A
%ibrat of Ibtstortc
EDITED BY THE REV. WM. C. PIERCY, M.A.
DEAN AND CHAPLAIN OF WHITEIANDS COLLEGE,
MARRIAGE
IN CHURCH AND STATE
T. A. LACEY, M.A.
LIBRARY OF HISTORIC THEOLOGY
EDITED BY THE REV. WM. C. PIERCY, M.A.
Each Volume, Demy 8vo, Cloth, Red Burnished Top, 55. net.
NEW VOLUMES NOW READY.
MARRIAGE IN CHURCH AND STATE.
By the Rev. T. A. LACEY,\M.A. (Warden of the London Diocesan Penitentiary).
THE BUILDING UP OF THE OLD TESTAMENT.
By the Rev. Canon R. B. GIRDLESTONE, M.A.
CHRISTIANITY AND OTHER FAITHS. An Essay in Comparative Religion.
By the Rev. W. ST. CLAIR TISDALL, D.D.
THE CHURCHES IN BRITAIN. Vols. I. and //.
By the Rev. ALFRED PLUMMER, D.D. (formerly Master of University College, Durham).
CHARACTER AND RELIGION.
By the Rev. the HON. EDWARD LYTTELTON, M.A. (Head Master of Eton College).
MISSIONARY METHODS, ST. PAUL'S OR OURS ?
By the Rev. ROLAND ALLEN, M,A,
THE RULE OF FAITH AND HOPE.
By the Rev. R. L. OTTLEY, D.D. (Canon of Christ Church, and Regius Professor
of Pastoral Theology in the University of Oxford).
THE CREEDS : THEIR HISTORY, NATURE AND USE.
By the Rev, HAROLD SMITH, M.A. (Lecturer at the London College of Divinity).
THE CHRISTOLOGY OF ST. PAUL (Hulsean Prize Essay).
By the Rev.S. NOWELL ROSTROM, M.A. (Late Principal of St. John's Hall, Durham).
The following works are in Preparation :
BIBLICAL ARCHAEOLOGY.
By Professor EDOUARD NAVILLE, D.C.L.
THE PRESENT RELATIONS OF
SCIENCE AND RELIGION.
By the Rev. Professor T. G. BONNEY, D.Sc.
THE CHURCH AND THE INDIVIDUAL.
By the Rev. W. J. SPARROW SIMPSON, D.D.
POPULAR OBJECTIONS
TO CHRISTIANITY.
By the Rev. C. L. DRAWBRIDGE, M.A.
MYSTICISM IN CHRISTIANITY.
By the Rev. W. K. FLEMING, M.A., B.D.
RELIGIOUS EDUCATIONS ITS
PAST, PRESENT, AND FUTURE.
By the Rev. Prebendary B. REYNOLDS.
THE CHURCH OUTSIDE THE EMPIRE.
By the Rev. C. R. DAVEY BIGGS, D.D.
THE NATURE OF FAITH AND THE
CONDITIONS OF ITS PROSPERITY.
By the Rev. P. N. WAGGETT, M.A.
AUTHORITY AND FREETHOUGHT
IN THE MIDDLE AGES.
By the Rev. F. W. BUSSELL, D,D.
THE ETHICS OF TEMPTATION.
By the Yen, E. E. HOLMES, M.A.
EARLY CHRISTIAN LITERATURE.
By the Rev. WM. C. PIERCY, M.A.
GOD AND MAN, ONE CHRIST.
By the Rev. CHARLES E. RAVEN, M,A.
GREEK THOUGHT AND
CHRISTIAN DOCTRINE.
By the Rev. J. K. MOZLEY, M.A.
THE BOOKS OF THE
APOCRYPHA : THEIR CONTENTS,
CHARACTER, AND TEACHING.
By the Rev. W. O. E. OESTERLEY, D.D.
THE GREAT SCHISM BETWEEN
THE EAST AND WEST.
By the Rev. F. J. FOAKES- JACKSON, D.D.
Full particulars of this Library may be obtained from the Publisher.
LONDON: ROBERT SCOTT.
MARRIAGE
IN
CHURCH AND STATE
BY THE REV.
T. A. LACEY, M.A.
WARDEN OF THE LONDON DIOCESAN PENITENTIARY,
HIGHGATE
TOVTO /xe'y a * crrt '
LONDON: ROBERT SCOTT
ROXBURGHE HOUSE
PATERNOSTER ROW, E.C.
M CMXII
TO THE BISHOP OF LONDON
MY LORD,
/ dedicate this book to my chief, whose care for the prat"
tical wording of the holy institution of which it treats is not
the least among the burdens of his heavy charge. I do not
ask y ur Lordships permission to publish it, because that it not
the custom of our Church, but none the less on that account
do I submit my conclusions to the judgment of those who are
set over me in the Lord. To teach nothing but what the
Catholic Church prescribes or allows is the purpose of
Your Lordship's obedient servant,
T. A. LACEY
September, 1912.
333916
EDITOR'S GENERAL PREFACE
IN no branch of human knowledge has there been a more
lively increase of the spirit of research during the past few
years than in the study of Theology.
Many points of doctrine have been passing afresh through
the crucible ; " re-statement " is a popular cry and, in some
directions, a real requirement of the age ; the additions to
our actual materials, both as regards ancient manuscripts and
archaeological discoveries, have never before been so great as
in recent years ; linguistic knowledge has advanced with the
fuller possibilities provided by the constant addition of more
data for comparative study; cuneiform inscriptions have been
deciphered, and forgotten peoples, records, and even tongues,
revealed anew as the outcome of diligent, skilful and devoted
study.
Scholars have specialized to so great an extent that many con-
clusions are less speculative than they were, while many more
aids are thus available for arriving at a general judgment ; and,
in some directions at least, the time for drawing such general
conclusions, and so making practical use of such specialized
research, seems to have come, or to be close at hand.
Many people, therefore, including the large mass of the parochial
clergy and students, desire to have in an accessible form a review
of the results of this flood of new light on many topics that are of
living and vital interest to the Faith ; and, at the same time,
" practical " questions by which is really denoted merely the
application of faith to life and to the needs of the day have
certainly lost none of their interest, but rather loom larger than
ever if the Church is adequately to fulfil her Mission.
It thus seems an appropriate time for the issue of a new series
of theological works, which shall aim at presenting a general
survey of the present position of thought and knowledge in
various branches of the wide field which is included in the study
of divinity.
viii EDITOR'S GENERAL PREFACE
The Library of Historic Theology is designed to supply such
a series, written by men of known reputation as thinkers and
scholars, teachers and divines, who are, one and all, firm upholders
of the Faith.
It will not deal merely with doctrinal subjects, though pro-
minence will be given to these ; but great importance will be
attached also to history the sure foundation of all progressive
knowledge and even the more strictly doctrinal subjects will
be largely dealt with from this point of view, a point of view the
value of which in regard to the " practical " subjects is too
obvious to need emphasis.
It would be clearly outside the scope of this series to deal with
individual books of the Bible or of later Christian writings, with
the lives of individuals, or with merely minor (and often highly
controversial) points of Church governance, except in so far as
these come into the general review of the situation. This de-
tailed study, invaluable as it is, is already abundant in many
series of commentaries, texts, biographies, dictionaries and mono-
graphs, and would overload far too heavily such a series as the
present.
The Editor desires it to be distinctly understood that the
various contributors to the series have no responsibility whatso-
ever for the conclusions or particular views expressed in any
volumes other than their own, and that he himself has not felt
that it comes within the scope of an editor's work, in a series of
this kind, to interfere with the personal views of the writers. He
must, therefore, leave to them their full responsibility for their
own conclusions.
Shades of opinion and differences of judgment must exist, if
thought is not to be at a standstill petrified into an unpro-
ductive fossil ; but while neither the Editor nor all their readers
can be expected to agree with every point of view in the details
of the discussions in all these volumes, he is convinced that the
great principles which lie behind every volume are such as must
conduce to the strengthening of the Faith and to the glory of
God.
That this may be so is the one desire of Editor and contributors
alike.
W. G. P.
JL.QNDQJJ.
PREFACE
IT may be objected that there is in this book more about
law than befits a work professedly theological. The
criticism is just, and I can meet it only by protesting that I
have reduced the legal element within the narrowest pos-
sible bounds. Marriage cannot be extricated from its legal
environment ; my aim has been to show how, in spite of
that environment, the religious and theological aspect of
the holy estate may be kept in view. It is useless to ignore
facts, but they can be adjusted. I trust, however, that
as my book has no claim to be considered a legal treatise,
so also it will be found free from any false pretensions of the
kind. It is not furnished with any apparatus of legal in-
stances, and I have tried everywhere to deal only with the
broad features of human law. Not here only have I avoided
the appearance of erudition which a copious display of cita-
tions may cheaply purchase. Few references will be found
at the foot of my pages, those few being almost entirely
confined to cases of actual quotation, where authority
seemed to be needed for a statement made in the text.
What is common knowledge of the well informed, I have
usually been content to leave as such. Where reference is
made to documents of a more public kind, such as Acts of
Councils and Statutes, it seems reasonable to expect that
all readers who are competent to verify what is said will
know where to find the texts. The occasional mention of
ix
x PREFACE
an author to whom I am indebted for information or for
ideas would be invidious, and to mention all would be im-
possible. Should anyone think that I have conveyed away
without acknowledgment something of his own, let him
rejoice to find that he has contributed to the common
stock ; I ask for no better usage of what may be mine.
It may be well to warn the reader about my use of two
words. In this book, as in my little Handbook of Church
Law , I have confined the word legal to a precise meaningi
Borrowing an idea from authors who carefully distinguish
leges and canones, I use it only of that which is ordained by
the laws of the medieval Temporalty, or of the State as dis-
tinguished from the Church. The English word law has
so wide and varied a meaning, covering both ius and lex and
ranging from the law of gravitation to the by-laws of a
railway company, that a thing may lawfully be called
lawful for other reasons, but I call a thing legal only when
it has this particular sanction, and with the help of this
distinction it is sometimes possible to avoid tiresome peri-
phrases. I use the word divorce with equal precision. In
my pages it means the breach of marital intercourse by
which husband and wife are discharged, with the approval
or toleration of lawful authority, from the obligation to
live together according to the nature of their union. It
means this, and nothing else ; and I am convinced that the
word ought to have no other meaning. A decree of nullity
ought not to be called divorce, because it is a declaration
that in point of fact there has been no binding contract. I
do not use the word in speaking of that dissolution of mar-
riage, proclaimed by some systems of law, which is supposed
to set the parties free to contract a new marriage, because
I believe that in point of fact there can be no such thing ;
marriage is a natural relation which can no more be dissolved
by law than the relation of brother and sister, and I object
PREFACE xi
to applying a word which has a real meaning to a thing which
does not exist. Confusion lies that way.
It seemed probable that the Report of the Royal Com-
mission on Divorce would be published before my book
went to press. This has not happened ; but my loss is the
less if I may venture to think that I have anticipated its
conclusions. Divorce is a painful necessity of human
society ; unnecessary consequences are deduced from it, and
I have examined to the best of my power both the necessity
and the deductions.
I have had two objects. One is to ascertain facts ; the
other is to draw from them a policy. The one task I
have pursued through many pages ; the other I have
attempted in few words. The result of each is remitted
to the judgment of the reader, that of the latter more
especially to the judgment of the Church.
ANALYTICAL SUMMARY
CHAPTER I
OF MARRIAGE IN THE ORDER OF NATURE
PAGE
The natural constitution of human society i
The creative idea ....... 2
Imperfectly realized ......
Marriage a fundamental institution .... 3
The natural necessity of the family ... 4
Therefore divinely ordered .....
Difficulty of determining details of this ordering . 5
The value of Christian teaching ....
Revelation explaining Nature ... 6
The essential nature of marriage . . . ' . . 7
An entire union of man and woman ....
For the production and nurture of children . .
Its character obscured by the dominance of the
male sex ....... 8
The relation of affinity ..... 9
The growth of affection ......
Mutual support a secondary purpose . . 10
Community of goods ......
An exclusive union solius cum sola ....
The offence of adultery . . . . .11
Thj^eyil of polygamy
Not merely forbidden to Christians . . 12
But contrary to the natural bona matrimonii . 14
Inconsistent with the numerical equality of the
sexes ....... 15
And with the well-being of the race . .
Indissoluble, except by death . . . .16
A natural union, not destroyed by failure to fulfil its
purpose . . ..... 18
Notwithstanding the general practice of mankind to
the contrary ......
xiii
xiv ANALYTICAL SUMMARY
PAGE
The opinion that marriage is indissoluble only for
Christians ...... 19
The teaching of the Gospel .....
As to the permissibility of divorce . .
Privilegium Paulinum .... 20
As to marriage after divorce . . . .21
Effected by contract . . . . . . .25
Between the parties themselves ....
P atria potestas and the requirement of parental
consent ....... 26
The effect of inability to fulfil the terms of the contract
Conditions of a valid contract . . . .27
Right intention ......
Physical capacity . . . . . .28
Freedom from constraint ....
And from misunderstanding ...
Freedom from previous marriage . . .29
Sponsalia and precontract ...
Freedom from ties of kinship
The effect of affinity
The contract fulfilled by consummation
Obligations ensuing ....
Equality of husband and wife
The natural law of marriage under the sanction of conscience
Ascertained by interrogation of Nature ... 34
With the aid of revelation . . . ' .
Identical for Christians and for others ...
The duty of a Christian man .....
To order his own life by the Divine Law of Nature
To maintain the Divine Law in human society . . 35
CHAPTER II
OF MARRIAGE IN THE ORDER OF GRACE
Marriage a remedy against sin 36
The remedies of grace usually taken from the order of
nature ........
And supernaturally endowed . . . . .
A Great Mystery 37
The nature of fjmcrrripia . . . . . .
Derived into Christianity from Greek sources . . '
Not with any special sense of secrecy. ...
As shown by the Latin rendering sacramentum . 39
ANALYTICAL SUMMARY xv
PAGE
The meaning of a Sacrament ...... 40
A natural thing with supernatural endowment . .
And secondarily signum vei sacrae ....
Means of Grace ........ 41
The seven sacraments ...... 42
Marriage strictly sacramental . . . . . .
Greek analogies . . . . . . . .43
Matter and Form ........
The Rite 44
Not drawn from Jewish sources .....
But taken over from existing practice, especially Roman .
The evidence of Tertullian . . . . .45
The evidence of other Fathers ....
The evidence of the Sacramentaries ...
The evidence of Nicolas I . . . .46
The ancient ceremonies . . . . . .47
Essentials and concomitants ..... 49
The Sacramental Grace 50
Lawfulness of the Act of Marriage ....
Aid in the performance of the duties of marriage . 51
Abatement of concupiscence . . . . .52
Marriage a moral instrument employed to this end . 53
The Sacrament of Marriage only for the baptized . . 54
But every marriage of the baptized is sacramental .
Contract and sacrament not separable ...
And the baptism of the married makes their marriage
sacramental ...... 56
The case of one party baptized ....
Marriage to be encouraged for its sacramental value . . 57
CHAPTER III
OF MARRIAGE IN HUMAN LAW
The necessity of a Positive Law of Marriage ... 59
Which may conflict with Natural Law ...
And cause a practical difficulty about obedience . . 60
Five modes of variation from Natural Law ...
By addition ........
By omission ........'
By prohibition of what is allowed . . . .61
By dispensation ........
Absolute . ......
xvi ANALYTICAL SUMMARY
PAGE
Contingent in case of necessity . . . .61
Applying even to Divine Law ... 62
By contradiction .....
The possibility of ignoring marriage ..... 63
The legitimacy of a power of controlling marriage . . 64
In the State
Even as regards the matter of the sacrament . 65
In other forms of society ...... 66
Which may be in conflict with each other . . 68
In the Church
Specifically in the episcopate . 71
The twofold task of the Church 72
To teach the world .... -73
To regulate the conduct of Christians .
Reluctance of the Church to legislate
The case of Callistus
Existing systems of Law .... -74
Human Law in contradiction with Natural Law . . -75
Other modes of divergence from Natural Law .
Juridical .........
Interpretation of Natural Law .... 76
Evidence of fact 77
Limitation of pleas
Legislative. ........ 78
By way of addition ....
By way of omission ...... 79
By way of prohibition or impediments ... 80
Obstructive ......
Which may run simultaneously in different
systems of law ..... 82
Diriment
Objections to the creation of diriment impedi-
ments 83
Especially by the State .
Answered by the requirement of a legitimate con-
tract
As denned by different authorities for their
several subjects . . . . .85
By way of dispensation 87
Absolute .......
Not applicable to Divine Law. . . 88
Possible with any system of Human Law
For the interception of an impediment
For relaxing obligations ...
ANALYTICAL SUMMARY xvii
PAGE
For sanatio in vadice ... 89
Applicable within one system to the rules of
another system ....
The case of Church and State . . 90
The privilege of the Church in England . 91
To be used with caution. ... 92
Contingent ....... 93
Based on a necessity ....
Therefore not requiring express legisla-
tive sanction. ....
But calling for judicial control . .
By a power lawfully controlling the
acts of the person dispensed . 94
Applicable to Divine Law 95
The nature of necessity in this case .
Concerned with the obligations of marriage 96
Divorce ......
In the Christian Church . . 97
Abatement of community of life . 98
Dowry and Settlements . .
Morganatic marriage ... 99
Matrimonium conscientiae . .
Concerned with Impediments . . .100
Consanguinity .....
Affinity ...... 101
Ligamen . . . . .
Simultaneous polygamy . . 102
Successive polygamy . . . 103
The practice of the Eastern
Church . . . .104
And of some modern States . 105
Conflict of authorities. . .106
Human Law to be kept within bounds ....
CHAPTER IV
OF MARRIAGE IN CANON LAW
The beginnings of the Christian rule 108
Continuation of the Jewish system ....
Prophet and legislator . . . . . .109
Its passage to a developed legalism . . . .no
The elements of which were present from the first
Christianity in face of Roman Law . . in
xviii ANALYTICAL SUMMARY
PAGE
The Jewish Law of Marriage . . . . . .112
The contract 113
Its formalities .......
Impediments ........
Divorce ......... 115
The Law theocratic
But amended in the preaching of the Gospel . 116
The original Christian Law . . . . .117
Restraint of divorce .......
Disciplinary control .
By pastoral methods .....
Not setting aside the Civil Law . . .118
But admitting dispensation ....
From Natural Law
From Civil Law . . . . . .119
From canonical requirements . . .120
The Christian Empire ......
The Civil Law modified in a Christian sense
But imperfectly .... .121
The continuing distinctness of the Christian rule
Relations of Church and State
Eastern Canon Law ........ 122
The Quinisext Council in Trullo ....
Distinctness of Church and State . . . .123
Growing predominance of Canon Law . . .124
Its codification -
Nullification of irregular marriages . .125
Impediments and Dispensations
Divorce and remarriage . . .126
Espousals ....... 128
Marriage of the clergy ....
Legal control of marriage by the Church
Western Canon Law .129
Results of Barbarian conquest .....
The disciplinary stage . . .130
Work of Bishops and Councils
Of the Popes .... . . 131
St. Gregory the Great and England
Church and State in disagreement . . .132
Mixed jurisdictions .....
The Respublica Christiana ... 133
The working unit of Christendom. ...
Spiritualty and Temporalty . . . 134
Control of marriage by the Spiritualty .
ANALYTICAL SUMMARY xix
PAGE
Cause of this development . . . . 135
Codification 136
Dionysius Exiguus and other collectors.
The Decretum of Gratian
Its immediate effect 137
The Corpus luris Canonici . . . . .138
The development of legalism 139
Abuse of spiritual censures . . . .
Evils of a theocratic system . . . .140
Checks on the lus Commune . . . . .141
Consuetudo ........
The case of England
Legitimation per subsequtns matrimonium . 142
Administration of marriage law 143
Diocesan . . . . . . . .
Exempt places ......
Appeals and Reservations . ... -144
The supposition of the Papacy ...
Dispensations 145
Procedure on validity of marriage ...
Pro salute animae . . . . . .146
Process of divorce
Coercive methods. . . . . . .147
Later legislation
Restriction of impediments 148
Computation of consanguinity ...
Regulation of affinity 149
Limitation of Divine Law . . . . .150
Recognition of marriage de facto ....
Classification of impediments . . . . 151
Tempus feriatum . . . . . .152
Diriment impediments . . . . 153
Disparitas cultus . . . . .154
Vows of continence. ....
Holy Order ...... 155
Consanguinity and affinity . . 157
Cognatio spirituals .....
Publica honestas . . . . .158
Crime . . . . . . .
Weakening effect of dispensation . . . 159
And of frequent nullities ....
Moral failure of the medieval Canon Law* . 1 60
Restraint of clandestinity . .....
By penitential censures 161
xx ANALYTICAL SUMMARY
PAGE
As an obstructive impediment . . .161
As a diriment impediment ....
Objections to this .....
Disruption of the Respublica Christiana . . . .162
CHAPTER V
OF MARRIAGE IN THE MODERN STATE
The modern state of Western Europe . . . .163
Developed out of the elements of the medieval polity
The communitas perfecta . . . . .164
The theory of imperialism .....
Under the impulse of the Reformation . . .165
The teaching of Luther
Reception of Roman Law ....
The teaching of Calvin 165
Separateness of the Church ....
The Jesuit theologians 167
Church and State each perfecta societas
Marriage under the new conditions 168
Lutheran : exclusively civil .....
Calvinist : regulated by Divine Law, administered by the
State 169
Partial acceptance of human law . . . .170
Divorce ........ 171
The result of crime 172
Involving dissolution of marriage . . .173
Wide extension of Reformed theology and law . 174
The Counter- Reformation . . . . . 175
Canon Law continuing to operate.
But in the Church as a separate society
To which the control of marriage is left by the State . 176
The special case of England 177
A continuing fragment of the medieval polity .
Resistance to Jesuit and Puritan separatism . 1 79
The policy of the Test Acts . . . .180
Church and State not entirely separate until 1828
Marriage controlled by the Spiritualty . . .181
In spite of the legislation of Henry VIII
Further legislation by the Spiritualty . . 183
Also by the Temporalty ... .186
Settlements in equity .....
The crime of bigamy
ANALYTICAL SUMMARY xxi
PAGE
The divorce of Lord Roos . . . .187
Restraint of clandestinity . . . .189
The Marriage Act of 1753 . . . .191
The complete separation of Church and State . . . . 193
Tendency towards a civil law of marriage . . .196
Civil Marriage . . . . . . . .197
In France ........
In Europe generally . . . . . .199
In England ......
Other arrangements ...... 200
Divorce ......... 201
Impediments y. ...... 205
The Present Position 206
Antagonism of Church and State ....
Civil marriage .......
Impediments 208
Divorce ........ 209
Injurious to public morals . . . . . .211
The result of history . . . . . . .212
A modus vivendi to be sought .....
Distinction of functions . . . . .213
Return to spiritual discipline ....
Importance of the decree Ne temere . . .215
The need of an uniform system . . . . .219
On the basis of Natural Law .... 220
With the least possible interference of human law .
The duty of a Christian . . . . . . .221
In the ordering of his own conduct ....
In support of the authority of the Church . . .222
Especially for discipline . . . . .
Particular needs of England ....
In support of the authority of the State . . . 224
Reformation of laws ......
Particular needs of England . . . .225
In promotion of mutual toleration of Church and State . 226
APPENDIX A
1. The Decree Ne temere ...... 227
2. Subsequent Decrees . . . . . . 231
APPENDIX B
Letter of the Archbishop of Canterbury . . . 232
APPENDIX C
A proposed mode of Contracting Marriage . 236
MARRIAGE IN CHURCH
AND STATE
CHAPTER I
Of Marriage in the Order of Nature
MARRIAGE is described as "an honourable estate
instituted of God in the time of man's innocency."
Translated into less symbolic language, this means that
marriage is an integral part of the natural order in which
human society is constituted. That state of things is
natural in which man finds the fullest and most satisfac-
tory development of his nature. But this is possible only
in a social order. As a mere individual, man can hardly
exist at all, and certainly cannot live the fulness of his life.
Some kind of community is necessary for him, and that
kind of community in which genuine human functions are
best fulfilled is the kind properly natural to him. Aristotle,
therefore, conceiving the Greek city as the final and perfect
form of human society, described man as " naturally a civic
animal." Historic proof that no one form of organization
is exclusively necessary for humanity compels the enlarge-
ment of this description ; but the principle on which it was
based remains true, and we may recast it into the aphorism
that man is naturally civilized. The truth of this must be
M.C.S. l B
2 OF MARRIAGE IN THE ORDER OF NATURE
maintained on two faces. On the one hand, civilization is
not an artificial addition to man's natural endowments ; on
the other hand, the true natural man must not be sought
in the state of savagery, but in the most complete state of
civilization of which he is capable.
This complete state is doubtfully ascertainable. Ethics
and politics are not exact sciences. We must suppose a
creative idea, a divine purpose, to which human life more
or less remotely conforms. This imperfect conformity is
one of the chief perplexities of nature. For the most part
we see life maintained in stable conditions, with specific
characters ; we can find traces of a progress by which those
characters have been attained, but a point is reached where
they seem to become fixed ; the species is unalterable,
breeding true and transmitting habits liable to little or no
variation. The human species has such determined charac-
teristics, but has also other characteristics remarkably vari-
able. Human life is not in a stable condition, like that of
most animals ; human society has not reached a static con-
dition, like that of bees or of ants. The divine purpose is
imperfectly fulfilled, by reason of the element of perversity
which is perceptible in human nature, and which is theolo-
gically attributed to a falling away from original righteous-
ness, or conformity to the creative idea. If there is progress
towards the ideal, there is also deterioration ; if there is
growth there is also decay. There is not, as Aristotle
thought, one fixed standard of civilization, though such a
standard may conceivably be attained. But none the less
certain fundamental institutions can be made out, which
are almost constant in human life, though subject to wide
variations in detail ; and in most cases an ideal can be
ascertained, the practice falling short of it, or being deflected
from it, in varying degrees. Such an institution is marriage.
Marriage is not an artificial regulation of human life, but
A FUNDAMENTAL INSTITUTION 3
a natural necessity. The continuance of the species re-
quires a certain association of man and woman. For the
mere begetting of children, a merely passing union would
suffice ; but more is required. The child requires close
attention and long continued care. This is seen in the
case of some other animals also, but nowhere in the same
degree. For most of such cases, the ordinary provision of
nature is a close association of the parents during the growth
of the offspring, the female devoting herself almost entirely
to them, the male guarding her and supplying her
needs. This double parental instinct varies in strength ;
it is probably seen at its intensest in man. But here it is
reinforced. Unlike other animals, man gives birth to fresh
offspring while those already born are still entirely depen-
dent on the parents. It follows that a temporary union,
having in view the bearing of a single child and terminable
when the child is able to go alone, will not suffice ; child-
bearing goes on for several years, while the firstborn and
others are slowly growing to maturity. The connexion
of the parents, therefore, is indefinitely prolonged, extending
even beyond the age of child-bearing. There results a com-
munity of interests, an interlacing of habits. As a conse-
quence of this prolonged intimacy there appears the singu-
lar phenomenon of human love, which touches on the one
hand the ordinary sexual desire of the animal world, but
extends on the other hand into an habitual affection from
which the element of desire may be entirely eliminated. In
the same way the parental and filial affections of the human
species pass the bounds even of the most devoted care shown
by those animals which part from their young after a brief
period of protection. In a word, the human species is
naturally constituted in families.
Marriage is nothing else but this permanent connexion
of man and woman for the purpose of producing and raising
V
4 OF MARRIAGE IN THE ORDER OF NATURE
children. Being thus natural, it is divinely ordered ; all
that can be ascertained to be necessary for its natural per-
fection will be recognized as prescribed by God. The ele-
ment of perversity in human nature forbids us to suppose
that all the divine prescriptions will be exactly or generally
observed ; the divine law of marriage cannot be recon-
structed by a mere codification of human practice ; we
must look for many aberrations. It is useless to attempt
to go behind social developments and investigate the habits
of primitive man, for primitive man is inaccessible ; those
savage tribes whose civilization is most elementary are, in
respect of marriage, bound by elaborate rules, the out-
growth of agerlong custom ; and, since marriage is an affair
only of adults, we cannot find traces of its original form
in those vestiges of a remote past which physiology teaches
us to recognize in the instincts of children. But the in-
evitable imperfection of an historical survey matters little;
it is not the beginning of marriage that we should consider,
but the end ; the growth and decay of social conventions
shows man struggling to achieve what nature dictates ;
in his efforts, even the most halting, we shall find traces of
the formative idea ; the more perfect civilization will ap-
proach nearer to the ideal, and a failing civilization will be
marked by fresh aberrations.
A purely historical study of this kind may be expected
to give valuable results, but they will be dashed with un-
certainty. What is the standard by which we are to mea-
sure the higher civilization, and how shall we note the
turning point to a downward course ? It is a common
practice to make the treatment of marriage a criterion, and
we are involved in a vicious circle if we simultaneously
determine the true nature of marriage by reference to civi-
lized practice. It is difficult to compare two civilizations
differing in time and place and conditions ; men pass a
DIVINELY ORDERED 5
favourable judgment on their own customs, and the greatest
complacency has prevailed at times in which history sees
evidence of general decline and retrogression. If the true
nature of marriage can be ascertained only from the cur-
rent practice of human society, that will seem true which
a self-satisfied generation finds to its taste ; history may
correct the judgment, but cannot guard against new
errors. There is no finality in the flux of human opinion ;
man cannot attain the ordered state of creatures which he
reckons incomparably inferior.
Christianity opens a way out of this intolerable laby-
rinth. The Christian is confident that he has the express
guidance of God in the more difficult passages of his moral
life, and particularly in respect of the true nature of mar-
riage. Since no man is ever merely individual, the redemp-
tion of man means not only the deliverance of the indivi-
dual from the effects of sin, but also the reconstitution of
human society according to the Will of God. In the Chris-
tian scheme, neither result is brought about by a mere act
of omnipotence ; grace is given by which man may work
out, through many temptations and failures, his own salva-
tion. Grace and truth go together ; sufficient knowledge
of the Divine Will is needed if its fulfilment is to be achieved.
Therefore a declaration of the purpose of God in regard to
human life is a part of the Christian scheme. It is not
detailed, categorical, all-embracing ; it is not a law of
ordinances ; it affords just so much light as may enable
men to walk warily.
The revelation of God through Jesus Christ touches some
things naturally unknowable ; it touches chiefly things
knowable but obscure. St. Paul, indeed, seems to deny
the obscurity. " That which may be known of God is
manifest," he says ; " for from the creation of the world
His unseen things are perceived and understood by means
6 OF MARRIAGE IN THE ORDER OF NATURE
of His works." 1 Ignorance therefore, he would say, is inex-
cusable, being due to human perversity. That is an ex-
tremely severe judgment, designed to bring home to the
conscience the general guiltiness of man ; it does not alter
the fact that to ordinary men of perverse minds, if not to
the human mind in its integrity, the purpose of God is
obscure, and the definite principles of their own social exis-
tence are hard to seek. The Christian revelation throws
new light on the social order of humanity.
The nature of revelation, as touching these things, can-
not be misunderstood. They are things in the order of
nature, being ordered as such by God. A revelation from
God will not, therefore, proclaim a new law ; the will of
God has been imposed on nature from the first, and the divine
law was legible in nature, however imperfectly read. We
must not suppose a less perfect law of nature superseded
or completed by a more perfect law of revelation. The
divine law is one and continuous, in nature and in revela-
tion. 2 The divine law of marriage is nothing else but the
order of nature. Revelation does but enable us to under-
stand it more perfectly.
We therefore find that our Lord Jesus Christ, when asked a
question about the divine law of marriage, referred to what
had been done " from the beginning." This beginning He
was content to describe in the language of the Book of
Genesis. It must not be inferred from this that a rule
propounded in the Scriptures of the Old Testament, even
with the highest sanction, is necessarily an expression of
the Divine Will ; for our Lord immediately afterwards told
1 Romans i. 19-20.
2 Cp. Isidore, Etym. v. 4: lus naturale est quod in lege et in
evangelio continetur. More comprehensive is the definition of
the Institutiones, lib. iii., tit. 2. lus naturale est quod natura omnia
animalia docuit.
THE ESSENTIAL NATURE OF MARRIAGE 7
the same questioners that a certain regulation of the
Mosaic law was a mere concession to human perversity and
the hardness of men's hearts, in derogation from the
creative idea of God. 1 It is only in the teaching of the
Gospel, in the genuine Christian tradition, that we have a
conclusive declaration of the divine purpose.
With this help we have to determine more particularly
the true nature of marriage.
Marriage is an entire union of man and woman. For
the purpose of generation, a momentary connexion suffices,
with complete separation following. In a highly artificial
society, such as that conceived in the Republic of Plato,
children so born might be reared in common, as foundlings
and orphans are actually reared in most civilized commu-
nities. But this would be a frustration of the natural in-
stinct of parentage, and the practical evils flowing from
it are sufficient proof that the suppression of that instinct
is not an advance in the line of natural development. A
partial union, directed exclusively to the business of raising
children and allowing the separation of man and woman
in regard to other interests, may suffice for the material
needs of the offspring ; such connexions are not unfre-
quent in societies where artificial distinctions of rank
hinder a closer union ; but the moral influence of one parent
is inevitably weakened, and the full purpose of guardian-
ship is not attained. This can be achieved only when the
parties to the union enter fully and unreservedly into one
another's lives, or rather into a new joint life which they
share on equal terms. In the words of the Roman jurist,
marriage is viri et mulieris coniunctio individuam vitae con-
suetudinem continens*
St. Paul insisted that carnal copulation, even of the most
transitory kind, effects a real union : "He that is joined
i St. Matthew xix. 4-8. 3 Instit., lib. i., tit. 9-
8 OF MARRIAGE IN THE ORDER OF NATURE
to a harlot is one body/' x The natural conjunction is
evident when it produces offspring, derived inseparably
from the two parents, and the Apostle applies the maxim,
" The two shall become one flesh." This emphatic judg-
ment has left its mark on the ecclesiastical law of affinity.
If a connexion so transitory, entered upon for the mere
gratification of appetite without any but the most acci-
dental regard for the procreation of children, can be thus
described, much more does the description fit the perma-
nent union of husband and wife for the full purpose of mar-
riage. To this the maxim originally applied, and with
that application it was incorporated by our Lord into His
own teaching.*
This merging of two lives into one has been obscured
by a one-sided conception of the relation, due to the prac-
tical superiority of the man over the woman. His greater
strength, activity, and publicity, contrasting with the com-
parative retirement necessary to a woman engaged in the
task of child-bearing and nurture, have made it seem, com-
monly though not universally, that the wife is absorbed
into the family of her husband. A result is seen in the
practice of the Roman law, by which a wife passed from
the patria potestas of her father to that of her husband, or
to that of his father if he himself were not yet discharged.
Similar ideas pervade the marriage customs of almost all
races, in whatever degree civilized. They have some foun-
dation in nature, since they rest on the normal conditions
of sex, but they depart from nature in their denial of the
individuality of the human being. This individuality is
no less characteristic of human life than the social order
without which human life is impossible ; in marriage,
rightly understood, the two characteristics are equally
1 i Corinthians vi. 16.
2 St. Matthew xix. 5 ; St. Mark x. 8.
THE RELATION OF AFFINITY 9
recognized ; an individual man and an individual woman
coalesce into a conjoined life, becoming an individual pair
from which springs a new society. Marriage is properly a
discharge from parental control ; husband and wife, without
loosing the natural ties of blood connecting them severally
with their former kindred, pass away from the families in
which they were bred to form in their union a new family.
It is the teaching of the Gospel, appropriating once more
and reinforcing an ancient maxim. Not the woman alone,
but also the man, " shall leave his father and mother, and
shall cleave to his wife ; and the two shall become one
flesh."
From this coalescence it follows inevitably that the hus-
band becomes akin to the kindred of his wife, in the same
degree as herself, and she to his. What the more usual
practice of mankind acknowledges only in the case of the
woman is true also by parity of nature in the case of the
man. The relation known as affinity is no less natural
than that of consanguinity.
This close union of husband and wife has the further
consequence of engendering a new kind of natural affec-
tion. The tie of near kinship is felt for a time by animals
of many species ; with men, bred and nurtured in families,
it subsists longer and even extends beyond a generation ;
a man and a woman bind themselves together in wedlock
with a feeling of peculiar intensity. Sexual attraction,
which affords the natural impulse to marriage, passes into
a love rooted and established in habit. It has been well said
that a wife's love for her husband becomes above all love
for the father of her children ; frustration of motherhood
sometimes produces deplorable disorders, but the bare
intention of procreating children in common, even if disap-
pointed, will bring about a sense of identity, of a single
purpose in life, which makes the closest bond of human
io OF MARRIAGE IN THE ORDER OF NATURE
affection. " Husbands should love their wives," says St.
Paul, " as their own bodies. He that loves his wife loves
himself ; for no man ever hated his own flesh, but nourishes
and cherishes it." 1
Indeed there is here found a secondary cause for the
divine institution of marriage: "It was ordained," says
the homily in the Form of Solemnization of Matrimony,
" for the mutual society, help, and comfort, that the one
ought to have of the other, both in prosperity and adver-
sity." A marriage unfruitful in children may thus find a
place in the economy of nature.
From this complete unity of life there seems to follow
naturally community of goods. Some degree of community
is necessary if the end of marriage is to be attained.
The children are a joint charge, and the maintenance of a
home can hardly be managed by a partnership of limited
liability. The long continuance of an unequal discrimina-
tion of law in favour of the husband has obscured in some
countries the obvious and equitable requirements of nature,
paving the way for an excessive independence in married
life ; frequent failures of duty on the part of husband or
wife make it necessary in practice to give each of them legal
securities against the crime or carelessness of the other ;
but community remains the true basis of economics in the
family. The formula of marriage, " With all my worldly
goods I thee endow," indicates the normal state of things ;
and it should in effect be mutual.
Marriage is thus, in the order of nature, an entire con-
junction of two lives, to be lived as one for the purpose of
achieving the end proposed : totius vitae consortium.
The marriage-bond is exclusive ; Coniunctio solius cum
sola. An adumbration of this principle is seen in the fierce
jealousy with which certain wild animals keep their mates
1 Ephesians v. 38-9.
AN EXCLUSIVE UNION n
to themselves. In men, the instinct of jealousy is reasoned,
without losing much of its peremptoriness. Carnal inter-
course of husband or wife with another is all but universally
recognized as one of the gravest offences against social
order ; adultery is a private wrong of so exasperating a char-
acter that on grounds of policy it is in many communities
treated as a public crime ; elsewhere, private vengeance
is condoned, or even permitted. But a very different
measure is meted to husband and to wife. The adultery of a
husband with an unmarried woman is treated as a minor
offence, and the wife's jealousy is seldom justified by law
or social opinion if it runs to extreme action ; a wife's
adultery is regarded as a much graver wrong. Christian
doctrine allows no such distinction, reinforcing the natural
instinct of jealousy on both sides alike by indiscriminating
condemnation of adultery as a sin at once of luxury and of in-
justice ; but this teaching has not succeeded in controlling
the social judgments, even of Christian communities. There
is, indeed, a difference between the two cases, imposed by
nature ; the adulterous wife may put upon her husband
a spurious offspring, the adulterous husband can do no such
thing. If the sin against chastity is identical in the two
cases, the effect of the sin of injustice is greater in one case
than in the other ; social custom and law can hardly fail
to recognize the difference, and to visit the offence more
severely where the wrong done is the greater. But a
general condonation of adultery on the husband's part,
coupled with deprecation of jealousy on the wife's part, is
characteristic of a corrupt state of society in revolt against
the dictates of nature no less than against the teaching of
Christianity. It destroys the idea of marriage as a conjunc-
tion solius cum sola.
Equally in conflict with that idea is the legal institution of
polygamy. So widespread, however, is this, that it may
12 OF MARRIAGE IN THE ORDER OF NATURE
seem rash to declare it contrary to nature, and grave opinions
can be quoted in favour of its being permissible by natural
law. That of St. Augustine is conspicuous. He takes his
stand upon a physiological ground ; plurality of wives, as
distinct from plurality of husbands, is not contrary to the
nature of marriage, " plures enim feminae ab uno viro fetari
possunt, una vero a pluribus non potest." l He supports
this by the fanciful analogy of one master having many
slaves, while one slave can have only one master, and by
the more dangerous argument that one true God is the Lord
of many faithful souls, while for a soul to go after many gods
is the fornication of idolatry. This might certainly be
pleaded, if pertinent at all, in favour of polygamy among
Christians, since the figure of marriage is expressly used to
illustrate the relation of the faithful to Christ. But St.
Augustine, with many others following him, treats the
restriction to monogamy as an arbitrary discipline imposed
by divine authority on Christians, thus introducing the con-
fusion inevitably caused by the supposition of a divine law
over-ruling the law of nature. He seems to have been
moved to this mainly by an unwillingness to attribute to
the Fathers of the Old Testament any ignorance or disregard
of a divine institution ; the concubinage of Abraham, the
polygamy of Jacob and of David, were therefore to be justi-
fied as in accordance with natural law, and he laboured to
maintain that in all such cases the one motive was a desire
to fulfil the divine injunction of fruitfulness. 2
It is an obvious objection to this theory that no trace can
be found of any express prohibition of polygamy in the
preaching of the Gospel. If the maxim, " The two shall
become one flesh," can be stretched to imply such prohibi-
tion, which is a very doubtful resource, there is no new rule
1 De bono coniugali, 17. a Dt bono viduitatis, 7.
THE EVIL OF POLYGAMY 13
introduced, for appeal is made to the primary institution of
marriage. The maxim is directed against an abuse of the
institution which is remotely, if at all, connected with poly-
gamy ; it forbids separation from one wife, not the addition
of another. Attempts have been made to bring into this
connexion St. Paul's rule requiring a bishop to be " the
husband of one wife," as though polygamy were allowed in
ordinary Christians and forbidden only to those called into
the sacred ministry ; but this interpretation is impossible
in view of the corresponding regulation about consecrated
widows ; * if it could be shown that plurality of wives was
tolerated in any of the communities to which the regulation
extended, it is certain that plurality of husbands was un-
known. There can be no doubt that the rule was intended
to exclude those who had contracted a second marriage after
separation by death or divorce.
In the absence of any express prohibition of polygamy, it
is invariably assumed by the writers of the canonical books
of the New Testament, and by the constant witness of the
Christian Church, that monogamy is the rule. It is assumed
in the condemnation of marriage after divorce ; for, if it
were lawful to take a second wife while retaining the first,
it would a fortiori be lawful to take a second after repudiat-
ing the first.* It may be taken for certain that the lack of
any express prohibition is due to the fact that the practice
of polygamy was unknown among those to whom the Gospel
was preached. But these men either had the Scriptures of
the Old Testament in their hands, or were speedily intro-
duced to them as containing the oracles of God ; and these
books recorded without blame the polygamy of the Fathers.
1 i Timothy iii. 2 ; v. 9.
2 But conversely, the allowance of successive polygamy in case
of divorce (infra, p. 104) cannot be pleaded in justification of simul-
taneous polygamy, which alone is here in question.
14 OF MARRIAGE IN THE ORDER OF NATURE
Therefore, if it was not necessary to warn men against fol-
lowing this example, it must be inferred either that polygamy
was still permissible, or that men were already convinced
of its natural impropriety. The former alternative being
inadmissible, the latter is imposed. It follows that the
obligation of monogamy was learnt by the light of nature.
With this all Christian practice agrees. Unsupported by
any positive prohibition, the Christian witness against
polygamy has been unwavering. Whatever toleration may
at times have been accorded to illicit connexions, the union
solius cum sola has been recognized as the only true marriage.
Apart from the completely abnormal cases of the Anabaptists
and the Mormons, the only serious attempt of any one claim-
ing the Christian name to relax this rule is found in the
allowance of a second wife accorded by Luther and Melanch-
thon to Philip of Hesse ; the secrecy with which this was
done, and the shame of its authors on detection, are the most
eloquent assertion of the rule which they violated.
