RELIGIOUS ENCYCLOPEDIA
Marriage
In the original Teutonic marriage law there was no place for the cooperation of a priest, but this now became possible. The German people adhered to the ancient formality of giving away; but since in reality nothing more was to be given away, a third person chosen by the parties, hence the priest, could perform the formality. As a matter of fact, it was the will of the parties which made the marriage. This church marriage, however, did not become general in Germany, nor indeed did the Church regard its cooperation as necessary to validity, since mere consent, however expressed, was sufficient. Herein lay the peril to ecclesiastical marriage law, nor was it until the Council of Trent that it was enacted that in future the declaration of consent to wed must be made before the proper priest in the presence of two or three witnesses if the marriage was to be valid.
In the Protestant Church the decided rejection of the validity of secret marriages by no means made their validity dependent on their solemnization by the Church, but resulted at first merely in the non-recognition of clandestine betrothals looking toward immediate marriage, and later in the compulsory completion of public be-
4. Decline trothals, whether unconditional or folof the lowed by cohabitation, by church mar- Importance riages. It soon became a general
of the custom, however, to celebrate the mar- Betrothal. riage by a church wedding; while the
decline of the custom of regarding an unconditional public betrothal as a marriage facilitated the prescriptive law which had become firmly established in Switzerland and Germany by the beginning of the eighteenth century, and which fixed the religious ceremony as the proper and necessary form. The movement inaugurated in Evangelical circles by Just Jenning Bohmer against the theory of betrothal in canon law naturally conditioned the importance of the marriage ceremony, which it considered the real marriage act. In England this was first established by the Hardwicke Act in 1753. In Scotland the pre-Tridentine canonical marriage law is still in force, thus explaining the famous marriages in Gretna Green, which, following that law, take place by a mere sponsalia de prcesenti without a formal marriage.
For the cooperation of the Church in contracting marriage Protestantism retained essentially unchanged the church banns and marriage by the Church. Luther's marriage ritual makes the ceremony take place before the church, only the Scripture lesson and the prayer of benediction being given at the altar. In Luther's book and in most
Protestant rituals the marriage form
5. Theory reads: " I pronounce you joined in of Marriage wedlock in the name of the Father,
in Early Son, and Holy Ghost." The Nord-
Lutheran lingen agenda of 1676 has the fuller
Rituals. form: " j pronounce and give you
joined in wedlock in like manner as
God joined our first parents in Paradise, and this
in the name," etc. Some rituals, especially in South
Germany, read like the Brandenburg-Nuremberg
agenda: " The marriage vows which ye have pledged
one to the other in the presence of God and his holy
congregation, I here confirm at the command of the Christian congregation in the name," etc. In other rituals both forms are combined, as in the Eisleben manual of 1563: " This marriage, ordered and ordained by God Almighty between you, I confirm as a minister of the Church in his stead, and in the presence of this congregation I here pronounce you publicly joined in wedlock in the name," etc. From this it follows that the real and essential meaning of the " joining together " in the name of the Trinity represents the divine joining together in wedlock, but that it does not imply that the marriage is performed by the act of the minister. Marriage was originally held to be contracted by the engagement preceding the ceremony and the banns. In the introduction to the marriage ritual it is sometimes said (as in the Lower Saxon agenda of 1585) : " The persons here present have, in the customary manner, with the knowledge of their parents on both sides, etc., entered into the holy estate of matrimony." The wedded life already begun was merely completed by the church ceremony. When, at a later time, the distinction between inchoatum and consummatum matrimonium was disregarded, and a sharp line was again drawn between betrothal and wedded life (marriage being deemed necessary for the latter), the " pronouncing together " in the name of God came to denote the declaration of marriage, which could be celebrated only by such a declaration. Nevertheless, this new development did not supersede the original and main significance of the " pronouncing together," for as a religious act it never lost this meaning, its declarative aspect arising from the legal character which it had now assumed in addition to its religious functions. The actual validity of the marriage contract was always held to reside in the mutual agreement of the parties concerned, as expressed in their assent to the questions in the marriage ceremony. They themselves thus contracted with each other the marriage which the minister merely confirmed solemnly by his declaration, although the latter ceremony was necessary for the validity of the marriage. Herein Protestant canon law finally differed from Tridentine Roman Catholic, the latter holding that a formal wedding was not necessary to the validity of marriage, if a declaration of mutual consent had previously been made.
Various grave difficulties arising from the requirement of a religious ceremony for the legal validity of marriage led to the development of a civil marriage service, which then became either sufficient for or necessary to its civil validity. This civil ceremony, as found in the sixteenth century in Holland, and in France in 1787, had for its
6. Devel- 0bject the protection of the liberty of
opment of
Civil Marriage.
conscience of sectaries or members of Protestant communities which were
merely tolerated; since by observing a prescribed civil form of marriage they were enabled to obtain the same public recognition for it as could properly be obtained only by the cooperation of the State Church. A French law of 1792 made the civil ceremony obligatory upon all citizens, on the principle that " the citizen belongs to the State, irrespective of religion," the legal basis
Marriage