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is under the control of the State, whose duty it is to be absolutely impartial and indifferent, and to found its matrimonial legislation upon the necessity and duty of regulating its civil conditions and effect. Mere registration will not carry out the reforms needed ; to register the fact of marriage is not enough; publicity must be insured before the contract is entered upon; the mischief has been perpetrated before the cure can be applied to it.
Why should there be two different sorts of ceremonies, both equally valid, when, as matters now_ are, we find an unsatisfactory state of things; whereas, if there were but one, certainty would be substituted for doubt and danger ? In countries like France and Germany clandestinity in marriage is a thing almost unheard of, and fraud but rarely meets with success; and in those countries a civil marriage is a necessity, and a subsequent religious ceremony optional. This is the model from which we should copy.
We well know that bitter opposition will be raised against this proposal. From the clergy such opposition is natural, for they would hold their sacred functions defiled by it, and their rights curtailed. But in these days public opinion will not compel all to undergo a religious ceremony; so there must be some other mode of contracting marriage, viz., a civil one. To this all can resort without offending their own convictions, or hurting the feelings of others. We cannot make a religious ceremony compulsory, because all do not profess to belong to some religious denomination. To those who intend to contract a “ mixed marriage,” i.e., one where both parties are not of the same communion, the compulsory civil contract would afford a sure and certain means of avoiding the difficulties and doubts as to validity which now often arise. It might well be conceded that marriage is a sacrament, and the blessings of heaven should be invoked on the union of man and wife; and the State should do all in its power to inculcate godly and religious life and teachings; but as the strength of a chain is that of its weakest link, so in social matters we must consult the feelings of those of our brethren who claim to have the most tender consciences, who are generally those who object to any religious or dogmatic formula.
To our clerical objectors we would remark that we are, under our proposed scheme, reverting in a sense to the usages anterior to the Council of Trent. “The solemnization of marriage was not used in the Church before an ordinance of Innocent III.; before which, the man came to the house where the woman inhabited, and carried her with him to his house; and this was all the ceremony.”* [This was the deductio in domum of the Roman law.j VVhen the religious rites are performed over a couple, or one of a couple, who do, or does not believe in what is being uttered, more harm than good is done. There can be no spiritual magic in the repetition of a few words which fall only from the lips, and proceed not from the heart, as it were from a fountain source. \/Vhat especial blessing can be claimed for the saying of sentences which are held, if not utterly false, yet utterly meaningless, by those over whose heads they are pronounced? It is in the interest of spiritual things, in the interest of the Church herself, that her ceremonies should not be made a mockery and a laughingstock to those whom fashion bids use them. If the Church chooses to thunder forth her warnings and her anathemas against civil marriages, let her do so ; she must be protected against herself. The presence of the priest is not necessary
' for the perfecting of the sacrament of matrimony; it never
was, and is not now. Sanchez, the jesuit of Cordova, who wrote a treatise on Marriage, writes [Lib. 2, Disputatio vi., p. 121.] : “ Caeterum omnino tenendum est nunquam parochum fuisse, nec post Tridentinum esse ministrum sacramenti matrimonii; et ita, ante Tridentinum, clandestinum matrimonium fuisse verum sacramentum. Probatur [I]
* Viner’s Abridgment.
Quia cum matrimonium sit contractus,.nec illius naturam Christus mutaverit, sed tantum elevarit ad esse sacramenti, sequitur aliorum contractuum naturam, quae est, ut ipsi contrahentes suis consensibus se ligent, nec alios praeter ipsosmet contractus afficiat. [2.] Quia ante Tridentinum matrimonia clandestina erant vera matrimonia et rata. Quia verba parochi non sunt de essentia matrimonii, sed iis penitus omissis constat matrimonium ut dicemus, &c., &c.
ergo parochus nullo modo est minister.” He returns to this contention of his later on, Lib. 3, Disp. xxxviii., p. 297, where he says: “ Ea verba [id est, ‘ Ego vos in matrimonio conjungo in nomine Patris, et Filii, et Spiritus Sancti’] non sunt de essentia matrimonii, quam licet omittantur, validum est . . . si audito utriusque consensu parochus dicat ‘ Ego postea vos conjungam,’ non impediri effectum matrimonii; quia mutuo consensu conjugium jam initum est.”’ Sanchez draws a distinction between such parish priest not asking the couple if they intend to marry each other, and his not asking them if they have any lawful impediment to such marriage ; in the first instance the priest commits a venial, in the latter a mortal offence.