If monogamy is required by natural law, a reason for it
must be found in nature. Theologians from the time of
St. Thomas Aquinas commonly seek this in a consideration
of the bona matrimonii, the three ends of marriage defined
by St. Augustine, proles, fides, sacramentum.* What
militates against these is held to be contrary to natural law.
Plurality of wives does not, says St. Thomas, or his reporter,
in any way hinder the procreation of children ; it does to
some extent injure the mutual trustfulness and accommo-
dation which is fides ; it entirely ruins the sacramentum,
which is the mystical signification of the union of Christ
with the one Church. Thus it is contrary to nature in
respect of the second and third ends of marriage. 2
Consideration of the sacramental character of marriage is
1 De bono coniugali, 24, and De Genesi, ix. 7.
1 Sum. Theol., Suppl. 65, i.
THE EVIL OF POLYGAMY 13
postponed ; but here it may be remarked, first, that a sacra-
ment is not strictly in the natural order, and that, even if
marriage be supposed to have been instituted with a view
to its sacramental use, the violation of that ultimate pur-
pose can hardly be construed as a contradiction of the
original institution ; secondly, that St. Thomas himself, or his
reporter, allows a certain congruity of polygamy with the
mystical significance of marriage, " quia quamvis non signi-
ficaretur coniunctio Christi ad Ecclesiam, inquantum est
una, significabitur tamen per pluralitatem uxorum dis-
tinctio graduum in Ecclesia ; quae quidem non solum est in
Ecclesia militante, sed etiam in triumphante." x In the
same place he allows also that fides manet ad plures. His
theological reasons for condemning polgyamy therefore
break down.
Firmer ground is needed. It may without difficulty be
secured in a consideration of the approximate equality of
the sexes under ordinary natural conditions. Abnormal
conditions are known to produce a preponderance of one
sex. The practice of polygamy is probably due, in part, to
a redundance of women, in part to the selfish aggrandise-
ment of powerful men. These causes in combination will
account for its establishment by law, but it obviously can-
not be general without an enormous disparity of numbers in
the two sexes ; in point of fact, it seems to be usually a
privilege of chieftainship or of wealth. But a practice
due to abnormal conditions, and open only to persons
abnormally placed, is no part of the order of nature.
But further, polygamy can be shown to militate actively
against the well-being of the race, which must be assumed
as a true object of the natural order. It is found in practice
to make for less fecundity. The eugenic plea that it implies
breeding from the stronger and more virile stock, true in
1 Sum. Tbeol., Suppl., 65, 2.
16 OF MARRIAGE IN THE ORDER OF NATURE
the case alike of wild beasts and of cattle, is nullified in the
case of men by the diminished efficiency of fatherhood and
of education within the family. The gravest objection,
however, is that under normal conditions polygamy con-
demns a proportion of one sex to sterility, and to the moral
evils flowing from the frustration of natural instincts. This
result is recognized in a significant manner ; the employ-
ment of eunuchs is a regular accompaniment of the practice.
To these more public evils should be added a private wrong
suffered within the marriage-bond. Polygamy destroys
the mutuality of right and duty on which the union of hus-
band and wife properly rests. " The wife has not command
of her own body/' says St. Paul, " but the husband ; and
so too the husband has not command of his own body, but
the wife." l The due cannot be freely rendered, except on
condition that each man has but one wife, and each woman
but one husband. This last argument was urged by St.
Thomas in his more philosophic mood, as also the fine con-
tention that polygamy destroys equality of love between
husband and wife, introducing a servile relation. " Apud
viros habentes plures uxores," he remarks, " uxores quasi
ancillae habentur." *
Polygamy, whether in its usual form or in the rarer form
of polyandry, is thus seen to be contrary to natural law ;
no supernatural revelation is required for its rebuke, and
none has been given. The practice, however widespread,
is an aberration ; the civilization which insists on mono-
gamy is in the true order of human development. Marriage
in the order of nature is the union solius cum sola.
The entire union of man and woman effected by marriage
is indissoluble except by death. That death dissolves it is
evident from the fact that its whole aim is concluded within
1 i Cor. vii. 2-4. * Summa contra Gentiles, iii. 124.
INDISSOLUBLE EXCEPT BY DEATH 17
the compass of this present life. The obvious inference is
supported by the answer of our Lord to the Sadducees that
" in the resurrection they neither marry nor are given in
marriage." l It is the constant teaching of Christianity.
" A wife is bound," says St. Paul, " for so long time as her
husband lives ; but if the husband be dead, she is free to be
married to whom she will." * The discouragement of second
marriages, which has been a marked feature of some stages
of Christian discipline, is not due to any doubt on this head,
but only to the conviction that widowhood, like virginity,
is a higher state. " She is happier if she abide as she is,
after my judgment," adds St. Paul ; " and I think that I have
also the Spirit of God."
" A wife is bound for so long time as her husband lives,"
says the Apostle ; and this, like every other obligation in
marriage, is mutual. It is unqualified. But it may be urged
with some show of reason that other circumstances, as well
as death, put a natural end to the union. The first purpose
of marriage is frustrated by sterility ; a violent dislike or
incompatibility of temper may drive the parties asunder,
and so frustrate both the hope of children and the good of
family life ; enforced separation, as by sentence of law,
insanity, or certain kinds of disease, may have the same
effect ; adultery, at least on the wife's part, involves a
breach of the purpose of marriage even more serious. By
the operation of these causes, it has been argued, the union
is naturally dissolved, no less than by death.
But marriage is not instituted for one cause only, so as
to be frustrated by sterility, 8 nor is it a mere social union
entered upon for certain specific objects with reservation of
the right to withdraw from it in case of failure. It is an
1 Matt. xxii. 30. 2 i Cor. vii. 39. Cp. Rom. vii. 1-3.
3 See, however, below, p. 28, for the case of impotence.
M.C.S. C
i8 OF MARRIAGE IN THE ORDER OF NATURE
entire union, completed by natural copulation prior to the
achievement of any such objects, and retaining its effect in
spite of subsequent disappointment. It is a natural union,
as intimate and indestructible as that of parent and child.
The purpose of nature in the relation of parent and child may
be frustrated by separation as completely as in the case of
husband and wife, but the parent does not cease to be parent
or the child cease to be child ; their mutual obligations may
be obscured or suspended, but cannot be definitely cancelled.
" Marriage is ideally indissoluble/' says a recent writer,
who perhaps does not go the whole way with me in tracing
consequences, " the relation of husband and wife being like
that of father and son, or brother and sister, where there may
be casual alienation or even separation without altering the
fact of the relationship." x If marriage were a mere con-
tractual relation, an artificial partnership, it would be termin-
able not only by a failure to achieve its object, but even
more equitably by mutual consent ; because it is consti-
tuted in the order of nature, and not only at the will of the
parties, it is indissoluble except by an event equally in the
order of nature ; and this can be found only in death. By
virtue of nothing short of this can the husband cease to be
husband, or the wife cease to be wife.
Against this conception of marriage as naturally indis-
soluble is set the general practice of mankind allowing its dis-
solution for certain causes, and the marriage of the separated
husband and wife to fresh partners. So profoundly has
this practice affected the customary morality of human
society, that grave doubts have been entertained whether
marriage should be regarded as indissoluble by natural law,
and not rather as made indissoluble by positive enactment.
Oppressed by the precedents of the Old Testament and by his
1 D. Macfadyen, The Messenger of God, p. 93.
INDISSOLUBLE EXCEPT BY DEATH 19
respect for that Roman jurisprudence which asserted with
the utmost solemnity the perpetual obligation of natural law,
St. Augustine taught that only in the civitas Dei, or Christian
commonwealth, was this quality impressed on the union of
man and wife ; in the natural order they might separate, as
allowed by Roman law, and contract fresh marriages ;
entering into the Church, they lost this liberty, being more
straitly conjoined by virtue of the sacramental efficacy given
to the natural institution. 1 His opinion has had immense
effect on Christian teaching, but he was not entirely con-
sistent with himself ; in discussing St. Paul's directions
about separation from an unbelieving consort he definitely
treated the presumably pagan marriage as debarring the
Christian party from any fresh union, 2 and as being therefore
fundamentally indissoluble. If it were not so, the Christian
party, repudiated by the other, would be free to marry, and
this interpretation of St. Paul's teaching has, in fact, been
accepted by modern theologians.
The natural law being thus called in doubt, we look for
guidance to the evangelic revelation. It will be seen that
two questions are raised : (a) Whether it is permissible for
husband or wife on any account to withdraw from the close
union which is marriage ; and (b) if this be allowed, whether
the marriage is thereby dissolved so that the parties are free
to enter into fresh unions. Such separation is properly
called divorce, whether it implies dissolution of the mar-
riage bond or not ; it is only by an abuse of language
that the word is otherwise defined. We have to ascej
then, from the teaching of the Gospel, wnether divorce
is permissible ; in what cases it may be allowed, if
1 See especially, De nuptiis et concupiscentia, i. 10. Observe also
that he objected to making marriage after divorce a bar to baptism.
De Fide et Operibus, 19.
2 De adulterinis eoniugiis, i, 25.
20 OF MARRIAGE IN THE ORDER OF NATURE
at all ; and whether it effects a dissolution of marriage.
St. Paul's ruling is peremptory. Replying to specific
questions put to him from Corinth, he wrote : "To the
married I give commandment not I, but the Lord that a
wife is not to be separated from her husband (but if she be
separated let her remain unmarried, or be reconciled to her
husband), and that a husband is not to put away his wife."
So far, no exception of any kind is allowed ; in the case
where separation has de facto taken place, a fresh marriage
is forbidden. A little later, he answers a question about
the remarriage of widows, which he allows, but with reiter-
ation of the principle that the bond cannot be dissolved while
the parties are both alive.
But here comes in the one exception, commonly known
as the privilegium Paulinum. It is introduced by the phrase,
" To the rest say I, not the Lord." Who are these ? He
has addressed two classes, the unmarried and widows, whom
he advises to remain unmarried ; the married, whom he
warns against divorce. So difficult it is to find a third class,
that some have referred the words in question to the former
of these classes, as though he said, " To the married I forbid
divorce in the Lord's name, but to those others I only give
my own advice." The construction of the whole passage,
however, does not favour this interpretation, and the phrase
seems clearly to be an introduction to what follows. There is
then a third class of those who do not belong to either of the
previous categories. It is plain who they are. They are
Christian men or women, mated with unbelieving consorts.
They seem to be set in a class apart because the Apostle
addresses none but believers, and therefore, when he speaks
to the married, he has in view those cases only in which both
parties are Christian ; for these others there is something
else to be said. But now he answers the question put to him
1 i Cr. vii. 10 ii.
MARRIAGE AFTER DIVORCE si
on his own authority, not alleging any express teaching of
the Lord. " If a brother has an unbelieving wife," he says,
" and she consents to live with him, let him not put her
away ; and a wife who has an unbelieving husband, and he
consents to live with her, let her not put him away. . . . But
if the unbelieving party makes separation, let it be so ; the
brother or the sister is not enslaved in such cases."
Such is the Apostle's ruling, divested of the arguments
with which he pleads for its acceptance. Its meaning is
quite clear, but those arguments are helpful to a fuller under-
standing, since they suggest the form of the question which
he was answering. There was probably a definite rule that
Christians should marry, as he casually remarks lower down,
" only in the Lord " ; what was the duty of converts already
married whose consorts remained unbelieving ? Should the
marriage stand, or should they take advantage of the law
which allowed divorce ? St. Paul replies that " the unbeliev-
ing husband is sanctified in his wife, and the unbelieving wife-
is sanctified in the brother." The marriage may therefore
stand. The Christian party is not merely allowed to con-
tinue in this union, but is forbidden divorce. If, however,
the unbelieving party effect a divorce, no steps need be
taken to hinder it. What steps could be taken ? St. Paul
probably has in mind the case of the unbeliever demanding,
as a condition of continued wedlock, something inconsis-
tent with the profession of a Christian. A Christian is not
a slave, he protests. The question remains whether the
Christian party, being so divorced, is free to marry. St.
Augustine, as above noted, says not. The contrary opinion
has generally prevailed, but it rests on the supposition that
marriage is not naturally indissoluble, which we are now
examining. The Apostle himself gives no ruling, 1 and it is
1 It is impossible that SeSpvAomu, v. 15, should be equivalent to
v. 39,
22 OF MARRIAGE IN THE ORDER OF NATURE
probable therefore that he leaves this special case under the
general rule that a wife separated from her husband must
remain unmarried.
What St. Paul taught the Corinthians in reply to an ex-
press question, he wrote also more at large in his epistle to
the Romans. " Do you not know, brethren (for I speak to
men who know law), that the law has dominion over man so
long as he lives ? For the married woman is bound by law
to her living husband, but if the husband die she is discharged
from the law of her husband. So then, while the husband
lives, she will be called adulteress if she be joined to another
man ; but if her husband be dead, she is free from the law,
so as not to be an adulteress when joined to another man." l
It should be observed that the Apostle is here appealing to
a known principle, in illustration of an argument concerned
with other matters. There was a recognized Christian law.
Was this peculiarly Christian, or was it the natural law rein-
forced by Christian teaching ? It rested on a saying of the
Lord, currently reported among the faithful. For further
elucidation, that saying must be identified.
Such a saying is recorded in four places of the canonical
Gospels, two of which are clearly identical ; the others are
in a separate setting.
In the tenth chapter of St. Mark and the nineteenth of St.
Matthew is the story of the Pharisees who put to our Lord
the test question whether it was lawful for a man to divorce
his wife ; St. Matthew adds the particular that they asked
whether it were lawful " for every cause," glancing at the
later practice of the Jews. He answered by a reference to the
primary institution of marriage, by which man and woman
become " one flesh," deducing the consequence, " What
God joined together let not man put asunder." Confronted
with the Mosaic legislation about divorce, He replied that
1 Rom.^vii. 1-3.
MARRIAGE AFTER DIVORCE 23
this was allowed because of men's hard-heartedness, which
has been variously interpreted to mean their stubborn refusal
to follow the divine ideal or the harshness with which they
would treat a wife who could not be dismissed. Then follows
a gnomic saying which St. Mark reports to have been deliv-
ered in private to the disciples as a further instruction, and
which is also recorded, without note of time, elsewhere in St.
Matthew and in St. Luke. It cannot be doubted that this
was the saying of the Lord to which St. Paul referred. It
will be well to place side by side the forms in which it is
recorded, with verbal variations.
Matthew v. 32. Every man divorcing his wife, apart from
the cause of fornication, makes her commit adultery ; and
whoever marries a divorced woman commits adultery.
Matthew xix. 9. Whoever shall divorce his wife, unless
for fornication, and marry another, commits adultery ; and
he who marries a divorced woman commits adultery. 1
Mark x. n. Whoever shall divorce his wife and marry
another, commits adultery against her ; and if she, after
divorcing her husband, marry another, she commits adul-
tery.
Luke xvi. 18. Every man divorcing his wife and marry-
ing another commits adultery ; and a man marrying a
woman divorced from her husband commits adultery.
It is to be observed that this teaching of our Lord is
expressly based on the natural institution of marriage. He
is not giving a new law to Christians. He is enforcing and
explaining the natural law which had been corrupted through
man's hard-heartedness. On this ground divorce is expli-
citly forbidden ; and further, if divorce takes place de facto,
marriage of the divorced is forbidden as involving the guilt
of adultery. That is to say, in spite of divorce the natural
1 The text of this passage is doubtful, but not in any particular
seriously affecting the sense.
24 OF MARRIAGE IN THE ORDER OF NATURE
relation, the vinculum, remains intact. If it were not so,
union with a divorced woman, however strongly condemned
on other grounds, could not be called adultery. It is adul-
tery, and therefore the previous marriage-bond remains
unbroken.
The one except ed case calls for brief consideration. It is
peculiar to St. Matthew. But further, it contrasts re-
markably with the general manner of our Lord's teaching.
Wilhelm Bousset has remarked with justice on His practice
of laying down the commandment of God in all its absolute-
ness in face of the endless distinctions and exceptions which
made the system of the Pharisees. 1 There is no other ex-
ample of such an exception in the Gospel ; the rule of con-
duct is laid down peremptorily, and whatever exceptions or
economies may be necessary in practice are left to the con-
science or to the regulation of human authority. Bousset,
therefore, bluntly rejects this exception as an interpolation.
There is no ground, however, for doubting its authenticity in
the text ; but it is not improbably a gloss, inserted by the
evangelist, calling attention to a practice recognized in the
Church when he wrote. The consideration of its meaning
may therefore be defended until we come to speak of mar-
riage in relation to human law. It is sufficient to say here
that the except ed cause justifies only the separation of hus-
band and wife ; it is interjected parenthetically for this pur-
pose, and does not affect the subsequent judgment that the
marriage of the divorced is adulterous. An exact compari-
son of the second passage from St. Matthew with the cor-
responding citation from St. Mark makes this abundantly
clear. So it was understood without hesitation by all Chris-
tian writers commenting on the words, until the entangle-
ment of the Church with the Empire in the fourth century
1 Bousset, Jesus, p. 144 (Engl. transl.).
EFFECTED BY CONTRACT 25
moved men to find some common ground for Christian
teaching and Roman law. Those who held the general
opinion that our Lord expressly sanctioned the divorce of
an adulterous wife, and those who held, as Hermas, 1 that it
was even sinful to cohabit with her, nevertheless emphati-
cally declared that the husband dismissing her would himself
be guilty of adultery if he married another. The bond of
marriage, that is to say, remains unbroken by divorce.
Moreover, this teaching is grounded on the natural institu-
tion of marriage. Marriage is therefore indissoluble in the
order of nature.
This intimate and indissoluble union of man and woman
is effected by means of a contract. Since two individual
lives are to coalesce in one, without prejudice to the true
personality of either party, they must come together by a
free act of mutual surrender and acceptance. The hus-
band, says St. Paul, does not retain full control of his own
body, nor the wife of hers ; an abnegation which would be
intolerable, and even immoral, on any other basis but that
of mutual consent. This free contract of marriage, pro-
perly called the wedding of man and woman, is more or
less recognized in all forms of civilization ; but the pre-
dominance of the male, and the imperfect freedom of the
unmarried woman, usually make it a one-sided affair ; yet
even marriage by capture, which is common to many savage
races and curious vestiges of which linger in others of the
most highly developed culture, differs from mere rape in
assuming the contented acquiescence of the prey ; indeed,
the analogous habits of the brute creation suggest that the
foray, real or pretended, looks not so much to the bride
herself as to the males of her tribe from whom she is stolen/'
It is not here, however, but in a state of complete civili-
zation, that we must seek evidence of the true nature of the
1 Pastor, Mand., iv., i.
26 OF MARRIAGE IN THE ORDER OF NATURE
marriage contract. Even in Roman law, despite the sub-
jugation of children in patria potestate, it was agreed that
marriage was effected by the consent of the parties. 1
Other systems of law also require the consent of parents
to the marriage of a man or woman below a certain age,
and it is difficult to say whether in the absence of such con-
sent the marriage is naturally void. The subjugation of
young children to their parents is unquestionably natural
for so long a time as is required for their preservation, but
no fixed limit can be set ; the age of independence defined
by positive law is merely artificial. It is generally allowed
that consent of wedlock should be considered naturally
possible as soon as the parties are of an age to fulfil the
marriage contract. If, however, it can be shown that mar-
riage at so early an age is injurious to the individual or to
the race, it may seem that natural law imposes further
restraint ; and a marriage contracted in defiance of such
restraint may be held naturally void.
A similar argument may possibly establish restraint of
marriage between persons who for lack of bodily or mental
health are unable to fulfil the ordinary obligations of marri-
age, to rear and educate children, and to render the mutual
services implied in the holy estate of matrimony. It may
be held that such persons are naturally incapable of enter-
ing upon a contract, the terms of which they are naturally
incapable of fulfilling. It is evident that a growing know-
ledge of nature may bring with it a more accurate percep-
tion of natural law, and refinements of this kind are not to
be rejected as impossible ; but our knowledge of human
physiology is not at present complete enough to serve for the
formulation of rules in such matters.
1 " Nuptias non concubitus sed consensus facit." Ulpian. in
Tit- de Divers. Reg. lur. Antiq. 30.
CONDITIONS OF A VALID CONTRACT 17
Setting aside these doubtful questions, we find certain
conditions generally acknowledged as requisite in a valid
contract of marriage.
First, genuine marriage must be intended. A mutual
contract of man and woman to render some only of the
offices involved in marriage would not be sufficient. It
might do no more than set up a relation of concubinage,
to be terminated at will. It is not enough that the pro-
posed relation be called marriage. If it be entered upon
with a mutual agreement to frustrate any of the true pur-
poses of marriage, as for example to avoid the procreation
of children, or to have no community of life, such restrictive
conditions will render the contract void, and there will be
no marriage. It is obvious that if one party have this
vicious intention, the other being privy to it, there will be
the same defect in the contract. If the intention be secret
on either side, a difficult question may arise ; the contract
.- may be held good because of its openly expressed terms,
but action taken and persisted in, such as refusal to con-
summate the union or to cohabit, may betray the defective
intention and so nullify the pretended marriage. An
avowed purpose of continuing the union only for a limited
period, or until a divorce is in some way effected, will make
the contract void ; but a mere implication of such purpose
need not be equally destructive. If two persons contract
marriage, for example, in a society or under a system of
law which treats the bond as normally dissoluble, it does
not follow that they intend a merely temporary union ;
it is enough that they purpose marriage, though a general
opinion which they themselves share erroneously regards
the consent as revocable. God has joined them together
by a natural bond, though it be supposed that man can put
them asunder. Otherwise there would be no marriage
except where the truth of the indissolubility of marriage
38 OF MARRIAGE IN THE ORDER OF NATURE
is known and received ; there would have been no genuine
marriage among the Jews or the other peoples to whom
the Gospel was preached. The fact that from the first ^
converts to the Church were received as truly married
effectively disposes of this question. Since marriage is a
natural institution, it must be taken that those who marry
intend the natural union with all its consequences, known
or unknown, unless any of these be expressly excluded.
In the second place, the parties must be physically capable
of the marriage union. The man must have reached
puberty, and the woman must be apta viro. A promise to
marry might be made earlier, and have some binding force,
as in the case of legal espousals per verba de futuro, but this
promise would not normally constitute marriage, even
if the parties afterwards came together. But further, since
some men remain always incapable of the act of marriage,
or are incapacitated by artificial means, one who is so im-
potent is incapable of contracting marriage ; if the im-
potence be discovered after the verbal contract has been
made, this must be treated as null and void, and there is no
marriage.
In the third place, the consent of the parties must be free,
deliberate, and informed, otherwise there is no true con-
tract ; anything, therefore, which destroys these conditions
nullifies a contract otherwise valid. An enforced consent
makes no marriage, even though the union be consummated ;
if either party was terrorized, by whatever means, into the
surrender of the body and the verbal expression of consent,
the contract is void. An insane person, again, or one under
the influence of drugs, not having control of the will, is in-
capable of contracting a valid marriage. So too if a definite
mistake be made as to the persons contracting, as if a
man verbally contract with one woman supposing her to be
another woman, this contract also is void. These limita-
CONDITIONS OF A VALID CONTRACT 29
tions are not imposed by positive human law ; they are
inherent in the nature of things, rendering an apparent
consent unreal.
Fourthly, the parties must both be free of any other tie
of wedlock. This follows from the unity and the indissolu-
bility of marriage ; a person already married cannot con-
tract a new marriage. It is allowed in practice that when
one party of a marriage has disappeared and has not been
heard of for some years, the other party may be held free
to marry, but this on the ground that the death of the
missing one is presumed. It is sometimes held that a pre-
contract of marriage, solemnly made, is a bar to any other
marriage unless the parties to it be as solemnly released.
This kind of contract is recognized in many systems of law,
and has an important place, under the name of Sponsalia,
in Canon Law and Moral Theology. The question for us
here is whether it should be referred to Natural Law. In a
sense, Natural Law must certainly take cognizance of it, as
of all obligations founded on contract. It is a contract by
which the parties, in some cases through their natural or
legal guardians, pledge themselves to marry at some future
time. It is not denied that the contract is rescindible,
either by mutual consent, or even by one party where con-
ditions make its fulfilment improper ; but about its effect
while subsisting there is much dispute. Each party is under
a natural obligation to marry when called upon to do so,
and is therefore precluded from contracting any other
marriage ; but is there set up a natural status which will
render such marriage void, if attempted ? The precon-
tract is the preliminary 6771/770-*? of Athenian law, which
was considered an indispensable feature of the marriage
contract. In Roman law the sponsalia were not essential,
and it was possible to proceed direct to marriage ; but,
both in this system and in the Christian practice derived
30 OF MARRIAGE IN THE ORDER OF NATURE
from it, these espousals de futuro followed by the carnal
union of the parties have been held to constitute true mar-
riage. This effect, however, may be referred to a contract
of present marriage presumed as implicit in the act of union,,
and thus it is not necessary to give the espousals the char-
acter even of inchoate marriage. On the whole, it seems
best to conclude that in the order of nature espousals de
futuro set up nothing but an obligation, the breach of which
is an offence against justice, but which does not render the
person so bound incapable of marriage with a third party.
The marriage is to be condemned, but is not to be set aside
as void.
Lastly, persons nearly akin to each other are incapable
of intermarrying. It is not, however, certain what near-
ness of kindred constitutes a natural bar to marriage. The
practice of mankind has varied from a rule of strict exogamy,
requiring the parties to be of different tribes, to the point of
allowing marriage between a brother and a sister of the full
blood. At the same time the observance of whatever rule
is adopted has usually been enforced under sanctions
which imply a remarkable degree of natural repulsion from
the forbidden unions. The definite horror of incest, which
seems indestructible even in the most decayed civilization,
has its roots deep in human nature. Attempts have been
made to find a physiological basis for prohibitions of this
kind, but without success ; a general belief that injurious
effects are found in the offspring of the forbidden unions
is not universally verified in experience, and it is probably
the result rather of a religious dread than of actual obser-
vation. It seems to be a certain conclusion of biology that
the human race is descended from a single ancestor differen-
tiated by one of the greater variations that appear spontan-
eously in breeding. If this be so, the unity of the race
could be preserved in the first instance only by the closest
CONDITIONS OF A VALID CONTRACT 31
interbreeding, and it is impossible to refer the prohibitions
in question to these beginnings. But the natural consti-
tution of society, as we have had occasion to observe, is
not to be found in the first stages of human life. It is found
rather in that to which human life tends, in accordance
with the thought of the Creator. At what stage in the
history of the race the restriction of in-breeding began, it
is impossible even approximately to ascertain. The savage
tribes which practise exogamy, it must be repeated, are
not primitive. They have an unrecorded past in which
vast changes have probably taken place. But the restric-
tion, in one form or another, has become a constant factor
of social order. Marriage with a sister of the half-blood,
as recorded of Abraham, or of the full blood as practised in
some communities more civilized than those of the Semitic
nomads, has been held on high authority to be forbidden
by natural law { ; but it is difficult to maintain this opinion
in view of the fact that such marriage would be necessary
at the beginnings of the human race ; still less will a more
remote kinship be a bar ; the one kind of union that seems
to be certainly excluded is that between a man and a woman
related in the direct ascending and descending line. If
this be so, and the question is one of great difficulty, all
other prohibitions must be referred to human law, being
imposed for the better safeguarding of the family.
What has been said above as to the relation of affinity
draws with it the inevitable consequence that the natural
restriction of marriage applies no less to persons allied in
this way than to those related in blood. This obvious con-
clusion is fortified by the remark of St. Paul that union be-
tween a man and his father's wife was regarded, apart from
1 The authorities are collected with characteristic erudition in
the Rev. Father Puller's Marriage with a Deceased Wife's Sister
forbidden by the Laws of God and of tht Church.
32 OF MARRIAGE IN THE ORDER OF NATURE
any special sanction of Christianity, as a thing not to be
heard of. 1 That is to say, it was an offence against natural
law and against natural religion.
These five conditions, then, are required for a valid con-
tract of marriage. The parties must intend true marriage ;
they must be physically capable ; they must be acting
freely, under no constraint and under no mistake ; they
must be subject to no previous bond of marriage ; and they
must not be too near akin.
The contract thus made is fulfilled in the actual union of
the parties, which is called consummation of marriage. A
man and a woman who have contracted, but not consum-
mated marriage, are in an abnormal position as to which
the natural law affords no guidance, but for which human
law must provide in case of need. Those who have con-
tracted and consummated marriage enter upon a new state
of life, determined by nature. The state of marriage is not
a contractual state ; the bond is not a contractual bond.
The contract is only the instrument by which the state of
marriage is brought about. It is not a continuing contract,
subject to revision, or capable of being rescinded with due
regard for law by agreement of the parties interested. It
is completed by consummation. Thenceforward the rela-
tions of the parties are determined, not by contract, but by
law, divine and human ; they are bound to the fulfilment
of their mutual duties, not by their own consent, but by a
natural obligation.
The extent of the obligation is determined by the purpose
of marriage. It is an obligation to live together for life in a
perfect union of equal partnership for the procreation and
nurture of children, for mutual support and comfort in good
and evil estate, and for the right ordering of the family.
1 i Cor. v. i. The reading ovo/xa&rai seems to be a valid gloss,
looking back to d/coverou.
THE SANCTION OF CONSCIENCE 33
Nature seems to assign a certain headship to the man, which
St. Paul with great boldness likens to the headship of Christ
in the Church, but this implies no dominion. It is not by
natural law, but by a gross corruption of human law, that
a wife is regarded as the chattel of her husband. St. Paul
qualifies the submission and reverence of the wife by the
implication of perfect equality involved in bidding men
love their wives as their own bodies. In regard to the essen-
tial act of the marital relation, he insists that the wife has
the same right over her husband's body that the husband
has over the wife. In the First Epistle of St. Peter, the
comparative weakness of the woman, though naturally and
inevitably pointing to some normal measure of subjection,
is expressly made the ground for honourable regard. 1
The divine law of nature assumes obedience. It is de-
signed for men who live according to the will of the Creator.
Sin, and the perversity of nature consequent on sin, disturb
the sublime order thus demanded, and there is in the divine
law no invocation of force to compel submission. Its
sanction is moral ; its appeal is to conscience. There are
terrors, but remote ; there are consequences of ill-doing,
but they are obscure in movement. Law is not necessity.
Some confusion of thought is induced by the common appli-
cation of the word to those sequences of cause and effect
in which no free action of will is discernible. It may be
that we are mistaken in thinking even of wind and storm
as fulfilling God's word with lifeless precision ; there may
be agents working with the thundercloud as men work
with the harnessed forces of nature. Where men are con-
cerned there is certainly a measure of freedom, known in
act though undetermined in extent. In marriage, there-
fore, as in all moral action, human practice does but
approximate to the perfection of the divine law.
1 Eph. v. 22-8 ; i Cor, vii. 4 ; i Pet. iii. 1-7.
M,C,S. D
34 OF MARRIAGE IN THE ORDER OF NATURE
That law may be known by interrogation of nature.
But the knowledge so achieved is imperfect, being at the
best sought by long labour and preserved in the accumula-
tion of human tradition. It is also precarious, being partly
obscured and partly distorted by passion and self-will.
It is increased, and it is also cleared of false accretions, by
the plain teaching of the Gospel, in which God Himself makes
known some of the more secret passages of Kis Will. Chris-
tians therefore have in the tradition of the Church a fuller
exposition of the divine law of marriage, as it is in the order
of nature, than can be found elsewhere. Christian marriage
is not a particular kind of marriage, though there is super-
added to the marriage of Christians a certain quality, next
to be considered, by which it becomes sacramental. There
is not a less perfect marriage common to all men, and a more
perfect marriage proper to Christians. Marriage is true
marriage alike in the Christian, in the pagan, and in the
creedless theist or atheist who has renounced Christianity.
In so far as marriage is better ordered in Christendom, it
is only as Christians know and observe more fully than
other men the natural law of marriage. In so far as modern
civilized man has any advantage, it is because he has
acquired, from theology and physiology alike, more insight
into the working of nature. To break away from the Chris-
tian tradition is not to return to nature ; it is to fall back
upon a less- developed knowledge of nature.
The duty of a Christian man is plain. He is to bring
his conscience to bear upon what he knows of the divine
law, and to regulate his own conduct thereby. He is to
contract marriage only as it is allowed by the law of God,
and to li ve in this holy estate as becomes one who has learnt
its deeper meaning. He will bear in mind the purpose of
the union, and will do nothing to frustrate that purpose by
interference with the course of nature ; he will beget chil-
THE DUTY OF A CHRISTIAN MAN 35
dren and cheerfully undertake the burden of their nurture.
He will make a temperate use of marriage, and will be
sparing in his demands upon his partner. He will treat
that partner with equal honour both in public and in
private, and share as completely as possible all good and
adverse fortune.
The duties of husband and wife are correlative, and each
has to contribute in equal measure to the achievement of a
perfect marriage. But the instructed Christian has to do
more than present an example of the life that is according
to nature in a single family. Human life is necessarily
organized on a large scale. The Christian has to maintain
the cause of marriage in the nation as well as in his own
household. His conscience is not engaged in what other
men do, but he is bound both to support others in doing
right and in upholding the general good of society. Know-
ing the importance of marriage, he will do his utmost to
prevent its degradation. But he will remember that all
men have not the same knowledge, that many defects in
the ordering of this holy estate are to be tolerated because
of their ignorance or the hardness of their hearts. He will
not be too ready, either by legislation or by pressure of
social opinion, to force on other men observances to which
their own conscience does not call them. He will be much
sterner in his judgment of a fellow Christian than in his
intercourse with those without the Church. He will bring
all things to the standard of the law of God, refusing to
abate any demand, or to recognize any lower ideal ; but
he will allow that personal deflections from the right way
do not always involve personal guilt. In a word he will
uphold the truth of nature, but in social intercourse he will
tolerate much that is false, and will frankly recognize as
living together in good faith and without blame many whom
be knows to be united by no true marriage.
CHAPTER II
Of Marriage in the Order of Grace
IN the ritual of the Church, marriage is said to be
ordained for a remedy against sin. This seems to con-
flict with the statement that it was instituted in the time
of man's innocency, except on the general understanding
that by the economy of grace things existing in the order
of nature are appropriated to an use beyond nature. If
sin be a perversion of man's nature so grave and harmful
that he cannot by the exercise of his natural powers recover
his normal condition of spiritual health, it follows that he
can be restored only by some power external to himself.
The practical purpose of the Christian revelation is to show
a power so working, which we call the Grace of God ; and
since this exceeds the measure of man's natural power, we
call its operation supernatural. But the work is usually
done by means which lie within the order of nature. The
Saviour of the world took human nature in which to do
the work of redemption, and took it by means in part, at
least, natural. " Si enim consideremus," says St. Thomas
Aquinas, " id quod est ex parte materiae conceptus, quam
mater ministravit, totum est naturale." 1 In sequence upon
this, institutions and practices which formed part of the
common equipment of human life were taken into the
redemptive system of Christianity and established as
" mysteries of God." All forms of religion, all modes of
1 Summ. Theol., 3, 33, 4.
39
A GREAT MYSTERY 37
social action, were more or less tainted with the effects of
sin ; but some of them were sanctified to be modes of the
Christian life and forms of the religion of the Gospel.
Among these was marriage. Constituted in the order
of nature, and remaining as so constituted, it received in
addition a supernatural endowment. " This mystery is
great," says St. Paul. 1 According to his constant use of
the word, he is thinking of a dispensation of God, eternal
in the divine purpose, but coming to light only in the preach-
ing of the Gospel. The ordinance of nature, " the two shall
become one flesh," is made an ordinance of grace ; "I
speak," he adds, " in regard of Christ and of the Church."
So sacred has the natural union become, that a husband's
love for his wife may be compared with the love of Christ
for His redeemed ; men ought to love their wives as their
own bodies, and as Christ loves His mystical Body, the
Church. The figure had already been used by the prophets
to illustrate the relation of God to His chosen people 2 ;
St. Paul employed the comparison rather to enhance the
solemnity and sanctity of the estate of marriage.
The sense in which he used the word ^va-r^piov must
be ascertained. It is not peculiar to him, though the word
is barely found in other writers of the canonical books of
the New Testament. It was evidently part of the common
Christian language, and so continued. But, like almost
all specifically Christian words, it came from an exterior
source. It had a familiar religious use in all lands where
Greek was spoken. Its origin was religious, though it was
passing into a sense detached from sacred associations.
Throughout the Greek world, and especially the part of
it in touch with Asia, Mysteries were religious observances
connected with the idea of redemption or salvation by means
1 Eph. v. 32. * Jer. iii. 14 ; Hos. ii. 19.
38 OF MARRIAGE IN THE ORDER OF GRACE
of a doctrine divinely revealed "and practices divinely
ordained. Their resemblance to the Christian system is
obvious, and the first preachers of the Gospel did not shrinlj
from the comparison. They proclaimed the kinship by
speaking of the Christian Mysteries. But there is a dif-
ference. Christianity was more than a specific religious
action ; it demanded the surrender of the whole life, and
all the details of life could be taken up into its mysteries.
It is possible that St. Paul himself was responsible for the
general currency of the word among Christians. It seems
to have been disliked by the Jews. Philo insisted that
there were no mysteries in the Mosaic religion, which em-
ployed only the most open and public methods of divine
worship. He evidently had in view the affected secrecy
of the mystic rites, and their restriction to chosen initiates. 1
The word found only a restricted use in the Septuagint,
mostly in the vulgar sense of a mere secret. In the Book
of Wisdom, the Mysteries of God are but the unsearchable
workings of Providence. It does not seem to be used of
religious ordinances except in another passage of the same
book, where it stands, not without a note of contempt, for
the vain imaginations of the Gentile world. 2 It is therefore
surprising to find the word current in the Apostolic writings ;
but however much its complete adoption into Christian
language may be due to St. Paul, his free use of it without
apology or explanation shows that it was already sufficiently
familiar.
Nor is the word used loosely, without reference to its
origin. It had already passed, as the Septuagint bears wit-
ness, 3 into the vulgar sense of a mere secret, but St. Paul
1 Philo, TLcpl OVOVTW, p. 856, ed. 1691.
2 Wisd. ii. 22 ; xiv. 15, 23. Cp. Dan. ii. 18 ; Judith ii. 2 ; Tobit
xii. 7.
3 And earlier ; cp. Menander, Fragm., 168. pvcrrripiov crov ^
TO>
NO SPECIAL SENSE OF SECRECY 39
does not seem to use it anywhere in this way. 1 There are
not many indications even of a secondary sense of secrecy.
The Christian Mysteries had affinities with the cults known
by the same name in other religions, but they were not
guarded with the same affectation of secrecy, nor were sacred
truths jealously doled out to recipients in various stages
of initiation. There are, indeed, some words of St. Paul
which seem to imply such a practice : " We speak wisdom
among the perfect. . . . We speak God's wisdom in a
mystery." 2 But it is probable that, borrowing the language
of secret initiation, he is here thinking only of the gradual
training in the Christian life which new converts required ;
he reproaches the Corinthian Christians for their slow pro-
gress. In the course of time, indeed, the habit of secrecy
invaded the Christian Church ; the disciplina arcani may
have been suggested as much by the associations of the Greek
Mysteries as by the necessity of hiding from persecution.
But in the first age the Christian Mysteries seem to have
lacked the element of secrecy. There is evidence of this in
the use of the Latin word sacramentum, which suggests
nothing of the kind, to represent the Greek ^va-r^iov. The
earliest translators of the Scriptures of the New Testament
employed it exclusively ; the word mysterium, though well
established in the language, and afterwards introduced by
St. Jerome into his revised text of the Bible, was for some
reason avoided ; no word implying secrecy was sought ;
the Christian mysteries became, for the whole Latin Church
and its derivatives, sacramenta.
This rendering helps to fix the meaning of the original.
The older Latin literature, indeed, knows no use of the word
1 There is more in Eph. i. 9, though the sense of secrecy is there
prominent.
2 i Cor. ii. 6-7. Account should, however, be taken of our
Lord's comment on His parabolic teaching ; Matt. xiii. 14.
40 OF MARRIAGE IN THE ORDER OF GRACE
which accounts for its Christian use, and it was probably
drawn from the popular language. Tertullian and St. Cyprian
employ it in a very broad sense for the Christian religion in
general, as well as in a narrower sense for specific religious
observances. St. Augustine seems in more than one place
to make it exactly equivalent to signum sacrum, and this
interpretation, treated as a definition in the form signum
rei sacrae had considerable effect on the development of
Latin theology. It is probable that the sense of signum
was present, though less prominent, in the original Greek
word as used by Christians ; a mystery was something done
or said with a spiritual significance. More broadly, it was
any religious observance, whether of doctrine or of practice,
closely connected with the evangelic scheme of salvation.
When marriage thus became a sacrament, its original
character was not changed ; a new quality was superadded.
It became, says St. Augustine, " non solum vinculum, verum
etiam sacramentum," with the result that things formerly
tolerable in its treatment were now intolerable ; for instance,
the lending of a wife to another man, which was reckoned
praiseworthy in Cato. 1 This can only mean that the sanc-
tity of the relation between husband and wife was increased.
The selection of such an extreme case for illustration shows
how the degradation of marriage in Roman practice affected
St. Augustine's estimate of the natural union ; he seems to
have thought that, but for the sacramental character newly
impressed upon it, such use of a husband's rights would not
have been blameworthy. By the same habit of thought,
perhaps, he was led to regard' the sacramental character of
marriage as the cause of its indissolubility. In saying that
marriage would not be indissoluble, " nisi alicujus rei majoris
quoddam sacramentum adhiberetur," 2 he may possibly
1 De Fide et Operibus, 7. * De Bono Coniugali, 7.
THE MEANING OF A SACRAMENT 41
have meant that from the first the value of the institution
stood in the anticipation of its evangelic significance ; but
this, though in agreement with much of his thought, con-
flicts with some of his express statements. He was not, how-
ever, as we have seen, entirely consistent with himself on this
subject.
The " greater thing " present to the mind of St. Augustine
was unquestionably the union of Christ and the Church, with
which St. Paul compares the union of husband and wife ;
as the English ritual says, God has " consecrated the state of
matrimony to such an excellent mystery, that in it is signi-
fied and represented the spiritual marriage and unity betwixt
Christ and His Church. " But this is not the primary sense
in which marriage is sacramental. A sacrament is symbolic ;
but it is not a sacrament because it is symbolic ; it is sym-
bolic because it is a sacrament. The mysteries of the king-
dom of heaven have transcendent counterparts, but in their
primary sense they are religious doctrines and practices
connected with the work of men's salvation under the exist-
ing conditions of human life. The sacrament of marriage
is an ordinance of practical Christianity.
By practical Christianity men are saved from sin. The
ordinances of practical Christianity are means of salvation.
What men sought by means of the Mysteries of Eleusis they
obtain by means of the Christian Mysteries. In the broad-
est sense of the term, sacraments are means of grace. In
Hooker's phrase, they are " powerful instruments of God to
eternal life " ; not physical instruments, as he well distin-
guishes, but " moral instruments of salvation, duties of
service and worship, which unless we perform as the Author
of grace requireth, they are unprofitable." 1
His general definition of the term can hardly be improved :
" A sacrament is generally in true religion every admirable
1 Eccl. Pol. v. 50, 57.
42 OF MARRIAGE IN THE ORDER OF GRACE
thing which divine authority hath taught God's Church
either to believe or observe, as comprehending somewhat
not otherwise understood than by faith." 1 For many agesfc
no attempt was made to determine more particularly what
beliefs or practices should be recognized as Christian sacra-
ments ; seven were specifically enumerated by Peter Lom-
bard in the twelfth century, and the great vogue of his Liber
Sententiamm in the schools of the Middle Ages made this
number a theological commonplace. The narrowing of the
term was due to the dominance of the idea of signum. A
sign was reasonably interpreted as something visible, and
those sacred ordinances in which there could be recognized
a visible sign of sanctifying grace were distinguished as
Christian sacraments in the more proper sense. This new
use of the term was arbitrary, but the distinction which it
enforced was real. So accurately and convincingly was it
treated that even the Greeks, never too ready to follow Latin
theologians, adopted the scheme ; the word fjLvcmjpLov could
not be limited in use, as was soon the case with the Latin
sac? -amentum, but the Seven Holy Mysteries were set in a
category apart. Thus the determination of seven sacra-
ments, peculiarly so called, was accepted by the whole
Christian- Church. Marriage is one of the seven.
