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gives in pages 309 to 478, a history of the marriage laws of England, Scotland, Ireland, and the United States, since the Reformation, which is fuller and more convenient than any that exists elsewhere, and without a translation of which we do not hesitate to say that both the inquiries of the Royal Commission now sitting, and the discussion that must follow the conclusion of these inquiries, must be carried on under great disadvantages. We earnestly recommend some one of our legal brethren to devote the leisure of the long vacation to the work of preparing a transCation of this part of the book, or, still better, a small book founded on Dr Friedberg's, containing almost all this portion of it, and a judicious selection from the remainder. It would be very important to have an abridgement in English, with improvements and additions, of the latter part of the book, which comprises the details of the legislation and discussions on this subject in foreign countries during the last and the present centuries.
It is impossible, in the space to which we are confined, to enter on the large subject which this Book embraces. The author traces the course of the English marriage law from the entire absence of form which existed under the regime of the Canon Law, till it arrived at a degree of formalism such as has never been known on the Continent, and which could only have grown up to supply the want of a law of divorce. “For," he says, “as the unloosing of the marriage tie was nearly impossible, necessity taught men to find a remedy by annulling it” (p. 436). The law of Scotland is sketched more shortly, but with as much insight and accuracy, as can be expected from a writer who appears not to be acquainted with Mr Fraser's “ Personal and Domestic Relations," or with any recent cases, except newspaper reports of the Yelverton case. Dr Friedberg declares himself against the existing law of Scotland :
“Secret marriages," he says, "wherever they have not been extirpated by the severity of the law, have produced crimes of all sorts, the most serious improprieties, and danger to the whole moral life of the people. We had to point out the unhappy condition of the middle ages in our account of the ante-tridentine law, and it may easily be calculated to what extent such disorders must reach in the more complicated relations of a civilized age.
“Although in other countries the seduction of females, whether major or minor, may never be entirely prevented by statutory provisions, and although only the morality which arises from culture may afford a sufficient protection against this evil, yet a marriage is not entered into by the mere
VOL. X, NO. CXVII.-SEPTEMBER 1866.
fact of that seduction ; unchastity is not so identical, or at least so nearly connected with marriage as it is in Scotland.
“And what an inducement to the irregular satisfaction of the passions is to be found in this informal law! The maiden is silenced by some soothing words, which perhaps she wrongly takes for a promise of marriage, or by a formal betrothal is made more disposed to be seduced, and the man seeks to overcome her scruples by the cheap pretence that he really intends to enter into a matrimonial connection, not perhaps now, but afterwards; and then, having easily attained his purpose, treacherously forsakes the girl. And that is a favourable case ; for how often may the false pretence, the deception, have been in the thoughts of the seducer from the first!
“But what family is safe when the twelve-year old daughter, whose bodily and mental immaturity makes her fitter for the nursery than the nuptial couch, can without form or preparation, without the assent of either parents or guardians, enter into a lifelong connection ; when boys of the age of fourteen are exposed without any defence to the wiles of covetous or wanton women ?
“And then how pitiable is the condition of those who in good faith contract a marriage, with public proclamation and solemnities, but are after. wards declared concubines, and their children bastards, because the other spouse, who is perhaps dead, had, it may be fifty years ago, in an unguarded moment, contracted a secret marriage ”
These are the ordinary objections to the Scotch marriage law, which it is not the purpose of the present article to discuss.
It strikes us, however, that as Dr Friedberg states them, some of these objections might very easily be turned into arguments on the other side. It is right to add, that Dr Friedberg, after referring to the various attempts to alter the law, and the strenuous resistance to these attempts, acknowledges " that the Scotch marriage law does much less mischief in Scotland than it would cause in any other country. Long custom has brought the people for the most part into the habit of regular marriages, and makes irregular marriages on the whole but rare exceptions.'
Dr Friedberg, in summing up the results of his survey of the legal history of Europe, believes that for the last three centuries all civilised countries have been tending in different ways towards the same end, civil marriage. The ecclesiastical marriage, as it everywhere prevailed, reconciled the interests of Church and State, and was a fit expression of the moral character of the matrimonial relation. But the law which was wholesome and adequate in simpler times became oppressive and injurious in a more complicated state of society. Various causes combined to make it inevitable that the ecclesiastical solemnity as the only mode of contracting marriage should be relinquished. The unity of Christian faith had disappeared. Romanism was no longer powerful enough to enforce the observance of one religious ceremony, and Protestantism was compelled by the very nature of its being to tolerate different confessions within its borders. This tolerance was indeed of slow growth. At first it was said, "Let those religious acts which are bound up with the welfare and security of the State be withdrawn from the strife of sects. Let men worship God as they will, but let them contract their marriages before that priest whom the State entrusts with the function." But by degrees culture and increasing sensibility for religious independence has been removing one by one such restrictions upon the principles of toleration.
Preachers of every sect were allowed to officiate in the nuptial ceremony, in this country only very lately. But this remedy was not sufficient. Many religious societies had not a regular organisation, and wanted any official to whom the charge of the marriage ceremony could be given.
