usages regulating its commencement. Such are betrothal, the formal declaration before a registrar or other otlicer of an intention of marriage, the publication of the banns, the celebration or solemnization before witnesses and with appropriate formalities. Marriage having a religious side, it has been natural that the ministers of religion should have a part in its initial solemnities. But it is a great grievance that they are obliged — as the law of Prussia, we believe, requires of them — to imite in wedlock any persons who may by law be lawfully united, whether the minister's o\\^l views touching the la\vfulness of marriage after divorce agree with those of the government or not : and it is another grievance when only the ministers of an establishment can solemnize nuptials. Civil marriage, on the other hand, as it exists in some Catholic countries, and mar- riage before a magistrate or justice of the peace, which is lawful to a great extent through the United States, have this great evil attending on them : that they look on the civil side of marriage exclusively. Surely that institution which is the foundation of the state, the guardian of children against evil influences until they can act their part in the state ; in which, and in which alone love presides over the formation of character; from which, through the sj-mpathies of kindred, chords run in all directions, binding and weaving society to- gether, and where the seeds of J"eligion are sov.ti in the impressible heart — such an institution surely, -wliich pa- gans feel to have a sacred quality, and place luulcr tlie protection of their gods, ought to have a solemn begin- ning, so that the parties to be united in " holy matri-
mony," and the witnesses, may feel that it is a deeply- serious transaction — a relation not to be lightly assumed without forethought and preparation, and solemn con- secration to one another, and earnest prayer to that God who has said that " they twaui shall be one flesh."
III. When the Church takes a view of divorce differ- ent from that taken by the State, it cannot sanction the remarriage of a person whom it regards as boimd by Christ's law to a former wife or husband. See Divorce.
1. Some of these obstacles to marriage are of such a nature that a marriage actuaUy commenced in disregard of or in ignorance of the law ruling in such cases is a nullity. There is, however, a need of some formal pro- ceeding by which the nulhty is made manifest. There are others in Avhich the innocent party may continue the marriage, and condone or consent to live with the offender ; nor can such consent be afterwards withdrawn in order to make good a claim which has been once waived. Near relationship or affinity, the existence of a previous wife or husband, are instances of the first kind ; impotence, mistake, previous misconduct, even fraudulent statements procuring marriage, are instances of the second. In the first case the marriage is void, in the second it is voidable. We are apt to call separa- tions for either reason divorces, and our statutes in many state-codes group them with divorces properly so called ; but there is a wide difference between separations on the ground that there had been no lawful marriage, and divorce proper on the ground of some event occurring after actual marriage. In the first case there was a form without the reality of marriage, and the court — ci\Tl or ecclesiastical — pronounced a decree of nullity, which did not affect the children nor the parties up to the time of the sentence. Being decided to have never been imited in wedlock, ihey were free to enter into this union with third parties. See Woolsey, On Divorce, etc., p. 123, 124, and especially Eichtefs Kirchenr. § 266 -284, 6th ed. ; Goschen, in Herzog's Real-Encyklopiidie, voL iii, s. V. Ehe.
2. In regard to the lawfulness of remarriage in gen- eral, we must refer to the article on Divorce (Christian Law of) in this Cychpcedia. On the particular point of marr_\-ing again after a first wife's or husband's de- cease, we have room for a few remarks. That this is lawful in itself, and must be left to the conscience and the circumstances of individuals, there can be no ques- tion, after what the apostle Paul has said in Rom. vii, 1-3, and in 1 Tim. v, 14, in which latter passage " the younger women" e\-idently refers to the young widows just before spoken of. The apologist Athenagoras (§ 33, p. 172, edit. Otto) is both unscriptural and weak where he says that a second marriage is •■ decorous adulterj'," and apphes the words of Christ (Matt, xix, 9) to such remarriages, adding that he who deprives himself of [or separates himself from] a former wife, even if she be dead, is a covert adulterer who transgresses the di- rection of God, since in the beginning God made one man and one woman. Similar views are entertained by Tertullian in his treatise De monogamia, which was