But did St. Paul call marriage a mystery in this sense ?
The word has with him a latitude which would permit a
more general interpretation : did he mean that in marriage
is conveyed a gift of grace, saving or sanctifying ? His
gnomic saying must be interpreted chiefly by what he says
elsewhere of marriage and its effect in the Christian life,
which we shall presently examine ; but the saying itself will
yield some information. The words TO /jiva-Tijpiov TOVTO pe^a
eo-rtV are significant. They may be compared with the
similar phrase, fieya earl TO rfjs v<re/3etas
1 Eccl. Pol. t App. I, 14. 2 i Tim. iii. 16.
MARRIAGE STRICTLY SACRAMENTAL 43
In each case the wording recalls the familiar distinction
of the Hellenic Mysteries into peydXa and /j,i/cpa, and it is
difficult to believe that St. Paul had not this in mind. It will
then follow that marriage, no less than the Incarnation,
is to rank among the Greater Mysteries of the Christian
faith. Moreover, it is clear that in so placing it he was on
familiar ground. The ritual of marriage among the Greeks
was already assimilated to that of the Mysteries. It is found,
for example, that the mystic formula, etyvyov icaicov evpov
a^eivov, quoted by Demosthenes in the course of his bitter
gibes at the former occupation of Aeschines, 1 was used also
in the ceremonies of marriage ; both rites, it has been said,
" might be viewed as transitions from an old life to a new one
presumably better, processes in which the initiate renounces
or dies to the old and is reborn in the new." The idea of
marriage as an escape from evil, we shall see, was definitely
present to St. Paul's mind. It cannot be doubted that his
words about the Great Mystery I quote the same writer
" were in accordance both in spirit and in verbal form with
earlier Hellenic religious custom rather than with Hebraic." 2
There is therefore no forcing of his language when we take
him to speak of marriage as a mystery, not merely in some
wide and general sense, but in the special sense of a sacra-
ment which is a vehicle of divine grace.
Regarded in this light, as a visible sign of grace, marriage
is the natural institution, remaining in its own nature, but
raised to a supernatural potency. The institution consists,
as we have seen, in a contract and its fulfilment. The
mutual surrender of man and woman, and the mutual accept-
ance of that surrender, sufficiently constitute the sacrament.
But the distinction of matter and form, introduced by theolo-
gians of the thirteenth century from the Peripatetic philo-
1 te Corona, 313.
2 Farnell, The Higher Aspects of Greek Religion, pp. 33-4.
44 OF MARRIAGE IN THE ORDER OF GRACE
sophy, has here raised some unnecessary questions. The
solution usually adopted finds the matter of the sacrament,
or its indeterminate element, in the mutual surrender of th
bodies of the parties contracting, while the determining
form is sought in the express words by which the contract
is declared. The insistence of Canonists on verba de praesenti
fits in with this distinction. It is a perfectly sound refine-
ment, even if it be unnecessary ; for the surrender of j the
body is common alike to marriage and. to illicit intercourse,
and the intention which makes it marriage cannot be ade-
quately expressed without words or their equivalent. An
alternative opinion, however, finds the matter of the sacra-
ment in the surrender of the body on either side and the
form in the acceptance. 1
A sacrament implies a rite. What is actually essential
for marriage, it will be seen from what has been said, is a
very simple formula of mutual consent. But the Church
has surrounded this with sacred observances, partly intended
to secure due publicity, partly designed to enhance the dignity
and solemnity of the act. The origin of this ritual cannot
be traced, but a certain negative conclusion is possible. If
a ceremonial of marriage had been adopted for general observ-
ance in the first age, it cannot be doubted that some defin-
itely Jewish features would have been woven into it, as
into other primitive rituals, and these would have survived
or left traces in later growths. But there is nothing of the
kind. On the contrary, the ritual of marriage that was
finally adopted by the Church seems to be of purely Roman
origin. The conclusion is inevitable, that existing cere-
monies of marriage were as far as possible accepted and con-
1 Billuart, Summa Summae, vol. vi, p. 345. He argues ingeni-
ously from the nature of a contract in general, that an offer of
anything is formless and inderteminate, until it is clenched by
acceptance.
THE RITE 45
tinued among Christians ; what was inconsistent with Chris-
tian belief and practice was retrenched, a Christian feature
was in some cases substituted for something intolerable,
what seemed innocent was retained. The immense exten-
sion of Roman citizenship in the third century made
Roman observances general, and a fairly uniform mode of
Christian marriage was the result.
The earliest evidence on the subject is found in the writings
of Tertullian. He extols the happiness of a marriage
arranged by the Church, confirmed by Sacrifice, sealed by
Blessing, proclaimed by Angels, ratified by the Father.
Elsewhere he mentions the nuptial veil, and the joining of
hands. 1 St. Gregory Nazianzen speaks of the joining of
right hands by a bishop ; St. Ambrose of the " sacerdotal
veil and benediction " ; St. John Chrysostom of the cere-
monial crowning, still retained in the East, and of " lacing
the union with prayers of blessing " ; the Statuta Antiqua
Ecclesiae of the presentation of the parties by parents or
paranymphi, to be blessed by a priest. 2
These references are vague, but they are illustrated by
forms of benediction contained in the most ancient extant
Sacramentaries. The Leonine, the Gelasian, and the Gre-
gorian have a Nuptial Mass, with the usual variants, and a
long eucharistic prayer of the ordinary type, to be said after
Pater Noster before the Fraction. It is noteworthy that the
offering is made for the bride, and for her alone. These are
not found in books of the Gallican rite, but Duchesne is of
opinion that the short benediction Deus Abraham, said before
1 Ad uxorem. ii. 9. " Unde sufficiamus ad enarrandam felici-
tatem matrimonii quod ecclesia conciliat, et confirmat oblatio, et
obsignat benedictio, angeli renuntiant, Pater rato habet ? " Cp.
De V eland. Virgin, n.
2 Greg. Naz. Ep. 193 ; Ambrose, Ep. 19, 7 ; Chrysos. Horn.
9 in i Tim. ; Horn. 48 in Genes, ad fin. But he rather advocates
this than treats it as usual or necessary.
46 OF MARRIAGE IN THE ORDER OF GRACE
lie missa est in the Roman rite, is derived from a Gallican
source. The Sacrament ary of Bobbio has a benedictio
thalami. 1
It is not until the ninth century that we find a detailed
account of nuptial ceremonies. In his Responsa ad Bul-
garos Nicholas I sets out the mode of celebrating marriage,
" quern sancta ecclesia Romana suscepit antiquitus." 2
There is good reason for believing that he was justified in
asserting this, for in spite of some references to the Old
1 Duchesne, Origines du Culte Chretien, ch. xiv.
* " Post sponsalia, quae futurarum sunt nuptiarum promissa
foedera, quaeque consensu eorum qui haec contrahunt, et eorum
in quorum potestate sunt, celebrantur, et postquam arrhis sponsam
sibi sponsus per digitum fidei a se annulo insignitum desponderit,
dotemque utrique placitam sponsus ei cum scripto pactum hoc
continente coram invitatis ab utraque parte tradiderit, aut mox
aut apto tempore, ne videlicet ante tempus lege definitum tale quid
fieri praesumatur, ambo ad nuptialia foedera perducuntur. Et
primum quidem in ecclesia Domini cum oblationibus, quas offerre
debent Deo per sacerdotis manum, statuuntur, sicque demum
benedictionem et velamen caeleste suscipiunt, ad exemplum vide-
licet quo Dominus primos homines in paradise collocans benedixit eis
dicens, Crescite et multiplicamini, etc. Siquidem et Tobias, ante-
quam coniugem convenisset oratione cum ea Dominum orasse
describitur. Verum tamen velamen illud non suscipit qui ad
secundas nuptias migrat. Post haec autem de ecclesia egressi
coronas in capitibus gestant, quae semper in ecclesia ipsa sunt
solitae reservari. Et ita festis nuptialibus celebratis, ad ducendam
individuam vitam Domino disponente de cetero diriguntur.
Haec sunt iura nuptiarum ; haec sunt, praeter alia quae nunc ad
memoriam non occurrunt, pacta coniugiorum sollemnia. Peccatum
autem esse, si haec cuncta in nuptiali foedere non interveniant,
non dicimus, quemadmodum Graecos vos astruere dicitis, prae-
sertim cum tanto soleat arctare quosdam rerum inopia ut ad haec
praeparanda nullum his suffragetur auxilium ; ac propter hoc
sufficiat secundum leges solus eorum consensus de quorum coniunc-
tionibus agitur. Qui consensus si solus in nuptiis forte defuerit,
cetera omnia etiam cum ipso coitu celebrata frustrantur, Joanne
Chrysostomo magno doctore testante, qui ait, Matrimonium non
facit coitus, sed voluntas."
THE RITE 47
Testament, the order of proceeding is exactly that of the
most solemn kind of marriage known to the ancient Roman
law, or Confarreatio. Abandoned by almost all others
before the end of the second century, this solemnity seems
to have been continued, with the necessary modifications,
in the Christian Church. We observe a twofold ceremony.
First, the espousals (sponsalia), or solemn promise of future
marriage, and secondly the actual nuptials. With the
espousals are connected the arrhae, or earnest of the com-
munity of goods that marriage would bring, consisting of a
ring placed by the bridegroom on the bride's " faith finger,"
and the delivery of the act of dowry in writing. There is
nothing to show that this was done elsewhere than at home,
or that the assistance of a priest was required. The nuptial
ceremony, on the contrary, is performed in church, and not
without a priest ; it has three features, (i) the oblation or
eucharistic sacrifice, in which the espoused take part, (ii)
the benediction pronounced while the nuptial veil is spread
over the bride, and (iii) the crowning of the married pair
with crowns usually kept for that purpose in the church.
This procedure follows exactly that of the ancient Con-
farreatio, in which the espoused assisted at a sacrifice and
partook of the panis farreus, prepared and consecrated for
the purpose. But this solemnity was never held necessary
for a valid marriage in Roman law, and the Pope insists
that neither shall its Christian counterpart be reckoned
essential. He protests against the alleged teaching of the
Greek Churches that the omission of it was sinful, definitely
excuses those for whom it was too costly, and affirms the
validity of a marriage contracted by mutual consent alone.
No ceremony, he adds, can make a marriage good, when
that consent is lacking.
This became the constant doctrine of the Western Church.
But it will be observed that no mention is made here of a
48 OF MARRIAGE IN THE ORDER OF GRACE
renewal of consent at the time of the nuptials. The consent
of the espousals was de futuro, and this, we have seen, is
imperfectly binding, and does not constitute true marriage.
Does the conditional contract of espousal become absolute
when the nuptial benediction is received, without any further
expression of consent ? The question was much debated
during the next two centuries, and was complicated with
that of a theory concerning the sacrament which first appears
in the writings of the contemporary of Nicholas, Hincmar
of Reims. According to him, marriage became complete
only on consummation ; the contract was a preliminary,
setting up an obligation, but one that could be rescinded ;
the sacrament of indissoluble marriage came into being only
with consummation. Gratian accepted this, with some
safeguards, and the school of Bologna followed him. Peter
Damian, Hugh of St. Victor, and Peter Lombard, main-
tained the contrary proposition that consensus facit matri-
monium, and the influence of the schools of theology at Paris
caused this to prevail. As a by-product of this controversy
emerged the contention that the true contract of marriage
must be per verba de praesenti, and the contract of espousal
was thenceforward distinguished as being made per verba
de futuro. As a further consequence, it became general to
simplify matters by doing away with the interval of time
between espousals and nuptials, and the contract of espousal
was effected at the church-door, immediately before the
benediction. The requirement of a contract de praesenti
was met in many Churches by an addition to the older form
of espousal. According to the Sarum Manual, which is
closely followed by the modern English rite, the priest first put
the question, " Wilt thou have this woman to thy wife ? "
with the addition of words setting out the duties of the holy
estate. The question was repeated, with variations, to the
woman, and both parties replied, " I will." This was the
ESSENTIALS AND CONCOMITANTS 49
contract de futuro. Then followed words de praesenti : " I,
N., take thee, N., to my wedded wife/' with similar ampli-
fication. At Rome, however, these additions were not
received, and the ritual to this day has only the demand put
to the parties, with the answer, " Volo." In view of the
fact that the nuptial benediction is to follow at once, it' is
possible to read into this, says Duchesne, the meaning of a
contract de praesenti ; 1 but it can hardly be doubted that
we see here a survival from a time when the promise of
espousal was held to be sufficiently ratified, even after a
considerable delay, by the nuptial ceremony following.
It follows from all this that the one essential rite for the
sacrament of marriage is the consent of the parties, ex-
pressed either by actual words de praesenti or by some
formula of agreement on which the same quality is impressed
by concomitant circumstances. The ceremonies by which
this necessary act is accompanied are intended only to
augment its solemnity, and may be varied or omitted.
The veiling of the bride gave place at an early date to the
practice of holding a pall over the united pair, of which
vestiges only remain in some places ; the crowning, retained
in the East, has long since disappeared in the West. The
modern use of veils and garlands has no religious signifi-
1 Duchesne, loc. cit. " La ceremonie nuptiale comprend actuelle-
ment les rites des fian9ailles aussi bien que ceux du mariage propre-
ment dit. Elle commence par la declaration du consentement, qui,
le mariage devant etre celebr6 sur 1'heure, a maintenant le caractere
d'un engagement de praesenti. Les parties, interrogees par le
pretre, expriment publiquement leur intention de s'unir en mar-
iage." The author adds a note : " On a place la, au moyen age,
la formule Ego contango vos in matrimonium, etc., qui est, comme
on le voit, une sorte d'interpolation de la ceremonie primitive. Cette
formule, dont le sens litteral est excessif, n'a pas peu contribue a
fausser les idees sui la nature du mariage religieux, et faire croire
que le lien matrimonial derive de 1'autoritedu pretre." See below p.
162.
M.C.S. E
50 OF MARRIAGE IN THE ORDER OF GRACE
cance, though it illustrates the persistence of customs no
longer prescribed by authority. The place of the bene-
diction has varied. The Roman rite has three benedictory
prayers, one at the espousals, another after Pater noster
in the Mass, the third before Ite missa est. In the churches
of the Gallican rite, the nuptial benediction seems to have
been either entirely detached from the Mass, or given after
Communion. The English rite of 1549, closely following
that of the Sarum Manual, had a benedictory prayer and
a blessing at the espousals, with three more prayers and
a second blessing said at the altar before the beginning of
Mass, and this arrangement has been retained in subsequent
revisions.
Such being the external features of the rite, and its
concomitants, it remains to determine the quality of the
sacramental grace of marriage.
It has been reduced to a mere permission of the carnal
act. " Because of fornication," says St. Paul, " let each
man have his own wife, and let each woman have her own
husband." 1 Commending virginity as preferable, he allows
marriage on account of human weakness. The English
ritual puts this forward as a cause for which marriage was
instituted. " It was ordained for a remedy against sin,
and to avoid fornication ; that such persons as have not
the gift of continency might marry, and keep themselves
undented members of Christ's body." But if this be taken
to mean merely that an act which would be sinful apart
from marriage is permissible in marriage, there is no addition
of sacramental virtue, since this is the effect of marriage
in the order of nature. A further effect is therefore sought
in the restraint of appetite ; the grace of marriage is that
more temperate use of the body which should distinguish
those who profit by its working. But this is to halt un-
1 i Cor. vii. 2.
THE SACRAMENTAL GRACE 51
reasonably ; for, as St. Thomas says, the effect of grace is
not only to restrain men from sin, but also, and simultane-
ously, to impel them to good. 1 He therefore adds that the
grace of marriage aids men in the performance of all things
which they undertake in the married state ; their under-
taking is expressly approved by God, and therefore, as in
the case of those promoted to holy orders, a special grace
is given enabling them to fulfil their purpose according to
the divine will.
This may seem sufficient, but it is rather frigid as an
account of sacramental grace. The comparison with Holy
Order is defective, for the sacred ministry is itself a purely
Christian institution, designed expressly and solely as a
part of the work of redemption ; there is, therefore, obvious
need of a supply of grace enabling the recipient to comport
himself in all things as the representative of Christ. But
marriage belongs to the natural order. According to
analogy we should expect to find the ability requisite for
the fulfilment of its ends supplied by God's providence in
the same order. Marriage is ordained for the preservation
of the species, as sleep for the preservation of the individual ;
so far as their proper use is concerned, there seems to be no
more need of a special sacramental grace in the one case
than in the other. As a mystery of man's redemption,
marriage should mean more than a strengthening and
refining of domestic ties.
What we seek may be found in St. Paul's comment :
" It is better to marry than to be inflamed." * Marriage
is not only an escape from the danger of actual fornication,
1 Sum. TheoL, Suppl., 42, 3.
2 i Cor. vii. 9 TrvpovarOcu. Compare 2 Cor. xi. 29, where the
word is used of passionate grief or indignation ; Eph. vi. 16, where
the " fiery darts of the evil one " are temptations caused by the
stirring of the passions ; 2 Mace. iv. 38, x. 35, xiv. 45.
52 OF MARRIAGE IN THE ORDER OF GRACE
though in such a society as that of Corinth it might be
almost universally necessary on that account. Virginity
or widowhood is the better way, but there are perils besetting
those who choose it. To live rightly in this state, a man
must have a strong hold on his appetites^ and passions, the
virtue of eyKpareia, or continence. This exists as a natural
virtue, highly prized by ethical philosophers ; it exists
also in the supernatural order, being one of the fruits of
the Spirit. 1 Those who have this power by nature, and
those to whom God gives it by grace, are capable of the
higher life to which St. Paul himself was conscious of being
called, and to which he invited others : "I say to the
unmarried and widows, it is good for them if they remain
as I do." But he took it for granted that in either sex such
were few. Most men and women, attempting this, would
be inflamed by passion ; the natural impulse of procreation
would be strong in them, producing serious moral disorder
if it were not allowed its course. The truth of his observa-
tion is well established by experience. But it is equally
certain that mere indulgence of appetite will not check
this disorder ; it may give relief for the time, affording an
outlet, but the appetite is strengthened by gratification.
Even marriage, in the order of nature, is no remedy. It
may be a palliative. The marriage bond imposes a check
on the wandering of desire, and those who honestly abide
by it gain the advantage of an external control ; but the
rights of marriage may be abused by excess, and become
the merest excuse for lustfulness. The morbid inflamma-
tion of desire is the same thing, whether it be caused by
denial of gratification or by indulgence. Grave pollution
of soul is found at either extreme.
This morbid inflammation is concupiscence. It is an
impulse to perform the sexual act merely for the gratifica-
1 So St. Paul says in Gal. v. 23.
THE SACRAMENTAL GRACE 53
tion of sense. As a fully developed vice of nature, it seems
to be peculiarly human ; there are obscure traces of it in
some of the lower animals, which point to its origin from
a variation of the true natural instinct ; but as a rule in all
other animals the sexual act is strictly controlled by the
course of nature, and directed to the end of propagation.
Concupiscence would therefore seem to be one of the conse-
quences of human freedom. Man has risen above the
environment of irresistible instinct, to live under a moral
law which he can defy. He is capable of sin. St. Paul
was expressing this, in accordance with his proper cast of
thought, when he said that through law comes knowledge
of sin. 1 The motions of concupiscence are not properly
sins, being independent of the will ; but they are the result
of sin and the cause of sin, and therefore they may be called
sinful lusts of the flesh.
The sacrament of marriage is proposed as a remedy for
these evils. It is better to marry than to be inflamed.
Marriage in the order of nature will not have the effect
desired ; the grace which it brings when raised to a super-
natural potency must be recognized as the cause of deliver-
ance. Marriage is a sacramental instrument of grace, and
therefore a moral instrument ; its effect will depend upon
a right use. The right use of it should extinguish the fire
of concupiscence. St. Paul acknowledges that the married
who abstain from the use of marriage will probably fall
into the peril of incontinency. Speaking of it as he does,
he can hardly have in view the risk of adultery ; he com-
mends such abstinence by mutual consent, for a season of
devotion, but advises a return to the use of marriage, " lest
Satan tempt you through your incontinency " ; 2 he evi-
dently refers to the secret and interior injuries to the soul
1 Rom. iii. 20 ; cp. vii. 7-13. 2 i Cor. vii. 5.
54 OF MARRIAGE IN THE ORDER OF GRACE
resulting from the morbid inflammation which the use of
marriage is to heal.
There is thus given by marriage grace to extinguish
the flames of concupiscence. Those whom God calls to
the exceptional state of virginity receive the special grace
of continence ; to the rest of mankind is proposed the
ordinary grace of marriage, directed to the same end, the
production of the supernatural virtue of chaste living.
By reason of its sacramental efficacy, marriage is not less
chaste than virginity.
The sacrament of marriage is therefore the natural insti-
tution raised to a supernatural potency for the conveyance
of divine grace delivering men from the fire of concupiscence
and producing chastity of soul and body. Being in the
order of redemption, it is peculiar to Christians ; it exists
only in those whom baptism, the ianua sacramentorum,
has brought into the state of salvation. It is thus seen
that the baptism of the parties, and nothing else, makes
the difference between the marriage in the order of mere
nature, which is no sacrament, and the marriage in the
order of redeemed nature, which is raised to sacramental
efficacy. From this two consequences flow.
In the first place, there can be no marriage between
Christians which is not sacramental. Attempts have been
made to distinguish between the contract and the sacrament,
as though something separable were added to the natural
contract, which might be withheld. Thus Billuart l argued
that, as the washing of the body with water without a
sacramental intention does not constitute baptism, so a
matrimonial contract entered upon without such intention,
though valid as a contract, does not constitute the sacrament
of marriage. But the analogy is defective. For the out-
ward act, to which is annexed the sacramental effect of
1 In Suammm S. Thorn., iii, Dist. i, art. 5, 5. Sec p. 195, infra.
CONTRACT AND SACRAMENT 55
baptism, is not mere ablution ; it is ablution performed as
a sacred act with invocation of the Name of God. This
act cannot be severed from its sacramental efficacy. The
excellent principle was first laid down expressly by Bellar-
mine and is now universally accepted, that it is not necessary
to intend the specific effect of the sacrament, or to believe
that it has such effect ; it is enough to intend to do what
the Church does, in other words, to perform a certain sacred
action proper to Christians. It is even held, on the highest
authority, that a negative intention, if it take the form only
of intending not to produce the sacramental effect, does
not nullify the sacrament, since human perversity cannot
vary the effect of God's ordinance of grace ; the only
negative intention that can render void the act of baptism
normally performed is an express intention not to do what
the Church does, or not to baptize in the Christian sense.
In the case of marriage, the act which is thus to be estimated
is not a specifically Christian act newly instituted ; it is
continued in Christianity from the order of nature ; those
who intend to contract matrimony in the order of nature
intend to do what the Church does, and they have no power
to detach from that act the sacramental efficacy conferred
upon it by God. It has even been suggested that baptized
persons professing to contract matrimony with the express
intention of excluding the sacramental effect would not in
fact make a valid contract, since they would be attempting
to do this under impossible conditions ; * but this seems
unreasonable, since they would certainly be intending true
marriage, though ignorant of one of its necessary implica-
tions. The conclusion stands firm, though without this
perverse corollary, that in the marriage of Christians con-
tract and sacrament are inseparable. They are distinguish-
able in idea, but not in fact.
1 De Smet, D* Spomalibus ft Matrimonio, p. 119.
56 OF MARRIAGE IN THE ORDER OF GRACE
In the second place, when married persons become
Christians, their marriage at once becomes sacramental.
It need not be renewed, no fresh consent being required.
Having made their contract of 'mutual surrender, and having
fulfilled it, they cannot enter upon any new contract to the
same effect. They are already naturally one, with that
union to which God has given sacramental efficacy. The
obvious objection that unbelievers are in some sort made
recipients of a sacrament, is admirably answered by St.
Thomas Aquinas. Marriage, he says, was instituted by
God, not exclusively as a sacrament, but also for the service
of nature ; and therefore unbelievers, though they have no
part in marriage as ministers of a sacrament, have a part
in it in so far as it serves nature ; and even their marriage,
though not actually a sacrament, because not contracted
in the faith of the Church, has in it that which may become
a sacrament. 1 The order of nature is not to be too violently
separated from the order of grace ; what these two persons
have done in the one order has an inherent capacity for
energizing in the other.
But what is the case if one party be converted ? It is
argued that here the sacrament does not come into being,
since the bond is the substance of the sacrament, and this
must be identical in the two parties who are conjoined ;
therefore, while the one party remains unbaptized and
incapable of the sacrament, the other party also remains
without it. The reasoning is ingenious, but it conflicts
with the teaching of St. Paul. Dealing with the case in
1 " Matrimonium non est tantum institutum in sacramentum,
sed etiam in ofncium naturae ; et ideo quamvis infidelibus non
competat matrimonium, secundum quod est sacramentum in dis-
pensatione ministrorum consistens, competit tamen eis, inquantum
est in omcium naturae : et tamen etiam matrimonium tale est
aliquo modo sacramentum habitualiter, quamvis non actualiter, eo
quod actu non contrahunt in fide ecclesiae." S. T. Suppl. 59, 2, i
SACRAMENTAL VALUE OF MARRIAGE 57
question, he wrote : " The unbelieving husband is sanctified
in the wife, and the unbelieving wife is sanctified in the
brother." x But if the married man or woman who enters
the covenant of grace by baptism receives not only a personal
gift of sanctification, but a gift which abounds even to the
unbelieving party, how can this be except by virtue of the
sacramental bond uniting them ? It would be unreasonable
that a Christian should be called upon to live in marriage
without the sacramental grace of marriage, and according
to the Apostle he not only has this himself, but some share
in it is extended to the partner of his natural life. St.
Augustine evidently so understood St. Paul, for we have seen
that he held this marriage indissoluble, holding also that indis-
solubility depends on the sacramental character of marriage.
By parity of reasoning the sacramental quality is found
also in those marriages, rarely permissible, which are
contracted by a Christian with an unbeliever.
By the impress of this sacramental character the sanctity
of marriage can hardly be said to be enhanced, since it is
already complete. Still less, if we may venture to part
company with St. Augustine, is the obligation increased.
But the institution is brought more obviously within the
ambit of religion, and violation of the bond takes a particular
colour of sacrilege. Moreover, neglect of marriage, or its
discouragement, becomes more blameworthy. If in the
natural order men ought to marry with a view to the fulfil-
ment of the divine purpose by the propagation of mankind,
much more is this desirable in the order of grace where
additional benefits are dispensed to the individual soul.
Artificial restraint on marriage, difficulties created by social
conventions, by unequal distribution of wealth and by
unwillingness to face the responsibilities of parentage, are
seen to endanger the welfare of the race ; professors of
1 i Cor. vii. 14.
58 OF MARRIAGE IN THE ORDER OF GRACE
eugenics complain that they tend to reserve the task of
reproduction to the more reckless and incompetent ; from
the Christian point of view they seem equally mischievous
as depriving souls of the succours of grace. Barriers still
more artificial, but more justifiable, have the same dangerous
consequences. It may be desirable, it may even be neces-
sary as noted above, to restrain from marriage those who
would abuse the holy estate, and whose progeny would
be a social pest ; but such restriction calls for the greatest
caution, lest individuals be unduly sacrificed to the general
good ; persons denied the benefits of marriage need other
help, and the most careful guardianship. It is the will of
God that men should find in marriage the remedy against
sin which they need the more as they are morally weak.
The life of virginity is for those who are called to it by God,
whether in religion or in obedience to obvious dictates of
nature. For them other succours are supplied ; for the
generality of men and women, marriage is the way of safety.
Mistakes have worked disaster. The bold and generous
attempt to demand a celibate life from all admitted to the
sacred ministry, pressed by the Western Church from early
days, has had some deplorable results ; its unwisdom has
at times been admitted in the highest quarters. The
Eastern Churches frankly abandoned the effort from the
time of the Council in Trullo, even blaming the zeal of the
Latins, and in the sixteenth century the English Church
tardily and reluctantly adopted a yet larger freedom. The
sacrament of marriage cannot safely be withheld from those
who need it. The dislike of second marriages, once so
strongly felt in the Church that even orthodox divines
lent some countenance to the heretics who denied their
lawfulness, has given way to this necessity. The ordinance
of God is justified by experience, alike in the order of nature
and in the order of grace.
CHAPTER III
Of Marriage in Human Law
BEING an institution of human society, marriage is
inevitably an object of human law. There is pro-
bably no form of government, however savage, which has
not fixed customs and regulations dealing with this matter,
as there is no form of civilization, however relaxed and cor-
rupt, which does not retain something of the kind. Men
may depart very far from obedience to natural law, but
they cannot escape from the necessity of recognizing the
natural union of man and woman, or of guarding it by
positive rules.
According to Hooker's distinction, these rules are either
mixedly human or merely human laws. l They either enforce
the natural law or direct men in ways which are naturally
indifferent. This may be said of all laws which are in accord-
ance with the will of God ; and since civil order is the natural
state of man, the ministers of such order are the natural
ministers of God, and the rules so made by legitimate
authority are binding in only a less degree than the natural
law itself. But since perversity and unwisdom abound,
regulations made by fallible men are always liable to con-
flict with natural law. There are some who would deny
to such perverse ordinances the august name of law, but
the common use of speech forbids this nice discrimination.
It must, therefore, be admitted that human law, not im-
. Pol. i. x. 10.
69
60 OF MARRIAGE IN HUMAN LAW
properly so called, may disagree with natural law. In this
case there is a conflict of authority and a grave disturbance
of obligation. There can be no doubt that the authority of
natural law is the greater ; but a man who knows what God
the Creator has prescribed, and is at the same time com-
manded otherwise by the human laws to which he is ordin-
arily subject, may be in a great strait ; for a loyal submis-
sion to these laws in general is required by nature no less
than obedience to the particular direction of the divine law
that is in question. In all such cases of conflict it is neces-
sary to walk warily. There is a presumption in favour of
public law as against a man's private interpretation of the
divine law, which may, however, be overthrown by a per-
emptory judgment of the man's own conscience ; he can
then say only that he must obey God rather than man.
When the divine law is interpreted by adequate authority,
as by the teaching of the Christian Church, there is no such
presumption in favour of public human law contravening
it, but rather a presumption to the contrary part.
Reflection will show that human law may vary from the
divine law of nature in five ways.
First, it may command or forbid, as above noted, things
which natural law leaves indifferent. There is variation,
since an act is forbidden which the law of nature passes by,
or an act becomes obligatory which nature does not require ;
but there is no contradiction, and no conflict of authority.
Secondly, human law may generally, or for a particular
occasion, refuse to enforce a demand of natural justice ;
as when a certain kind of contract is not legally recognized,
or when by a moratorium the recovery of debts is suspended.
In this case also there is no contradiction, since the law
does not forbid the voluntary fulfilment of the natural
obligation.
Thirdly, what natural law expressly allows, or even com-
VARIATION FROM NATURAL LAW 61
mends, yet without obliging any man specifically to its
performance, may be forbidden by human law ; as may
happen when particular kinds of religious observance are
prohibited. In this case there is opposition, possibly of
grave importance, between the two authorities ; but the
conscience of the individual subject is not strained, if the
thing prohibited is not required of him in particular on any
given occasion.
In the fourth place, human authority exercises a certain
economic or dispensatory power in matters regulated by
natural law. Dispensation is of two kinds. In the first
kind, which is absolute, the operation of law is directly
suspended in a given case ; it can be granted only by the
authority which imposed the law, since it is in effect a partial
abrogation. Such dispensations are required by the imper-
fection of a law, not universally applicable to all cases alike,
which the legislator himself recognizes, and thereupon reme-
dies the defect of his own work. In this sense the maxim
holds good, Eiusdem est solvere cuius est ligare. Such imper-
fection cannot be attributed to the natural law of God the
Creator, which is therefore not open to dispensation of this
kind. It is sometimes argued that God has by revelation
allowed in men or societies imperfectly instructed things
which are contrary to natural law, and some moral questions
arising out of the records of the Old Testament are thus
resolved ; but it is safer to say with St. Paul that the divine
compassion " overlooks " the times of ignorance, 1 and the
attribute of mercy belongs to God rather as Judge than as
Lawgiver. Alternatively, this economy of grace may be
referred to the second kind of dispensation.
In this second kind, which is contingent, note is taken
of the principle that all laws must yield to necessity. Fault
is not imputed to a man who acts contrary to law under
1 Acts xvii. 30.
62 OF MARRIAGE IN HUMAN LAW
positive constraint ; and by the working of his own conscience
he may in such case hold himself dispensed from the observ-
ance of the law. But the conscience needs a guide, and
duress varies so widely, from actual bonds or imprisonment
to the slightest effects of unnerving fear, that an external
authority is sought to determine whether in a given case the
obligation of law is relaxed. The divine law of nature is
open to dispensation of this kind, not because the will of
God is countered by any natural necessity, but because the
will of man is obstructed both by the natural limits of his
power, and by the unnatural perversity of himself or of his
fellow men. To stretch himself beyond the natural limits
of his power without the express gift of a supernatural
faculty, is to defy God's law ; to be restrained from in-
tended obedience by the perversity of circumstances, by
the failure of his own powers, or by the arbitrary interference
of other men, is to stand in need of dispensation. Such dis-
pensation is regulated in foro conscientiae by the response*
prudentum, the advice of those skilled in the science of souls,
and by the authority for binding and loosing committed to
the Christian priesthood ; in foro externo it may be regulated
by human law, which thus exercises an economic or dispen-
satory authority even in regard to the divine law. Homi-
cide, for example, is contingently in certain circumstances
justified by human law. Human law is not set against
divine law, but, being itself authorized by the divine law
of nature, it is employed within the purview of that superior
law for this administrative function. If the function be
rightly performed, there is here no conflict of authorities,
but due subordination.
In the last place, human law may directly contradict the
law of nature, forbidding what God commands, or command-
ing what God forbids. As an individual man can act against
God's law, so can a community of men which has legislative
VARIATION FROM NATURAL LAW 63
authority. Regulations so made may be unworthy of the
name of Law, but neither use nor principle allows the refusal
of that common denomination. As the unnatural act of a
man is properly a human action, so the unnatural enactment
of a human legislature is properly human law. The legisla-
ture does not lose its natural character by an act of rebel-
lion against natural law. It retains its proper authority.
There is now, therefore, a direct conflict of authorities, and
the duty of the individual man is plain : he must obey God
rather than man.
Applying what is here premised to the estate of marriage,
we shall see that human law may either simply reinforce
the law of nature, or may vary, from it in one or more of
these five ways. A third course is indeed theoretically
possible. In Plato's imagined Republic marriage is ignored,
if indeed the plan of promiscuous breeding under the con-
trol of the State does not involve its prohibition. The sug-
gestion recently mooted, that the law should recognize only
sexual connexions contracted for a limited period or during
the pleasure of the parties, does without doubt involve the
mere ignoring of marriage. A man and woman would not
be prevented from contracting true marriage and fulfilling
its obligations, but this would be outside the cognizance of
the law ; the connexion recognized by law would not be
marriage, though it might usurp the name. It would be
legal concubinage, a contractual relation, the conditions of
which would be regulated and enforced by law. Marriage
in the natural sense, as we have seen, is not a contractual
relation ; it begins with a contract, but a completed con-
tract, the completion of which sets up a natural relation.
When a man and a woman have consented to live together
in wedlock, and have come together in accordance with
that consent, their contract terminates in the natural state
of marriage into which they have entered. Legal concu-
64 OF MARRIAGE IN HUMAN LAW
binage, on the other hand, is a relation set up by a continuing
contract, which has no natural term, which is defined by
law and can be rescinded by law. To recognize such a
relation in lieu of marriage is to ignore marriage.
In practice, however, it may be doubted whether any
political community has ever ignored marriage. It is certain
that none of the communities known to history have done
so. But neither does it appear that any community has
ever been content to treat marriage purely as it exists in
the order of nature, reinforcing without variation the require-
ments of natural law. Such treatment would indeed be
impossible without that complete knowledge of natural
conditions, and that complete submission to the Will of
God, which are not to be found in any human society. The
utmost that can be expected is that some regulations of
human law will conform to natural law, while others will
vary from it in the way either of addition or of conflict.
The best form of human law will be that which escapes
conflict, and avoids harmful or vexatious additions.
The enactment of laws regarding marriage is a part of the
function of government belonging by nature to political
societies, and therefore it is not necessary to enquire par-
ticularly where that power resides. It is enough for our
present purpose that it exists and is exercised, whether for
making general laws binding a whole nation, or for imposing
narrower rules like those affecting princely houses in Ger-
many. But since marriage is raised to the supernatural
order as a sacrament of the Christian Church, it is important
to ask whether the legislative and juridical powers of a civil
community are lessened by that circumstance. Things
purely of the supernatural order do not seem to be in any
way subject to civil control, either in right or in fact, for
the gifts of grace are intangible ; concrete things and human
actions annexed to the supernatural order, as concerns
CONTROL OF MARRIAGE BY THE STATE 65
their natural constitution, remain subject to such control
in fact, and to some extent in right ; to what extent they
ought to be withdrawn from under the hand of the civil
power is one of the vexed questions of Christian politics.
Those mysteries of grace in which common things are set
apart for sacred uses afford the largest room for contention.
To take the crudest instance, and one in which the common
sense of mankind prevents actual clashing, the water of
Baptism and the wine of the Eucharist are things evidently
under the control of civic law, which might conceivably put
serious hindrances in the way of their sacramental use. The
sacrament of marriage is no less the exercise of natural
human functions, which cannot be wholly withdrawn from
the cognizance of the State. Indeed, since the first end of
marriage is the continuance of the human species in a social
order, there is nothing that touches more closely the duties
and prerogatives of that organization, whatever it be, which
is set up for the maintenance of social order in general. Even
if marriage be not, through the development of patriarchal
government, the very source of all civic constitutions, yet
the Family and the State are naturally directed to the same
end, and the one is but a larger growth in the same order.
Those who would withdraw marriage, as a sacrament, from
the control of civic law must therefore consider that in so
doing they would dislocate the natural fabric of human
society, which is not less founded in the providence of God
than are the sacraments themselves.
Is the sacrament, then, subject to this form of human
control ? To solve the question, we must remember that
marriage is raised to this dignity and sanctity by the addi-
tion of supernatural grace, but remains none the less in its
natural constitution. A regulation of human law which
leaves that natural constitution unimpaired will not affect
the sacrament ; where it is violated, there is no true natural
M.C.S.
66 OF MARRIAGE IN HUMAN LAW
marriage, and consequently no sacrament. In neither case
does the sacrament, as such, come under the control of
the State. A tyrannical law may obstruct the administra-
tion of this, or of any other sacrament ; an unwise law may
confuse men's minds ; but these perils no more justify a
denial of the natural authority of the civil power in regard
of marriage, than the corresponding danger of exclusion or
adulteration would justify denial of the right of the State
to regulate the production or importation of the wine which
is the necessary matter of the Eucharist. The elevation of
natural marriage to the supernatural dignity of a sacrament
affects the responsibility of civil governments in only two
ways ; it calls for more reverent care in guarding the ap-
proach to matrimony, and it makes a breach of the marriage
bond the greater wrong, as being touched with the reproach
of sacrilege ; the risk of careless administration, or of a sacri-
legious system of legal divorce, is no reason for removing
marriage from the cognizance of the State, as the risk of
profanation is no ground for exempting sacred places from
the protection of the police. It is always to be presumed
that right will be done by the powers ordained of God, nor
is the authority so given forfeited by abuse.
The State is not the only organization of human society.
It is clear that mankind as a whole has a real social unity,
continually recognized in ethical theory, though it has
never secured an instrument of common government ; it
is a natural organism, though not politically ordered : it
is not amorphous, because the species cannot exist without
nucleated divisions comparable to the constituent cells of
a living body. Forms of State, civic, national or imperial,
are such divisions, and they cannot exclude the possibility
of other divisions of a similar kind cutting across them and
penetrating them. The unity of a family is not destroyed
by the dispersion of its members under more than one
VARIOUS KINDS OF LAW 67
national government. Nature gives no special sanction to
territorial delimitation, and a tribal or national ordering of
society, with legislative and judicial functions complete,
can perfectly well be independent of vicinage. The Jewish
nation has illustrated this possibility for many centuries.
Societies of this kind, whether natural as resting on birth
and inheritance, or artificial and formed by the voluntary
association of individuals, do in fact make rules for their
members ; when sufficiently established, they seem to be
capable of giving to such rules the character of law. This
power results from the natural tendency of men to social
order, which does not point to one sole kind of community.
Men can incorporate themselves. The theory of an unitary
sovran State, which alone has corporate existence in its
own right, and from which all other powers of incorporation
are derived, is not taught by nature. It is a highly artificial
product of political speculation, beginning with the Greek
City, given a wider extension in the Roman Empire, revived
with the study of the Civil Law in the Middle Ages, and
pressed to a hard conclusion by the lawyers of modern
Europe. Its speciousness comes from the fact that the
State, as ordinarily understood, can refuse to recognize such
independent jurisdictions, and that without this recognition
it is difficult, under modern conditions, to enforce obedience.
Yet obedience can be enforced in a measure where exclusion
from the independent community is a matter of grave con-
sideration to the individual. The recent history of the
Christian Church, and of many organizations of social or
economic value, is sufficient proof. It is mere pedantry to
deny that the rules of such societies have the essential
quality of law. Human law is the self-regulation of a society
existing in accordance with natural law ; it is recogniz-
able in all cases where the society is able, by whatever kind
of pressure, to put constraint on its individual members.
68 OF MARRIAGE IN HUMAN LAW
A society exercising this function, whether territorially
organized or no, whether political or religious or economic,
may be checked and even broken up by the superior force
of another society ; but so long as it remains in action it
has the power of making laws. The technical objection
to an imperium in imperio is mere jealousy on the part of
an overbearing society.
We have, then, to face a further complication. As human
law may be in conflict with natural law, so also diverse
human laws may be in conflict with each other. For the
individual man may be, and usually is, a member of more
than one law-making society. If the various laws to which
he is subject be antagonistic, he will be put to the question
whether of them he should obey. There is here no indisput-
able solution as in the case of conflict between natural and
human law ; he will have to judge, by the light afforded to
his conscience, where the greater weight of authority resides-
In some cases judgment will be swift ; one society may be
obviously superior by the ordinance of God. In other cases
there will be long hesitation, and the decision may seem
doubtful even to the man who is obliged by circumstances
to decide. From this difficulty the constitution of human
nature seems to allow no entire release.
The Christian Church as a whole, and certain of its several
parts, are law-making societies of this kind. It may be
true, as contended by Sohm and others, that the Kingdom
of Heaven was originally announced as a spiritual influence
informing the consciences of individuals, and only by second-
ary action affecting human society ; but this takes account
of nothing but the preaching of the Gospel. But preaching
was translated at once into action, having action for its
immediate object ; and this action could not be other than
social. The sense of brotherhood under the common father-
hood of God, so characteristic of the Gospel, could be realized
CONTROL OF MARRIAGE BY THE CHURCH 69
only by association. The inevitable result, natural and
therefore of divine appointment, was the instant emergence
of a social order. " Probably never in the history of
religion/' says Harnack, "has a new society appeared with
a more abundant and elaborate equipment." * There were
two reasons for this : the first, already noted, that such
development was natural ; the second, making for swifter
growth, that the Church issued from Judaism. The Jews
were a nation, not tied down to any territory though having
their head-quarters at Jerusalem, held together by a bond
mainly religious but entirely effective, a nation with a govern-
ment and jurisdiction which even the jealous authorities of
imperial Rome were fain to recognize. Christians were a
small minority among them, but they claimed to be the true
Israel, the faithful remnant of a people that was in the main
apostate, and so the inheritors alike of the promises of God
and of the national life. The title Ecclesia means no less.
