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respective individuals of that agreement. At this point, in reality, the resemblance stops. There are deeper feelings at the bottom of such contracts than of those of trade. They are less interfered with by the direct intervention of the law; but, on the other hand, the marriage contract cannot be dissolved at will by the husband or wife, but requires the interposition of a magistrate, which ordinary dissolution of partnership does not require. This characteristic marks a strong line of contrast between our marriage and the lax tie prevailing at Rome, from before the late republic to the early Christian Emperors.
There has not been any question in England as to what kind of contract marriage is; and this is due to the fact, that
. contracts in our law are not strictly classified according to
the formalities peculiar to each, which is the general basis of the Roman law division. What we must now consider is, whether the law of England regards marriage as a sacrament, i.e., a purely religious ceremony, or as a civil contract. There are grounds for both views, which will be succinctly stated, and a general inference will be drawn from the statement of them. There can be no danger in holding that, from the influence exercised by the Canon law, it bears a double aspect—the religious and civil. It is necessary to explain the meaning of the term “ sacrament,” as applied to it. In the infancy of the Christian Church, when religious fervour was great, it seemed good to parties entering the state of matrimony to have their union blest by Heaven; the civil side of the contract was not, however, rendered any more binding by the pronouncement of this benediction. Milman,* quoting the letter of S. Ignatius to S. Polycarp, says, that “On marriage, the Christian is taught to take counsel of the bishop. Some kind of benediction in the Church, or in the presence of the community, gave its peculiar holiness to the ceremony.
° Latin Christianity, Book III., chapter 5.
Yet the Roman citizen was bound only by the civil contract.” The learned Dean then goes on to say that by degrees the Church acquired supreme jurisdiction over matrimonial questions, which, as codified in the Canon Law, survived even in England up to quite recent years. Marriage was so highly thought of by the primitive Church that it was numbered among the sacraments, or means of grace; because, in the first place, it was a check to incontinence, and was besides typical of the union of Christ in heaven with his spiritual Bride, the Church on earth. At the period of the Reformation, when the Church of England denied finally the supremacy of Rome, she at the same time professed to purge herself of certain errors into which she considered the main body of Western Christendom had fallen. She now decreed that there are only two sacraments generally necessary for salvation, and left to the individual members of her Church to hold, if they like, that the other five are necessary, but not so necessary as the two which she particularises. That she regards it as a religious service is evidenced by her incorporating in her Prayer Book an order for its solemnization. The result has been that while some hold marriage to be a sacrament, and others do not, only a comparative few deny it to be a religious ceremony, and it is in this sense that the term sacrament is here used. I
The reasons advanced by those who hold it to be exclusively a religious rite are of some such nature as the following :-—
(1.) Marriage is of Divine appointment, for the three purposes enumerated in our Prayer Book. Properly ordained priests are also of Divine appointment, therefore these are best able to carry out Heaven’s decrees in this matter.
(2.) One portion ‘of the marriage ceremony requires a benediction ; only a priest can bless, therefore only a priest can marry.
(3.) A religious ceremony tends to strengthen and purify that union on which so much happiness or misery depends.
(4.) By the law of the land a religious ceremony was necessary in former years to make the contract of marriage a valid
(1.) Previously-to the introduction of Christianity there
were well-defined rules of marriage, and it was self-aggrandising sacerdotalism that made a religious rite at one time necessary.
(2.) The State has a right to regulate the union of its members.
(3.) The State claims a power to dissolve the marriage. If matrimony was peculiarly a religious ceremony which was wholly and solely within ecclesiastical domains, the State, qud the civil side of the administration of government, would be powerless of itself to declare that a contract, with which it was not in any way concerned, should at any given time or for any given reason be rescinded or made null and void. And previously to the establishment of a Divorce Court in 1858, divorce a vinculo matrimonii, on the ground of adultery, was obtainable only by Act of Parliament.
(4.) By recent legislation marriage is capable of being contracted before a civil 0fficer.*
Those who hold the civil view argue thus. Marriage as a civil contract in the abstract may have had a religious ceremony imposed upon it. Or, again, things may have a Divine appointment and so claim a religious sanction, but not on that account are they to be made matters of faith and religion. The Creator, in the earliest infancy of nations, may have seen fit to give express directions as to the better management of society, thus saving men from the misery and risk of experience, but did not in every case lay down
9 Paley says that, during the Protectorate, marriage was made a civil ceremony in order to spite the clergy.
that such directions were to be construed as articles of religion, but rather left to the individual nations according to their characteristics and genius, the embodiment and operation of these rules, and the result of contravening such is not a religious offence entailing a divine anathema, but rather a civil tort, the repeated commission of which inevitably tends to the disintegration of society. Marriage, they own, is a state approved by Heaven; but then they go on to prove how the Church has assumed dominion over it in a manner not warranted by the ordinary sources of revelation. Whilst Western Europe in her political and social position was most unstable, turbulent, and varying, Italy was oppressed by internal weakness and by taxes, levied for the Emperor at Byzantium, and in common with the rest of Europe was exposed to the invasion of the hordes of barbarians pouring in from the north and from the east, who made the native population drink the last dregs of despair. The civilization of Greece and Rome was slipping back into almost primeval barbarism, and the only element that availed against this backsliding, and rescued the mass of the people from utter degradation was Christianity. By the dissensions and weakness of the nations the Church grew; what she decreed to be faith she could now enforce as such under the pain of excommunication. Her rules and regulations were followed alike by monarchs and subjects as gospel truths not to be controverted. It was at this period she advanced claims over matters purely secular; among which was marriage; her rules and regulations,
codified in the Canon Law, were imposed upon every nation
accepting her tenets. When those countries which had embraced Christianity had become settled down, and were framing laws and constitutions, and were regulating their social relations, the Church's influence would be most strongly felt, especially in these last, and her rules would be incorporated with, and form part of the law of the State. Among these was one which required marriage to be cele
brated before a priest. This, they hold, accounts for the view that matrimony in England can only properly be entered into before one who ministers in holy things. On the other hand, whenever the Roman law had struck deeply into the social organization of the people, it was never eradicated, but formed the basis of, if not for many centuries the actual common law of, that State, and was modified only from time to time to suit the demands of improved thought and civilization. Roman law regarded marriage as a civil contract ; it was of such a nature that its inception and results affected the general body of the State, and could be regulated by provisions of the Legislature for the time being sovereign over the body of the people. Hence is obtained the double view of marriage which holds good on the Continent—a religious ceremony, if desired, carrying out a civil contract. If French or
Germans wish to marry, they must be married before a civil"
officer; they may, if they please, add the religious ceremony. This double aspect, say its English supporters, is the legal one here, and ought to be more generally known than it is. Marriage is a contract of a civil nature, the performance of which is certainly carried out in ordinary cases by means of a religious rite, and is one which the State can regulate. They argue that if, for instance, during the next Session a Bill became law to the effect that first cousins could not marry, the future union of those standing in such relationship, though solemnized by a priest, would not be held valid. As to the State in former days having required that all marriages should be solemnized with the rites obtaining in the different religious communions, it was due to the fact that every organised society feels the importance of marriage both socially and legally, and desires that those events in life on whose results depend so completely the well being and proper status of all, should be testified by such ceremonies and such witnesses as to make it certain that they had been entered into legally, and not clan