If we look at the working of the Code Napoléon in France, which enjoins a compulsory civil ceremony, we shall find a result very favourable to our scheme, and that it does not deter the vast bulk of the people from adding the religious rites.
1. The civil ceremony takes place [except by extreme indulgence] at the Mairie, Hotel de Ville, or Maison Communale, of the Arrondissement. The Mayor, or his deputy, presides, and all the parties interested in the ceremony attend. The presiding officer then asks the consent of the proper persons; next he asks the man, “ Do you, A. B., declare that you take for wife C. D., here present ;” and the woman, “ Do you, C. D., declare that you take for husband A. B., here present.” Lastly, he says, “In the
name of the law I_declare that A. B. and C. D. are united by marriage.”
2. The antecedent public notification that a marriage between given parties is intended; the reception and the disposal of objections to the proposed union ; the acceptance of the consent of the requisite parties; the administration of the civil rite whereby the marriage is completed—the formal recording of it in registers; and the preservation of the evidence to prove the marriage, are placed exclusively in the hands of the civil functionaries.
3. The civil ceremony makes the marriage in the eye of the law, to all intents and purposes, complete ; and no minister of religion can officiate or interfere except under severe penalties until a certificate has been presented to him certifying that the parties have contracted matrimony before the civil magistrate. But every encouragement is offered for the subsequent interposition of the sacred oflice, and the certificate of the secular union is granted expressly pour servir aux céréinonies religieuses; and the average result is that in at least 95 cases out of 100 the parties who contract before the civil ofiicer ask afterwards and receive the sacerdotal benediction which is usually preceded by three publications of banns.
Having attempted to establish our premises we will now shortly propound a scheme which we think will logically and practically carry them into effect. As we have concluded that there should be a compulsory civil element in marriage, there present themselves at least three courses from which to choose :—
i. That all Parties must be Married at a Registrar's Ofiice.— This we think would be going too far for the people of the three kingdoms, and would too grossly shock our sensibilities.
ii. That a. Marriage Registrar must Attend all M arriages.— This has been found very irksome and troublesome in practice, and has been abolished in Ireland for some time without any harmful results arising.
iii. That all the heads of the diflferent denominational bodies, all the clergy, and ministers and oflicers in the active exercise of oflicial duties in their several churches and denominations should have co-ordinate jurisdiction with the district Registrars as now appointed to grant licences to marry ; but before the parties participate in any religious rite or service, they must declare before such clergymen, ministers, oflicers, or Registrars, as a civil act, their mutual intention to marry.
The scheme embodied in this last proposition is the one to which we would call attention, and the establishment of which we now advocate. Only those persons who occupy positions which make them amenable to public responsibility, and to the censure and discipline of their own religious communities, whether belonging to an established or non-established church or communion, should be eligible to perform such duties. Among these would be included such as from time to time take a temporary charge, and curates serving under an incumbent of a parish, and such religious or ecclesiastical officer among other denominations as would answer to a curate of the Established Church in England. These should not derive their authority to be the civil witness from their Ordinary, or rites of ordination, or other ecclesiastical or religious sources of power; but from the State, and from the State alone in all cases. These clergy, ministers, or other officers, should enter into like bonds as the district Registrars and the surrogates in Ireland, under 33 & 34 Vict., c. IIO, do now for the proper fulfilment of their duties; the sum might be the same, £100.
Marriage must be made cheaper than it is; the fees charged for the Registrar's certificate and licence, and for the common licence, are far beyond the reach of the poor, and even of those who are fairly well-to-do. The notoriety attending the publishing of banns, and possibly the fees in some places attached to it, deter many a couple from marriage, and drive them into concubinage. A charge