According to the familiar order of this national life the
Church was organized : it was the Diaspora. 2 The national
law was taken over intact, and was after some contention
adapted by the authority of the Church to the new require-
ments of the Gospel. The spreading of the Church beyond
the limits of Jewry affected the position less than might
have been expected. Those who were brought in of the
Gentiles accepted the greater part of Jewish tradition as
their own inheritance ; the scriptures of the Old Testament
became their literature, and the Hebrew patriarchs became
their forefathers ; Jerusalem, the Old or the New, was their
holy city, and the law of Moses was the foundation of their
jurisprudence. They were subject, it is true, to the various
jurisdictions subsisting within the framework, as yet loose
1 The Constitution and Law of the Church in the First Two Cen-
turies, p. 20 (Engl. transl.).
* James i. i ; i Pet. i. i.
70 OF MARRIAGE IN HUMAN LAW
knit, of the Roman Empire, or to tribal and national govern-
ments beyond the borders of the Empire ; they were taught
to render a conscientious obedience to these, as ordained of
God, and as far as possible the ordinary affairs of life were
left to such discipline ; but there were limits to this obedi-
ence, and they needed a straiter discipline of their own.
" Ecclesiastical law," says Harnack again, " arose in the
main from the necessity of replacing those laws and regula-
tions in force in the State, which Christianity was unable
to recognize, by others dealing with similar conditions, and
of improving those which Christianity was able to accept.
. . . Paul already took a step in the former direction when he
forbade the Christians to seek for justice at the hands of
the tribunals of the world, and enjoined upon them to have
recourse to qualified Christian brethren (i Cor. vi.). But
the whole organism of the constitution of the Church with
its officials, right down to the development of the monarch-
ical episcopate in every local community, is to be regarded
as the formation of a legislative system, which arose simply
because it was not found possible to recognize the existing
organizations with their officials except very conditionally
and within narrow limits." 1 One may think it more than
probable that a like development would have taken place
without the pressure of this particular need, but the actual
mode of development is here accurately portrayed. From
the first, the Church was a law-making society, exercising
both legislative^ and judicial functions.
But what is the legislature of the Church, and where is the
seat of judicature ? The question is one for a general
treatise on the Church, but it seems necessary here also to
deal with it in summary fashion.
Setting aside, as contrary to the terms of the Apostolic
commission, the contention of Marsiglio of Padua that for
1 Ibid., p. 144.
POWER OF THE EPISCOPATE 71
all societies alike, and so for the Church, legislative power
resides in the multitude, whence it is deputed to representa-
tives, we find two possible answers to the question. The
power of binding and loosing, which is both legislative and
judicial, was vested by our Lord in the Apostles, and con-
veyed through them to others. It is conveyed either in
solidum to the whole episcopate, according to St. Cyprian's
definition, and exercised in undivided plenitude by each
several bishop, or in a special measure to certain principal
bishops, and to the Roman See in chief. 1
Setting aside again, as contradicted by the evidence of
history, the contention that our Lord conveyed to St.
Peter, and through him to the Roman pontiff, a peculiar and
universal power, we find the two answers resolved into one
by the consideration that patriarchal and metropolitical
powers emerge gradually by differentiation from the general
powers of the episcopate. They were created by the
practice of the Church, and are founded on the consent of
the other bishops. But there seems to be no ground on
which it can be argued that the bishops severally are able
to make a final and irrevocable transfer of any part of their
power, or to bind their successors by any submission to the
authority of a superior See. They remain, therefore, always
capable of resuming into their own hands the plenitude of
1 Cyprian, De Cath. Eccl. Unitate, 5 : " Quam unitatem tenere
firmiter et uindicare debemus . . . ut episcopatum quoque ipsum
unum adque indiuisum probemus. . . . Episcopatus unus est
cuius a singulis in solidum pars tenetur." In the Council of Trent,
Didacus de Payva argued : " Cyprianus, ut primas Africae, dis-
pensavit cum virgine incontinente quia tune potestas dispensandi
nondum erat reservata papae, sed earn poterant etiam facere pri-
mates " (Theiner, ii. 261). Esmein says that in the seventeenth and
eighteenth centuries French bishops still dispensed with impedi-
ments of consanguinity and affinity in the third and fourth degrees
(Le Mariage en Droit canonique, ii. 331).
72 OF MARRIAGE IN HUMAN LAW
the power to bind and to loose. Thus St. Cyprian himself,
though acknowledging without stint the superiority of the
Ecclesia principalis at Rome, could repudiate the ruling of
St. Stephen in the matter alike of the baptism of heretics
and of the Spanish bishops Martial and Basilides. 1 The
absolute independence of each several bishop is then checked
only by the moral obligation to act in concert with the rest ;
and this obligation is enforced by the power residing in a
synod of bishops to depose one who acts in a disorderly
fashion. A bishop is thus constrained to act in co-ordina-
tion with others, and even in subordination to a synod or to
a metropolitan, and a system of hierarchical law is thus pro-
duced, to which he ordinarily conforms. But he has the
power to withdraw himself therefrom, subject to the risk of
deposition. The chief restraint put upon him consists of
the circumscription of his action within the limits of a dio-
cese. He is thus in theory sole legislator and supreme judge
in ordinary for his own local Church. In theory, I say,
because in practice no bishop seems to claim power in this
full extent, but is content rather in most matters to adminis-
ter more general laws made by his colleagues in common,
and to allow an appeal from his judgment to provincial and
higher authorities. The legislative powers of a bishop are
therefore usually in abeyance, but they subsist in reserve,
and are the very fount of that law which he administers in
apparent inferiority.
In regard to marriage, the Church began with a twofold
task. In the first place, it had to guard and put abroad the
1 Cyprian, Epp. 67, 72-5. Compare the action taken by French,
English and other bishops, long after the complete establishment
of the papacy, in " withdrawing obedience " from the rival Popes
whom they severally recognized during the later years of the Great
Schism. On this head Creighton may be consulted, Hist, of the
Papacy, vol. i, chap. 2, ad -fin.
THE CHURCH SLOW TO LEGISLATE 73
teaching of the Master about the true nature of wedlock, the
natural law. In the second place, it had to frame regula-
tions for constraining its members to the observance of that
law, and also to supplement the natural law, should that be
found advisable, by further rules of conduct. In other
words, the Church was at once the teacher of divine law and
a maker of human law. Both occupations are illustrated
by St. Paul's replies to the questions of the Corinthians. He
distinguished between what he said by way of permission or
dispensation, and what by way of commandment ; between
what he himself gave in charge, and what he said in the name
of God ; between the commandment of the Lord and his
own judgment ; between obligations of Christians and safe-
guards of marriage that were acknowledged equally by the
heathen. 1
We see here the beginnings of what grew into a vast sys-
tem of jurisprudence, for marriage ultimately became one of
the chief subjects of ecclesiastical law ; power to legislate
and adjudicate is thus early claimed and exercised. But
the Church did not jealously affect this power. The incon-
venience of having two marriage laws touching the same
person is obvious ; if the kingdoms of the world could be
induced to bring their laws into conformity with the divine
law, the Church might well be content. Even as things
were, there was a wise reluctance to force a conflict. That
objection might be taken, rightly or wrongly, to a decision
involving such conflict, is shown by the complaint of Hippo-
lytus against Callistus, who allowed women of noble birth
to contract marriage, in defiance of the prohibition of Roman
law, with men of lower rank or even with slaves. 2 When the
Empire definitely became Christian, the efforts of the Church
1 i Cor. vii. 6, 12, 25, 39 ; v. i.
2 Dollinger, Hippolytus and Callistus, pp. 147 seqq. (Engl. Transl.).
74 OF MARRIAGE IN HUMAN LAW
were directed to the reform of the Civil Law, and the Eastern
Church ultimately went far in accommodating itself to the
legislation of Justinian. The Western Church, on the other
hand, continued to uphold its own rule, with the result that
it finally ousted the law alike of the Empire and of the new
Germanic Kingdoms, being exclusively invested by common
consent with legislative and juridical functions in regard to
marriage. The modern States of Europe and of the New
World have reasserted their right to regulate marriage by
law, and the rule of the Church has once more become what
it was at the beginning, a law for- the faithful which is
possibly, and usually, in disagreement more or less with the
laws of the State.
At the present day, then, we find these forms of human law
in operation as regards marriage. In Eastern Christendom
there is a system based on the sacred canons of the Church,
but seriously modified by the Civil Law of the Roman Empire ;
elsewhere the various States of the world have their several
marriage laws ; concurrently the sections into which the
Christian Church is administratively divided regulate marri-
age for the faithful by canonical rules and spiritual jurisdic-
tion ; the Jews throughout the world live by their own law,
with more or less of subservience to the laws of the country
in which they are domiciled ; the Musulman law runs
effectively in some regions where it is not accepted as national
law ; throughout India the law of marriage recognized by
the supreme Government follows the religious profession of
the parties ; in some European colonies the tribal laws of
the aboriginal inhabitants run concurrently with those of the
colonists, being severally applicable with a strict distinction
of persons ; in certain Asiatic countries the laws of European
States apply by virtue of capitulations to their nationals
resident therein ; when note is taken of the particular mar-
riage laws of the princely houses of Germany, and of the
CONTRADICTING NATURAL LAW 75
doubtful efficacy of Mormon law in North America, I know
not if a complete survey has been made in brief of the present
state of human law regarding marriage.
These diverse laws vary more or less from natural law
in the five ways above specified.
Little need be said about the fifth mode of divergence. A
human law directly opposed to the divine law, requiring men
to do what the divine law forbids, or forbidding them to do
what the divine law commands, will not often be enacted in
respect of marriage, and presents no difficulties to the con-
science of a Christian. He must obey God at all costs.
Under this category would come a law which should not
merely recognize in place of marriage a terminable contract of
union, but also forbid any contract of true marriage ; a law
purporting to restrain the Church from teaching or enforcing
on its members any part of the divine law ; and any attempt
to compel the recognition of a forbidden marriage.
The other four modes of divergence call for careful con-
sideration. For here human law may differ from the divine
law of nature, juridically or by legislation, in ways which are
tolerable, but always perilous and requiring the closest
watchfulness.
And first, juridically. The natural law has no judicature,
save in the tribunal of conscience erected within each man's
soul. There is, indeed, a form of judgment, known only by
execution of sentence, in which God Himself, the supreme
Judge, visits offenders against His laws with the consequences
of their misdeeds ; but of this working of the divine provi-
dence little is understood, and that imperfectly. There is
also an expectation of judgment, in which every man shall
receive the due reward of his deeds, known to the Searcher
of hearts. But that does not belong to the present order of
human life. In this order the regular administration of
justice, whether for the punishment of crime or for determin-
76 OF MARRIAGE IN HUMAN LAW
ing the right between man and man, is committed to human
society and controlled by human law.
A tribunal appointed for this end has for its first duty the
enforcement of natural law, for its second the interpretation
and application of the particular laws of the society in which
it is founded. But the natural law also requires interpreta-
tion as it is applied to particular cases, and here any tribunal
may err ; therefore a judge, even while he professes to be
following the law of nature, may depart from it. Further,
he is bound by the particular laws of his own society, whether
a fundamental law such as the Constitution of the United
States of America, established custom, or the last word of
the legislature, and he cannot set natural law to over-
ride these ; he may read them narrowly, and studiously
pare them down to the closest possible conformity with
natural law, but he must finally accept the obligation
which they impose. This does not mean that human law is
held to be superior to natural law ; it means only that a
judge who is set to administer a particular system of human
law must assume this system to be in agreement with natural
law. He must therefore judicially hold anything conflict-
ing with the system to be no part of the law of nature. The
alternative is to abdicate his tribunal. It was partly for
this cause that Christians of the first three centuries were for-
bidden to hold judicial office in the Roman Empire.
A judge, then, who has before him a cause in which a
question of marriage arises, must necessarily follow the parti-
cular human law which he administers, where it prescribes
anything ; and at the present time such laws are usually so
complete in detail that variations from natural law are
attributable rather to the legislative than to the judicial
authority. In some countries, however, and notably in
Scotland, there has been so little legislation about marriage
that questions not infrequently occur which can be resolved
JURIDICAL ACTION 77
only by consideration of natural law. In such cases, as also
in a less degree where positive law is to be applied, a tri-
bunal may be hindered in two ways from making an accur-
ate determination.
In the first place, evidence is required. Courts have their
several rules of evidence, which they usually follow, or by
which they are bound. These are sometimes highly artifi-
cial, and a case may be turned by the arbitrary exclusion of
important testimony. When it is necessary to determine
the question whether, in fact, a contract of marriage has
been made, the court can only decide the case on the evidence
admitted. In Scotland, where the judges are usually inclined
to a favourable construction, scanty evidence of the fact
will be held sufficient, especially if the parties are known to
have lived together as man and wife. In England, where the
contract is guarded by stricter formalities, much more rigor-
ous proof is demanded. If in the one case an union may
sometimes be recognized by law which is no true marriage
in the natural order, there is obviously still greater risk in
the other case of the denial of a true marriage, by which the
natural law will be set at naught.
In the second place, a rule of law respecting the right of
application to a court may hinder the ascertaining of facts.
A tribunal may look at the question of the validity of a
marriage from two different points of view. It may set
itself merely to arrive at the facts, or it may regard the case
as arising out of the motion of a petitioner who seeks a
decision for a purpose of his own ; he may, for example,
desire to be released from the obligations of a marriage which
he has ostensibly contracted. A court which takes the latter
point of view may reasonably impose certain conditions on
the petitioner. It may rule that he shall not be allowed to
take advantage of any fault or neglect of his own. Such is
the practice of the High Court of. Justice in England, illus-
78 OF MARRIAGE IN HUMAN LAW
trated by a notorious case decided some years ago, in which
the petitioner asked for a decree of nullity on the ground
that the other party had consented to marriage unwillingly
under constraint ; the constraint was proved, but the peti-
tioner was shown himself to have taken part in applying it,
and his petition was therefore dismissed. In this case there
was evidently no true marriage, but a legal declaration of
the fact was disallowed, and the parties were therefore
debarred by law from contracting fresh unions. The oppo-
site point of view is illustrated by a case recently decided in
the tribunal of the Rota at Rome. A man made at the time
of his marriage a false declaration, which had the effect,
according to the law there administered, of vitiating the marri-
age contract ; he himself afterwards applied for a decree of
nullity on this ground ; the practice of the court required
the judges to investigate the fact, and to decide accordingly ;
the facts were found to be as stated, and the court had no
option but to declare the marriage void. 1 This practice
certainly guards the realities of marriage more jealously
than the English rule, but it has the serious drawback of
lending a handle to one who would entrap another into an
invalid marriage.
The above examples show how juridical difficulties may
cause divergence from the divine law of nature. More im-
portant, and more extensive, are the divergences brought
about by legislation.
First, by way of addition. Human law prescribes some-
thing over and above what natural law requires. Ecclesi-
astical law, for example, requires that marriage shall be
contracted publicly, in facie ecclesiae ; the common law of
Ireland requires it to be done in the presence of a minister
of religion ; the law of Scotland requires the presence of
1 Se Roman Documents and Decrees, January, 1912, pp. 80-3.
DIVERGENCE FROM NATURAL LAW 79
witnesses, and the previous publication of banns ; the law
of France requires the parties to attend at the mairie of
the place where one of them resides, and there to make their
verbal contract before a public official. In England, the
use of the ritual of the Church was once required by law in
all but some few specially excepted marriages. The public
registration of a marriage is obligatory in most countries.
These various provisions of law may be enforced under
severe penalties ; they may conflict sharply with each other
where there are simultaneous authorities claiming obedience
from the same persons, as the French law of civil marriage
conflicts with the ecclesiastical law, but they do not so far
run counter to natural law, since they merely require
actions which are naturally indifferent. Of the same kind
are regulations concerning dowry, the specific rendering of
mutual support and service, the liability of husband or wife
for debts severally incurred, the legitimacy of children, and
succession to goods or honours. Some of these matters are
ordered in principle by the natural law, but considerable
scope is left for supplementary legislation.
Secondly, as it has been said, human law may refuse
to enforce what nature requires. It may refuse to treat
adultery, polygamy, or any other breach of the marriage
bond, as a crime. In England, the old procedure for
compelling husband and wife to live together, at the in-
stance of either party, has been made inoperative, and
a wife has been almost entirely freed from legal liability
for the support of her husband. These deflections from
the natural order tend to obscure the character of the
relation set up by marriage, especially for the many who
have not learnt to distinguish between moral and legal obli-
gations ; but they do not actually hinder the observance of
the divine law by individual persons, or otherwise raise any
embarrassing conflict of authority.
80 OF MARRIAGE IN HUMAN LAW
In the third place, human law may interpose impediments
in the way of a marriage naturally permissible. It must be
remembered that even nature imposes some restrictions ;
not every man is free to marry every woman. It is not easy,
as we have seen, to determine precisely what are these
natural bars ; the difficulty is increased by the general
creation of artificial obstacles, since it is hard to draw the line
between those which are truly natural and those originating
in the common opinion of mankind. The test of universality
is good on the affirmative side, for if the common sense of the
whole race condemn a certain marriage, this agreement can
hardly be put down to anything but a natural instinct ; but
it is of little value on the negative side, since there may be
a small part only of the human race sufficiently acquainted
with certain truths of nature to recognize them as law.
What is abundantly clear is the addition by human authority
of many impediments to those founded in nature. The laws
of savage tribes are rich in such prohibitions, which lapse
with the advance of civilization towards the true natural
conditions of human life. Strict rules of exogamy or of
endogamy, complications of totemism, inexplicable barriers
of tabu, attest the activity of remote legislation setting up
hindrances to marriage, which retain their force long after
their primary purpose or meaning is forgotten. Lingering
effects are found in civilized life, and few systems of law
which have been developed in freedom are without such
traces of savagery.
Possibly in historic connexion with these obscure im-
pediments, but based on more intelligible reasoning, are
deliberate prohibitions of intermarriage between persons of
different nations, of different castes, of different religion, of
different social standing. The strict segregation of the Jews
dates from the reforms of Ezra, though it was based on older
laws. The lus connubii was confined first to Roman
IMPEDIMENTS 81
patricians, then to all citizens of the republic in common ;
it was extended charily as a favour to cities coming into
close alliance. St. Paul seems to have laid down the rule
for Christians that they must marry only "in the Lord," x
that is to say, with believers.
Restrictions of time, again, are imposed on lawful marri-
ages. By the rule of the Church marriage has been for-
bidden within certain sacred seasons ; 2 by the law of Eng-
land it is forbidden except between certain hours of the day ;
under the Swiss federal code a man may not marry before
he is twenty years of age, a woman before she is eighteen.
In Belgium, a widow may not marry within ten months of
her husband's death.
Marriage may be forbidden without special consents, un-
known to the law of nature. A slave may be held alto-
gether incapable of marriage, because he is a mere chattel
of another man and therefore unable to enter freely into a
contract ; but he is more usually allowed to marry with the
consent of his master. The Roman law, with its exaggera-
tion of patria potestas, extended the requirement of paternal
consent far beyond the limits indicated by nature. French
law forbids a man to marry without his father's consent,
except under conditions which do not become operative
until he has reached the age of twenty-five years. In Eng-
land there is required for the marriage of a member of the
royal family, subject to not unlike conditions, the consent
of the reigning sovran.
Personal disqualifications, again, may be imposed. A
vow of religion is by ecclesiastical law an impediment to
1 i Cor. vii. 39.
1 Such was the older discipline, though in modern times only the
publ-ica pompa is forbidden. See Benedict XIV, Inst. EccL, torn, ii.,
P- 443-
M.C.S. G
82 OF MARRIAGE IN HUMAN LAW
marriage, and in the greater part of the Christian Church
men in holy orders also are forbidden to contract matri-
mony. Artificial impediments of consanguinity and affinity
have been added to those prescribed by nature. In several
systems of law persons guilty of certain crimes have been
forbidden to intermarry, as when a man and woman have
conspired to murder the husband or wife of one of them with
a view to marriage.
The creation of such impediments in restraint of natural
liberty seems to be within the power of any legislature.
They may in some cases be injurious or contrary to public
policy, as unduly interfering with an instinct of nature, but
they do not involve any direct violation of a natural law.
Neither, it will be observed, can they run counter to one
another. A man who bows to the two several authorities of
Church and State, or who is by the accidents of birth and
residence made subject in some measure to the laws of two
several States, can avoid a marriage forbidden either by
the one or by the other. The prohibitions are concurrent
and cumulative ; they cannot be contradictory. It there-
fore seems to be the duty of a Christian to render obedience
to all such prescriptions of law.
A grave question, however, emerges when the legislature
proceeds to enact that a marriage contracted in defiance of
its prohibition is null and void. In no system of law, per-
haps, are all prohibitions supposed to have this effect ;
some only, of the graver kind, are selected as nullifying the
contract. Hence the distinction drawn between impedi-
ments which are merely obstructive, and diriment impedi-
ments which are destructive. Identical in effect is a law
providing that a marriage shall be deemed void if it be con-
tracted without those additional formalities mentioned
above. That is, in fact, to make the lack of due formality a
diriment impediment. This was done by the Council of
DIRIMENT IMPEDIMENTS 83
Trent in the case of clandestinity ; a marriage contracted
otherwise than in facie ecclesiae had previously been treated
as illicit, but valid ; the Council decreed that it should in
the future be invalid, and further denned the conditions of
contracting in facie ecclesiae by requiring the presence of the
parish priest and of two other witnesses. Clandestinity, so
denned, thus became a diriment impediment wherever the
decree was promulgated as law. In England, a still more
stringent condition was imposed by the Marriage Act of 1753,
which annulled almost all marriages contracted otherwise
than with the ritual solemnities of the Church ; the Royal
Marriages Act also annuls marriages contracted in disregard
of its provisions. The law of France since 1792 in the same
way not only requires a marriage to be witnessed and regis-
tered by a civil functionary, but also annuls any contract
lacking this formality.
To the creation of diriment impediments by human law
two exceptions have been taken. It is urged on the one
hand that marriage is a fact of nature, which no positive law
can annihilate ; if a man and a woman do, in fact, unite
themselves in defiance of such law, they may rightly be
punished, but their marriage stands in fact unassailable. It
is contended more technically, on the other hand, that since
marriage is a sacrament, and since the essential matter and
form of a sacrament are supposed to be ordained by God,
therefore the validity of a true contract of marriage, in
which the matter and form of this sacrament consist, cannot
be destroyed by any human authority.
In defending the Council of Trent against the second objec-
tion, Benedict XIV answers both. The matter and form of
the sacrament consist, he says, in the actions and words of
the parties by which they mutuo ac legitime deliver them-
selves each to the other ; the Council decided that in future
this should not be done legitime except under the prescribed
84 OF MARRIAGE IN HUMAN LAW
conditions. 1 But the sacrament of marriage, as we have
seen, is nothing else but natural marriage contracted between
baptized persons ; there is required for it nothing but the
qualities that make a valid contract in the order of nature,
together with the qualification of baptism in the parties.
Therefore, if this reasoning is -to hold good, there must be
added to the other qualities required by nature in a valid
contract of marriage the further qualification of legitimacy ;
that is to say, of accordance with the conditions from time
to time imposed by human law. This is no mere after-
thought of theology. As early as the twelfth century, Hugh
of St. Victor so taught with emphasis. 2 If the need of
legitimacy can be thrown back to the natural law, the diffi-
culty will disappear. And this seems reasonable. For
human society and human law exist in the order of nature
by ; the ordinance of God, and marriage is primarily an
integral part of that social constitution. It is, therefore,
reasonable to contend that by the divine law of nature not
only the outward trappings of matrimony, but also the essen-
tial conditions of the contract, are subject to the control of
human law. If this be allowed, both objections to the crea-
tion of a diriment impediment simultaneously disappear. It
will be seen, however, that the reply as above conceived is too
wide. If a contract of marriage, to be valid, must be legiti-
mate, it will follow that neglect of any legal requirement will
be fatal, and all impediments will be diriment. So much is
claimed in no system of law, and it is obvious that an author-
ity capable of creating a diriment impediment can also
1 Instit. Eccles. torn, i., p. 371. He elsewhere argued that the
decree did not touch the essence of the sacrament, but only ren-
dered the parties, in the given circumstances, " inhabiles ad contra-
hendum." This has become the commonplace of theologians.
2 De Sacram. Christ. Fidei, ii. n, 4. " Si consensus masculi et
feminae legitimus, hoc est legitime et inter personas legitimas fact us,
non fuerit, coniugium in eo consecrari non potest."
DIRIMENT IMPEDIMENTS 85
fence marriage about with safeguards, neglect of which are
expressly determined to have a smaller effect. What is
required is that a contract of marriage shall be legitimate
only so far as concerns the set conditions of validity.
But a further objection has now to be considered. It is
said that human authority can indeed create diriment impedi-
ments, but that where Christians are concerned this must be
the authority only of the Church. The ground taken is that
marriage is a sacrament, the administration of which belongs
exclusively to the Church, or merely that it is sacrum, and
therefore under the control of the Church, " quae rerum
sacrarum sola habet magisterium." l The latter argument
implies the control of all marriages by the Church, the former
looks only to the sacramental marriages of Christians. The
larger claim would probably not be pressed. The Congre-
gation de Propaganda Fide has repeatedly held converts
from heathendom bound, in respect of marriages contracted
before their conversion, by diriment impediments arising
out of their own laws. 2 The narrower claim needs examina-
tion. Against it is the judgment of St. Thomas Aquinas,
who says expressly that a person may by civil law be ren-
dered ad matrimonium contrahendum illegitima. The con-
text shows that he is speaking of diriment impediments,
since the matter in question is consanguinity. 3 Indeed, the
1 Leo XIII, Encycl. Arcanum, quoted by De Smet, De Sponsa-
libus et Matrimonio, p. 261, who labours to reduce this obiter dictum
to a demand that the State shall in such matters bow to the altius
ius ecclesiae where it exists in act.
2 Gasparri, Tract. Can. de Matrimonio, vol. i. pp. 172-5. He dis-
misses the contrary opinion as abstract scholasticism.
3 Sum. Theol. Suppl. 50, i. The objection stated is " Plures
gradus consanguinitatis inveniuntur esse prohibiti uno tempore
quam alio : lex autem humana non potest, ut videtur, matrimonio
impedimenta praestare, quia matrimonium non est ex institutione
humana, sed divina, sicut et alia sacramenta." The answer is :
" Matrimonium, in quantum est in omcium naturae, statuitur lege
86 OF MARRIAGE IN HUMAN LAW
difficulty is easily solved by an application of the argument
that we have just drawn from Benedict XIV. For it is a
legitimate contract which is constituted a sacrament ; there
cannot, indeed, be a separation in time between the natural
contract and the sacrament, as though the contract were first
made and then became a sacrament, for it is indi visibly one
act ; but the contract is logically prior to the sacrament,
and therefore conditions of legitimacy may be imposed with-
out reference to its sacramental character. Thus the crea-
tion of a diriment impediment by the State is not an inter-
ference in the spiritual ministration of the sacrament. It
presents an external obstacle to this ministration, but only
as the exercise of legitimate force may in particular cases
prevent a priest from ministering the sacrament of baptism
or of the Eucharist. It prevents the actual ministration of
a sacrament ; it does not pretend to invalidate a sacrament
duly ministered. The relations of Church and State are often
delicate and difficult of adjustment, but unless the ministers
and fabrics of the Church are to be entirely exempt from civil
jurisdiction, this sort of interference must be recognized as
possible and legitimate ; it requires only a just occasion to
be reasonable. The claim of complete exemption was put
forward in the twelfth century, but now seems to be univer-
sally abandoned. To make it good in respect of marriage,
it would be necessary to claim exemption not only for those
in the sacred ministry, but also for all persons and things in
their relation to the sacraments ; it must be unlawful to
arrest a man on his way to church, or to put an import duty
on wine that is to be used for the Eucharist. In no other
naturae ; inquantum est sacramentum, statuitur lure divino ; in-
quantum est in officium communitatis, statuitur lege civili : et
ideo ex qualibet dictarum legum potest aliqua persona effici ad
matrimonium contrahendum illegitima." Although the phrase is
' ad matrimonium contrahendum," the reference to consanguinity
shows that the answer extends to diriment impediments.
DIRIMENT IMPEDIMENTS 87
way could the civil power be restrained from all interference
with the sacraments. But such restraint is palpably absurd.
Therefore the State cannot on this ground be denied the
right of controlling marriage by law. But to control marri-
age by law is to determine the legitimacy of the contract,
and to determine that a given contract is in the highest degree
illegitimate is to create a diriment impediment. This, then,
is within the province of the State.
It is evident that a legislature may set up many or few
such impediments. The number is a matter of public policy.
The present law of Scotland appears to know no diriment
impediments except such as are supposed, rightly or wrongly,
to rest on the divine law ; consequently, marriage is placed
as nearly as possible on its natural basis, and there is great
stability of the bond. On the other hand, the Canon Law
of the Middle Ages abounded in diriment impediments, so
that nullifications of marriage were frequent and grave moral
disorder ensued. It cannot be doubted that multiplied
impediments are evil ; the moral effect of making clandes-
tinity a diriment impediment is matter of serious debate.
To conclude, it appears that any genuine legislature
can create impediments, obstructive or diriment, which
will bind the consciences of all persons properly subject to
the same. A person subject to two authorities, as a Chris-
tian is subject alike to the Church and to the State under
which he lives, must observe the regulations of both.
Neither authority can abrogate the impediments created by
the other, as neither can abrogate impediments which are
natural. The various laws do not clash ; they are con-
current.
In the next place we have to consider the power of dis-
pensation, absolute or contingent, inhering in human law.
An absolute dispensation, as we have seen, is a definite
suspension or relaxation of Jaw in a particular case ; it has
88 OF MARRIAGE IN HUMAN LAW
the effect of entirely removing the obligation to observe
the law ; it is therefore a kind of abrogation, and can be
granted only by the authority which has made the law.
The legislature can dispense, or can commit specific powers
of dispensation to officials.
The obligation of the divine law of nature cannot be
thus set aside except by God Himself, nor is there any
ground for supposing that God either grants dispensation
directly or commissions any minister so to act. We may
rather reckon this impossible, since such relaxation is called
for only on the ground of some defect in the law making
it inapplicable to a given case, which is not to be thought
of in connexion with God's law. Here, therefore, is no
room for any variation from the divine law ; but the exer-
cise of the dispensing power must be considered as a whole,
the lines of division being not very clearly marked, and
absolute dispensation must be as far as possible defined
before we review that contingent kind which is alone applic-
able to the law of nature.
In every system of human law dispensation is possible,
whether it be allowed in fact or no. Things commanded
in relation to marriage or the contract of marriage may be
relaxed, things forbidden may be allowed, impediments
obstructive or diriment may be removed. Removal of a
diriment impediment makes a marriage valid which would
otherwise be void ; other dispensations liberate the persons
to whom they are granted either from the obligation to act
in a certain way or from the consequences of a breach of
the law. These obligations and consequences are either
moral or legal, and dispensations are therefore said to be
granted either in foro conscientiae or in foro externo. A
dispensation may be granted either before the act to which
it refers is undertaken, with a view to its lawful performance,
or after it is done, with a view to its condonation. When
ABSOLUTE DISPENSATION 89
a diriment impediment is removed after a putative marriage
has been contracted, two courses are possible : either the
consent of the parties is renewed, and the marriage is then
valid from the date of such renewal, or by a special act of
grace the marriage is reckoned valid from the beginning.
Such validation, technically called sanatio in radice, is
effected in English law by a special Act of Parliament, in
favour of parties who have inadvertently and in good faith
contracted marriage without fulfilling some of the requisite
conditions.
Absolute dispensation must be provided for within the
system of law to which it applies. The legislature of one
community, or its officials, cannot dispense with require-
ments imposed by the laws of another community. But
this rule, so obvious and inevitable, is subject to one con-
siderable qualification. By the comity of nations the laws
of one country are in a measure recognized and enforced
by the courts of another country, and the domicile of the
parties may therefore be a matter of considerable impor-
tance in matrimonial causes. Though there is no perfectly
consistent practice in this regard, an English Court will
consider the validity of a marriage contracted abroad in
the light of the le% loci. A marriage may thus be held valid
which would be invalid according to the strict interpreta-
tion of English law, or conversely. But there is no doubt
that a marriage so adjudged invalid might be validated for
the purposes of English law by a special Act of Parliament.
For the purposes of English law, I say, because this dis-
pensatory act might have no effect in the other country con-
cerned. What makes the dispensation possible in England
is the fact that the law under which the marriage was de-
clared void is for this purpose adopted, by international
comity, into the body of English law ; as so adopted, but
not otherwise, it can be set aside by the English legislature.
go OF MARRIAGE IN HUMAN LAW
A nice question of conscience will ensue, whether the parties
can hold themselves morally free to continue in the marital
relation ; it will be for them to determine, with such
guidance as may be obtainable, which of the two conflicting
authorities has the greater claim upon their obedience. The
answer may partly depend upon their existing domicile.
From this there follows an important corollary. The
Church also is a community having the power to create
impediments binding its own subjects, and to relax them
by dispensation. The Church also should respect the laws
of other communities creating impediments which bind
their own subjects. The subjects of the Church are in all
cases subject also to a civil community, and therefore they
owe obedience to two several authorities. They ought not
to disregard impediments created either by the one autho-
rity or by the other. Normally each authority should
respect the impediment created by the other ; the State
should not recognize marriages contracted by subjects of
the Church in defiance of the rules of the Church, and the
Church should not allow marriages contracted by subjects
of the State in defiance of the rules of the State. Jealousy
of sovran rights on the one side or the other, and sometimes
on both, usually prevents this reciprocity ; but the Church,
as the teacher of a higher regard for right, may be expected
to act in this way even where reciprocal action is refused.
It seems clear that the Church ought not ordinarily to allow
marriages contracted in disregard of civil law. Only in
case the law should positively demand something contrary
to the order of nature, or something which would render
impossible obedience to the rules of the Church, is there
ground for open antagonism. But when this respect for law
is fully established, it will still be possible, as for the State,
so also for the Church on behalf of its own subjects and
for its own purposes, to dispense with the observance
ABSOLUTE DISPENSATION 91
of a law not its own. Given the most complete reciprocity,
the State might for its own purposes, as for example
in regard to the legitimation of issue, validate a particular
marriage declared void by the Church ; and equally the
Church might for its own purposes validate a marriage
nullified by the State. The purposes of the Church are
purely moral and spiritual, and thus the parties to a marri-
age so validated would be free in conscience to live together
as man and wife, and would not be free in conscience to
break their union or to form another. For example, a mar-
riage contracted by a member of the English royal house
contrary to the provisions of the Royal Marriages Act, and
so nullified by the laws of England, might by dispensation
of the Church be validated for ecclesiastical purposes, and
would then be a marriage good for the conscience of the
parties. Such an union may be called a marriage of con-
science, though the phrase is more commonly used in another
connexion. 1
This kind of cross-dispensation must not be confused
with the practice established in England, by which officials
of the Church dispense with legal impediments created or
recognized by the laws of the State. That anomalous juris-
diction is due to the suppression of the distinction of Church
and State during the Middle Ages, an abiding consequence
of which is that rules of the Church have been incorporated
into the laws of the realm. Of this there is more to be said
later ; it is enough to say here that dispensations granted
by bishops and their officials have both civil and ecclesias-
tical effect. This combination of functions appeared when
Church and State fell apart and the State began to have its
separate marriage law. By the present law of England, all
marriages contracted without legal formalities are ordinarily
treated as null and void ; clandestinity, which was for-
1 Below p. 99.
92 OF MARRIAGE IN HUMAN LAW
merly an obstructive impediment in the law common to
Church and State, is thus made a diriment impediment
in the laws of the realm. 1 The customary bishop's licence,
however, dispensing with publication of banns, or a faculty
from the Archbishop of Canterbury more largely dispen-
sing with other forms, commonly known as a " special
licence," is effective for the removal of the impedi-
ment. These dispensations consequently have a double
effect, removing both the old ecclesiastical impediment and
the new civil impediment ; in the archbishop or bishop
must be recognized two functions, for he is at once an officer
of the Church in his hierarchical capacity, and an officer of
State constituted by statute.
The power of absolute dispensation must be recognized
as one that is lawfully exercised, but also as one that should
be used with extreme caution. Dispensation is vulnus in
legem, and frequent disturbances of the kind weaken the
law to the verge of destruction. The marriage law of medie-
val Europe was in this way brought into contempt, and
lost almost all power of ordering social life. But contempt
of human law carries with it as a consequence contempt of
the divine law, since in the general opinion of men the two
are seldom clearly distinguished, and that which has the
more visible and material sanctions either buttresses the
spiritual authority of the other, or drags it down in its own
ruin. Thus the practice of absolute dispensation, though
not directly contravening the divine law, may seriously hin-
der its effective working. But excess of dispensation is
obviously brought about by excessive regulation ; when
requirements, prohibitions and impediments are multi-
plied, individual relaxations are inevitably numerous, for
strict observance becomes a burden that cannot be endured.
1 Infra, pp. 206*$.
CONTINGENT DISPENSATION 93
That was the fault of the medieval marriage law. The
happiest law is that which adds least to the law of nature,
and can therefore insist most strictly on the observance
of the whole.
A contingent dispensation is grounded not on the in-
applicability of the law regarded in itself, but on the neces-
sity of the individual subject. It follows the maxim, Nemo
tenetur ad impossibile. There is no assumption that the
law is in a particular case bad law, and therefore to be set
aside, or mischievous in operation and therefore to be sus-
pended ; enforcement of the law might be in all respects
salutary, but the fact is recognized that the subject cannot
comply. Thus the most perfect and the most universal
law is open to dispensation of this kind.
Who can dispense in this case ? The authority of the
legislator is not here required, for there is no question of
abrogating or relaxing the law. Indeed the dispensation
is in a sense automatic, for it follows from the mere fact
of the impossibility of compliance. A man who in his own
conscience knows himself to be unable to obey is ipso facto
dispensed in conscience from the obligation to obey. But
for two reasons this clearing of the conscience will be in-
sufficient. In the first place, no man has a merely indivi-
dual life ; obedience to law is a matter of social observance,
and the impossibility of obedience needs some kind of social
recognition if it is to be a complete discharge. In the second
place, even as regards the individual aspect of the case, the
inevitable bias of self-interest forbids a man to be judge
in his own cause, and in all grave matters the prima facie
judgment of conscience should be referred to an independent
tribunal.
We speak of a tribunal, and it has been held that con-
tingent dispensation is essentially a juridical act. " It is
improperly called dispensation," says a well-known author,
94 OF MARRIAGE IN HUMAN LAW
" because it is only a judicial, whereas dispensation proper
is a legislative, act, being of the nature of a temporary repeal
of law/' 1 It is held, indeed, by Esmein that prior to
the eleventh century all dispensations in ecclesiastical law
were of this character, consisting merely in a remission of
the disciplinary penance usually imposed on breakers of
the law. 2 But whatever may be the history of the practice,
whether in the Church or in any other society, this is not
an adequate account of the dispensing power. A dispen-
sation differs from an act of grace by which punishment
is remitted or sentence is withheld in favour of the guilty ;
it is a declaration that no guilt is incurred, that the act in
question is, in view of the circumstances, innocent and lawful.
The judicial act to which it corresponds is complete acquit-
tal. But neither is this an adequate comparison ; for
acquittal follows the imputation of an offence done, while
a dispensation is more frequently a declaration, made before-
hand, that a thing may lawfully be done. Therefore, when
a tribunal is spoken of in this connexion, the word must
not be taken in any strict sense. It is enough that the
declaration be made by some competent authority, to which
the person dispensed owes allegiance.
The dispensing authority need not stand in any particu-
lar relation to the law which is involved. For the only
matter to be determined is the question whether the sub-
ject has a valid excuse for not observing the law. For the
due ordering of this matter the only thing requisite is a
proper relation between the authority and the person dis-
1 E. G. Wood, The Regal Power of the Church, p. 75.
2 Esmein, Le Manage en Droit Canonique, vol. ii. pp. 319-22. The
change took place, he says, when the sacred canons ceased to be
merely disciplinary and became laws, since " les lois sont de leur
nature imperatives, et s'imposent au juge." Consequently dispen-
sation became " 1'exercice du pouvoir 16gislatif."
DISPENSATION FROM DIVINE LAW 95
pensed. No system of law, therefore, need make provision
for contingent dispensation, and such dispensation from any
law, even the divine law of nature, can be granted where-
ever a legitimate human authority is constituted. It is
possible, indeed, to argue that all human authority is ulti-
mately founded in the law of nature, which thus confers
the power in question ; but that refinement is unnecessary.
Every law contains implicitly provision for the case of
necessity, but it need not prescribe how the measure of
necessity shall be judged. It is enough that man lives
inevitably in a social order and under a social authority,
which has an inherent right to direct and control his actions.
It is obvious that contingent dispensation is important
chiefly as applied to divine law. Human law admits of
absolute dispensation ; divine law does not. It ceases to
bind only in the case of necessity. Necessity is not to be
interpreted too rigidly. It is not only sheer compulsion
or physical impossibility that is to be reckoned with ; ac-
count must also be had of human frailty. The necessity
which justifies dispensation is a moral necessity. The
hardness of men's hearts was a ground for the permission
of divorce under the Mosaic law ; the permission was
grossly abused, but was not on that account entirely
done away.
A moral necessity, then, is sufficient ground for contin-
gent dispensation. The necessity must be real. The value
of the dispensation depends on this reality. An erroneous
judgment may discharge a delinquent from the imputation
of guilt before the tribunal by which judgment is given,
but it does not discharge him from all obligation if his own
conscience be better informed. The dispensation remains
always contingent. Subject to this contingency a human
authority can dispense its own subjects from the obser-
vance of the divine law ; it being clearly understood, as
96 OF MARRIAGE IN HUMAN LAW
Benedict XIV has said, that there is no loosening of the
binding character of that law, but only an interpretative
ruling that in the circumstances of the case a particular
person does not come under the law. 1 This being the
largest claim made for the dispensing power, we may con-
fine our attention to it, remembering that what is allowable
in regard to divine law may with better reason be done
also where human law is concerned.
Of contingent, as of absolute dispensations in the matter
of marriage, there are two purposes. They are intended
either to remove impediments, and so to validate and regu-
larize a marriage, or to abate the obligations laid upon those
who are married. It will be convenient to consider the
latter purpose first.
The natural law requires husband and wife to abide in
permanent union, with complete community of life. From
this ideal there are two possible derogations. They may
separate entirely, or may remain united in a state of imper-
fect community. We have to ask whether such depar-
tures from the divine rule are contingently permissible.
Complete separation, a mensa et toro as the phrase runs,
is properly called divorce. This word is frequently abused
to mean a judicial decree either declaring the nullity of a
marriage or purporting to dissolve the bond of a valid mar-
riage, and its proper sense is sometimes even excluded.
That such separation will sometimes be necessary is in-
contestable, for it may result from natural causes beyond
the control of the parties, but there are moral necessities
also which may justify it. For either party, however, to
refuse cohabitation is to claim that right of judging in one's
own cause which is intolerable in social life, and the inter-
vention of lawful authority is therefore required. Divorce
1 De Synodo Dioecesana, vii. i, 7.
DIVORCE 97
must be regulated by law. There is, perhaps, no system of
law which makes no provision for it ; in many systems it
is allowed with injurious frequency and ease. It was in
face of a question about a lax interpretation of the Mosaic
law that our Lord took opportunity to assert anew the
permanence of marriage and the closeness of the union
effected ; but He recognized the dispensing authority of
the law. " Moses," He said, " for your hardness of heart
suffered you to put away your wives, but from the begin-
ning it was not so." l Divorce was contrary to the natural
institution, but allowed for a just cause. The hardness of
heart which justified it has been variously interpreted to
mean that a man would treat his wife with intolerable
harshness if compelled to live with her against his will, or
that human obstinacy and selfishness rendered the strict
observance of the natural law impossible. He further
taught the indissolubility of the bond by asserting that even
after divorce the parties were still capable of adultery, but
this was an enlargement of the answer demanded. The
immediate question was the lawfulness of divorce. Was
none to be allowed ? The Mosaic dispensation seemed to
be reprobated, and the disciples discontentedly observed
that this made marriage altogether inexpedient. To
them in private our Lord intimated that exceptions
were possible : " All men cannot receive this saying, but
they to whom it is given ... He that is able to receive
it, let him receive it." There were some to whom the rigour
of the law would not apply, and, as we have seen above, 2
one of the evangelists has inserted a reference to the excep-
tional case of fornication.