“ Then the legislator again became conscious of the original nature of marriage. It was not of a character so essentially ecclesiastical that in every case it must be suffered to fall into the hands of the Church. Protestant teaching had openly enough proclaimed that marriage was a secular contract, that it was only the laws of the State which had allotted to the Church the regulation of marriage, and that in doing so they had been in accord with the general opinion and the wants of society. It was no act of injustice towards the Church, but a mere act of justice towards its citizens, if, again following public opinion and the requirements of the age, the State now resumed what was its own function. On the other hand it was not right to offend the majority for the sake of a few, and to take away the ecclesiastical constitution of marriage from all who were still truly attached to it in order to liberate a few."
Hence a new law of marriage, confined within the narrowest possible limits, which Dr Friedberg calls, throughout his book,
Noth-civilehe,” civil marriage for cases of necessity, or subsidiary civil marriage. This first departure from ecclesiastical marriage was made in the United Provinces in the course of the sixteenth century, and in France immediately before the Revolution. It was taken not merely from motives of tolerance, but also as the only means of avoiding a conflict between church and state. The pretensions of the church to the exclusive control of matrimonial matters had been revived. Romanism was enabled by its organisation to assert again in defiance of the claims of the state the maxims of the Canon Law, as altered by the Council of Trent; and its doc
trine of the sacramental nature of marriage furnished a convenient theoretical basis for such claims. The Protestant clergy also had forgotten or renounced the doctrine of the fusion of church and state, which had so long been preached and practised, and had adopted an almost sacramental theory of marriage. Hence civil marriage was adopted only as a remedy for conspicuous evils ; in order, for example, to facilitate mixed marriages between Jews and Christians, or between Protestants and Roman Catholics.
Theoretical speculation also led to the doctrine of civil marriage. The Reformation revived the doctrine of the dualism and separation of Church and State, as it was held in the infancy of Christianity ; but as the State had previously been over-ridden by the Church, so now the State was for the most part too powerful for the Church, and it was long before this doctrine led to any practical result. Indeed, as we have already indicated, the State and the Church were in reality more closely connected in early Protestant times than they had been before the Reformation, with this difference that the State had the predominance. As the ancient theory revived and gained strength, the Church, which could not now hope " to set its foot on the neck of the State,” had to content itself with proclaiming its own freedom and equality
“Only once before the end of the 18th century had an attempt been made to carry out practically the distinction of the ecclesiastical and civil power. This was not made from any anti-ecclesiastical disposition, which sought to banish religion from common life, and deny to the Church all outward action ; but, on the contrary, from an excess of piety, striving to make the church more devout and spiritual, and liberate it from the frivolous concerns of the world. Hence the position assigned to marriage. It had originally belonged to the province of the State. Church and State being separated, it necessarily followed the State, and was to be entered into with forms and conditions prescribed by the State. Thus arose the obligatory civil marriage of the English Commonwealth."
Cromwell's marriage law, which was in force over all the British islands, was a consequence of the Puritan effort to restore the whole Church constitution to the apostolic pattern, and to get rid of every form or ceremony which might recall the times of Paganism or Popery. It introduced civil marriage, says our author in another passage, “because that system deprived the clergy of a considerable source of revenue, and thus drove away hirelings from the service of the church ; it took the matrimonial jurisdiction from spiritual functionaries and transferred it to justices of the
peace, because no secular jurisdiction pertained to the clergy; it prohibited the marriage ring because it was of heathen and Romish origin.”* The writings of Milton show the principles on which this legislation, which was of course repealed at the Restoration, was founded.
When this theoretical view of civil marriage again received practical expression, the impulse was not derived from a regard for the interests of religion and the church, but rather from profound dislike to both.
“ The civil marriage of the French Revolution sprung from a desire not to make the Church less worldly, but to make the State less ecclesiastical. (Man wollte nicht so die Kirche entweltlichen, wie den Staat entkirchlichen.) The modern German civil marriage stands between these two tendencies. It would be incorrect to ascribe it either to hatred or affection for the church. It is historically false to connect it either with the French or English model.
The separation of the spheres of ecclesiastical and political action is an almost undisputed maxim of modern Constitutional Law. Church and State must be left free to continue their development alongside of one another, unembarrassed by the artificial tie which has hitherto confined and hampered the growth and prosperity, sometimes of the one and sometimes of the other. If this theory be regarded as practicable, it leads as an inevitable consequence to civil marriage.
“Marriage is the basis of the family, and therefore of the State; it is the most important institution that the State has to regulate and watch over. If it is the duty and the will of the church to withdraw from every political influence, the State cannot commit to her the regulation and control of marriage. It would then give up its own function, and place its most important institutions at the arbitrary disposal of a corporation whose sphere transcends its own rights and powers. Hence it insists on the political character of marriage, fixes the legal conditions of its validity, and leaves it to the choice of the individual and his religious necessities, to come to terms with the requirements of the Church."
From these principles have sprung not only the obligatory civil marriage of France and the Rhineland, but also the facultative or optional civil marriage of England. For the story of the de
Comp Butler's Hudibras III., 2., 303 :
“Others were for abolishing
That tool of matrimony, a ring,
That nulls the after marriage still." Our author quotes (p. 329) an amusing specimen of the squibs produced by this legislation ; but its wit is too broad for our pages. See Flecknoe's Diarium (1656) p. 83.