The Christian Church has reluctantly used the liberty
thus accorded, pronouncing divorce in the case of an un-
faithful wife. The unfaithful husband, though the sin of
1 St. Matthew xix. n. a Supra, p. 24.
M.C.S. H
98 OF MARRIAGE IN HUMAN ' LAW
adultery is no less in him that in the woman, does not do
his wife the wrong of imposing on her a spurious offspring,
and his offence has not as a rule been considered sufficient
ground for divorce unless it be accompanied by aggravating
circumstances. But these circumstances have thus been
recognized as further grounds for divorce, and have in their
turn been accepted as sufficient in themselves. The prac-
tice in different parts of the Church is not uniform, but it
may be said generally that any conduct of husband or wife
making cohabitation intolerable, and frustrating the true
ends of marriage, is considered sufficient ground for the
exercise of the dispensing power, in the form of a judgment
of divorce. Theologians commonly reduce these causes to
the three heads of adultery, apostasy, and grave peril to
soul or body.
The greater laxity of the civil laws of some modern states,
allowing divorce for light causes of disagreement, or even
by mutual consent, do serious wrong to the natural law ;
the power of dispensation inherent in human society is
not to be denied even here, but it is a grave question whether
a Christian can hold himself free to take a liberty thus
accorded. Yet separation by mutual consent is allowed
by the Church in certain cases. St. Paul's rule, that the
married may withdraw from one another for a time to give
themselves to prayer, has been extended to cover the life-
long separation of a husband and wife devoting themselves
to religion.
Short of divorce the strictness of the unity of marriage
may be relaxed by a modification of the common life re-
quired by natural law. It may be reduced in the two par-
ticulars of property and of social standing.
An abatement of community of goods is effected by the
custom of dowry, by the English use of marriage settle-
ments under the law of trusts, or by such special legislation
LIMITATIONS OF COMMON LIFE 99
as the Married Women's Property Act. More general regu-
lations are usual in modern states. The Federal Code of
Switzerland recognizes three dispositions of property be-
tween husband and wife, one of which must be adopted by
the parties contracting marriage. It is not easy to deter-
mine when such laws pass the bounds of legitimate dispen-
sation, and become direct contradiction of the natural
order. They may easily destroy, in those subject to their
influence, the sense of mutual dependence and support
without which the good of marriage cannot be realized.
They do not, however, necessarily prevent the complete
fulfilment of the natural law by the voluntary action, joint
and several, of the parties to a marriage, who may never-
theless hold themselves free in conscience to take advan-
tage of them in the case of necessity.
An abatement of social standing is expressly allowed in
the case of morganatic marriage, or Ehe zur linken Hand,
once fairly general but now peculiar to the princely houses
of Germany. Such marriage is valid and complete in all
respects, save that the wife, being herself of inferior birth,
does not share the rank of her husband or property attaching
to his rank. Similar in effect is the union known to theo-
logians as matrimonium conscientiae, which is not clandes-
tine in the sense of lacking the elements of publicity strictly
required by law, but is secret in the sense of not being openly
acknowledged or of public repute, so that it does not carry
any of the social consequences attaching to a lawful mar-
riage. By the constitution Satis vobis of Benedict XIV mar-
riages of this kind were definitely regulated for the Churches
subject to the papacy ; but the recognition of such an
arrangement goes back to the beginnings of Christianity,
and is illustrated by those marriages of noble women with
slaves, for allowing which Callistus of Rome was attacked
by Hippolytus.
TOO OF MARRIAGE IN HUMAN LAW
These various dispensatory laws may be approved in
principle, there being no precise limits to the power exer-
cised by any lawful authority in adjudging on cases of neces-
. sity ; but in practice many of them will be found to be
unreasonable and harmful to public morals. The Church
itself has not an unblemished record in this respect. The
majesty of the natural order has been impaired ; willing-
ness to endure the occasional hardships incidental to all
strict observance of rule has been weakened ; an ever
extending laxity has shown how the practice of dispensa-
tion may eat out the heart of law. There is needed now,
no less than at the first preaching of the Gospel, a return to
the severity of the divine institution.
If we now turn to the other purpose of these contingent
dispensations, we shall observe that the impediments of
the natural law are hardly, if at all, subject to interference.
Physical incapacity for marriage obviously cannot be re-
moved by any exercise of authority. A contract between
persons of inadequate age cannot set up a true marriage,
but the formal contracting might be allowed, and has been
allowed, with a view to renewal or completion when the
parties become competent ; and such a contract will cer-
tainly have whatever binding effect may be given to it by
positive law. Insufficient consent is an irremediable cause
of nullity, and no authorization of a pretended contract
under conditions of force or fraud could have real effect ;
nor is sanatio in radice possible where there was no inten-
tion to marry. The impediments of previous marriage t
however, and of consanguinity or affinity, are in a different
case, for marriage, though forbidden, is not here naturally
impossible. Can a dispensation remove the prohibition ?
If the natural bar of consanguinity be effective only in
the ascending and descending line, it may well be doubted
whether any authority could justify a departure from the
DISPENSATION FOR CONSANGUINITY 101
rule, a necessity of any kind being almost inconceivable.
Unbridled lust has broken through even these barriers,
but the common sense of mankind is unanimous in shrinking
with horror from such incest. The corresponding bar of
affinity is almost as impregnable in human experience ;
the effrontery of Absalom and the counsel of Achitophel
exhibit a practice familiar in the record of Asiatic
monarchies, but St. Paul's strong language testifies to the
abhorrence with which such unions were regarded even in
the most corrupt regions of Hellenic life. 1 In the doubtful
case of marriage with a sister being equally contrary to
divine law, there are many instances of dispensation, from
Abraham downwards ; but the Church has never granted
one, and modern civilization shows no signs of breaking
away in this respect from Christian tradition. The impedi-
ment of affinity in the same degree was long regarded in
Christendom as equally immovable. Alexander VI is said
to have been the first Pope who ventured on a dispensation,
and this was justified by the growing conviction that the
impediment was only de iure ecclesiastico. The contrary
contention of Henry VIII of England, though fortified by
appeals to the older practice and theory, was only a des-
perate device for establishing the nullity of his marriage
with Katharine of Aragon. The surest ground is taken
if we are content to say that the marriage of persons con-
nected in the direct line is forbidden by natural law, and
that no dispensation is possible, other impediments of this
kind being referred to human law. But since there is a
doubt whether some of these also be not founded in the
divine law, the Church may well discountenance dispensa-
tion in such cases, and forbid Christians to act upon it, by
whatever authority granted.
The prohibition of polygamy sets up the impediment of
1 i Cor. v. i.
102 OF MARRIAGE IN HUMAN LAW
previously existing marriage, or impedimentum ligaminis.
Being already married, a man or woman may not take
another consort. Polygamy is either simultaneous or suc-
cessive. The strong feeling of the Christian Church against
second marriages has caused the marriage of a widower or
widow to be called successive bigamy, but the words are
here used in the more natural sense of a marriage contracted
while one of the parties has a husband or wife still living
and separated by divorce. The two kinds of polygamy
are both alike infractions of the divine law, but they are not
on exactly the same footing.
Simultaneous polygamy has been allowed in many sys-
tems of law, but has never obtained a recognized standing
in Christendom. To make it normal is to run so directly
counter to the natural law that doubts have been enter-
tained whether in that case true marriage subsists at all.
An English Court of Justice has held that an Englishman
contracting marriage with a Kaffir woman in South Africa,
according to the rites and customs of her tribe, must have
intended a polygamous union, and the marriage was on
that ground annulled. But the common sense of mankind
is against this judgment, and the Church has usually recog-
nized the first wife of a polygamist as validly married to
him, while demanding his separation from the rest as a con-
dition of baptism. 1 There are those who contend that
polygamy may be allowed, if not for Christians, still for
others who have not the same succours of grace, on the
ground of a moral necessity. It was for this cause that
Luther and Melanchthon, alone among Christian teachers,
permitted Philip of Hesse to take a second wife ; their
action, kept as secret as possible, purported to be a dispen-
1 There are two alternative practices. One is to allow the hus-
band to retain any one of his wives. The other is to invalidate
all the marriages as essentially polygamous.
DISPENSATION FOR POLYGAMY 103
sation in foro conscientiae. St. Augustine pleaded for the
patriarchs of the Old Testament a pure desire to fulfil the
divine purpose by engendering the promised Seed, and
seems to have held them on this ground implicitly dispensed
and allowed to multiply wives. Henry VIII of England
is said to have sought from Rome a similar dispensation with
a view to begetting an heir male for the public good. But
in every case the plea of necessity appears to break down ;
where it is urged with the greatest appearance of reason,
for lusty peoples of imperfect civilization, 1 it leads to inevi-
table injustice, since the privilege of the rich and powerful
positively diminishes the opportunities of marriage for the
rest. The conclusion seems to be imperative, that dispen-
sations for simultaneous polygamy, though given de facto,
are naturally invalid, as being neither just nor necessary.
A marriage founded on such dispensation is not therefore
to be reckoned true marriage.
Successive polygamy is less odious. A husband and
wife being legitimately divorced, most of the reasons urged
against polygamy have little or no force to hinder either of
them from taking a fresh partner. It is not therefore sur-
prising that many systems of law allow the marriage of
the divorced. Is this permissible on the plea of necessity ?
A law which purports to effect the absolute dissolution
of the marriage bond must be unconditionally condemned.
It is not so much an infraction of the divine law as an
impotent pretence, an attempt to alter a fact of nature,
and a denial of the existence of that which exists. It may
be compared with a law which should purport to destroy
the kinship of a brother and a sister, of a parent and a child.
But a law permitting the marriage of the divorced, even
if it be falsely conceived in this sense by the legislature,
1 As by Mr. E. D. Morel in his Nigeria, its Peoples and its Problems.
104 OF MARRIAGE IN HUMAN LAW
may be regarded from another point of view. It may be
taken as dispensing with the impediment of ligamen, and so
allowing a modified polygamy. Is this permissible ?
We must weigh the fact that such dispensations are
granted, not only in communities which permit simultaneous
polygamy and therefore cannot forbid this less odious kind,
but also in the Christian Church. The Eastern Churches
have for some centuries allowed certain divorced persons to
marry. The practice has been severely blamed by Western
authorities, but perhaps on mistaken grounds ; it does not
imply, as seems to have been thought at the Council of
Trent, that the bond of marriage is dissolved. 1 If that
were the case, both parties would ipso facto be free to marry.
But what usually happens is that permission to marry is
grudgingly accorded to one party and withheld from the
other. This can hardly be construed into anything but a
dispensation, allowing marriage in spite of the impediment
set up by the still subsisting bond. 2 It is then a dispensation
for a kind of polygamy ; a serious breach made in the law
of nature, but not a denial of natural facts, or a falsification
of the real nature of marriage. A benevolent interpretation
may bring within the same category the private Acts of
Parliament enabling divorced persons to marry, which
formerly dispensed with the general law for England, and
1 Pallavicino, Istoria del Cone, di Trento, lib. xxii, cap. 4, explains
how the Council, at the instance of the Republic of Venice, abstained
from anathematizing those who taught that marriage is dis-
solved by adultery, and this to avoid offending the Greeks in the
Venetian islands.
2 This is clearly stated by Milasch, Das Kirchenrecht der Morgen-
Idndischen Kirche, p. 598. Treating the impediment of existing
marriage as absolute, he adds : " Eine Ausnahme hiervon ist nur
dann zulassig, wenn die bestehende Ehe aus einem gesetzlichen
Grunde getrennt wurde, und dem betreffenden Ehegatten von der
kompetenten Obrigkeit das Recht eingeraumt wurde, eine zweite
Ehe zu schliessen." See below, p. 127.
DISPENSATION FOR POLYGAMY 105
are still in use for Ireland. A law, however, expressly
purporting to dissolve the union of the married as radically
as when it has been adjudged invalid ab initio, even if the
dissolution be decreed at the discretion of a judge as a relief
to one party, can hardly be so interpreted. It is nothing
else but an assertion that by a legal fiction a natural relation
has ceased to exist ; in other words, a natural fact is not
to be regarded as fact. A law like that of some American
States, which purports to dissolve a marriage on the ground
of adultery but forbids the adulterous party to contract a
new marriage, is with difficulty reduced to any logical
sequence. The adulterer is declared to be unmarried, but
his previous adultery seems to be made a diriment impedi-
ment disabling him from marriage. It is impossible, in
this connexion, to overlook a fantastic theory, propounded
by some loose thinkers, that adultery ipso facto dissolves
the bond of marriage. On this showing a husband or wife
might cease to be married, without knowing it, through the
secret sin of the other party ; and either party could dis-
solve a marriage at pleasure by a deliberate act of unfaith-
fulness. It is sufficient to say that no system of law tolerates
such an absurdity. The English law of divorce, though
widely departing from the natural order, is even more in
conflict with this theory ; for the adultery of both parties,
which should be more effective as a dissolvent than the
adultery of one, may even prevent the issue of a decree of
dissolution.
What is professedly a dissolution of marriage may thus
in some cases be interpreted in a sense less contrarient to
the nature of things, and taken as a permission to marry in
spite of the impediment set up by an existing marriage.
In face of the practice of a large part of the Church, the
legitimacy of such dispensation can hardly be contested,
and the nature of human authority compels the admission
io6 OF MARRIAGE IN HUMAN LAW
that what the Church can do in such a matter can be done
also by the State. But it seems clear that either power
may forbid its subjects to act on such a dispensation given
by the other power. There is not the same duty of mutual
recognition as in the case of the creation of impediments,
for this dispensation is nothing else but the recognition of
a necessity, which may be contested on the ground of better
knowledge. A man may know in his own conscience that
a dispensation accorded him is bad, because not just and
necessary ; an authority which lawfully controls his social
actions may equally decide that he is not free to accept the
licence allowed him by an authority concurrent.
It will be observed that dispensation has here been spoken
of throughout in a sense including far more than the specific
graces issued to individual persons under that name within
the limits of various legal systems. In principle it seems
right to group together all the modes in which a human
authority can derogate either from its own laws, or from
the obligation of other laws, and even of divine law. The
possibility of such derogation cannot be denied ; its legi-
timacy may sometimes be in dispute ; it is in all cases a
dangerous interference. Frequent dispensation destroys
the credit of law, and is tolerable only when a rigorous
enforcement would for a time provoke worse disorder.
Complete abrogation of a law, where that is possible, may
sometimes be preferable. Where law must be maintained
and the natural law cannot be annulled the plea of necessity
justifies any relaxation ; but this needs the most careful
watching, lest there grow out of easiness a general habit
of disobedience.
In these ways human law may reasonably vary from the
divine law of marriage ; by the addition of supplementary
obligations, by a refusal to enforce natural obligations, by
creating impediments obstructive or diriment, and by dis-
NEED OF CAUTION 107
pensing in case of necessity. The rights of human society
are not to be denied, but it is well to insist on a cautious
and temperate exercise of them. To multiply either
obligations or impediments is to multiply occasions for
dispensation ; a free and frequent use of the dispensing
power in this field makes for ease and laxity in dispensing
with natural law. The best marriage law for any com-
munity is one which adds as little as possible to the require-
ments of the divine law, and so affords the least possible
foothold for dispensation.
CHAPTER IV
Of Marriage in Canon Law
THE Christian Church began, as we have seen, with an
effective social organization, which involved the
ordering of marriage, as of other incidents of social life.
The contention of Rudolf Sohm has been sufficiently
criticized by Harnack. According to Sohm, the essence of
the Gospel lay only in the promulgation of an ethic and
religious ideal ; the Christian life was an effort to realize
that ideal, which inevitably drew the disciples into social
relations and gave birth to the Church ; but the ministry
and government of the Church was purely prophetic or
charismatic ; the subsequent development of a legal order
and of an authority conveyed by succession was a corrup-
tion. There is an element of truth in this presentment.
The first preaching of the Gospel was in this kind, but as a
prophetic movement it aimed at a revivication and spirituali-
zation of a compact social order already existing in the
Jewish system, and the whole nation with the Diaspora
was invited to participate. In that system prophetic
and legal elements were combined ; the preaching of the
Gospel was a revival of prophecy, taking the form of a strenu-
ous and uncompromising assertion of the divine purpose
animating the natural order and dominating the legal order ;
but both the natural order and the legal order were assumed,
and their continuance was postulated. Eschatological
fervour might diminish the importance attributed to either,
108
PROPHET AND LEGISLATOR 109
but both were to go on at least until the proximate end of
the dispensation. The legal system was on the one hand
to be fulfilled with a new content, and on the other hand
it was to be reformed ; it was not to be destroyed. " I
came not to destroy, but to fulfil," is one of the characteristic
sayings of the Gospel.
It is true, therefore, that Christianity was at first a
charismatic movement of reform within the Jewish system.
But it soon became evident that the old prophetic doctrine
of the Remnant was once more to be exemplified. As soon
as the disciples began to call themselves the Ecclesia they
showed a dawning consciousness of this fact, nor can there
be much doubt that this use of the word had already been
adumbrated in the more intimate teaching of the Lord. 1
As this consciousness of being alone the faithful remnant
of the true Israel grew upon them, they seem to have gradu-
ally perfected an organization carried over in its main lines
from that which had cast them out, but fulfilled with new
ideas. The prophetic and the legal elements were con-
trasted, as always, but they were not in open conflict. St.
Paul insisted, perhaps more strenuously than any other
teacher, on the liberty of the Spirit, but he was also forward
in promulgating canons of discipline for the faithful. The
two elements were combined in his teaching, with no care
for artistic symmetry. In regard to marriage, as in regard
to other matters, he at once proclaimed as prophet the
Divine Law, and as legislator gave his own commandments.
1 The word in Matt. xvi. 18, xviii. 17, even apart from the ques-
tion of the language used by our Lord and of its equivalent in
Aramaic, might well be due to a casting back of later ideas, but
Hort is certainly right when he says that " the application of the
term eK/cA^crta by the Apostles is much easier to understand if it
was founded on an impressive saying of our Lord." Tht Christian
Ecclesia, p. 9.
no OF MARRIAGE IN CANON LAW
That was the beginning of the Canon Law of the Church,
and its development has followed in order. It combines
divine law and human law, distinguishing them clearly in
principle, but without curiously determining the line of
division. Some consequent uncertainty has left room for
disputation, and that is at some times and in some places
insisted on as divine law which has elsewhere and at other
times been treated as human law subject to absolute dis-
pensation or abrogation.
The practical importance of the Canon Law of marriage
is increased by the fact that for some centuries it became
not merely the rule of conduct for Christians as such, but
also the almost exclusive regulation of marriage and of
its incidents through the whole extent of Christendom. It
was thus concerned with matters of secular import, such
as dowry and the legitimacy of offspring. This state of
things passed away, but some effects survived. The laws
of marriage in modern European states, however much
they may differ from the law of the Church, are derived from
it and retain some of its characteristics. On the other
hand, the Canon Law itself was affected by these alien
functions ; it was the care of marriage, above all else,
which brought upon it the juridical stiffness and complexity
of its later developments, and at the same time drove it to
expedients for accommodation to the supposed necessities
of human society. If the Canon law were essentially what
it became after the twelfth century, there would be more
force in the strictures of Rudolf Sohm.
Yet even the worst of these developments were not out
of keeping with its origins. It issued as a new birth from
the Judaic law, which in all its branches, and not in one
only, was the whole of law for those living under it ; and
here also are found the same faults of legal hardness and
moral accommodation. The Gospel was a protest against
CHRISTIANITY AND ROMAN LAW in
both, and the circumstances of the formation and expansion
of the Church kept them for some time at a distance. Chris-
tians had no organization recognized by the law either of
the Roman Empire or of any of its component parts. The
rules of Christian conduct, therefore, could not have legal
effect in externals ; for the ordinary purposes of civil order,
the faithful were subject to various laws of marriage, from
which they made no attempt to withdraw themselves
except so far as obedience might be inconsistent with the
moral teaching of the Gospel. Some martyrdoms were
due to this difficulty, but as a rule the precepts of the Church
concerning marriage did but supplement the existing law.
When Callistus of Rome in the interest of morality allowed
what was illegal, his action was contested, as we have seen,
even by some Christians. 1 When Christianity was made
a lawful religion of the Empire, and still more when it became
the official cult, attempts were made, with less success
than might have been expected, to bring the law into har-
mony with the teaching and practice of the Church ; but
even the legislation of Justinian, for all his professions of
Christian principle, was far from achieving this end. The
Canon Law of marriage thus remained distinct from the
imperial law, which it eventually ousted, the entire control
of the relations of husband and wife passing into the hands
of the hierarchy. In the East, this change was not effected
without serious modifications of Christian practice ; in the
West, the rules of the Church remained intact precisely
because their acceptance as formal law was longer delayed ;
when they finally prevailed over the laws alike of the
Empire and of the new Germanic Kingdoms, the hierarchy
under the leadership of the Pope had won so dominant a
position that they could be enforced in all their rigour,
and whatever laxity ensued came only from internal causes.
1 Supra, p. 73.
H2 OF MARRIAGE IN CANON LAW
I shall briefly trace the origin and progress of the Canon
Law of marriage, endeavouring to distinguish those parts
of it which are concerned with the maintenance of the
divine law and of Christian standards of conduct from those
in which it has played the same part as any other legal
system, thus preparing the way for the jurisprudence of
the modern State.
Existing within the Jewish nation, from which it was
slowly detached, and carrying on expressly the religious
traditions of that nation, the Church was concerned with
marriage in the first instance as it stood in the Jewish law.
Of this there were two clearly marked divisions : the written
law, known as Mosaic, and the traditional judgments of the
Soferim, which were afterwards collected in the Talmud
and digested by the Rabbinical schools. The Soferim,
however, were as much concerned with the interpretation
and with the casuistic application of the Mosaic statutes
as with their own traditions, and the divisions of the law
were thus linked in one.
The contractual nature of marriage was fully recognized
in this law, though it contained many relics of an economy
in which the wife was hardly distinguished from a slave,
but it was no less clearly understood that a natural and
sacred relation between the parties was set up by the fulfil-
ment of the contract. " The act of contracting marriage,"
says a competent writer, " is termed Kiddushin, since by
this act the wife is set apart for her husband, and rendered
inviolable and inapproachable in respect of any other man." x
But the contract was not equal, since polygamy was allowed
on the man's side ; it seems to have been little practised
after the Exile, and was perhaps almost unknown at the
time of the Gospel, but it remained lawful until formally
1 Mielziner, The Jewish Law of Marriagt and Divorce, p. 27.
THE JEWISH LAW 113
forbidden by the Rabbinical Synod of Worms under Gershom
ben Juda in the eleventh century. Moreover, the state of
marriage was held to be entirely dissoluble by a guarded
act of the husband expressed in a bill of divorcement.
The mode of contracting was not provided for in the
Mosaic code, but was prescribed with some fulness in Rabbi-
nical law. A mere verbal consent was not held sufficient ;
there must be an act, attended with considerable publicity.
The act, indeed, was twofold ; for espousals and nuptials
were both required, with an interval of not less than thirty
days in the case of a widow, of a whole year in the case
of a virgin. 1 The espousal was not merely a promise of
marriage, or consent de futuro ; it was a real initiation of
marriage, involved the unfaithful in the guilt of adultery,
and could be dissolved only by death or divorce. The
formality required was either a gift of money, with the
words, " Be thou consecrated to me," or a written instru-
ment (Shetar) conceived in like terms. 2 The presence of
witnesses was essential, and according to the ritual law the
betrothal was to be blessed with prayer. Of the nuptials
which followed, the essential act was the conveyance of
the bride from her own home to that of the bridegroom, or
to a place representing his home, where she was received
in the presence of at least ten neighbours, and was blessed
either by the bridegroom himself or by one of the witnesses.
The blessings, however, do not seem to have been regarded
as essential for a valid union.
Marriage was guarded by impediments obstructive or
diriment, some of which were Mosaic, some Rabbinical.
Impediments of consanguinity and affinity are found in
both divisions. Those actually mentioned in the Mosaic
books were held to make an union incestuous, and void from
1 The bearing of this upon Matt. i. 18 and Luke ii. 27 is obvious.
1 Cf. Tobit vii. 14.
M.C.S. I
H4 OF MARRIAGE IN CANON LAW
the beginning. Those added by the Soferim, whether by
logical inference or for the purpose of safeguarding the law,
were less peremptory in effect ; espousals contracted in
spite of them might be cancelled, but a consummated
marriage must be dissolved by a bill of divorcement. The
mode of reckoning kinship was not settled until a later
period. " There was no bar," it has been said, " to union
with close relatives on the father's side, and even down to
the Babylonian exile such unions appear to have been
common." x It is noteworthy that, while aunt and nephew
were forbidden to intermarry, on the ground that an almost
maternal kinswoman could not render wifely obedience,
the marriage of uncle and niece was even commended. 2
The curious law of the levirate broke in upon the impedi-
ment of affinity for the express purpose of preserving in-
heritances. It died out ; the originally dishonourable
procedure of Halizah, by which the obligation was evaded, 3
came into general use, for it was considered doubtful, says
Mielziner, " whether he who marries his brother's widow
with other than the purest motives is not actually com-
mitting incest." 4
Of other impediments, the prohibition of intermarriage
with Gentiles was most important. In the oldest law the
Seven Nations of Canaan seem to have been excluded ;
Ezra and Nehemiah extended the prohibition to all neigh-
bouring tribes, the Maccabean priesthood made it applicable
to the whole Gentile world. Espousals and nuptials were
forbidden on Sabbaths, on festivals, and for several days
following the Passover, but a breach of this rule did not
invaJdate marriage. It is remarkable that impotence, if
due to natural causes, was no impediment, though the
1 Jewish Encyclopedia, viii. 336.
* Mielziner, p. 39. 3 Ruth iv. 7 ; Deut. xxv. 7-10-
* Op. cit. p. 57.
DIVORCE IN JEWISH LAW 115
sterility of a wife after ten years was a ground for divorce.
Neither did the lack of free consent on the man's part
invalidate the marriage contract, since he could have his
remedy in divorce ; but a marriage might be set aside if the
bride could be shown to have acted under compulsion.
In spite of this, a father could lawfully give his daughter
in marriage even before the age of puberty, and the practice
seems to have been not uncommon. 1
Divorce was a privilege of the husband. According to
the Mosaic rule, he could dismiss a wife on the ground of
dislike, but only if he were able to allege some " unclean-
ness," or grave unseemliness, as the cause of disfavour. 2
To prevent hasty action the law required him to give her
a Bill of Divorcement, which was her full discharge, enabling
her to marry another man. The husband himself, in view
of the permission of polygamy, required no such discharge.
The schools of Shammai and Hillel hotly disputed the
meaning of the uncleanness which would justify divorce.
Shammai admitted only the case of moral delinquency or
unchaste demeanour ; Hillel allowed the husband to act
on the ground of anything offensive or displeasing to himself.
Morally, the opinion of Shammai secured the suffrages of
pious Jews ; but legally, the judgment of Hillel prevailed.
The law, whether written or traditional, was theocratic.
This was both its strength and its weakness. On whatever
ancient customs and institutions it had been founded, all
was brought to the test of high prophetic inspiration. The
wisdom and the prejudices accumulated during centuries
of administration were thus purified, and reduced to an
order in which the faith of Israel could see nothing less than
perfection. God spoke in the law. " The Lord said unto
1 There is a reflection of 'it in i Cor. vii. 36.
2 Deut. xxiv. 1-2.
n6 OF MARRIAGE IN CANON LAW
Moses/' was the formula by which even trivial regulations
were introduced. The judgments of the Soferim them-
selves were not so much decisions newly made as determina-
tions of the Divine Will, and the most transitory provisions
for the ordering of human life were regarded in specie
aeternitatis. Political expedients were confounded with
moral principles ; wise precautions against the absorption
of the People of God into surrounding heathendom were
translated into fundamental laws of marriage, and, worst of
all, accommodations to human imperfection were treated
as express commandments of God. The preaching of the
Gospel was inevitably a challenge addressed to this hetero-
geneous mass of legislation, as was shown in our Lord's
treatment of the Sabbath, and what He did there He did
also in regard to the law of marriage. He did not deny
the authority of the constituted judges of the people ;
they sat in Moses' seat, and their judgments were to be
respected ; but the whole system was to be reformed by a
reference to eternal laws. Confronted with the teaching
of Hillel, our Lord condemned as lax even the stricter
opinion of Shammai, and this by virtue of a reference to
the original and natural institution of marriage. 1 In
setting aside the Deuteronomic law of divorce as a mere
accommodation to the hardness of men's hearts, He drew
a definite distinction between the Divine Law and the
Mosaic Law, referring the one to creative Will as seen in the
order of nature, and reducing the other to its proper place
among the authoritative ordinances of human society.
So reduced, and reformed in accordance with the preaching
of the Gospel and with the intimations of God's Holy Spirit,
the Jewish law passed into the possession of the Christian
Church.
Some changes are obvious. Divorce, if allowed at all,
1 Matt. xix. 3-9, v. 31-2, and parallel passages.
THE ORIGINAL CHRISTIAN LAW 117
was severely restrained ; marriage seems to have been
strictly forbidden to the separated parties while both were
living, the natural indissolubility of the bond being thus
rather implied than denned ; the prohibition of marriage
with aliens became an injunction not to intermarry with
unbelievers. The only clear information that we have
on these matters in the first age of Christianity is contained
in some brief passages of the canonical Gospels, in one
important chapter of St. Paul's first Epistle to the Corin-
thians, and in some casual remarks elsewhere made by the
Apostle. It is impossible to construct a complete scheme
of what was required or disallowed in Christians. Indeed,
it may be inaccurate to say that any such scheme existed.
Expositions of the Divine Law were doubtless given as
needed, and questions about what was seemly were answered
by the Apostles, jointly or severally, as they were asked.
We see St. Paul so answering the Corinthians, and we may
infer that the practice was general. It is possible that the
express prohibition of fornication by the Apostles and
Presbyters at Jerusalem 1 was a decree requiring married
men to abstain from that intercourse with unmarried
women which the Greek conscience freely allowed, thus
making the offence of adultery identical in husband and
wife. What stands out perfectly clear is the fact that
rules were thus made ; that is to say, that there was an
incipient Canon Law of marriage, enforced by the discipline
of the Church. From the age immediately succeeding that
of the Apostles there survives one clear indication of such
disciplinary control. "It is proper," writes St. Ignatius,
" for those intermarrying to effect their union under the
direction of the bishop, that their marriage may be after
the Lord and not after their own lust." a Nothing could
1 Acts xv. 29.
* Ad Poly car pum, -j ; ?r^eVe{ TOIS ya^.ovo't Kat rats
n8 OF MARRIAGE IN CANON LAW
be less like the imposing structure of the later ecclesiastical
law of marriage than this personal and pastoral control, and
yet all is potentially contained herein. The rule of Christian
conduct is customary, though some precepts are already
written, and the bishop is supposed to have it in pectore ;
the development of a code is inevitable.
But the Christian rule did not purport to set aside public
law, or to be a substitute for it. The apologists were clear
on this head. They were constantly repelling the vague
accusations of immorality to which Christians were subject.
Athenagoras acknowledged the observance of a special law,
saying that a Christian recognized as wife only such an one
as he had married " in accordance with the laws enacted
by ourselves," but in the Epistle to Diognetus it is emphati-
cally alleged that Christians domiciled in Greek or barbarian
communities adhered to the institutions of their neighbours,
as in other matters of daily life, so also in respect of marriage.
That the control of marriage by the Church was properly
an exercise of penitential discipline is clear from the refer-
ences to it in Hermas. 1
The practice of dispensation, however, was not long
delayed, being applied alike to the Divine Law, to ecclesias-
tical rules, and to the prescriptions of civil law. Origen,
though condemning such laxity, recognizes the fact that
some bishops in his time would allow a divorced husband
or wife to marry while the separated party was still living ;
not entirely without cause, he confesses, in spite of the
express prohibition of Scripture, if regard be paid to the
yvw/x^s TOV CTrtcTKOTrov Tyv evoxTtv 7roit(T0ai, iva 6 ycx/xos $ Kara
Kal pfj KO.T 7ri0v/x,iav. There is probably no reference to
i Cor. vii. 39, Kara Kvpiov being wider than Iv KV/DIU>, and covering
obedience to all Christian teaching.
1 Athenag. : Leg. pro Christianas, 33 ; 77 v ^yaycro Kara TOVS v<J>
uwv T0eiueVovs vo/xovs. Epist. ad Diog., 5. Hermas, Mand, iv.
THE ORIGINAL CHRISTIAN LAW 119
infirmity of men not endowed with the grace of continence,
and the worse evils that a strict observance of the law might
engender. 1 The principle underlying the practice of dis-
pensation is here laid down with the utmost precision, and
the existing practice of the Eastern Church is anticipated.
Dispensation from ecclesiastical rule is obscurely indicated
by Tertullian, with the expression of distaste that might
be expected of his unbending mind, in the case of some
Christian women who had married unbelievers ; he does
not know whether to put this down to their own wayward-
ness or to the double dealing of their advisers. 2 Dispensa-
tion from the requirements of civil law, enabling Christians
to disregard them with a good conscience, is found in the
debated action of Callistus, who allowed Christian women
of high rank to intermarry with slaves. 3 It is significant
that objection was taken to all such dispensations. They
mark the gradual change of the moral teaching of the Church
into a system of law, which must take account of excep-
tions as well as of principles. There is indeed, even in the
canons of certain councils held in the early part of the fourth
century, a noteworthy tenderness in dealing with some
breaches of the Christian law. The ninth canon of Illiberris
allows a woman who has left an adulterous husband, and
married another, to be restored to Communion after the
death of her true husband, or even sooner in case of necessity,
apparently without requiring her to break with her new
partner. The sixteenth canon imposes a penance of five
1 Orig. Comment, in Matt., torn. xiv. 23.
2 Tertull. Ad Uxorem. ii. 2. " Miratus aut ipsarum petulantiam
aut consiliariorum praevaricationen." The word praevaricatio
seems to be used in its proper forensic sense, in which case the harsh
and impetuous writer brings against the consiliarii, who can hardly
be other than the ecclesiastical authorities, the odious charge of
acting in collusion with the unbelieving party.
3 Supra, p. 73.
120 OF MARRIAGE IN CANON LAW
years on those giving a daughter in marriage to a Jew or
heretic, but says nothing about separation of the parties.
In a like case the eleventh canon of Aries imposes on women
so married only a brief exclusion from Communion, " ut
aliquanto tempore a communione separentur." The tenth
canon of the same council is even more remarkable. " De
his qui coniuges suas in adulterio deprehendunt," it says,
" et eidem sunt adulescentes fideles et prohibentur nubere,
placuit ut inquantum possit consilium eis detur, ne viven-
tibus uxoribus suis licet adulteris alias accipiant." It is
recorded that a man who has detected his wife in adultery
is forbidden by the Church to use the liberty of divorce
and remarriage allowed him by the civil law, but no censure
or penance is imposed on one who, under the excuse of
youth, violates this prohibition ; he is only to be advised in
the strongest possible terms to obey. This interpretation
can be escaped only by a rendering which would refer the
words alias accipiant to a concubine and not to a legal wife ;
it will then follow that the council, while absolutely for-
bidding marriage to the divorced, reluctantly tolerates con-
cubinage. Hefele, not observing the possibility of this
rendering, sees in the canon a concession to the standard of
morality set up by the civil law.
When the Empire became Christian, the civil law of mar-
riage was gradually modified in a Christian sense. The
process was slow, and was never completed, but there was
in the Church an inevitable tendency to acquiesce, and still
further to abate the severity both of witness to the natural
law as clarified by revelation, and of insistence on the sacred
canons. It must not be supposed, however, that the Chris-
tian rule was even approximately identified with the im-
perial law. Failure to observe the distinction vitiates much
of the industrious learning which Bingham devoted to this
subject ; he constantly confuses the legislation of the Theo-
THE CHRISTIAN EMPIRE 121
dosian emperors with the contemporary canons of the Church.
The real divergence was sufficiently recognized ; conscious-
ness of it appears in a canon of unknown source and date,
erroneously ascribed to the Council held at Mileve in the
year 416, which demanded an imperial law in support of
the rule of the Church forbidding marriage after divorce. 1
The burden of sustaining this rule in face of an unsympa-
thetic law, nominally Christian, was evidently oppressive.
Some years earlier the First Council of Toledo regulated
the standing of a concubine, but only as a matter of Chris-
tian discipline, and on the same ground required a conse-
crated virgin who had contracted marriage to separate from
her husband, without calling in question the validity of the
marriage. But about the same time we find Innocent of
Rome going a step farther. In a decretal letter he claimed
the right to determine a case of marriage, in which grave
injustice would be done " nisi sancta religionis statuta pro-
viderent." A wife having been carried off by invading
barbarians, her husband married another, as allowed by
law ; on her return from captivity the Pope ruled that
her husband was still bound to her, and must separate from
the other partner whom he had taken. 2 To do this was to
set the authority of the Church in direct conflict with the
Civil Law, and that not merely by way of dispensation, as in
the case of Callistus. Here is an order to do a specific thing.
These instances, chosen out of many, show three distinct
lines of action in the Church : the restriction of ecclesiastical
rule to a purely spiritual discipline ; an attempt to bring
the imperial law into agreement with Christian teaching ; *
1 Cone. Milev, can. 17. "In qua causa legem imperialem pe-
tendam promulgari."
J Innocent I. Ep. ix. ad Probum.
3 In the legislation of Constantius and Theodosius the younger
are instances of success in this line introducing into the Civil Law
122 OF MARRIAGE IN CANON LAW
and a bolder attempt to regulate independently incidents
of social order. All three activities have continued or have
recurred in the history of the Church down to the present
day. The decretal of Innocent I. points implicitly to the
whole ecclesiastical jurisdiction concerning marriage, exer-
cised throughout the West during the Middle Ages, and
still exercised in some parts of the East ; the attempt to
mould the civil law in accordance with Christian teaching
has been resumed in modern England, while in other coun-
tries the Church has in recent times accepted the function
of a purely internal and spiritual control of its own members.
Our present task is to examine the first of these develop-
ments.
For the orthodox Churches of the East, the Quinisext
Council in Trullo, A.D., 692, is an important turning point,
as in other matters of discipline, so also in regard to mar-
riage. It was now definitely ruled, contrary to a wide-
spread practice of previous ages, that priests and deacons
should not be debarred from the use of marriage, though
they were forbidden to marry after ordination ; and deposi-
tion was threatened, with a special reference to the Roman
Church, in case any bishop should exact a promise of absten-
tion. Bishops themselves, however, were forbidden to
cohabit with their wives, who were required to retire to a
monastery at some distance. Censures were provided for
a priest who should bless unlawful nuptials, and the pre-
tended union was to be dissolved. A monk attempting
marriage was to be treated as a fornicator. A rule of spirit-
ual kinship was established, by which a sponsor at baptism
was forbidden to marry the mother of his god-child, the
marriage being treated as void. In explicit extension of
the impediment of collateral affinity. Cod. Theod., iii. 12, Deincestis
nuptiis.
EASTERN CANON LAW 123
rules laid down by St. Basil the Great, marriages of uncle
and niece, or of father and son with two sisters, and con-
versely, were made unlawful, separation being enjoined.
The prohibition of marriage with unbelievers was extended
to the case of heretics, but the marriage of two unbelievers
or of two heretics was to stand good after the conversion
of one party, on the ground of St. Paul's saying that the
unbelieving husband is sanctified by the wife. Attempted
marriage after divorce was declared to be adultery, as also
was marriage contracted after a long absence of husband or
wife ; in this case actual proof of death was required to
make marriage lawful, but some freedom was allowed to
the wife of a soldier, whose death might be presumed ; should
he return after her marriage to another man, he was left
free to resume cohabitation with her or not, at his own plea-
sure, and all the parties were to be held free from blame.
Espousals, no less than a completed marriage, were to bind
under peril of adultery, and a precontract was thus made a
diriment impediment of marriage.
The Roman Church rejected this council, and conse-
quently, though several of its canons found their way into
Western collections, its trenchant legislation about marriage
became operative only in the East. The divergence of the
two parts of the Church in matters of discipline now became
definite. I shall briefly note the development of the law
of marriage in the East, and then return to the more com-
plicated fortunes of the Western Church.
The legislation of Justinian had shown how far Christian
doctrine could affect the law of the Empire, and left this
sufficiently at variance with the canons of the Church. There
were, therefore, two laws of marriage, perfectly distinct,
and sometimes contradictory. There was no confusion of
Church and State, though there was a close alliance, the
Church being on the whole subservient. After the Quini-
124 OF MARRIAGE IN CANON LAW
sext Council, however, the canonical rules about marriage
were enforced with considerable strictness, and gradually
became predominant, as regulating social action, over the
Civil Law. In the year 893 the Emperor Leo the Philoso-
pher, by his eighty-third Novel, enacted that a marriage
blessed by the Church should alone rank as legitimate. In
1306 Andronicus the Elder, in conjunction with the Patri-
arch Athanasius, forbade any contracting of marriage with-
out the knowledge and intervention of the parish priest. 1
The Empire was now reduced within narrow bounds, but
the influence of the Patriarch extended far, and in this way
was established an ecclesiastical control of marriage which
survived the fall of Constantinople, to become the fixed
rule of the Ottoman Empire. Ecclesiastical marriage was
henceforth the only kind of marriage recognized as valid
by the State.
The Canon Law thus administered was codified at an
early date. In the Nomocanon of John the Scholastic,
Patriarch of Constantinople from the year 565, all the known
canons of Councils, with sentences of the Fathers then gener-
ally taken as binding, were digested under fifty titles,
Eastern Christendom being thus supplied with a systematic
treatise of a kind for which the Westerns had yet to wait
many centuries. Supplemented by new conciliar defini-
tions, it was at length superseded in the year 883 by a new
work in the same style, which became the definitive law-
book of the Eastern Church. The text was for some time
treated as sufficient, but in the course of the twelfth century
it was enriched with elaborate commentaries by Zonaras,
Alexius, Aristenus, and Balsamon. In the thirteenth
century, Arsenius of Mount Athos, afterwards Patriarch of
Constantinople, set out the whole legislation of the Church
1 Milasch, Kirchenrtcht, p. 581.
EASTERN CANON LAW 125
afresh in a Synopsis of a hundred and forty-one chapters.
About the same time was prepared a code, the Krmcaja
Kniga, for the Slavonic Churches, which held an unchal-
lenged position until Peter the Great forced on the Russian
hierarchy some new legislation, affecting marriage as well
as other incidents of the Christian life, in which innovation
passed for reform.
The most striking feature of this codified system is the
refusal to recognize as valid any marriage that is not con-
tracted in complete accordance with law. Natural mar-
riage by simple consent is not merely ignored, but strictly
forbidden under pain of ecclesiastical censure ; a clandestine
marriage is void. It is not any measure of publicity that
will suffice ; the requirements are laid down with precision.
The marriage must be blessed by the parish priest in the
presence of two witnesses ; should the parties belong to
different parishes, it is the priest of the bride's parish who
must act, but he may delegate this function to another
priest. 1
Some minor requirements of the law alone may be ne-
glected without voiding the marriage. The Eastern Church
has always been reluctant to distinguish between the legiti-
macy and the validity of a sacrament, but the conception of
obstructive impediments (Ka^Kv^ara aTroyopevn/cd), as dis-
tinct from diriment (avarp7nLKd), crept in when the legal
control of marriage fell to the ecclesiastical authorities. It
should be observed, however, that even obstructive impedi-
ments are held to suspend the effect of marriage until they
be removed by dispensation, which can be obtained from
any bishop, and which appears to have the effect of sanatio
in radice. This strictness makes it the less remarkable that
force or fear inducing marriage is treated as an obstructive
impediment only, a fact which may be due to the stress
1 Milasch, pp. 582, 595.
126 OF MARRIAGE IN CANON LAW
laid on the nuptial benediction as compared with the con-
sent of the parties.
Consanguinity within the seventh degree is a diriment
impediment in the Churches of the Patriarchates, but in
the Kingdom of Greece it is reckoned only to the sixth de-
gree, in Russia to the fourth. Affinity is reckoned strictly
to the fifth degree, and partially to the seventh, the exten-
sions made by the Quinisext being still in force, but only
to the third degree ; the impediment of spiritual kinship,
after undergoing some enlargement, has been brought back
to the form in which it was recognized by the same council.
Other diriment impediments are lack of mental capacity,
impotence, the lack of parental consent where required, a
religious vow of continence, the pregnancy of the bride under
certain conditions, existing marriage, and a third widowhood.
Marriage can be contracted in a first or second widowhood,
but the parties are put to penance.
Diriment impediments can be dispensed with by a General
Council only, or by an equivalent authority, the Patriarchal
Council at Constantinople, for example, or the Holy Govern-
ing Synod of Russia. There seem to be no exceptions, and
impediments are not distinguished as of divine or human
law. It follows that all dispensations alike must be regarded
as contingent, and conceded on the ground of necessity.
Even the impediment of existing marriage is not absolutely
irremovable, as is seen from the practice of the Church in
case of divorce. Divorce itself, as we have seen, is in the
nature of a dispensation from the natural law requiring
community of life in the married, and should be allowed
only for the gravest reasons of necessity. The Eastern
Churches were long disposed, as may be seen from the canons,
so-called, of St. Basil, to follow the Jewish law, forbidding
a man to continue marital cohabitation with an adulterous
wife, but in the fourth century Christians had not all learnt
DIVORCE IN THE EASTERN CHURCH 127
to treat as adultery the sin of a husband with an unmarried
woman, and his wife was not even allowed to leave him on
that account. This inequality of treatment slowly and
incompletely gave way. The Quinisext adjudged guilty of
adultery the man who, after putting away his lawful wife,
should marry another, but allowed some unspecified con-
sideration for a husband deserted by his wife. It is pro-
bable that a licence to take another wife was intended. An
elder contemporary of the Council was Theodore of Tarsus,
the Greek monk who organized the nascent English Church ;
he did not forget his origin when he changed his tonsure,
and his replies to questions digested under the title of a
Penitential are full of references to Basil the Great and other
Eastern authorities ; in these we find permission to marry
very freely accorded to a husband whose wife has left him
with contempt, has been carried away captive, or has been
put away for adultery, and even the adulterous wife might
be allowed to take a new husband after five years of penance.
These may have been concessions to a rude nation of neo-
phytes, but they are not to be matched in other records of
the West, and they were at least based on the practice of
the Eastern Churches. When the legal regulation of mar-
riage came into the hands of the hierarchy, divorce was
much more severely restrained than under the Civil Law,
but it was still allowed on various grounds, which have been
much extended, especially in Russia, by more recent legisla-
tion. There is no pretence of actually dissolving the
marriage. The bond remains, and the parties are not set
free to contract another marriage at pleasure ; but the
ecclesiastical authority can give a licence to marry in spite
of this impediment, and it seems to be granted pretty freely
to those who ask. 1
1 Milasch, p. 598. See the passage quoted above, p. 104.
128 OF MARRIAGE IN CANON LAW
Two things remain to be noted. Preliminary espousals
(fjLvrjo-reia) are reckoned essential to a valid marriage. If
not blessed, they are revocable ; if blessed, they so far par-
take of the nature of marriage as to constitute, in accor-
dance with the ruling of the Quinisext, a bar to any other
union. These provisions, however, are now of small impor-
tance, since the completion of the nuptials usually follows
immediately upon espousal.
Holy Orders, in spite of the strict rule forbidding those
already ordained to marry, is not made an impediment ;
marriage actually contracted by a priest or a deacon is not
annulled, even provisionally, but the offender is deposed
from the sacred ministry.
Thus, from the seventh century, or longer, the Eastern
Churches have enjoyed a fairly consistent canonical regula-
tion of marriage, and from the ninth century have been
invested, by a definite Act of State, with its legal control.
Two causes have contributed to this result. The Catholic
Church was for ages almost conterminous with the Empire,
and the authorities of Church and State, in spite of fierce
quarrels on occasion, lived together in mutual respect. The
Church was sometimes dominant, as during the reign of the
Palaeologi, sometimes unduly subservient ; but the two
powers, the two organizations of human society, have never
been confused. A modus vivendi was consequently arranged,
which could survive the transfer of the Empire to a dynasty
professedly unchristian ; the Church maintains relations
with the Ottoman State differing but little from those in
which it stood towards the Christian Emperors, becomes
the acknowledged organization of all orthodox Christians
in the curious system of nationalities by which that State is
administered, and enjoys the undisputed control of marriage
in regard to its own members. This principle of close alli-
ance was carried with the Church to Russia and other coun-
LEGAL CONTROL BY EASTERN CHURCH 129
tries beyond the pale of the Empire, where it still subsists.
Outside the Turkish dominions, the regulation of the purely
civil aspects of marriage is left ungrudgingly to the State,
the regulation of marriage in its religious and sacramental
aspect is left as unreservedly to the Church. The State,
says the Bishop of Zara, may not treat as invalid a marriage
recognized as valid by the Church. 1 He is not speaking
only of a State the head of which professes Orthodoxy, for
he has in view his own position under the Austrian mon-
archy ; the principle is universally applied. In Russia,
under the influence of the Church, it is extended to all reli-
gions, orthodox Christians having secured for others the
privileges which they claim for themselves ; marriage is
treated throughout the empire as a religious institution
under the control of the various religious organizations,
Christian, Jewish or Musulman, to which the people adhere.
While the Eastern Churches thus perfected their system,
the fortunes of the Church in the West were very different.
The Empire was broken up, Christianity extended to the
Northern nations before it was completely organized, and
the religious control of life, in regard to marriage as in other
respects, had to be worked out in a welter of confusion.
Similar results were eventually attained, but after long
delay, and with one most important difference.
The Western Churches found in the coming of the bar-
barians at once their trial and their opportunity. They
were confronted not only with the venerable system of
Roman law but also with customs and practices which
had no such prestige. The ecclesiastical authorities could
act more freely in face of Teutonic kings, wielding an irre-
sistible power of the sword, than against the mere words of
1 Milasch, p. 582. " Der Staat kann eine von der Kirche als
giltig anerkennte Eha nicht als ungiltig betrachten."
M.C.8. K
130 OF MARRIAGE IN CANON LAW
a Roman Emperor who could barely defend himself amid the
marshes of Ravenna ; Roman citizens of the provinces
overrun by invaders could lean upon their traditionary juris-
prudence and the edicts of their nominal sovran, but Goths
and Franks, Burgundians and Lombards, when they came
within the borders of Catholic discipleship, were fain to accept
the guidance of bishops and councils, or to resist with a
growing consciousness of guilt. Resistance was general ;
the rude customs of the nations were not easily put aside,
and some strange expedients of compromise were for a time
tolerated by the Church. A new penitential system, based
on the Germanic custom of penalties in money or money's
worth, makes its appearance, replacing or complementing
the method of spiritual censures ; the mulct is a full dis-
charge, and there seems to be a vast extension of St. Augus-
tine's principle, " Fieri non debuit, factum valet ; " but from
the fifth to the eleventh century the steady persistence of
the Church is making itself felt, and certain departments of
human life are brought even externally under its control.
Conspicuous among these is marriage.
The work was chiefly done by the continual exercise of a
rather indeterminate discipline, enforcing with more or less
efficiency the unquestioned rules and customs of Chris-
tianity. The records are obscure, appearing occasionally in
the acts of martyred bishops, which reflect the general state
of society perhaps more accurately than the particular
features of the cases described. Something may be gathered,
however, from the genuine acts of councils, the greater
authority of which was invoked when individual bishops
were lax, or overborne by the self-will of kings and terri-
torial magnates. We find the second Council of Orleans,
in the year 536, not only renewing the prohibition of inter-
marriage between a Christian and a Jew, but also peremp-
torily ordering the separation of the parties so united. The
WESTERN DISCIPLINE 131
Church was beginning to treat such a marriage as void in
law ; in other words, the prohibition was becoming a diri-
ment impediment. The same council had occasion to forbid
the dissolution of marriage for some obscure cause, voluntatis
contrarietate. Some years later, the third Council of Orleans
allowed the continued cohabitation of parties who had con-
tracted an incestuous marriage, if it could be shown that
they had acted in ignorance, as neophytes, and not in con-
tempt of the divine or ecclesiastical order. In the year 556,
a council held at Paris renewed against the King Clothaire
the prohibition of marriage with a sister-in-law, specially
condemning an offender who " sacerdotem suum audire
neglexerit," and forbade the practice of claiming a woman
in marriage, by assignment of the King, without the consent
of her parents.
If the Popes seem to have had less to do with this work
than might be expected, it should be remembered that after
the middle of the sixth century they were held under strait
control by the Emperors reigning in the East and their
Exarchs at Ravenna. Great as was the veneration ex-
pressed and felt for the Roman pontiff, he was for a long
period rather a force in reserve than a dominant factor in
the life of the Church. St. Gregory the Great stands out
alone from a list of insignificant personalities, or worse, as
having any conspicuous effect on the growth of institutions ;
and of Gregory we have the letter addressed to Augustine
of Canterbury in reply to his questions. Two of these con-
cerned marriage. Augustine's question whether two brothers
might marry two sisters indicates some lack of common in-
formation, and the Pope's reply that it might be done since
there was nothing in Holy Scripture against it, seems by
implication to put the prohibitions that were current upon
a basis other than that of ecclesiastical canon or custom. To
another question regarding consanguinity and affinity, Gre-
132 OF MARRIAGE IN CANON LAW
gory replied that the secular laws of the Roman State allowed
marriages which the Church could not approve. The con-
demnation of them he founded partly on the Divine Law,
with a reference to the Levitical prohibitions, partly on
practical experience, with a curious assertion that these
marriages were found to be infertile ; he quoted also the
testimony of St. John the Baptist against such unions.
Englishmen, however, who had contracted incestuous mar-
riages before their conversion, were to be treated with gentle-
ness ; they were to be admonished to abstain from the use
of marriage, not without warnings of eternal punishment
to follow, but at the same time they were not absolutely
to be denied baptism or required to separate under pain of
excommunication, for they must not be punished for offences
committed in time of ignorance. The Church tolerates some
things, and discreetly connives at some things, wrote the
holy pontiff, with a view to their ultimate suppression. But
in the faithful such things were to be sternly repressed. 1
If the questions of Augustine illustrate the perplexities
of Roman Christians in face of the customs of the new
nations, the Pope's replies, with their curious inconsistencies
and halting assertion of principle, show how far the Church
was even yet from having a clearly defined marriage law,
and how tentative was the control then exercised. It should
be observed also that the Church and the Respublica are still
regarded as two mutually independent and even antagonistic
powers. In the Gothic Kingdom of Spain the difference,
and even the distinction, of the two powers tended to dis-
appear, and legislation of all kinds was effected by councils
1 Baeda, Hist. Eccl. i. 27. The letter was once considered almost
certainly inauthentic, but a careful study by Mommsen (Neuts
Archiv. d*r Gistllschaft fur d.d. Gischichtskunde, vol. xvii., pp. 387
seqq.) has put another face upon it. Se also Dudden, Gregory the
Gnat, rol. ii. p. i3.
RESPUBLICA CHRISTIANA 133
which may be regarded, according to the business transacted,
as ecclesiastical or civil. The same union or confusion ap-
pears in the Prankish Kingdom under the Karlings, and the
results may be studied in a long series of Capitularies. The
English Kingdoms learnt the same method, and the way
was gradually prepared for the great conception of an uni-
tary Respublica Christiana, which fired the imagination and
dominated the politics of the eleventh century.
The political theory into which this conception was ulti-
mately reduced by a poet and statesman like Dante, by the
great canonists of the thirteenth century, and by the cham-
pions of the Empire in the fourteenth century, is not here
our concern. These men worked upon a state of things
actually existing ; their theories followed facts ; there was
a practical system, involving intolerable friction, but hold-
ing the field to the exclusion of any simpler device. Western
Europe was a real political unit, essentially Christian by
profession, in which the distinction of Church and State had
disappeared. Political philosophy sought a reason for this
in the natural unity of the human race, redeemed in Christ ;
mankind was potentially gathered into the apostolic fellow-
ship, and the actual state of things could be treated as an
approximation to the ideal. But that was an afterthought ;
Christendom was a working unit before medieval philosophy
came to the birth. The Empire played an important part
both in the practical working of the system and in the de-
velopment of theory, but the system was not an outgrowth
from the Empire ; it began while the Empire was in abeyance
throughout the greater part of the West, it agreed neither
with the traditions of the fourth and fifth centuries, nor with
the conceptions of Justinian ; the translatio imperii, the
conveyance of the imperial dignity to the House of the Kar-
lings, did but give a wider scope to methods that were already
established under the Prankish ~ monarchy. There was a
134 OF MARRIAGE IN CANON LAW
Christian community, loosely but effectively knit together,
which might properly be called the Church, but in a sense
larger than that of St. Paul, or even of St. Augustine ; with-
in this community was a tangle of local authorities, spiritual
and temporal ; there was a temporal chief, the Emperor,
invested with shadowy and indeterminate powers ; there
was a spiritual chief, the Pope, exercising powers indeter-
minate and therefore capable of extension, but real and
terribly effective. Such was the position when the Saxon
Emperors by their personal exertions delivered Rome and
the Church from enormous scandals, and so revived a
power which was to dispute successfully with their successors
the real headship of the world.
It is in connexion with this system that we must consider
the absolute control of the law of marriage acquired by the
Spiritualty during the Middle Ages. This jurisdiction must
not be confounded with that which we have seen to be already
established in the East. We are not to think of a power
specially conceded to ecclesiastics by the temporal authority.
There was, indeed, in England an exceptional jurisdiction
of this kind in testamentary matters, unknown elsewhere in
Christendom, which Lyndwood could found only by guess-
work " super consensu Regis et suorum Procerum in
talibus ab antique concesso ; " 1 but the authority of the
spiritual courts in matrimonial causes was part of the com-
mon law of Christendom. Neither must we draw too close
a comparison with the action of Innocent I, cited above ;
for here there is no other law to be set aside by the rule of
the Church. What we see is the final outcome of the assump-
tion of supreme authority in such matters by the Church,
which characterizes the Gallican councils of the sixth cen-
tury. It has borne this fruit precisely because of an appar-
1 Provinciate, p. 176, s.v. Ecclesiasticarum libertatiim, and p. 263,
s.v. Ab olim.
POWER OF THE SPIRITUALTY 135
ent check in the mixed councils of the eighth century. The
merger of Church and Kingdom in a single community has,
after all, made a new differentiation necessary, and it takes
the form of a differentiation of function within the body.
The * Church regulates marriage all through, but first as
against the secular law of the Commonwealth, of Emperor or
King, afterwards in undisputed sway as the universal organi-
zation which has swallowed up all forms of human society.
In this second stage the control eventually falls into the
hands of the Spiritualty. In England, before the end of the
twelfth century, Glanvill has openly acknowledged the
exclusive competence of the spiritual forum to determine
the validity of a marriage. 1 The work is done by the same
hands as in the first stage, by the bishops and their officials,
and there is thus an appearance of identity, but the position
is fundamentally changed. The spiritual authority is no
longer opposing and correcting the law ; it is making the
law and administering the law.
This power of the Spiritualty in regard to marriage should
be traced to its true cause. We must not, with some modern
theologians and canonists, base it on a recognition of the
sacramental character of marriage, for it was in full vigour
before the doctrine of the sacraments was sufficiently de-
veloped and defined to produce such an effect. We must not
refer it to the peculiar circumstances of Western Europe, for
we have seen a similar result produced under other conditions
in the East. It was probably due in the first place to the
intimate connexion of pure morality with marriage law, and
was established by the growing conviction that this was of
divine and not of human ordering. The Divine Law was
crudely conceived in terms of the Levitical books, but even
so it conquered men's imagination. Of those sacred books
1 Pollock and Maitland, Hist, of English Law, ii. 367.
136 OF MARRIAGE IN CANON LAW
the spiritual chiefs of the Church were the guardians and the
interpreters, and they were no less the teachers and vindi-
cators of morality ; on both grounds they were the natural
protectors of marriage.
They would have been this even had the confused juris-
diction of mixed councils and mixed tribunals continued.
The differentiation of function which took its place threw
everything into their hands. This differentiation, tradi-
tionally attributed in England to a single legislative act of
the Conqueror, was part of a great and slow movement of
thought, which culminated in the codification of Canon Law.
In the West, as in the East, but with less publicity, collec-
tions of canons had existed from early times, and some were
expressly approved by important councils. In the middle
of the sixth century Dionysius Exiguus made a new depar-
ture by adding to the conciliar decrees which he gathered
from all sources the decretal epistles of the Bishops of Rome
that were preserved in the pontifical archives. Early in
the seventh century, a collection of the same kind, doubt-
fully attributed to St. Isidore of Seville, was made and pub-
lished in Spain. The ninth century saw the production of
the forged decretals. In the year 1086 Anselm of Lucca
put out a new and enlarged collection, and early in the
twelfth century Ivo of Chartres composed his Panormia,
or Pannonica, in imitation of the Pandects of Justinian.
But something more was demanded. All these works were
mere accumulations of disconnected matter, words of the
Church uttered in varied accents of authority. In the year
1151 appeared the Concordantia discordantium Canonum,
or Decretum of Gratian, which marks a new departure. It
is a digest, laborious but uncritical, of all the heterogeneous
matter previously collected ; canons and decretals are no
longer set down side by side, to be read independently or
compared with one another by the reader ; they are dis-
THE DECRETUM OF GRATIAN 137
perse d under systematic headings according to their subject,
and illustrated by citations from Holy Scripture, by extracts
from the writings of the Fathers and by comments of the
author himself. The purpose of this study can easily be
ascertained. Canon Law had hitherto been a mass of
ecclesiastical traditions, maintained and administered by
local hierarchies, agreeing with each other more closely
than might be expected, but yet full of diversity, and kept
in such unity as they possessed only by appeals to Rome
and by the occasional supervision of the authority which
the Popes had gathered to themselves in the course of ages.
This customary law, residing in the breast of judges and ad-
ministrators who had nothing else to guide them but a quan-
tity of indeterminate records in the current collections, had
given satisfaction because it was in keeping with the general
practice of Western Europe. But the revival of the study
of the Roman civil law in the eleventh century awakened
new desires. In the schools of Bologna men read the Corpus
Juris Civilis, and found there an ordered system which
made them dissatisfied with the confusion of the existing
practice. The science of jurisprudence sprang into existence.
An ecclesiastical Justinian, occupying the Holy See, might
have produced a new Code, with Pandects and Institutes,
but that was possible only in a time of peace and as the
fruit of the long labours of jurists, and the Popes were en-
gaged in arduous struggles which held their attention to the
most pressing needs of the moment. This struggle however,
while it hindered such a work, made the need of it more
urgent. The Popes were standing firm against the growing
power of the Emperor, and labouring to differentiate those
spiritual matters which should be under the exclusive con-
trol of the Spiritualty. The recovery of the Civil Law, and
the enthusiasm with which it was received, threatened an
immense aggrandisement of the imperial power ; should the
138 OF MARRIAGE IN CANON LAW
German Caesar become in very deed the Princeps of Justin-
ian's laws, the Pope would play a subordinate part in the
Christian commonwealth. The current laws of the Church
must be systematized to meet this invasion. If the old
code was put forward as representing a juristic ideal to
which the whole administration of law should conform, and
against which a floating mass of custom could not hold its
own, a new code must be formed out of the current laws
which should have the same advantage of compactness and
accessibility, with the added weight of a more spiritual
authority. What the Popes could not do a private student
might at least begin, and Gratian's Decretum was born.
It had an immediate success. It was read and glossed.
It took its place beside the Corpus luris at Bologna. It soon
reached the incipient schools of Oxford, lagging behind its
rival there by a bare decade of years. Within two genera-
tions the glossators had done so much work that their com-
ments also had to be codified, and were reduced to common
form in the Glossa ordinaria, which became an integral
part of the text. After the glossators, the canonists, who
were to the new code what the jurists were to the old.
Sinibaldi Fieschi, afterwards Pope Innocent IV, was the
father of them. If the glossators tried to ascertain the true
sense of the text, the canonists laboured to expound it in
application to cases, and to bring it into relation with cur-
rent but uncodified usages. In the meanwhile, Gregory IX
had summoned the industry of Raymond of Penafort to
digest in similar fashion the new matter which had accumu-
lated by legislation since the time of Gratian. Boniface
VIII and Clement V followed his example, and two further
supplements completed in the year 1483 the Corpus luris
Canonici.
This great digest was designed for a double use. It was
a textbook for Canonists, the foundation of study and of
DEVELOPMENT OF LEGALISM 139
lectures in the Universities ; it was also a practical guide
for ordinaries and advocates in the spiritual courts. A con-
siderable part of it is devoted to the law of marriage, which
brought to those courts much lucrative business. It was
at once the consequence and the furthering cause of a great
revolution. The systematizing of the Canon Law has been
described alternatively as the greatest triumph and the
greatest disaster of the Church. Perhaps the two judgments
may run into one. It was a triumph for the Church to im-
pose its penitential discipline upon the unwilling as effective
law, but in this triumph the Church may have suffered its
worst loss. Spiritual discipline is concerned first with the
good of souls, systematic law with the good of society. In
canonical process the original end of discipline was nomin-
ally kept in view, and an offender was brought into court pro
salute animae ; but matters of a much more mundane char-
acter engaged the attention of ecclesiastical judges, who
were compelled to use both the minor and the major cen-
sures of the Church for the enforcement of 'decrees that were
remote from the affairs of the soul. When Popes arrived
at the point of employing excommunication as a weapon of
war in a quarrel with men against whom they had themselves
taken up arms and formed alliances, they were following in
the track by which the practice of the Canon Law had led
them. Another fault of the system was a certain confusion
of values. Men are prone to take legality as the measure of
light, and the moral teaching of the Church was originally
set over against a mere legality, requiring a service of love
that could not be enforced. The law winks at evils which
can be endured without public disaster, or which cannot be
suppressed without dangerous disturbance of social order.
When spiritual discipline passed into the category of formal
law the moral witness of the Church was inevitably weakened.
This would probably have happened, even if it had remained
140 OF MARRIAGE IN CANON LAW
a thing apart from mundane concerns ; but when the Church
undertook the legislative and judicial functions of a civic
community, the trouble was intensified. There was a recur-
rence of those evil results of Theocracy which we have
observed in the Jewish system. The Church was at once
teacher of the Divine Law, director of religious conduct, and
legislator for the temporal needs of human life. All three
functions are needed in respect of marriage, but they can be
kept apart ; the concentration of them in the hands of the
Spiritualty led to a blurring of boundaries. Canonists
laboured to draw clear lines, but it was not easy for the
common sort to distinguish between the immutable precepts
of the moral law and the present requirements of a paternal
government.
Decretals were law for the whole of Western Christendom.
But they were imposed upon a vast body of unsystematic
and customary law, varying from region to region, from
realm to realm. 1 Now when this kind of thing happens,
there may be various results. Customs may be overruled
at once by written law, they may be slowly modified by the
pressure of ordered theory, or they may stubbornly hold
their own even to the nullification of the imposed law. From
the time of Edward I we have been familiar in England with
the principle that statute law overrides customary law. The
reason is obvious. England, except for some local fran-
chises, was an unitary kingdom, and statute law was the
expressed will of the King and his people, who thus volun-
tarily abandoned any custom contrariant to the new legis-
lation. But Christendom, though unitary in theory, was
in fact minutely divided ; decretals came from a hierarchical
1 It is the German distinction of Juristenrecht and Volksrecht
(Gierke-Maitland, Political Theories of the Middle Ages, p. xiii.),
not the English distinction of statute law and common law.
CHECKS ON IUS COMMUNE 141
superior, who did not seek the consent of those concerned ;
must their customs give way ? The answer of the canonists
may have been due to the impossibility of enforcing in re-
mote corners of Europe the decrees that issued from Rome,
but that is only to say that in the true spirit of jurisprudence
they took account of facts ; whatever the cause, their con-
clusion for the negative was effectively received, and local
custom contrariant to a decretal was held to bar its opera-
tion. A prescription of forty years was sufficient. In like
manner a notorious desuetude of the same length of time
might, under stringent conditions, abrogate a law previously
in force.
It is evident that a custom of the Church may be either
universal or particular and local, but when canonists speak
of consuetudo without specification they mean the latter kind
only, which they set over against the ius commune, or general
law of Christendom. This law ran everywhere alike. We
must not turn aside to the notion of a foreign Canon Law,
foreign to each several country or locality, or native per-
haps only to the Roman diocese, which would not be in force
except where it was definitely received and confirmed by
local adoption. This notion was probably borrowed from
the circumstances of the Reception of the Roman civil law in
Germany ; it has vitiated much discussion of the subject in
England, but has been put to final rest, one may hope, by the
magistral work of Maitland in his essay on " Roman Canon
Law in the Church of England/' Yet Maitland's own present-
ment of the case was not flawless. He spoke of the decretals
as " absolutely binding statute law," which they were not,
since they could be nullified by contrary custom. He seems
to have regarded such custom as an external obstacle, hinder-
ing the proper working of the Canon Law, to be evaded or
accepted with resignation by ecclesiastical ordinaries. But
local customs were not external to the Canon Law ; they
142 OF MARRIAGE IN CANON LAW
were themselves part of the system. In a Roman court
an English or a Danish custom might be imperfectly known,
and a cause pending from one or the other country might be
erroneously determined by reason of such ignorance, but
if pleaded and proved it would be as good law there as in a
local tribunal. 1
The law of marriage was singularly uniform throughout
the Western Church, but a right understanding of the nature
of Canonical custom is required for the elucidation of one
exception, the importance of which has been greatly
exaggerated. According to the ins commune, a child born
out of wedlock would be legitimated by the subsequent
marriage of his parents. A custom of the realm of England
put a certain restraint on the operation of this law, for in
regard to inheritance such legitimation was not recognized.
The reply of the barons, " Nolumus leges Angliae mutari,"
to the plea of the prelates at Merton, in the year 1236, for
the reform of this bad custom, has been extolled as a declar-
ation of national independence ; but it was nothing more
than a profession of blockish conservatism. It was effective,
and to this day the injustice continues. In England alone,
I believe, and in countries deriving their law from England,
legitimation by subsequent marriage is disallowed. But
the operation of the custom was confined within the strait-
est limits. The ecclesiastical courts, but for the special
privilege by which in England they administered testa-
mentary law, might probably have ignored it ; as it was,
they declined to recognize its validity, except only when
determining questions of inheritance a ; in purely spiritual
1 There is useful criticism of Maitland in Mr. Ogle's book, The
Canon Law in Mediaeval England, but Maitland 's chief arguments
remain uncontroverted.
2 Even this exception is doubtful. See Pollock and Maitland,
op. cit., vol. ii., p. 378.
ADMINISTRATION 143
matters they followed the general law. But with this limi-
tation the custom was recognized as a valid exception within
the general law of marriage. To describe it as a custom of
the realm and not of the Church, or as an external restraint
put upon the law of the Church, is to set up a distinction
which was not valid at this date. The realm of England was
merely a local division of the Christian commonwealth, and
a custom of the realm was a consuetudo existing within the
Church.
This case apart, local customs affecting the law of marri-
age were few and unimportant. From the tenth century on-
ward there was one law, finally digested in the Corpus luris
and in the books of the canonists, for the whole of Western
Christendom. This law contained all those divisions which
have been set out above under the general head of Human
Law. It remains to indicate briefly its principal characteristics.
Juridically, the law was administered by the bishops in
their several jurisdictions, but there were numerous exempt
districts, called in England " peculiars/' which were wholly
or partly withdrawn from the control of the diocesan bishop,
and subject either immediately to the Roman See, to another
bishop, or to an inferior prelate as ordinary. In the eleventh
century the judicial work of a diocese was for the most part
entrusted to the archdeacons ; later, the archdeacons them-
selves acquired an independent but subordinate jurisdiction,
and their former work passed to the newly constituted courts
of the bishop's Official and Vicar-General, these two offices
being in England usually amalgamated under the title of
Chancellor. In all cases alike the bishop was the source of
authority, and capable of acting in person, but his officials
became something more than delegates and exercised their
functions ex iure. There was thus an extremely complicated
judicature, concerned with the issue of dispensations and
with the hearing and determination of causes.
144 OF MARRIAGE IN CANON LAW
There was a complete system of appeals, first to a provin-
cial court acting with the authority of the metropolitan, and
thence to the court of Rome. Moreover, some dispensations
and some contentious causes were reserved to these higher
authorities, whose courts thus became tribunals of first
instance. In England, for example, a dispensation from
the rule requiring marriage to be contracted in facie ecclesiae
was granted only by the Archbishop of Canterbury. A dis-
pensation from the impediment of certain grades of consan-
guinity and affinity was reserved to the Pope. I have
shown cause for supposing that these limitations of the
power of a bishop are in the nature of things inconclusive,
and that a bishop cannot even by consent divest himself of
the plenary authority of the apostolate. Appeals, reserva-
tions, and exemptions belong to an economy which is toler-
ated in the interest of order and good administration, and
which a bishop is compelled to accept by the practical pres-
sure of a power to depose him residing in the general episco-
pate. By the operation of this pressure, as also by the good
sense of all concerned, a hierarchy of jurisdiction has been
established in all parts of the Church, to be disturbed only
under the greater pressure of circumstances demanding
reform by revolutionary methods. In other words, ecclesi-
astical law, so far as it concerns the mutual relation of bishops,
is founded on a consensual compact, from which any party
has an inalienable right to withdraw. But the Canon Law
of the Middle Ages did not rest upon this Cyprianic principle.
It rested on the supposition of the Papacy, which must be
distinguished in principle from any superiority vested by
ecclesiastical custom in the Roman Pontiff. To the Pope
was attributed a legislative and judicial power distinct from
that of the episcopate ; and this doctrine, though not formu-
lated until the period of the councils following the Great
Schism, was producing fruit in action at least as early as
THE PAPACY 145
the tenth century. The privileges of exempt jurisdictions,
the rights of metropolitans, the system of appeals, though
traceable in history to local or general customs, were in
juristic theory referred to that kind of papal concession
which in some cases actually existed. Thus it came about
that even the powers left to a bishop could be represented
as vested in him by a revocable grant. The truer concep-
tion, however, could not be suppressed ; and hence there
were current two sharply contrasted opinions : the one that
a bishop could dispense in all cases not expressly withdrawn
from him ; the other, that he could dispense only in cases
expressly referred to him by law.
I here include the issue of dispensations among juridical
functions because the more important kind, the contingent,
must be regarded as belonging to the category of disciplin-
ary judgments ; and indeed absolute dispensations also,
though in principle legislative acts, were in the medieval
system granted as if by judicial process, distinctively known
as that of voluntary jurisdiction. It was a mode of doing
business to which the habits of the time lent themselves in
many departments.
The contentious jurisdiction of the spiritual courts covered
both the fact of marriage and its consequences. The most
important cases were those in which the validity of a con-
tract, and the reality of the resultant state of marriage, were
in question. The existence of an impediment, the authen-
ticity and legitimacy of a dispensation removing it, the ratifi-
cation of a contract per verba de praesenti, the actual consum-
mation of the marriage, were matters to be determined by
evidence. The procedure of the ecclesiastical tribunals and
their regulae iuris were borrowed almost entire from the
Civil Law, which was already the object of keen study at
the time when the system of courts was framed. On the
validity of a marriage depended the legitimacy of the issue,
M.C.S. L
146 OF MARRIAGE IN CANON LAW
which was thus determined, directly or indirectly, by these
courts. But the judge did not merely declare an invalid
marriage to have no binding effect on the parties ; he re-
quired them under pain of the severest censures to separate
and live apart. The process was disciplinary, pro salute
animae. It was, therefore, not only on a petition of one of
the parties that a pretensed marriage could be annulled ; the
spiritual judge could proceed against them on the strength
of any information received. Information might be laid by
a person interested in bastardizing the issue, but the court
ignored such motives. A party might, however, pray for
relief from the responsibilities of a colourable, though invalid,
marriage, or from the false assertion of a clandestine con-
tract which would be valid ; hence the suit for jactitation
of marriage.
Second only in importance was the jurisdiction of the
courts in the matter of divorce. In this case one of the
parties alone might pray for release from the obligation of
cohabiting in bed and board, the grounds for such release
being determined by law. I have shown that release of this
kind is in the nature of dispensation from natural law, and it
was therefore given reluctantly on the score of necessity.
More obvious was the right of the court, in case of unlawful
separation, to require the parties under pain of disciplinary
censure to resume cohabitation. A temperate control was
exercised over the community of goods proper to the state
of marriage ; claims arising out of this were severely re-
stricted when the parties had contracted clandestinely, and
not in facie ecclesiae ; the courts claimed the right, when
annulling a marriage for certain causes, to assign one party a
moderate alimony at the charges of the other, and a like
provision could be made in case of divorce.
The effective sanction for all decrees of the courts was
found in the infliction of spiritual censures. The foundation
COERCIVE METHODS 147
of the whole procedure was disciplinary ; and this became
evident, however juristic the matters dealt with and the
methods might be, when coercive measures became necessary.
The coercion applied by the ecclesiastical courts was purely
spiritual, the ultimate sentence for the recalcitrant being
the major excommunication. This involved, even at the
bottom of the hierarchic scale, the abuse of spiritual weapons
for determining temporal disputes which was the source of
conspicuous scandals in higher quarters. Already in the
eleventh century St. Peter Damian protested in vain. The
abuse continued, and became more flagrant. It was self-
destructive, for the censures so misapplied lost their terrors.
The malediction of the Church, reinforced by the public
opinion of the faithful, which St. Paul found effective in the
case of the incestuous Corinthian, proved insufficient for the
maintenance of social order when it was invoked for the
correction of minor faults in the general body politic. The
Spiritualty had undertaken the administration of essentially
temporal affairs, and needed the help of the temporal arm.
That help was sought only in the last resort for the suppres-
sion of contumacy, and it was not sought in vain ; the Chris-
tian commonwealth had to stand by its ministers. In Eng-
land this temporal support took the form of the King's writ
de excommunicato capiendo ; a recalcitrant subject, who
would not yield to spiritual censures, was imprisoned on the
information of the spiritual judge until he should make sub-
mission. The ecclesiastical courts were thus made effective
for the administration of justice, to the detriment of their
spiritual character. Judges and other officials were secu-
larized, being frequently clerks in minor orders only ; the
discipline of the Church degenerated into a business of
police.
The legislation of the Church in regard to marriage was
fairly complete before the codification of the Canon Law, and
148 OF MARRIAGE IN CANON LAW
few changes of importance were effected during the Middle
Ages. The Lateran Council of the year 1215, however,
drastically reformed the current practice in the matter of the
impediments of consanguinity and affinity. From the sixth
century onward there was an increasing tendency to look
back to the Mosaic law as a permanent expression of the will
of God, those provisions which seemed to conflict with this
view being treated as prophetic dispensations. It thus
became possible to acknowledge a Divine Law, distinct from
the law of nature, which should bind only the covenanted
people of God. To this Divine Law were referred the
impediments in question. But there were two possible ways
of reading the law. The prohibition might be confined to
cases expressly mentioned in the levitical books, perhaps
with the addition of others exactly similar, or there might be
found some general law which could be applied to all cases
alike. Both methods of interpretation were used, but the
latter prevailed. The Church had previously made special
prohibitions, additional to those set up by the laws of the
Empire ; it now became usual to rely on the levitical rule
forbidding a man to have carnal knowledge of one who was
" near of kin to him." We have seen St. Gregory the Great
definitely opposing this Divine Law to the laws of the Roman
Commonwealth. But to apply the law it was necessary to
determine the meaning of cognatio, and an interpretation
was sought from 'the rules of succession in the Civil Law.
According to these, cognates were recognized to the sixth
degree, or in some cases to the seventh, and thus the
kindred with whom marriage was forbidden included all
the descendants of a man's sixth or seventh ancestor.
But in the course of the ninth century the Latin Church,
while adhering to the seventh degree as the limit, adopted a
new method of computation, known as Computus Germanicus,
which greatly extended the area of prohibition. Such a
RESTRICTION OF IMPEDIMENTS 149
law of exogamy was impracticable, and it is not clear whether
consanguinity in the more remote degrees was treated
as a diriment impediment. The practical inconvenience of
the rule was remedied by a constitution of the Lateran
Council limiting the prohibition to the fourth degree colla-
teral, and making the impediment in all cases diriment. It
was also made plain that consanguinity arising out of illicit
connexions had the same effect as that arising out of
marriage.
The impediment of affinity, derived by the Christian
Church from the Mosaic law, declared by St. Paul to be
recognized by Gentiles in the first degree, 1 but carried no fur-
ther in the Roman civil law, was logically developed in the
course of the eighth century in precise agreement with that
of consanguinity. It was not based, as in the civil law, on
the entire union of man and wife effected by a lawful marri-
age, but on the bare fact of carnal copulation, interpreted
in the sense of St. Paul's saying that, " he that is joined to a
harlot is one body." 2 A man was forbidden to marry a
woman with any of whose kindred to the seventh degree he
might have had unlawful connexion. Nor was this all, for
the more artificial affinities recognized by the Quinisext
Council passed current for a time in the West also, and a
man contracted affinity, not only with those of his wife's
or paramour's blood, but also with those of her proper
affinity, and, further, with those related to her in this same
fashion ; a fourth kind of affinity was discovered by the
ingenuity of theologians to exist between the children of a
widow married a second time and the kindred of her former
husband. These refinements were tempered to the fourth
or second degree ; but even so, in a lax state of morals, a
man would be surrounded by a network of relations, secret
1 j Cor. v. i, 8 Ibid. vi. 15.
150 OF MARRIAGE IN CANON LAW
and avowed, which made lawful marriage almost impossible
for him ; nor was it easy to ascertain that in seeking dispen-
sation he had set out all the particulars requisite for its
validity. The Lateran Council made short work of this
intolerable state of things, and of the rich harvest for prac-
titioners in the courts resulting from it, by sweeping away the
artificial kinds of affinity and by reducing the impediment of
natural affinity, like that of consanguinity, to the fourth
degree collateral.
These reforms involved an important corollary. It was
not pretended that the Church could modify the Divine
Law, therefore the Council implicitly condemned the pro-
position that the abrogated impediments were of divine
law. But it also weakened the contention that the levitical
impediment of cognatio in ^general was of divine law ; for
how could the Church, in that case, vary by an arbitrary
decree the limit of kinship ? A return to the recognition
of the law of nature as the only divine law of marriage
was not then possible, and those who held to a separate ius
divinum were constrained to limit the impediments of this
law to the cases specifically mentioned in the Mosaic books,
or to draw artificial distinctions between those very cases.
There were consequent disputes which affected the practice
of dispensation, and which set all Christendom by the ears
when Henry VIII of England sought relief for a carefully
burdened conscience.
Of minor legislative achievements of the Church it may
suffice to mention three : the continuous attempt to put
down clandestinity, the classification of impediments, and
the regulation of procedure.
Under the last head should be observed the rule that a
marriage de facto contracted, even if a diriment impediment
be known to have existed, must be accounted good until
sentence of nullity has been pronounced by a competent
CLASSIFICATION OF IMPEDIMENTS 131
court. Moreover, since process was always pro salute ani-
mae, with the express purpose of putting a stop to unlawful
cohabitation, no proceedings could be instituted in foro
externo after the death of either party had brought the wrong
doing to an end. Canonists commonly trace this rule back
to the twenty-fifth canon of the Gallic Council of Agde, A.D.
506, but the thread of connexion is slender. The council
forbad men to put away their wives privately, on the ground
of an alleged impediment, without referring the matter to
the ecclesiastical authorities. The later rule would cover
such a case, but it went further, and was a vindication rather
of the majesty of law than of the sanctity of marriage. It
had considerable importance as affecting the legitimacy of
children, who could not be put in danger of bastardy after
the death of one parent. Against the obvious merits of
the rule must be set the fact, abundantly proved in experi-
ence, that by the skilful management of a collusive suit, pro-
longed if necessary by appeals on interlocutory decrees, a
notoriously unlawful marriage might be upheld until death
put an end to the procedure. In this, as in other ways, the
intricacy of the marriage law and the cumbersomeness of
canonical process gave an immense advantage to wealth
unscrupulously used.
The distinction and classification of impediments, partly
by positive enactment, partly by scientific determination,
is one of the chief departments of Canon Law. We have
seen that prohibition of marriage in certain circumstances
was regarded as within the province of the Church from the
beginning, but the right to declare a forbidden marriage
null and void, or in other words to create a diriment impedi-
ment, was slowly and reluctantly alleged. Reliance was
placed at first on a reading of the Divine Law which could
hardly be maintained ; an impediment so established was
by an afterthought put on another basis when juristic studies
152 OF MARRIAGE IN CANON LAW
made a better analysis possible. Impediments diriment
and obstructive were then clearly distinguished, and the
power of the legislature to impose a prohibition of either
kind was recognized. What was at first merely disciplinary
changed its character when the discipline of the Church
came to be employed for the legal regulation of marriage.
It is no part of my task to deal in detail with the legislation
of the Church about impediments and dispensations, but
it may be well to note as an illustration of method the treat-
ment of the impediment of tempus feriatum. In the fourth
century the Council of Laodicea had forbidden the cele-
bration of marriages in Lent. The meaning is not quite
clear ; birthdays are coupled with marriages, and the canon
may look rather to the usual festivities of the occasion than
to the actual contract. 1 There is no ground for supposing
the prohibition to be a novelty. Yvo of Chartres and Gra-
tian cite a Council of Lerida as extending it to the whole
period from Septuagesima to the Octave of Easter, and
making the same rule for Advent and Christmastide, and
for the three weeks preceding the feast of St. John the
Baptist. What is here forbidden is nuptias celebrare, but
it is added, " si factum fuerit, separentur," which seems to
imply that the contracting of marriage at these times is
forbidden, and that the impediment is diriment. 2 This
council cannot be traced ; no such canon was adopted by
1 Can. 52. Ou Set eV T<r(rapoKocrn5 ya/xovs rj ycveflXta
On yve'0Xtov see Suicer. The reference is not to the natalitia of
martyrs, since they are provided for in the canon immediately pre-
ceding. Hefele thought that the Emperor's birth-day festivities
were intended. It may possibly be the anniversary celebration
of his accession (yeVvi/cris) ; or, since the word was certainly used
of the Encaenia of a city, the dedication festival of a Church may
be intended. But the association with marriage points rather to a
private festivity.
* Yvo, p. 8, c. 142 ; Gratian, caus. 33, qu. 4.
TEMPUS FERIATUM 153
the Council of Lerida in 524, and in the year 572 the Council
of Lugo, also in Spain, was content with the rule of Laodicea,
as rendered by Martin of Braga. 1 Everything included in
the Decretum of Gratian had some weight in the formation
of the practice of the Church, but there is no trace of any
attempt to treat marriages contracted in defiance of this
prohibition as null, and the prohibit ion itself was interpreted
as concerned only with the solemnities of marriage. So it
was ultimately defined by the Council of Trent. 2 These
solemnities are enumerated in the Rituale Romanum : " nup-
tias benedicere, sponsam traducere, nuptialia celebrare
convivia." It follows that marriage may be contracted
within the seasons of prohibition, but the parties are for-
bidden to begin cohabitation until they have afterwards
received the nuptial benediction. Such is the general law.
There are, however, local rules, as in the diocese of Bruges,
which forbid the contracting of marriage at these times. 3
This example may serve to show the purely disciplinary
character of ecclesiastical legislation about obstructive
impediments. To invalidate a marriage is another matter, and
it is here that the laws of the Church grew to portentous
bulk and intricacy. Diriment impediments of the natural
1 Mart. Bracar., Cottectio Oriental. Can. 48.
2 " Antiquas sollemnium nuptiarum prohibitiones diligenter
ab omnibus observariS. Synodus praecipit." Sess. xxiv. cap. 10.
3 De Smet, op. cit., p. 300. It has been thought that a similar
rule once held in England. The latest authority that I can find is
in the Visitation Articles of Robert Booth, Archdeacon of Durham,
circ. 1712, printed in the Appendix to the Report of the Ritual
Commission, 1868, p. 682. But Lyndwood, cited by the Arch-
deacon, is clear that the prohibition does not extend to the con-
tracting of marriage, apart from the solemnities. The contracting
of marriage without the nuptial benediction, however, being strictly
forbidden, the rule does in fact prevent contracting in facie eccle-
siae except by dispensation.
154 OF MARRIAGE IN CANON LAW
law were recognized, and their juridical treatment was
elaborately regulated. They were classified in two kinds :
those affecting the validity of the contract insanity,
force or fear, and mistaken identity ; and those rendering
certain persons incapable of intermarrying immaturity,
impotence, existing marriage, and consanguinity or affinity
within certain degrees. In respect of all these, the legisla-
ture had but two functions ; to ascertain the precise limits
of the prohibition, and to determine how far contingent
dispensation might be allowed. Diriment impediments of
ecclesiastical law, on the other hand, were subject to con-
tinual fluctuation. Some were adopted, as we have seen
in the case of consanguinity and affinity, from a supposed
divine law, and afterwards reduced to their true standing.
The impediment of disparitas cultus, nullifying the marriage
of a Christian with an unbeliever, was derived from St.
Paul's teaching, and its diriment effect was not based on
any conciliar constitution or decretal, but only on general
custom. It was never extended in the West, as in the
Eastern Church, to cover the case of heretics.
A vow of continence, taken in the cause of religion, may
be considered an impediment to marriage even by the law
of nature, but the Western Church was slow to regard it as
nullifying a marriage contracted de facto. The weighty
judgment of St. Augustine was against such a development.
He advocated a stern treatment of those who, vowed to con-
tinence, afterwards married, but he refused to treat this
vow as if it were a marriage to Christ, precluding any other
union, nor would he allow those who thus fell away to be
reckoned adulterous. With a characteristic distinction he
said that their breach of vow was an evil even worse than
adultery, but their marriage, as marriage, was good. 1 In-
deed, there seems to be no text plainly declaring such mar-
* De Bono Viduitatis, 9-11,
VOWS AND HOLY ORDERS 155
riages null before the seventh canon of the second Lateran
Council : " Huiusmodi copulationem, quam contra ecclesias-
ticam regulam constat esse contractam, matrimonium non
esse censemus." Much confusion ensued on this, since
vows of continence were many and various, until Boniface
VIII expressly restricted the operation of the law to the
case of vows solemnly taken in an approved religious com-
munity.
When marriage was first forbidden to those in Holy
Orders does not appear, but the prohibition was undoubt-
edly general at the time of the first Nicene Council, where
it seems to have been in debate whether even those married
before ordination should not be interdicted from the use of
marriage. The story of the intervention of Paphnutius
has been discredited, but without good reason, and it is
clear that the abstention from marriage enjoined by the
Council of Illiberris in the year 305 was no rule of the Eastern
Churches at any subsequent date. But the whole trend of
Western thought was for some ages in the direction of the
stricter obligation, and when the contrary practice had
almost become established during a period of general dis-
order, the reform preached by St. Peter Damian in the
eleventh century was accurately represented as a revival
of neglected discipline. The frequency with which married
men were raised with credit to the highest places in the
Church is illustrated by the tragic history of the family of
Hadrian II, himself the son of a bishop, whose wife and
daughter were murdered by the husband of the latter, also
the son of a bishop of great reputation. It was in the time
of this married Pope that a provincial Council at Worms
found it necessary to renew the rule of abstention. 1 After
1 Can. 9. " Placuit ut episcopi, presbyteri, diaconi, subdiaconi,
abstineant se ab coniugibus, et non generent filios. Quod si hoc
156 OF MARRIAGE IN CANON LAW
the unbridled excesses of the tenth and eleventh centuries,
the renewed enforcement of this rule might well seem to be
necessary for bare decency in the Church, and it could be
secured only by the entire removal of married men from
the sacred ministry. Thus marriage and ordination came
to be regarded as sacraments mutually exclusive. But
even in the heat of that fierce conflict, when married priests
and bishops were on all sides being degraded and deposed,
there is no trace of any theory or practice invalidating a
marriage contracted by them, until a decretal of Urban II
in the year 1090 suggests what was thirty-three years later
enacted in the first Lateran Council. 1 Even then it was
separation only that was ordered, and, seven years later
again, Innocent II at Clermont reverted to the older prac-
tice. 2 Abelard, in Sic et Non, set out the contradictions
current in his time. In the year 1139, the second Lateran
Council put clerks in holy orders on the same footing as
monks, declaring their attempted marriages void. 3 Yet
Gratian almost contemporaneously affirmed both the vali-
dity of marriage contracted by a deacon, and the lawfulness
of cohabitation if the sacred ministry were abandoned. Not
even a vow of chastity, he averred, taken at the time of
decretum viola verint, ab honoreclericatus pellantur." The chronology
of Hadrian I is confused, but he seems to have been twenty-five
years a priest, and some time longer in holy orders, when elected
Pope in the year 867. As his daughter was not then married, it is
difficult to believe that she was born before his ordination. Did
he follow the Greek rule, and was it because of unwillingness to
separate from his wife that he twice refused the episcopate ? It
seems not improbable.
1 Can. 21. " Contracta quoque matrimonia ab huiusmodi per-
sonis disiungi."
2 Cone. Claromont. A.D. 1130 ; can. 4. " Decrevimus ut ei qui
a subdiaconatu et supra uxores duxerint, aut concubinas habuerint,
officio atque beneficio ecclesiastico careant."
3 Vide supra, p. 155.
CONSANGUINITY AND AFFINITY 157
ordination, could nullify the sacrament of a subsequent
marriage. 1 This vow of continence had been for some
time imposed by reforming bishops, and was expressly
ordered by a French Council at Bourges in the year 1031.
The practice did not continue, but Gratian's successors
deduced from the fact of ordination under the existing law
an implied vow, on which, disagreeing with him, they based
a conclusion of nullity of marriage. Boniface VIII, in his
decretal restricting the impediment of votum to Vows
solemnly taken, ranked with these the vow of continence
expressed or implied in the acceptance of Holy Orders. It
is still debated by canonists whether it is this or the bare
fact of ordination which constitutes the diriment impedi-
ment.
We have already seen how the natural impediments of
consanguinity and affinity were by turns extended and re-
stricted down to the time of the third Lateran Council. A
further modification was introduced when the Popes of the
fifteenth century began to dispense in regard to degrees of
kinship which had formerly been considered to come within
the prohibitions of the Divine Law. It was clear that either
the extent of the Divine Law must be narrowed, or a power
of dispensation must be recognized exceeding all that had
been previously known in the Western Church. A reform
of the Council of Trent, fixing a limit for affinity by illicit
connexion different from that retained where the connexion
was by marriage, seemed to draw this impediment entirely
into the province of ecclesiastical law.
The impediment of cognatio spiritualis was of this charac-
1 Dist. xxvii. cap. i. "Si vero diaconus a minis terio cessare
voluerit, contracto matrimonio licite potest uti. Nam etsi in
ordinatione sua castitatis votum obtulerit, tamen tanta est vis in
sacramento coniugii, quod nee violatione voti potest dissolvi con-
iugium ipsum."
158 OF MARRIAGE^ IN CANON LAW
ter from the first. The rule of the Quinisext Council was
not a new thing, for its appearance in the legislation of
Justinian shows that it must have been long current in the
Church. This artificial kinship was for a time greatly ex-
tended, in the West as in the East, but was afterwards
gradually restricted to the minister of baptism or confirma-
tion, the sponsors in either case, and the parents of the
recipient of the sacrament. It has enriched the English
language with the word gossip.
The impediment of puUica honestas arose from espousals
per verba de futuro, which, without receiving the character
of inchoate marriage attaching to them in Jewish law and
the practice of Eastern Christendom, were held to set up
such a relation between the parties, that on the ground of
public decency the rules concerning affinity should apply.
The same consideration touches with even greater force a
marriage duly contracted (matrimonium ratum) but not
consummated, though here also no true affinity was set up
by carnal union. There were prohibitions of this kind in
the Roman law, based on the maxim, " non solum quid
liceat considerandum est, sed quid honestum sit," but the
impediment does not appear in Canon Law before the
eleventh century. It played an important part in the
intricate negotiations about the nullification of the first
marriage of Henry VIII, for whom it was pleaded that his
marriage with Katharine of Arragon was barred in this
way, even if her marriage with his brother Arthur was not
consummated.
The impediment of crime arose from adultery, or from
the murder of husband or wife, committed under promise
of future marriage. The parties to such a crime were in the
ninth century at latest rendered incapable of intermarrying.
The existence of these many diriment impediments pro-
duced two inevitable effects. On the one hand, there was
EFFECT OF DISPENSATION 159
a continual increase of the practice of dispensation. A
stationary population, compelled to look for partners in
marriage within narrow limits of neighbourhood, was en-
tangled in a complete network of prohibitions, and a genuine
necessity made much relaxation necessary. But dispen-
sation, however justifiable, is the worst enemy of law. The
Western canonists, who upheld in the letter the strictest
observance alike of the natural law and of human law in
regard to marriage, indirectly broke down all the safeguards
of law. They never moved a hair's breadth from the doc-
trine of the indissolubility of marriage. They insisted with
so much severity on the observance of the duties of the
married state, that Alexander III disallowed refusal to co-
habit even with a leper. But the intricacy of the law re-
garding impediments, the strictness with which it was
applied, and the frequent occurrence of legal flaws in dis-
pensations granted and received not always in good faith,
made an immense number of marriages precarious. A
marriage could not be dissolved, but it could often be an-
nulled. The process pro salute animae afforded material
for a chicanery by which, with the help of evidence that
was seldom sufficiently verified, almost any inconvenient
husband or wife could be repudiated. Facilities, just and
wholesome in themselves, for legitimating natural children,
did away with the main hindrance to these nullifications,
since the children born of a marriage so voided were not
necessarily reduced to the standing of bastards. This again
reacted on the public estimate of marriage, which was
hardly to be distinguished in its effects from an avowed
concubinage. It cannot be denied that the medieval Canon
law failed miserably as guardian of the holy estate. Its
outcome is illustrated on some of the best known pages of
history by the case of Henry VIII, and to represent as
champions of morality and of the honour of marriage the
i6o OF MARRIAGE IN CANON LAW
Popes, a Medici and a Farnese, who rejected his plea, is not
less false than to picture the king as moved only or chiefly
by the questioning of a sensitive conscience. He desired,
partly on grounds of public policy, the annulment of his
marriage ; grounds were alleged which it was common form
to allow ; the facility with which the English clergy and
the English people were detached from their secular de-
pendence on the Papacy is explicable only by their anger
at seeing a customary judgment of the Papal Court, affecting
the succession to the Crown, withheld under the pressure of
a foreign power. Because Clement VII was supposed to
act at the dictation of Charles V his jurisdiction was defied.
But this would have been impossible, had not the whole
administration of the marriage law become vitiated at the
fountain head. When the legitimated bastard of a Pope
could marry the bastard daughter of a King of Arragon, with
a duchy for dowry, and when their son could marry the
bastard daughter of a Spanish archbishop, to become the
father of Saint Francis Borgia when this was accepted as
a natural state of things causing no scandal, marriage might
seem to be on the way to become an extinct institution.
Yet the miserable story ends in holiness, and the indes-
tructible vitality of the Gospel stands revealed.
The time was ripe for reform. The shock of alarming
schism hastened it. Reforms were effected by the Council
of Trent, one of which demands careful consideration.
Marriage could be validly contracted, as we have seen,
with the slenderest formalities, without any public function,
and without religious rites. But the Church had from very
early days, if not absolutely from the beginning, contended
for a public and reverent ministration, alike of espousals
and of nuptials. At what date it was made a matter of
discipline to insist on the contracting of marriage in facie
ecclesiae cannot be ascertained. The practice was general
CLANDESTINITY 161
in Tertullian's day, but the vehemence of his language seems
to imply that it was not as strictly pressed as he could wish,
and he may have declared no more than his personal opinion
when he said that a clandestine marriage might be reckoned
no better than fornication. 1 The nuptials, rather than the
espousals, seem for some time to have engaged the attention
of the Church, cohabitation before the reception of a ritual
benediction being severely condemned. When the whole
administration of marriage came under hierarchical control,
both espousals de futuro and the contract per verba de praesenti
were required to be public in facie ecclesiae, and censures
were imposed on those who began cohabitation before the
completion of the nuptial solemnities. Clandestinity was
then regarded, in a somewhat improper sense, as an impedi-
ment ; and the word is correctly used if it be understood
that the omission of any prescribed formality, including
the publication of banns, renders unlawful the next step
towards the completion of the matrimonial contract. In
the East, as we have seen, Church and State agreed to
follow the Jewish precedent of making clandestine marriages
void, but in the homogeneous community of Western
Christendom this was not done. Only by the Council of
Trent was clandestinity made a diriment impediment. The
change was contested on the ground that it affected the
substance of the sacrament, which was the mere consent of
the parties ; but this objection called forth the obvious
answer that it would apply equally to the creation of other
diriment impediments iure ecclesiastico, for which there
were abundant precedents.
A graver objection to what was thus done may be found
in its practical consequences. The Tridentine reform re-
1 De Pudic., 4. " Penes nos occultae quoque coniunctiones, id
est, non prius apud ecclesiam professae iuxta moechiam et fornica*
tionem iudicari periclitantur."
M.C.S. M
162 OF MARRIAGE IN CANON LAW
quired a marriage to be contracted in the presence of the
parish priest of one of the parties with two other witnesses.
Failing this, the marriage was to be null. For the validity
of the marriage the priest was required only as witness ;
no ritual was needed, and no official act. A marriage might
be clandestine in all other respects ; there might be no pub-
lication of banns, no previous notification of any kind ; the
parties might at any moment spring upon the parish priest
and two other witnesses, declaring themselves man and
wife ; the marriage would be valid. Such is the purport of
the decree Tametsi. But the strict requirement of the in-
tervention of the parochus, or of some other priest deputed by
him, especially when construed with the words Ego coniungo
vos of the Roman ritual, encouraged the idea, foreign to all
theology, that marriage is in some sort effected by the act
of an official ; and this idea became fruitful of consequences.
This was the last attempt at canonical legislation for
Western Christendom as a whole. The Respublica Chris-
tiana was already in dissolution. Already it was recognized
that decretals and conciliar constitutions would not run as
generally as of old ; there was, no doubt, a hope that the
crumbling unity of the Church would be restored, but there
were obvious difficulties at the moment, and it was expressly
provided that the new decree should take effect only in
those regions for which it might be specially promulgated.
For the first time in seven hundred years or more, the unity
of the marriage law of Europe was avowedly broken. It
was inevitable, for Europe was in labour of the Modern State.
CHAPTER V
Of Marriage in the Modern State
BY the Modern State I understand that organization
of Civil Society which has supervened upon the dis-
solution of the medieval system in Western Europe. In
a sense, this is a return to an older order, but its form is
partly determined by the discarded ideas, and still more
by their impress on laws and institutions. That impress
has been carried to the communities of the new world
formed by emigration from Europe, and all the resulting
states differ in certain characteristics from those of Eastern
Europe which have never received it. In the East, the
distinction of Church and State as two separate organiza-
tions at no time passed out of sight ; the unity of the Church
was insisted upon, though less strenuously than in the
West, but the conception of an unitary world-state, in spite
of imperial traditions, never arose ; the Basileus of Con-
stantinople, though he affected to despise the Reges of
Italy or Germany, treated on equal terms with his neighbours
to the North and to the East. In the West a vision of
unity took possession of man's minds, and dominated their
political action. The Civitas Dei was one, and all mankind
potentially entered into it ; Pope and Emperor were powers
therein almost co-ordinate, kings and dukes and the like
were powers indeterminately subordinate. If Boniface
VIII claimed the supreme control of the two swords, one
of which he delegated to temporal wielders, the partisans
iw
164 OF MARRIAGE IN THE MODERN STATE
of the empire or of the French monarchy claimed on the
other hand no more than independent authority iure divino
for their chief, without denying equal or even superior
authority to the Pope.
The revival of the study of Roman law in the twelfth
century brought into the existing system a savour that
was not Christian, a conception of unity that was based
less on human nature than on legal citizenship. The advent
of Aristotle to the Schools of Paris a hundred years later
was even more momentous. The Politics became a text-
book alike of theologians and of lawyers, and the authority
of the philosopher was irresistible. The word civitas,
the word societas, took a new meaning, based, with insuffi-
cient historical knowledge, on that of the TrdXt? avrdp/ctj^
in Greek philosophy. The communitas perfecta became an
object of critical speculation. The existence of this form
of society was assumed, because Aristotle assumed it. But
where was such a society to be found in actual fact ? Men
stumbled between the sublime ideal of a heavenly citizenship
common to all mankind, and a confused mass of local juris-
dictions. There emerged the conception of a commune
or of a lord acknowledging no temporal overlord, where
the necessary independence seemed to be found. Jealous
attempts at such independence called forth jealous asser-
tions of suzerainty, but political thought jumped with
individual ambitions,. and the segregation of States began.
The empire sank to the position of one among many. But
unity survived on the spiritual side, plenitudo potestatis being
vested in the Pope. When the King of England declared
that he acknowledged neither temporal overlord nor spiritual,
the foundations were cast down.
The imperialists of the fourteenth century were not in
this line of thought. William of Ockham and Marsiglio
of Padua were still concerned with the relations of the
THE IMPULSE OF THE REFORMATION 165
spiritualty and the temporalty within the unitary Society.
Their essential contention was that the legislative function
was vested in the temporalty ; precisely, they taught
that the multitude had power to make its own laws, this
power being ordinarily delegated to Caesar. Wickliff
applied the same teaching to English conditions ; but he
confused the issue by proposing details of legislation which
were unacceptable ; when Henry VIII wished to make
practical politics of these theories, he leaned not on their
native exponent but on Marsiglio, of whose Defensor Pads
he procured an English translation.
The fever of the Reformation brought matters to a head.
Perhaps the most honourable part of Luther's agitation
was his revolt against the existing administration of the
Canon Law, notably in regard to marriage. His burning
of the Corpus luris at Wittenberg was a dramatic sequel
to what he had written of the Babylonish Captivity. But
he had nothing to put in the place of what he discarded,
and in his system the Church as an organized society may
be said to disappear. A one-sided conception of primitive
Christianity was made the standard of practice : Sohm is
the true Lutheran. The great juristic revolution effected
by the Reception of the Roman civil law throughout
Germany, and the ingenious identification of the local
Furst with the Princeps, completed this work, and the
speculations of Marsiglio were outdone. So far as the
Church retained any power of action, it was reduced to the
function of preaching, of declaring the revealed will of God
of guiding the conscience of rulers ; all law was civil law,
even in regard to the regulation of religious practices. The
Landeskirche was the inevitable result. When the Protes-
tant States of Germany had struggled into partial or complete
independence, they inherited no conflict of Church and State,
because the Church, as a body politic, was annihilated.
166 OF MARRIAGE IN THE MODERN STATE
Not very different was the effect of the Helvetic reforma-
tion ; but here some shadow of the medieval polity remained.
At Zurich and Basel the temporal magistracy took charge
of the unitary community, reducing the ministers of the
Word and the Sacraments to a subordinate position. At
Geneva, under the guidance of Calvin, things took a different
turn. Calvin was a jurist of the Schools before he became
a theologian ; in the one capacity he was drawn to the
conception of the sovran State, in the other he achieved
a clear idea of the Church. A better exegete than Luther,
who was dominated by a single thought, he saw that the
canonical books of the New Testament imply the existence
of the Church as a formed society ; his peculiar doctrine
of the Invisible Church removed some difficulties out of
the way, and he was able to formulate his conception of
the Visible Church as a local gathering of professed Christians.
The vital connexion of this body, by means of the true Elect
whom it contained, with the Invisible Church and its
ascended Lord, gave a dignity and a divine sanction to its
human order ; it had not only a prophetic function but a
regal ; it could rule. Above all, this society represented,
however inadequately, a group of men separated by divine
decree from the general mass of mankind, and therefore
it was not to be identified even potentially with the mass.
The Magistracy and the Consistory at Geneva worked side
by side, in harmony because they were dominated by the
same teaching, but in separation. They were not two
functions of one City or Church ; the City and the Church
belonged to different creations. The influence of Geneva
extended into France, to the middle Rhine, and to the Low
Countries ; Theodore Beza systematized it even beyond
the measure of Calvin. In France it was almost continu-
ously at odds with the royal Government, and the distinction
of Church and State was thus made more pronounced. It
THE JESUIT THEOLOGIANS 167
passed over into Scotland ; Knox and the earlier Congrega-
tion of the Lord clung to medieval conceptions, but the
new principle of separation found completest expression
in the reported saying of Melville : " There are in Scotland
two kingdoms, the Kingdom of James Stewart, and the
Kingdom of Christ, wherein James Stewart is but a seely
vassal."
The wars of the League in France affected the political
thought of others than the Huguenots. Under this impulse
the great Spanish Jesuits laboured to construct a social
scheme in which the Catholic Church might stand secure
against Valois indifference or Bourbon heresy. Their
theories were not mere shifts for an emergency. Already
at the Council of Trent Lainez had used his vast knowledge
of antiquity in defence of an opinion which made the civil
power an institution sharply distinguished from the Church,
" a purely human institution for the worldly ends of peace
and riches." x This teaching was opposed to imperialism
in a new sense. It broke up the whole conception of human
society on which the claims of the Empire were based ;
it treated the Roman lus Civile not as actual and operative
law, but as a philosophic digest of eternal principles of
justice ; for further elucidation it looked to the political
theory derived by St. Thomas Aquinas from Aristotle, and
found actual law in the legislation of several states, each
one of which was a societas perfecta ; the best of models
was the Spanish monarchy with its theoretic constitutional-
ism. Over against these purely secular States, the Jesuit
theologians set the Catholic Church, with the Pope its
chief, as another societas perfecta absolutely distinct and
separate.
Their teaching was carried by the counter-reformation
into Italy and Germany and beyond. It helped to break
1 Figgis, From Gerson to Grotius, p. 179.
168 OF MARRIAGE IN THE MODERN STATE
up alike the Empire and the kingdom of Germany at the
end of the Thirty Years War. The court of Rome, wedded
to medieval precedents, assimilated it with difficulty ; but
it controlled the policy of Urban VIII, and many parts of
it were fully accepted under pressure of circumstances ; a
new mode of action was found effective, and the Pope, from
being the spiritual overlord of Europe, became one of a
group of sovran princes, dealing with one another by the
methods of diplomacy. It was here that the Churches in
communion with Rome differed politically from the local
Churches of the Calvinists. In both cases alike the principle
of distinctness from the State was recognized, and was
bound more and more to determine actual relations ; but
the isolated Calvinist Churches dealt each with the several
State in which it was established, and with none other,
while the Churches that looked to Rome had a spokesman
of international rank. 1
It is not to be supposed that men were generally conscious
of the revolution in which they were actors. We look back
upon it and see whither they were tending ; we see the
modern state coming to the birth. From the first we can
see how the change affected the law and practice of marriage.
Among the Protestants the control of marriage fell at once
into the hands of the State. There was no rival juris-
diction ; ministers of religion had no function but to direct
individual consciences or to instruct rulers in the principles
1 The new doctrine was at length sealed in the Encyclical Immor-
tale Dei of Leo XIII : " Ecclesiam societatem esse, non minus
quam ipsam civitatem, genere et iure perfect am." Observe also the
following : " Quin etiam opinione et re eamdem probarunt ipsi
viri principes rerumque publicanim gubernatores, ut qui paciscendo,
transigendis negotiis, mittendis vicissimque accipiendis legatis,
atque aliorum mutatione omciorum, agere cum Ecclesia tanquam
cum suprema auctoritate legitima consueverunt."
LUTHER AND CALVIN 169
of divine truth. " I advise," said Luther, " that ministers
interfere not in matrimonial questions. First, because we
have enough to do in our own office ; secondly, because
these affairs concern not the Church, but are temporal
things, pertaining to temporal magistrates ; thirdly, because
such cases are in a manner innumerable ; they are very
high, broad, and deep, and produce many great offences,
which may tend to the shame and dishonour of the Gospel.
Therefore we will leave them to the lawyers and magistrates.
Ministers ought only to advise and counsel consciences
out of God's Word, when need requires." 1 In point of
fact, such counsel fell, for the most part, on ears deaf because
preoccupied. The new enthusiasm for the Roman Law
overmastered other influences, and marriage was regulated
by the legislation of Justinian, with modifications imported
from old Germanic custom. Luther aided this reactionary
movement by his denial of the sacramental character of
marriage. It was " a physic against sin and unchastity,"
but merely in the natural order. The state of matrimony
was " the chief in the world after religion," 2 but it had no
immediate connexion with religion, and was no more to a
Christian than to any other. It was a civil contract, and
nothing else ; there were certain revelations of the purpose
of the Creator in regard to it, as there were in regard to
just dealing in the market, but in both cases alike justice
was to be administered by the prince and his officers ; the
Church was not appointed to judge and rule in such matters.
Here is one conception that has become fruitful in the
modern state.
The Reformed of Calvin's school taught another doctrine.
They also remitted the judicial control of marriage to the
State, but they left little scope for legislation. Marriage
1 Table-Talk (Hazlitt), No. 748. 2 Ibid. No. 721.
170 OF MARRIAGE IN THE MODERN STATE
was for them a sacred thing, if not technically a sacrament.
For all his stern predestinarianism, Calvin did not deny
free-will in Luther's headlong fashion, or teach a depravity
of human nature so complete that sin was entered into its
essence. Marriage belonged to the civil order, but this
order was subject to the law of God, and the law of God
was to be read in the text of Holy Scripture. Marriage
was here sufficiently regulated ; here, and not in the Pan-
dects, was to be sought the law of marriage. Ministers
of the Word were to teach that law, magistrates were to
learn and administer it. This immense claim, made by
men who had no support of tradition, met with amazing
success. Wherever the Genevan discipline spread, the
courts of the State undertook the control of marriage, but
they were themselves under the control of theologians.
Rather may we say that the judges themselves became theo-
logians. The jurists of Ley den worked out for them a new
marriage law, scrupulously based on scriptural texts. It
was simple and severe, affording little scope for dispensation,
and allowing less. But reliance on the sole authority of
Scripture was more apparent than real. The available
texts, few and brief, required interpretation ; and guidance
was inevitably sought from Christian antiquity and from
either Corpus luris. The glossators could not be ignored,
and in the seventeenth century, when the first flush of revolt
was over, Bronwer did not hesitate to quote even the
canonists. Thus the whole doctrine of contract per verba
de praesenti was taken over, and the principle of presumption
of marriage founded on open co-habitation. A public cele-
bration of the contract was, however, demanded in the
interest of order, with the attestation of a magistrate, a
minister of religion, or a notary ; there were even those
who contended for the necessity of this, arguing that an
official minister of God was required, by whom in God's
THE REFORMED 171
name the parties should be joined together ; but the con-
trary opinion, allowing the validity of a clandestine marriage,
prevailed. The obligations of the married state were
strictly enforced, and there was a tendency to make evasion
or neglect a public crime ; in Holland, separation from
bed or board by mutual consent was punished with fine or
imprisonment. The equality of the union, however, was
seriously marred by rules deduced from Pauline texts in
which a reference to the inferior position assigned by Greek
or Jewish custom to the woman was read as a promulgation
of eternal law. The greatest change of all was in the
regulation of divorce.
Divorce was not made easy, as in Lutheran communities
where the Roman Law became supreme. It was made
extremely difficult. The Reformed theologians were never
tired of inveighing against the laxity of the Canon Law in
this respect ; against the frequent decrees of nullity which
multiplied impediments made possible, and against the
separation from bed and board which was ordered some-
times on frivolous grounds. At first, in strict adherence to
the texts of St. Matthew's Gospel, they made adultery
taking this as the true sense of Tropvela the sole ground
for divorce. Later, on the strength of an argument ingeni-
ously derived from the privilegium Paulinum, malicious
desertion was added. In both cases they asserted that the
marriage tie was loosed, not by the decree of any human
authority, but by the fact ; the function of a tribunal was
merely to ascertain the truth, and to give it forensic pub-
licity ; separation of the parties without this formality
was an offence, not against individual morality, but against
public policy. When desertion was the cause, however,
the duty lay upon the judge of labouring for the reconcilia-
tion of the parties ; only when there was proved and
obstinate malice on one side should the breach of union bt
172 OF MARRIAGE IN THE MODERN STATE
recognized as final. Adultery also on the man's side was
to be judged less severely than on the wife's side ; it might
be a mere passing aberration, accidentally disturbing the
marital relation, but not necessarily destroying it ; only
when aggravated by peculiarly offensive circumstances,
making it intolerable to a duly submissive wife, was it to
be recognized as destroying marriage.
Divorce was thus treated as the result of a crime, and the
guilty party was in every case to be punished, if not by
death, then by banishment or imprisonment. Marriage
was a holy estate, into which the parties were brought by
the mere effect of their consent according to the will of
God. There were no impediments but such as were imposed
by the divine will, and this was finally expressed in the
canonical Scriptures ; there could be no dispensation, and
nothing further was required for a valid marriage. A
finding of nullity was therefore possible only when there
had been no consent ; impotence was no ground for annul-
ling a marriage, because it was not mentioned as such in
Holy Scripture. Only the crime of one party could relax
the bond, and that only in cases expressly determined by
the written Word of God. Where the Old Testament
seemed to differ from the New, its prescriptions must be set
aside as concessions made to human weakness in a time of
ignorance, but withdrawn when the Gospel was preached.
In one respect only did the Reformed theologians depart
from the standard of the New Testament, and then not
without ingenious endeavours to square their practice with
the text. They held that divorce was a complete destruc-
tion of the bond of marriage, leaving the parties free to
marry afresh. They violently attacked the contrary doc-
trine of the canonists. The contention was a part of their
polemic against the exaltation of virginity, and against
any kind of regulated celibacy, in regard to which they
THE JURISTS OF LEYDEN 173
were in complete agreement with the Lutherans. Canonical
divorce, being nothing but separation a mensa et toro, con-
demned the parties, they said, to life-long celibacy, and
was contrary to the will of God. They did not run to the
same lengths as Luther, who sometimes seemed to regard
even voluntary celibacy as a sinful neglect of a duty imposed
by the Creator, but they would have no trammels ; they
denounced as untrue and immoral the teaching of Catholics
about the indissolubility of marriage, because it involved
the consequence, where the parties were necessarily
sundered, of debarring 'them from the holy estate. Human
nature was too corrupt to stand without this support, and
therefore divorce without remarriage was a direct encour-
agement of sin. The jurists of Leyden, who bore with
impatience the limitations put on the lus Civile by the
faculty of theology, welcomed a doctrine which set them
free in one respect to follow their chosen model, and all
communities of the Reformed went back from the Christian
tradition as completely as the Lutherans, to make of divorce
a dissolution of marriage. Yet they did not return wholly
to the dregs of Roman law ; they did not make marriage
a mere partnership, terminable at the will of the parties ;
the dissolution of the union was treated as the act of God,
and of the judge as God's minister. It was a violent separa-
tion, said Brouwer ; violent in that it tore asunder that
which was naturally one flesh, entirely destroying for ever
the bond of marriage. 1 Nor was the practice perfectly
1 Brouwer, Delure Connubiorum.p. 752. " Divortmm definimus
violentam matrimonii distractionem ex auctoritate iudicis post
praeviam causae cognitionem factam animo perpetuam constitu-
endi divisionem. . . . Dicimus divortium esse violentam distrac-
tionem, quia quoties interponitur, vi quadam mmpit unitatem
carnis, quam perpetuam voluit coniugii natura, et ante votis spera-
runt ipsi coniuges. Distractionem dicimus, ut indicemus ipsum
174 OF MARRIAGE IN THE MODERN STATE
consistent. Restrictions were put upon the marriage of
the guilty party, which yielded only after long debate to
the demonstration of the absurdity of supposing that
marriage could be dissolved for one party and remain binding
on the other. There is no mean state between the married
and the unmarried.
It must not be supposed that the law of marriage, thus
taught by the faculties of Leyden, was law merely for the
independent and sovran States of the Netherlands. It
was there put into vigorous practice, defined and expounded
by the most learned judiciary in Europe, but it was pro-
mulgated from the University as a law no less universal
than that of the canonists which it superseded. It was
even more absolute, for it was held to be wholly divine,
and variable at the bidding of no legislature. Unlike
the Lutherans, the Reformed tied themselves within no
territorial barriers ; they addressed themselves urbi et orbi.
Their law of marriage passed intact into Scotland, where
it still stands apparently unassailable. It passed even
where their ecclesiastical polity and theology were less
welcome ; it has influenced England ; its degenerate issue
rules in most of the States of the American Union ; it was
not without effect on the Code Napoleon, and the effect has
been transmitted into most of the States of the modern
world. Its fundamental vice was to ignore nature, and to
build on the narrow basis of that divine revelation which
is intelligible only when read in connexion with the under-
lying natural order. To some extent this fault was corrected
by the jurists, who were steeped in the Pandects and could
not forget the Decretals ; the school of Grotius was not
prepared to treat natural law as of no account. But the
vinculum, ipsum ligamen, ipsum nexum matrimonii divortio solvi,'
He contrasts with this the divorce bona gratia of Roman law,
THE COUNTER-REFORMATION 175
exclusive appeal to Scripture supplied the bones and sinews
of the system, and it has lost authority in proportion as the
modern state has learnt to look elsewhere for guidance.
This is the second conception that emerges from the
ruins of the medieval Law of marriage. But that law itself
continued to operate under new conditions. Where the
hierarchy held its own, strengthened by the counter-refor-
mation, the Canon Law was still administered ; at Rome
it was unchallenged, and in the newly established Sacred
Congregations, to which the development of the Tridentine
reform was committed, a new method of growth was dis-
covered ; there are no more decretals, but the accumula-
tion of an immense mass of case-law begins. All was done
as if no great revolution were in progress ; it probably did
not occur to one official in a thousand that his functions
differed in any way from those of his predecessors in the
thirteenth century. Yet from the time that Macchiavelli
wrote of the salute delta patria as superseding all moral
obligations and all principles of justice, the very foundations
of policy were changing. Macchiavelli said bluntly what
other men were thinking secretly ; he looked back to the
Omnipotent State of antiquity, which the schoolmen had
rashly brought into discussion, and he identified it with
that Italian fatherland which he hoped to see united by
methods of blood and iron under the rule of an efficient
tyrant. In the presence of that ideal the dream of the
Civitas Dei rapidly passed away ; it was because the nas-
cent States of Europe were taught their politics by Macchia-
velli, that theologians hastened to disentangle the Church
as a separate and independent society from the ruins of the
past. The process was hastened by the calamities of France.
When Leaguers and Huguenots were flying at each others
throats and threatening a complete disruption of the king-
dom, L'Hopital and the Politiques sought a new basis of
176 OF MARRIAGE IN THE MODERN STATE
national unity in a government avowedly indifferent. Fol-
lowing their lead, Henri IV thought Paris worth a mass,
but would not be quit of his ablest Huguenot minister ; the
State was ostentatiously distinguished from the Church. 1
The fear of this had already moved the theologians of the
League to insist on the distinctness of the Church ; prac-
tice and theory went hand in hand. But the distinct State
was not hostile to the distinct Church, and it was a part of
the tacit agreement of separation that the control of marri-
age should be yielded to the Church. What had come into
the hands of ecclesiastics because they were officials of the
respublica Christiana remained in their hands when that
political unity vanished away. There was not as yet a
return to the practice of earlier ages when the State and
the Church had their several marriage laws ; the State,
reserving its independent rights, conceded some of its proper
functions to the Church. For France, the Edict of Decem-
ber, 1606, did this in express terms, preparing the way for
the unhistorical theory of later jurists according to which
the medieval practice rested on a sanction of the same kind. 2
The Modern State, then, began its treatment of marriage
in three several ways. It either took complete and inde-
pendent charge, or took charge under the direction of the
Church, or left the charge entirely to the Church. In con-
sidering this development, we are not concerned with the
question whether the Church in question is Catholic or
1 The separation of which I am here speaking must not be con-
founded with that of the Loi de Separation of 1905. This was the
severance of an alliance struck between two separate and indepen-
dent societies by the diplomatic methods of the Concordat.
2 The edict is cited by Pothier, Traite du contrat de Manage, torn,
ii. p. 94. " Nous voulons que les causes concernant les manages
soient et appartiennent a la connoissance et jurisdiction des juges
d'Eglise, a la charge qu'ils seront tenus garder les Ordonnances,"
Compare the passage quoted from Pothier below, p. 195.
THE SPECIAL CASE OF ENGLAND 177
schismatic, orthodox or heretical. The distinction of
Church and State, and the relations of the two societies,
can be studied apart from these complications. The only
doctrine to be ruled out of account is that extreme form
of Lutheranism, reflected by much opinion current in Eng-
land, which denies the real existence of the Church as an
organized community.
The case of England, however, calls for separate con-
sideration. The English Reformation must not be thought
of as an insular movement, for it was entirely without orig-
inality, and was inspired throughout by the influences
radiating from Saxony, from Zurich, and from Geneva ;
but circumstances directed the movement into a distinct
channel, producing results not found elsewhere. One such
result was a long delay in the separation of Church and
State. England retained a medieval polity ; it was a frag-
ment of the unitary respublica Christiana surviving the
general destruction. The conditions of the first breach
with Rome determined a long future. Henry VIII did not
merely quarrel with the Pope as King, but carried with him,
by what art or violence need not be asked, the local hier-
archy. It is difficult to say how far the nascent distinction
of Church and State had penetrated into English thought ;
Henry determinedly put it back. He had no need to assert
the independence of the State, since he was master of the
whole, and he took care to prevent any assertion of the inde-
pendence of the Church. The preamble of the Statute for
Restraint of Appeals significantly declared that the realm
of England was an Empire, with the king as its sole head,
acknowledging no superior on earth ; this realm was a
single Body Politic, " divided in terms and by names of
Spiritualty and Temporalty," each division having its proper
functions and jurisdiction. The " English Church," the
Ecclesia Anglicana of the Charter, is identified with the
M.C.S. N
178 OF MARRIAGE IN THE MODERN STATE
Spiritualty, which " hath been always thought, and is also
at this hour, sufficient and meet of itself, without the inter-
meddling of any exterior person or persons, to declare and
determine all such doubts, and to administer all such offices
and duties as to their rooms spiritual doth appertain." It
is the medieval conception, reduced to the compass of a
single nation. Other statutes, and in particular the Act
for the Submission of Clergy, applied to this narrow area
the larger ideas of Marsiglio of Padua ; the king stepped
into the place of legislator for the whole body politic, as-
cribed by imperialist lawyers and theologians to the Emperor,
but he exercised this function, as required by English cus-
tom, with the advice and consent of a Parliament in which
both Spiritualty and Temporalty were represented. This
legislation was made supreme in all subjects alike, the
specific legislation of the Spiritualty being subordinate ;
but the system was not quite symmetrical, since there was
no specific legislation by the Temporalty.
The restoration of the Papal supremacy under Philip
and Mary, had it proved lasting, would undoubtedly have
induced that same distinction of Church and State which
was beginning to manifest itself in Philip's other dominions ;
but the Act by which it was effected still spoke of the
Spiritualty and the Temporalty in Parliament as " repre-
senting the whole body of the Realm of England," and
legislated in regard to sacred things as effectively, if not
as freely, as the Henrician statutes. Under Elizabeth,
and afterwards, the bare suggestion of the distinction was
treated as a treason against the unity of the realm and the
majesty of the Crown. Strong as was the influence of Cal-
vin, his central doctrine of the separateness and indepen-
dence of the Church was rejected by all but a faction ; even
when Cartwright and Penry asserted it, they did so with
such limitations, and with so much tendency to compro-
RESISTANCE TO SEPARATISM 179
mise on the royal supremacy, that the consistent separatists
who followed Robert Brown denounced them as little better
than conformists. The question was argued out ; Richard
Hooker brought all his learning and rhetoric into action
against Puritan and Papist alike who argued for the inde-
pendence of the Church. He could not deny that Church
and Commonwealth were " things in nature the one dis-
tinguished from the other," but he denied that they were
" corporations, not distinguished only in nature and defi-
nition, but in subsistence perpetually severed." The names
import things really different, " but those things are acci-
dents, and such accidents as may and should always dwell
lovingly together in one subject." He could not deny
that " under dominions of infidels the Church of Christ
and their Commonwealth were two societies independent,"
but he maintained that this state of things was temporary,
and not according to the eternal order of God ; "If the
Commonwealth be Christian," he argued, " if the people
which are of it do publicly embrace the true religion, this
very thing doth make it the Church." The assertion of
Allen that king and parliament could no more legislate
for the Church than for the celestial hierarchies he met
with an elaborate show of precedents in the contrary sense.
It is certain that on the ground of history Hooker had the
best of the argument ; the two societies had actually been
merged in one for centuries. What he did not see, or
would not allow, was that the merger in its turn was become
obsolete, that everywhere except in England Church and
Commonwealth were returning to their mutual indepen-
dence, and that this was in truth an order more natural and
more permanent than that which he was defending. He
turned to a perverse sense what he must admit. "It is
undoubtedly a thing even natural," he wrote, " that all
free and independent societies should themselves make
i8o OF MARRIAGE IN THE MODERN STATE
their own laws ; " and he could add that " when we speak
of the right which naturally belongeth to a Commonwealth,
we speak of that which needs must belong to the Church of
God ; " but he countered this by the qualification that
" this power should belong to the whole, not to any certain
part of a politic body," and the body politic was neither
Church nor Commonwealth in distinction, but both in
union. 1
Thus face to face with the new doctrine, clearly enunciated,
Hooker rejected it, and his influence was potent to prevent
its acceptance in England. But this influence was not
singular ; something in the national temperament jumped
with it, and the straitest Puritans, when free to follow their
own bent in Massachusetts, set up a medieval polity, a
theocracy in which the ecclesiastical element predominated
over the civil. Not even the Independents, triumphing
under Cromwell, could work out a consistent scheme of
Church and State. The Restoration brought back the
unitary system, with the added severity and intolerance
of the Test Acts ; the Toleration Act did but allow dis-
senters a precarious footing in the State and left them in
the position of political aliens, their unlawful exercise of
citizenship being covered by annual Acts of Indemnity.
As matter of theory, Beveridge taught with perfect clear-
ness the separateness of Church and State, and the existence
of their several systems of law, in the Prolegomena to his
Synodicon, but this learned disquisition had no effect in
practical politics. Not until the repeal of the Test and
Corporation Acts in 1828 was the separation of Church and
State reluctantly achieved. Even now, in England alone
perhaps of all countries of the world, there are men who
shut their eyes to facts and continue a stammering utter-
ance of the categories of Hooker.
1 Eccl. Pol., viii. ch. i and 6.
CONTROL OF THE SPIRITUALTY 181
In this survival of the medieval polity marriage remained
for the most part under the control of the Spiritualty.
The Act for the Submission of Clergy asserted the right
of the whole body politic to set aside anything done by a
part, and the whole range of the Canon Law was treated
as the peculiar work of the clergy, being valid therefore
only so far as it did not contravene the king's prerogative
and the customary and statutory laws of the realm. This
was in part an assertion of the canonical principle of con-
suetudo, but in the predominance given to statute law there
was a new restraint of the Spiritualty, and the consequences
were at once felt. Appeals to Rome were forbidden, and
a large power of quashing sentences of the ecclesiastical
courts, and of ordering justice to be done therein, was con-
ferred on the Crown. These, however, were but means to
an end ; their object was seen in a series of statutes by
which Henry, struggling with his matrimonial difficul-
ties, opened one of the most sordid chapters of English
legislation. There were three of these. The first, in the
year 1533, was directed against the Queen Katharine and
her daughter Mary. After exhausting the forces of diplo-
macy in the attempt to obtain a decree of nullity from Rome,
Henry turned the tables with " An Act concerning the
King's succession," which declared fifteen specified kin-
ships and affinities to be diriment impediments by Divine
Law, without possibility of dispensation. His marriage
with Katharine, validated only by dispensation, was con-
sequently annulled, and Mary was excluded, as illegitimate,
from the succession to the Crown. To safeguard his mar-
riage with Anne Bullen, however, Henry limited this indis-
pensable impediment to cases "where marriages were
solemnized and carnal knowledge was had." Three years
later it was Anne's turn to be repudiated, and an Act of
1536 removed this limitation, so that Henry's marriage
182 OF MARRIAGE IN THE MODERN STATE
with her might be annulled on the ground of his illicit con-
nexion with her sister Mary ; Anne's daughter Elizabeth
was thus rendered illegitimate and excluded from the suc-
cession. In 1540 the king's scruples were more intricate.
He had just got rid of Anne of Cleves on the ground of her
precontract with the Duke of Lorraine's son, but this pre-
cedent was awkward, since Henry, himself a much con-
tracted man, was proposing to marry Katharine Howard, who
also not improbably had some similar experience. There-
fore a third Act renewed the Parliament's earnest protest
against the iniquity of papal dispensations, and provided
that in future precontract should not be an impediment to
marriage. The statute was so carelessly or so skilfully
drawn as to include in the reform not only espousals de
futuro but also contracts de praesenti, where consummation
had not followed. But further, Katharine Howard was
first cousin to Anne Bullen, and perhaps to other ladies
whom the king had honoured with intimacy ; therefore
a brief clause provided that " no reservation or prohibition,
God's law except, shall trouble or impeach any marriage
without the Levitical degrees." It should be. explained
that the fifteen kinships enumerated in the previous Acts
were taken from the eighteenth chapter of Leviticus, with
the addition of the wife's sister, doubtfully, or not at all
included therein.
Here Henry rested, getting rid of Katharine Howard
more expeditiously and being continuously satisfied with
a third Katharine. The Act of 1540 was too scandalous
even for his devoted servants, and it was repealed in the
second year of Edward VI, the short clause, however,
limiting impediments " without the Levitical degrees "
being obscurely retained and confirmed. Mary and Eliza-
beth succeeded to the Crown, in spite of their illegitimacy,
and in 1554 the three Acts above mentioned were unre-
LEGISLATION OF THE SPIRITUALTY 183
servedly repealed, the canonical law of marriage being
restored intact. Elizabeth, reviving her father's legisla-
tion, naturally omitted the two Acts designed to exclude
her sister and herself from the succession, but confirmed
the small fraction of the third Act which had been saved
under Edward VI, vaguely restricting diriment impedi-
ments to those of God's law, and still more vaguely referring
to the Levitical degrees for guidance.
Much was heard of this restriction afterwards, but for
a time it seems to have been neglected. Matthew Parker,
as Archbishop of Canterbury, acted with entire indepen-
dence. In the year 1563 he put out an Admonition directed
against marriage within prohibited degrees, against clan-
destinity, and against marriage after divorce. 1 To this
was appended a Table, setting out in detail sixty kinships
and affinities which were declared to be diriment impedi-
ments according to the law of God. Of others it was ob-
scurely enjoined : "In contracting betwixt persons doubt-
ful, which be not expressed in this Table, it is most sure
first to consult men learned in the law, to understand what
is lawful, what honest and expedient, before the finishing
of their contracts." This can be understood only on the
supposition that there were other impediments of consan-
guinity and affinity, for which dispensation was possible,
but that within the limits of the Table there would be no
dispensing. The Table itself went far beyond the Levitical
degrees of the statute of 1540. There seems to be no doubt
that Parker, like many predecessors in canonical legis-
lation, based his rule on the Levitical prohibitions, but
enlarged them by a method of parity of reasoning derived
from the Christian principle of the complete equality of
the sexes. How foreign was this method of interpretation
to the Levitical rule is shown by the marriage of nephew
1 Cardwell, Doc. Ann., i. 316.
184 OF MARRIAGE IN THE MODERN STATE
and aunt being forbidden while the marriage of an uncle
with his niece was approved. 1 Thus the Admonition was
in two ways incompatible with the surviving remnant of
Henry's legislation. It may be remarked also that it set
the seal of illegitimacy anew on Elizabeth, whose strangely
assorted character included a magnanimity that might
scorn to interfere in such a matter.
Parker's Admonition was confirmed by a provincial con-
stitution of the year 1571, with a significant distinction ;
in the case of the relations expressly mentioned in the book
of Leviticus, together with that of a wife's sister, the mar-
riage unlawfully contracted was to be dissolved by the
bishop's authority ; in all other cases marriage was merely
forbidden, as on the ground of an obstructive impediment.
In 1604, however, a further provincial constitution con-
firmed Parker's list without distinction as based on the
laws of God ; all such marriages were to be judged inces-
tuous, and the parties were to be separated by course of
law. Nothing was said about the possibility of dispensa-
tion. 2 On this canon the spiritual courts acted without
hesitation, but Sir Edward Coke now began his great cam-
paign directed to the restraint of their activity by writ of
prohibition, and much trouble ensued. It seems pretty
clear that the canon was contrariant to statute law, and
many attempts were made to confine sentences of nullity
within the limits of the Levitical degrees. These were
alternatively construed strictly or interpreted by parity of
reason. In the case of a marriage between a man and his
great-uncle's wife, annulled by the spiritual court, a pro-
hibition was granted on the ground that this was not one
of the Levitical degrees. 3 The conflict turned especially
on the case of the wife's sister, which the temporal courts
1 Supra, p. 114. 2 Cardwell, Synodalia, i. 130, 222.
3 Gibson, p. 499. This case shows that the ecclesiastical courts
REFORMATIO LEGUM 185
were unwilling to include, until in the reign of Charles II,
they lighted upon the remarkable discovery that the sur-
viving clause of the Act of 1540 involved a reference to the
previous Act of 1536, which was thus incidentally revived,
and settled the question. 1
One other statutory change of the law may be noted.
An Act of the second year of Edward VI did away with the
impediment of Holy Order, though even the pressing need
of Cranmer did not induce the legislature to make the reform
retrospective. It was repealed in the first year of Mary,
and was not revived until the accession of James the
First.
The abortive Reformatio Legum would have brought the
Marriage Law of England into almost exact agreement with
that of the Reformed of Switzerland and Geneva, except
that it retained the jurisdiction of the spiritual courts.
So strongly ran for a time the current of opinion in favour
of the absolute dissolution of marriage by adultery, that
many persons in that case contracted fresh marriages, of
whom the Marquis of Northampton procured, in the year
1551, the legitimation of his issue by a private Act of Parlia-
ment. From the year 1554 to the end of the century, we
find the bishops continually endeavouring to check this
abuse, 2 and in 1597 a canon of the Provincial Synod of Can-
terbury, renewed in 1604, required the judge of an ecclesias-
tical court, before passing a sentence of divorce, to take
recognized canonical impediments extending beyond those set out
in Parker's Table.
1 On so obscure and technical a subject I can but quote Halsbury,
The Laws of England, vol. xvi., p. 283 : " The two former statutes,
though repealed by stat. (1554) i & 2 Ph. and M. c. 8, may be re-
ferred to as explaining the stat. (1540) 32 Hen. 8 c. 38, which was
confirmed by stat. (1558) i Eliz. c. i s. 3." See also Gibson, p. 496.
2 See the Alcuin Club's Visitation Articles and Injunctions, vols.
ii. and iii. passim.
i86 OF MARRIAGE IN THE MODERN STATE
bonds of the parties that they would not attempt to con-
tract a new marriage while both were living. It being still
doubted whether such a -marriage were merely unlawful, or
void by reason of a diriment impediment, Whitgift was
asked, in the reported case of Foljambe, to certify the tem-
poral court of the answer to this question, and he replied
after consultation with competent theologians that it was
certainly void. 1
While the ordinary control of marriage, legislative and
juridical, was thus left to the Spiritualty, we find the Tem-
poralty also intervening, at first exceptionally, afterwards in
more regular fashion. The equitable jurisdiction of the
Court of Chancery was found available for determining some
questions of property between husband and wife, in regard
to which the ecclesiastical courts were powerless against
the rigour of the common law. In the view of the common
law, the property belonging to a woman at the time of her
marriage, or accruing to her afterwards, passed entirely into
the hands of her husband, who was thus the sole administra-
tor of their common stock. A remedy for this inequitable
rule being sought by the creation of a trust for the wife's
benefit, the matter came within the cognizance of the
Chancery, the practice and principles of which were almost
entirely borrowed from the spiritual courts, and consequently
there grew up a systematic jurisprudence by which an
approximation to the true partnership involved in the divine
law of marriage was eventually secured. *Less admirable
was the occasional intervention of Parliament. An Act of
the first year of James I made simultaneous bigamy felony
with pain of death, but was carefully drawn so as to exclude
the case of a man or woman divorced. During the period of
the Commonwealth, English practice was assimilated to that
of most Reformed communities, and ten years after the
1 Gibson, p. 336.
THE DIVORCE OF LORD ROOS 187
Restoration had brought back the Canon Law and the juris-
diction of the spiritual courts, a private Act of Parliament
made a precedent looking the same way, which was the source
of much evil. It was in the notorious case of Lord Roos.
In the year 1669 Lord Roos obtained from the spiritual
court a decree of divorce on the ground of his wife's adultery.
In the following year a Bill for authorizing his marriage to
another woman was brought into the House of Lords, and
debated at extraordinary length, being eventually carried
through all stages by narrow majorities. Two bishops sup-
ported it, Cosin of Durham, and Wilkins of Chester ; the
rest opposed. The debate was almost entirely theological,
the one side defending the position usually adopted by the
Reformed, and alleging that adultery ipso facto dissolves the
bond of marriage; the other side maintaining the actual
discipline of the Church. There were, however, some varia-
tions ; reference was made to the practice of the Greek
Church ; opponents of the Bill denounced the inequitable-
ness and uncharity of allowing marriage to the man and
disallowing it to the woman, " who whilst living may need
marriage as much, or more than the man ; " they attacked
the vulgar error of " thinking that men have a greater pre-
eminence than women," and the mistake of confounding
permission, as in the Greek Church, with approbation ; the
permission, they argued, did not go beyond exemption from
penalty. Lord Bristol said that he would support a Bill to
legitimate issue post factum as in the case of the Marquis of
Northampton under Edward VI, but not " a law a priori to
encourage one to steal his neighbour's mutton, that is to
establish wickedness by a law." Lord Lucas objected that
it was a Bill for encouraging adultery ; Lord Halifax that
it was a Bill for encouraging perjury, " when it shall have
this strong motive, viz., of being quit of a wife one is aweary
of and the hopes of obtaining one one loves." Lord Essex
i88 OF MARRIAGE IN THE MODERN STATE
urged, on the other side, that this was an act of grace, that
is to say, a mere dispensation, which no other person could
demand ex debito iusto ; the supposed ill effects would not
follow from a particular Bill for the relief of one person,
which did not alter the general law. Lord Ashley made the
remarkable assertion that " before the Council of Trent
marriage was a civil contract, and managed by the civil
magistrate." Lord Holies cited in favour of the Bill the
statute of James I against bigamy, which excepted the case
of those divorced by ecclesiastical censure. 1 The Bill was
passed by the House of Commons with less difficulty, but
not without great debate, and became a precedent which was
followed with increasing frequency until the year 1857.
Similar Acts are still passed for persons resident in Ireland.
I have thought this incident worthy of so much space, not
only as an important precedent, but also as a turning point
in the relations of Church and State. It is true that the
distinction was hardly as yet even present to men's minds,
and was not for many years to become effective in English
politics. When Lord Bristol declared that the Church was
against the Bill, he was not using modern language. " An
essential right of the Church of England," he said, " is in
danger of being overthrown by it, which is to determine in
matters ecclesiastical." But he spoke of the Church in the
sense of the Statute of Appeals, which he seems to have had
in mind, and meant that the Temporalty was invading the
province of the Spiritualty of the realm. The character of
the debate made this plain ; the House of Lords talked like
a Council of the Church ; the profligate Duke of Bucking-
ham, Dryden's Zimri, quoted Bellarmine, and the satirist
might have added to the characters of " fiddler, statesman,
and buffoon," that of an amateur divine. Yet, looking back
1 See the notes of the debates in Harris, The Life of Edward Moun-
tagu, First Earl of Sandwich, vol. ii., pp. 318-32.
RESTRAINT OF CLANDESTINITY 189
from the standpoint of a time when the essential separate-
ness of Church and State is recognized, we may see in the
whole proceeding an early step towards independent action
of the State in regard to marriage.
The gradual emergence of the State is even more apparent
in efforts that were made to restrain clandestine marriages.
So long as the disciplinary jurisdiction of the spiritual courts
was effectively supported, either by religious sanctions or by
temporal coercion, regular marriage in facie ecclesiae could
be more or less enforced. In the year 1598 Sir Edward Coke,
at that time Solicitor General, was put to penance for marry-
ing without publication of banns the grand-daughter of the
great Burleigh, and escaped excommunication only by an
absurd plea of ignorance of the law. The bitter hostility
to the ecclesiastical courts which he afterwards displayed
in Parliament and on the Bench, was probably due to this
humiliation. But the growing practice of prohibition, fur-
thered by Coke himself, and the abolition of the oath ex
officio, seriously weakened this jurisdiction, and after the
Restoration licence passed all bounds. Certain exempt
places in or near London lent themselves more especially
to the ecclesiastical performance of clandestine marriages ;
the registers of the Church of St. James, Duke's Place, one
of these refuges of disorder, are said to have shown nearly
forty thousand contracted in less than thirty years. 1 The
difficulty of bringing these places under episcopal control
induced the legislature to interfere, but with little effect.
Under pretext of securing the collection of a stamp-duty,
imposed on licences and certificates of marriage, any priest
officiating at clandestine espousals was in 1694 made liable
to a fine of a hundred pounds. This merely diverted the evil
into a new channel ; to broken clergymen, already in prison
for debt, an accumulation of fines meant nothing, and there
1 Burn, Histi of Fleet Marriages, p. 4.
OF MARRIAGE IN THE MODERN STATE
were always such in the Fleet or the King's Bench ; a rich
harvest of fees was here reaped by prisoners and gaolers, who
afforded opportunities for hasty and secret marriages.
The habit of resorting to these disreputable devices was
due to a doctrine, if we may not rather call it a superstition,
which at this time invaded the Inns of Court. While divines
and ecclesiastical lawyers maintained in their jurisprudence
the sufficiency of a marriage contracted per verba de praesenti,
without religious rites and even without witnesses, the com-
mon lawyers on the other hand were beginning to maintain
that a marriage was not valid unless contracted in the pres-
ence of a clerk in Holy Orders. Two explanations of this
have been offered. One looks to a maxim of Bracton : ' ' No
woman can claim dower unless she has been endowed at the
church door." As the King's Courts had cognizance of
marriage only in regard to such material accidents as dowry,
they are supposed to have formed the habit of ignoring all
marriages that for lack of due publicity failed to secure a
woman this right. The other explanation looks to the un-
willingness of the criminal courts in cases of bigamy to take
note of anything but open and notorious fact, such as a pub-
lic ceremony of marriage ; they would not entertain subtle
questions of marriage de iure. It is not clear when the new
doctrine took definite form. It was not accepted in 1661,
when a jury at Nottingham found a verdict for the legiti-
macy of a child of Quaker parents, who were accused of
coming together like brute beasts with no form of marriage ;
on this occasion the court laid down the sound principle of
law that the consent of the parties alone was sufficient for a
true marriage. 1 But the contrary opinion grew, the person
of a priest anywhere encountered being taken as equivalent
to ostium or fades ecclesiae, until in the year 1844 the House
1 Sewel, Hist, of the Rise, etc. of the Christian people called Quakers,
ed. 1722, p. 292.
THE MARRIAGE ACT OF 1753 191
of Lords, hearing an appeal from Ireland, decided, says a
caustic commentator, that " by the ecclesiastical and the
common law of England the presence of an ordained
clergyman was from the remotest period onward essential
to the formation of a valid marriage." He adds the re-
mark : " If the victorious cause pleased the Lords, it is the
vanquished cause that will please the historian of the Middle
Ages." x But the idea was not new. What the House of
Lords affirmed in the nineteenth century was already mooted
in the seventeenth century ; the ecclesiastical courts in their
regular jurisprudence recognized the validity of marriages
contracted without the assistance of a priest, but the king's
courts in their casual jurisprudence held such marriages at
least doubtful. Parliament sustained the doubt, and while
imposing the marriage tax on Quakers and Jews who should
" cohabit and live together as man and wife," carefully pro-
vided that their unions should not on that account be con-
strued as marriages good or effectual in law. 2 Persons,
therefore, intending an irregular marriage were driven, for
greater security, to procure the help of a clerk in Holy Orders,
and the Fleet parsons flourished.
The scandal became increasingly intolerable until in 1753
the Chancellor, Lord Hardwicke, devised a drastic remedy.
His Bill " for the better preventing of clandestine marri-
ages " was carried through the two Houses of Parliament
after acrimonious debate, and placed the contract of marri-
age on an entirely new footing. In brief, it enacted that any
marriage contracted elsewhere than in the parish church of
one of the parties, after due publication of banns, should be
" null and void to all intents and purposes whatsoever,"
saving only the right of the Ordinary to dispense with banns
1 Pollock and Maitland, History of English Law, vol. ii., pp. 372-
383.
2 Stat. 6 & 7 Will. Ill, c. 6.^ Gibson, Codex, p. 521.
IQ2 OF MARRIAGE IN THE MODERN STATE
and of the Archbishop of Canterbury to dispense by special
licence with time and place. The Act also annulled marri-
ages of persons under twenty-one years of age contracted in
spite of the express dissent of parents or guardians made
known after the publication of banns, or without the express
consent of the same to the issue of a license. To prevent the
treatment of a clandestine contract as espousals de futuro,
it forbade the prosecution of a suit in a spiritual court to
compel marriage in facie ecclesiae or the ground of such
espousal. To check attempted marriages which would thus
be invalid, the Act made it felony to solemnize matrimony
otherwise than as .allowed by law. Four exceptions were
made ; the Act was not to apply to the marriages of mem-
bers of the royal family, to those in which both parties were
Quakers or Jews, or to those solemnized beyond the seas.
The likeness of this legislation to that of the Council of
Trent is obvious, and objections were taken closely resem-
bling those put forward in that council. Henry Fox, who
had himself nine years before contracted an irregular marri-
age in the Fleet, protested against " making so free with the
laws of God and nature." 1 The power of Parliament to
create a diriment impediment was challenged on the ground
that marriage belonged to the spiritual order, and this con-
tention was put forward from strange quarters. The bishops,
on the other hand, supported the Chancellor, being troubled
by the prevailing disregard of the ecclesiastical law. Horace
Walpole, who wrote a contemptuous account of the debates
in his Memoirs of the Last Ten Years of the Reign of George II,
sneeringly remarked that, " Churchmen acquiesced in the
legislature's assuming this power in spirituals." Looking
back dispassionately on the heated discussion, we may see
here a last act of the unitary body politic in which Church and
State were merged. Churchmen did more than acquiesce ;
1 Cobbett, Parliamentary History, xv. 73.
SEPARATION OF CHURCH AND STATE 193
they took an active part in promoting the measure, and in
their own courts enforced its provisions with rigour. Lord
Hardwicke's Act, indeed, went beyond the Tridentine legis-
lation in the enforcement of ecclesiastical rule ; for it re-
quired not only the presence of a parish priest as witness to
the contract of the parties, but also his active participation.
Marriage could not, save in the few excepted cases, be validly
contracted elsewhere than in a parish church, and here it
could not be contracted without the full ritual of the Church.
Dissenters were therefore compelled to conform in this parti-
cular if they would be validly married ; they lost the power,
hitherto precariously enjoyed, of contracting after their own
fashion, and their ministers attempting to solemnize marriage
for them would be guilty of felony. The repeal or amend-
ment of the Act was several times attempted both on this
ground and because of the frequent nullities of marriage
arising from its strictness, which gave notorious advantages
to the seducers of ignorant women ; in the year 1823 a new
Marriage Act remedied some of the latter defects by allow-
ing the validity of a marriage where the law was not know-
ingly and wilfully disregarded by both parties alike, but no
attention was paid to the grievance of dissenters. They
were soon to set this right by the effective separation of
Church and State.
We must return on our steps to observe the results of that
separation in countries where it did not lag so long as in
England. In France, where its necessity first became evi-
dent, its effect also was soon apparent. The Tridentine
rule had but little practical effect in the kingdom, but
local custom and royal ordinances imposed even more strin-
gent requirements, the presence of the cure and of four wit-
nesses being necessary for a valid marriage. After the Wars
of Religion, however, the existence within the kingdom of
large bodies of Calvinists, not merely tolerated but accorded
M.C.S. o
194 OF MARRIAGE IN THE MODERN STATE
definite rights by the Edict of Nantes, made it impossible for
the emergent State to leave the control of marriage entirely
to the Church. There were, in fact, two theories of marriage
law concurrent, one of which demanded the active interven-
tion of the civil magistrate. But further, the separate con-
sciousness of the State as guardian of justice compelled
action in regard to those incidents and accidents of marriage
which touch the property or civil right of the parties ; it was
impossible for the judiciary to avoid questioning the validity
of an impugned contract, or to accept the certificate of the
authorities of the Church as conclusive. Nor did the new
distinctness of the Church secure it against the interference
of the civil magistrate even within its own sphere of action ;
the appel comme d'abus, which in the medieval system im-
ported a jealous guarding of the limits of two jurisdictions
within one community, became an instrument restraining the
separate activities of the Church ; x In these two ways the
various judiciaries of the kingdom took cognizance of mar-
riage, and new royal ordonnances were soon found to be
required for guidance.
A theory, juristic and theological, was framed for the
defence of this legislation. The contract of marriage was
distinguished from the sacrament ; as contract it was tem-
poral and subject to civil law ; as sacrament it was spiritual,
and subject only to the laws of the Church. To the king, as
head of the State, was attributed the power of regulating the
contract, of imposing conditions neglect of which would
nullify it, and of judging its validity ; impediments created
1 Pothier, Traite du Contrat de Manage, torn, ii., p. 176, records
an arret of Jan. 2, 1758, quashing the dissolution of a Jewish mar-
riage decreed by the Official of the diocese of Soissons on the ground
of the privilegium Paulinum. It should be observed that the
Codtume de Paris is law in Canada, and these extensive powers of
the civil courts in ecclesiastical matters are still exercised.
SEPARATION OF CHURCH AND STATE 195
by ecclesiastical law, and judgments of nullity pronounced
by ecclesiastical authority, were properly concerned with
the sacrament alone, and could not affect the contract
except just so far as they were allowed or adopted by the
civil power. This contention, it will be seen, implies not
merely a logical distinction between marriage as arising out
of a natural contract and marriage as raised to the super-
natural value of a sacrament, but also the possibility of a
real separation in fact ; there might be a valid contract of
marriage between Christians which would not have sacra-
mental effect,, and there might exist a sacramental marriage
that was not founded on a valid contract. The distinction
had been pressed by Melchior Cano and other theologians
before the Council of Trent ; practical conclusions were now
drawn from it by French jurists. Billuart, accepting the
distinction, tried to avoid the consequences, by showing that
the sacrament does in fact depend upon the contract.
" Sacramentum matrimonii," he said, " nihil aliud est quam
contract us civilis elevatus ad esse sacramenti." 1 But in
calling the contract civilis, rather than naturalis, he did but
tender a fresh handle to his opponents, who were not slow
to argue that a civil contract must be entirely subject to the
laws of the State, the Church being concerned only with the
sacramental effects flowing from its valid completion. So
Pothier, who in the style of the eighteenth century read the
ideas of his own time into the institutions of the Middle Ages,
and attributed the legislative and judicial control of marri-
age by the Church to a revocable permission accorded by the
Prince. 21 The influence of Pothier was great ; he formed the
1 Billuart, Summa Summae, torn, vi., p. 343. But see p. 54, supra.
2 Pothier, op. cit., torn, i., p. 29 : " Le mariage n'etant somnis
a la puissance ecclesiastique qu'en tant qu'il est sacrament, et n'e"tant
aucunement soumis a cette puissance en tant que contrat civil, less
empe"chements qu 1'Eglise etablit, seuls et par eux-me"mes, n*
196 OF MARRIAGE IN THE MODERN STATE
opinion which grew to action during the Revolution, and his
disciple Portalis, inventor of the doctrine that the cure was
a minister at once of the State in regard to the contract and
of the Church in regard to the sacrament, had a prominent
part in the preparation of the Code Napoleon.
Before the Revolution, however, royal ordonnances re-
garding marriage were carefully drawn to avoid direct
conflict with the sacred canons ; they were supplementary,
or even ancillary. Some ingenuity was at times expended
on conciliation ; thus an ordonnance for annulling marriages
contracted without parental consent was made to coincide
with the canonical impediment of raptus. Not altogether
out of keeping with this caution was an order of the year
1787 appointing a special mode of marriage for Protestants,
who since the revocation of the Edict of Nantes had lost
their privileges and had become subject to the general law
of the kingdom ; for the concession was cloaked as the ex-
clusion of heretics from a right to command the services of
a parish priest. But the practice then established was
speedily made a precedent for wider legislation. Calvinism
and Jansenism, surviving long and severe repression, be-
came singularly active influences in the course of the Revo-
lution. Calvinists had always regarded marriage as being
within the province of the State ; Jansenists were imbued
with the Gallican doctrine distinguishing the contract and
the sacrament ; both contributed to the establishment of
civil marriage in the first year of the Republic.
peuvent concerner que le sacrament, et ne peuvent seuls et par
eux-m&nes donner atteinte au contrat civil. Mais lorsque le Prince,
pour entretenir le concert qui doit etre entre le sacerdoce et I'empire,
a adopte et fait recevoir dans ses Etats les canons qui etablissent
ces empechements, 1'approbation que le Prince y donne rend les
empSchements etablis par ces canons empSchements dirimants de
mariage, me" me comme contrat civil."
CIVIL MARRIAGE IN FRANCE 197
France led the way rather in thought than in action, for
already in the year 1783 the Emperor Joseph II had promul-
gated decrees of this kind for his hereditary dominions, and
in 1786 the diocesan synod of Pistoia had called upon his
brother Leopold to do the same for Tuscany. In France
the Constitution of 1791 clearly denned the attitude of the
State : " La loi ne considere le mariage que comme contrat
civil/' This declaration of Gallicanism was the more
generally welcome since the adoption of the Civil Constitu-
tion of the Clergy in the preceding year had worked to the
serious disadvantage of strict Catholics. " A heavy blow
was struck at their religious liberty," says M. Paul Viollet,
" for in order to be married they were obliged to have re-
course to priests who had taken the oath, that is to say to
schismatics." 1 It was not, however, until September,
1792, that the law was actually modified. Then, amid the
scenes of confusion which accompanied the dissolution of
the Legislative Assembly and the meeting of the Convention,
two laws were hurriedly enacted which had an ultimate
effect reaching far beyond the borders, however widely
extended, of the French republic or empire.
The first established a civil ceremony of marriage to be
performed under strict conditions by a public officer of the
commune within which the parties, or one of them, should
reside. The religious character of the contract was merely
ignored ; a religious ceremony, a sacerdotal benediction,
was neither expressly allowed nor forbidden. The legal
validity of the marriage was to be determined exclusively
by the civil ceremony.
The second introduced a still more novel practice of
divorce, based in part on the Roman Law, in part on the
Calvinistic doctrines of the school of Leyden. Canonical
1 Cambridge Modern History, vol. viii., p. 736.
198 OF MARRIAGE IN THE MODERN STATE
divorce a mensa et toro was forbidden, and there was sub-
stituted a complete dissolution of marriage, leaving the
parties free to contract fresh alliances. This was to be
decreed by a tribunal, either for certain specified causes or
with the mutual consent of the parties. Among the causes
were insanity, a sentence of crime involving infamy, noto-
rious immorality, desertion for two years, and incompati-
bility of temper or character.
In this sinister fashion, and in the most sinister circum-
stances, the modern State first took entire and independent
control of marriage. The Church was thrust aside with a
contempt which soon passed into enmity. Yet the law of
compulsory civil marriage for the moment afforded relief
to the harassed Catholics. The Tridentine decree enabled
them to regard the civil ceremony as of no effect in consti-
tuting a true marriage. 1 They were therefore set free to
marry according to the rule of the Church in the presence
of a priest who had not taken the constitutional oath, and
could treat the visit to the communal officer as a mere
registration of their marriage for legal purposes. The diffi-
culties arising from the persecution which broke out in the
following year, and from the prohibition of Christian worship
under the Terror, were purely accidental. But the Articles
Organiques appended by Napoleon to the Concordat of
1802 put a restraint on liberty. The civil ceremony re-
mained compulsory, and it was forbidden under severe
penalties to perform any religious ceremony of marriage
until this had taken place. The intention was to enforce
the Gallican theory and to compel the Church to accept the
civil ceremony as the true contract of marriage, adding the
nuptial benediction as the matter of the sacrament. This
end was not achieved ; the Church held firmly by the Tri-
1 See Boudinhon, Canoniste Contemporain, Sept., 1907, p. 540.
CIVIL MARRIAGE IN EUROPE 199
dentine rule, the civil ceremony was treated as a nullity,
and the contract in facie ecclesiae which followed was
regarded as alone effective.
These provisions, with others regulating the relations of
the married, were incorporated into the Civil Code of 1804,
the widespread influence of which brought them into the
legislation of many countries. The requirement of a civil
ceremony, and the prohibition of any religious ceremony
preceding it, have been adopted in Belgium and the Nether-
lands, in Switzerland, Italy and Hungary, in the greater
part of Germany, and in many of the Latin Republics of
America. In Spain, in Austria, and in the Scandinavian
Kingdoms, civil marriage is established for the benefit of
those who refuse the services of the Church, but is not ob-
ligatory. In Roumania, by a combination of Eastern and
Western ideas, there is appointed a civil form of espousal
which must be followed, save in exceptional cases, by a
sacerdotal benediction.
England once more calls for special remark in this con-
nexion. The repeal of the Test Act in the year 1828 marks
the definite separation of Church and State, but the change
was carried out in the national fashion with little attention
to logic or formula, and no attempt was made to reduce the
new order of things to an intelligible system. In particular
the administration of marriage was left for a time to the
spiritual courts, without any clear delimitation of powers.
The State, disentangled from ecclesiastical interests by
means of a sharp struggle in which the hierarchy had ob-
stinately resisted change, adopted an unreasonably arrogant
tone, and treated the Church rather as an insubordinate
servant than as a co-ordinate society. The Church, steeped
in the tradition of Richard Hooker, resented the separation,
desired no independence, and fought tenaciously for the
remaining shreds of a privilege that was proper to a vanished
200 OF MARRIAGE IN THE MODERN STATE
political order. Thus Dissenters, though now admitted to
full political rights on equal terms, were not immediately
relieved of their grievance in regard to the marriage laws,
being still compelled to resort to the parish church for an
unwelcome ceremony, and to the bishops' and archbishops'
courts for the determination of matrimonial causes. After
a period of active reform in other fields the former "of these
difficulties was taken in hand. In the year 1836 a new
Marriage Act made a new and lop-sided arrangement ; a
system of civil registration was adopted ; parties desiring
to do so were allowed to contract marriage without any
ceremony in the presence of a Superintendent Registrar, after
a very inadequate publication of their intention, or even
without such publication by licence of the registrar ; the
parochial clergy, at the same time, were required to keep
duplicate registers of marriages solemnized in Church, one
of which was eventually to be deposited with the Registrar
General, and to send to the Superintendent Registrar of the
district certified copies of the entries every three months.
The clergy were thus made definitely ministers of the State
for the purpose of marriage, and they were not relieved of
the obligation, formerly imposed on them as the only qualified
persons, of assisting at the marriage of any parties demand-
ing their services, orthodox, heretic, or infidel. They were
still distinguished by a privilege, partly onerous and partly
honorific, from other ministers of religion ; and this in-
equality was not redressed until the year 1898, when the
minister of any regular place of worship certified to the
Registrar General was permitted to solemnize marriages
under similar conditions. In England, then, civil marriage
and religious marriage exist side by side, with universal
civil registration. No marriage is recognized as valid which
is not contracted in one of these two ways.
Scotland retains intact its marriage law of the sixteenth
EXTENSION OF DIVORCE 201
century, based on the teaching of Leyden. Ireland
retains with very little alteration the Common Law,
identified with that of England, according to which, as
we have seen, the witness of a clerk in Holy Orders was
requisite for a valid contract of marriage. This privilege
is limited by an odious provision, belonging to the penal
laws of the eighteenth century, by which the marriage
of a Papist and a Protestant cannot be validly contracted
in the presence of a Papist clergyman, and on the other
hand it has been extended to ministers of all religious de-
nominations. The rule of the common law, as finally deter-
mined by the House of Lords in the year 1844, has been
applied to all English dominions over sea, in default of local
legislation modifying it, as also to ships under the British
flag ; but common sense and necessity have compelled the
judicial admission that, where a clergyman cannot be pro-
cured, a contract of marriage made in the presence of other
witnesses will suffice. 1
The revolutionary law of divorce has been less prolific
than the law of civil marriage. Its way was prepared by
the teaching and practice of Protestants, especially in the
school of Leyden, by the study of Roman law, and by the
general dissolution of morals in the eighteenth century.
Its provisions were tempered in the Napoleonic Code, by
which separation de corps without dissolution of the bond
was allowed expressly as a concession to Catholic feeling,
and the grounds for divorce were reduced within narrower
bounds, mutual consent being retained. The law was
abrogated in the year 1816, and not revived until 1884,
when the provision for mutual consent was omitted. But
the influence of the Code was felt elsewhere, even while
these sections were suppressed in France, and the idea of
1 Halsbury, The Laws of England, vol. xvi., p. 307.
202 OF MARRIAGE IN THE MODERN STATfi
the dissolubility of marriage has made considerable headway
in most countries.
I have shown abundantly that permission to marry after
divorce is not necessarily based on this idea ; it may be
treated as a dispensation from the rigour of the natural
law which forbids a second marriage during the lifetime of
both parties to a valid union. But nowhere is it more
plainly seen that dispensation, even grudgingly accorded,
undermines the structure of law. English experience is
well to the point. We have seen that such dispensations
by Act of Parliament began from the later years of the
seventeenth century. The promise that they should not
be drawn to a standing precedent proved illusory, and what
was at first an act of grace came to be regarded as a right,
which might not be denied unless in exceptional circum-
stances. A regular procedure grew up, by which, at enor-
mous expense, a man who had procured a canonical divorce
on the ground of his wife's adultery could, almost as a
matter of course, obtain legal permission to marry. More-
over, the act became one for the relaxation of the bond on
both sides, so that the guilty wife was as free to marry as
the injured husband, and public opinion not only allowed,
but even encouraged, her union with the partner of her
guilt, an union disallowed by laws that were framed, as in
Scotland, under Calvinist influences. The merger of Church
and State made acquiescence in these dispensations in-
evitable on the part of the hierarchy, the parties released
were married without difficulty in facie ecclesiae, and the
spiritual courts, which in accordance with the sacred canons
had exacted of them a bond not to contract matrimony,
accepted without demur their discharge from that obliga-
tion by authority of law. There was thus a recognized
consequence of divorce which made mockery of the natural
indissolubility of marriage.
DIVORCE IN ENGLAND 203
But the procedure was open only to the wealthy, and
this made it intolerably odious. It was based also on the
canonical process, and in the course of the nineteenth cen-
tury it was affected by a slowly growing consciousness of
the incongruity of an arrangement which left to spiritual
courts the juridical control of marriage in a State that was
no longer identified with the Church. In giving sentence
for bigamy on a labouring man a judge passed on this state
of the law some remarks, caustic and unseemly, but entirely
justified by the facts, which were widely reported and served
to bring matters to a head. The result was seen in the
Divorce Act of 1857. A new court of the Crown was estab-
lished, to exercise the jurisdiction of the State in all matri-
monial causes, with power to make five different decrees : a
decree of nullity of marriage, a decree in the cause of jacti-
tation of marriage, a decree for the restitution of conjugal
rights on the petition of either party, a decree for separation
a mensa et toro, and a decree of dissolution of marriage.
The procedure and rules in respect of the first four were
taken over in block from the practice of the ecclesiastical
courts ; the last was a novelty. To the establishment of this
court no exception could be taken by any one who acknow-
ledges the right of the State to a jurisdiction in regard to
marriage ; the adoption of the existing procedure was wise
as a first step, but the general confusion of thought about
the relations of Church and State caused the transaction to
be regarded as a complete transfer of authority from the
spiritual courts to the new tribunal, and the Church was
thus left without any machinery at work for the administra-
tion of discipline.
The Divorce Act is commonly discussed as if it were the
last word of legislation upon the subject. But that is far
from being the case. Apart from an Act of Parliament
giving Justices of the Peace the power to issue Separation
204 OF MARRIAGE IN THE MODERN STATE
Orders which are effective divorces in the true sense of the
word, and a Married Women's Property Act which has cor-
rected an inequality of the Common Law by a greater in-
equality in the inverse sense and further weakened the com-
munity of married life, we have to reckon with the more
subtle changes effected by custom and by jurisprudence.
Two of these are of the greatest importance. In com-
paratively recent days a separation deed executed by hus-
band and wife has come to be recognized at law, and its
provisions will be enforced. 1 There is here a complete
reversal of the older jurisprudence, prevailing in almost all
systems of law, by which husband and wife were com-
pelled on grounds of public policy to live together, failing
a judicial divorce, in fulfilment of the social duties of mar-
riage. The explanation is evident. There is lurking in
the public mind a conception of marriage as a mere con-
tractual relation between the parties, with which the State
has no concern except for the purpose of seeing that they
do no wrong to each other. The idea of marriage as a
public institution, the foundation of social order, is dis-
appearing from view. If we are to call things by their right
names, we must recognize the effect of these deeds of separa-
tion, legally enforceable, as divorce by mutual consent
freely allowed without judicial safeguards. But the relaxa-
tion of jurisprudence does not stop here. Of recent years,
since the occurrence of a notable case of attempted abuse,
there has been no enforcement of a decree for restitution of
conjugal rights, and it is openly avowed that nothing of the
kind will be allowed ; a decree is now sought only for the
purpose of establishing legal desertion. Again calling
things by their true names, we must describe this as judicial
permission of divorce at the will of either party. Husband
1 Halsbury, The Laws of England, vol. xvi., p. 439.
CIVIL IMPEDIMENTS 205
or wife is definitely allowed to repudiate the duties of mar-
riage, and to withdraw from the common life. The English
law of marriage and divorce has thus become perhaps the
most lax in the world. The importance of this, in view of
the growing demand for freedom to marry after any kind
of legal separation, can hardly be exaggerated.
The legislation of the State has naturally touched im-
pediments. The distinction of obstructive and diriment
has been generally done away, a marriage being in some
cases rendered void by the neglect even of a trifling for-
mality. Impediments purely civil are encountered in
France as early as the seventeenth century, and their effect
was recognized by the Church ; a certificate of publication
of banns stated that no such impediment was alleged. 1 In
England the effective separation of Church and State was
soon followed by fresh legislation concerning consanguinity
and affinity, which took up the sorry tale of the sixteenth
century. Lord Lyndhurst revived the traditions of Henry
VIII and solved some difficulties of a ducal house by pro-
curing in 1835 the statutory adoption of the whole of Par-
ker's Table, with the provision that the forbidden unions
should be not merely void in the canonical sense, or voidable
by course of law, but simply non-existent or void without
process. In 1907 a logically consistent scheme was shat-
tered, in consequence of the agitation of some wealthy
people, by the excision of one detail, and marriage with a
wife's sister was made in most cases legally valid. As ex-
plained above, ecclesiastical dispensations are, with little
consistency, retained for the removal of certain impedi-
ments within the ambit of civil law.
Surveying the present position as a whole, we see every-
1 Rituel du Diocdse d'Alet, 5th ed., p. 555. " II ne s'est decouvert
aucun empeschement, ou canonique ou civil, qui empesche qu'on
ne puisse proceder a la celebration de leur mariage."
206 OF MARRIAGE IN THE MODERN STATE
where a divergence of Church and State in respect of the
law of marriage, which not unfrequently begets direct an-
tagonism. I have shown that conflict is not inevitable
where two different systems of human law are applicable
to the same persons. Adjustment is possible ; even where
no care is taken to avoid collision, it may happen that
obedience to one law will not hinder the observance of the
other. A striking example of adjustment is seen in the
case of the compulsory civil marriage of France and Italy.
The adoption of the Tridentine rule in these countries
enables the Church to disregard the civil ceremony as an
empty formality, and the parties are free to fulfil
canonical obligations by contracting marriage in facie eccle-
siae. Without this rule it is evident that the civil marriage
would be counted valid by the law of nature, and canonical
marriage would be made impossible. The corresponding
position in England is more complicated. It may be taken
for a general truth that when Church and State fell apart
from the unitary community in which they were merged,
each was equipped with the whole marriage law which
they had previously had in common. So the English State
took over the Canon Law as actually in force, and subsequent
legislation has but modified its provisions. Equally the
English Church must have taken over the marriage law of
the country as it existed in the year 1828. But by this
law no marriage was counted ordinarily valid unless con-
tracted with all the formalities of the ecclesiastical ceremony.
The English Church thus had a law identical with that of
the Eastern Church. Is, then, the civil form of contract
introduced in 1836 to be reckoned invalid for the purposes
of ecclesiastical discipline ? At first this would seem
inevitably to follow, and such marriages were commonly
reckoned void by the clergy, the parties being urged to regu-
late their union by a ceremony in facie ecclesiae. But the
ANTAGONISM OF CHURCH AND STATE 207
clergy were officers of the State for the purpose of registra-
tion, and the entry of such marriages in their registers
brought them into serious conflict with the law, and in one
case, at least, into imminent danger of severe punishment.
It was at length settled, with legislative sanction, that they
might perform the ecclesiastical ceremony on condition
that nothing was said or done, as by registration, to im-
pugn the legal validity of the contract made before the
registrar. In the meantime the spiritual courts, hampered
by the legal jurisdiction still vested in them, either willingly
or of constraint accepted the civil contract as sufficient.
The situation was confused, but opposition to the new form
of marriage insensibly diminished, the superior authorities
of the Church discouraging it, and it may be said with con-
fidence that by the operation of canonical custom the law
which made it void has now gone into desuetude.
But the effect of this desuetude must be considered.
It amounts to the abrogation, for ecclesiastical purposes, of
the Marriage Acts of 1753 and 1823. I n so f ar as tnev are
marriage-officers of the State, the clergy are strictly bound
by the later of those Acts, but I am now concerned with
their purely spiritual function and their dealings with in-
dividual members of the Church. In this respect the Acts
are obsolete. It is not that they are amended by the Mar-
riage Act of 1836, for this cannot be construed as a legis-
lative act of the Church ; it is not that one other form of
marriage, authorized by the State, is accepted as ecclesias-
tically valid. By the canonical abrogation of the Marriage
Acts the Church is thrown back on the natural law prevailing
before they were adopted. It follows that a marriage con-
tracted before a Superintendent Registrar is valid, not be-
cause of the legal formalities observed, but because it is a
contract per verba de praesenti in accordance with the Law
of Nature. Equally will every other marriage so con-
208 OF MARRIAGE IN THE MODERN STATE
tracted be valid for spiritual purposes. If this conclusion
is sound, and I can see no escape from it, the Church may
be obliged to recognize as valid, and binding on the con-
sciences of the parties, a clandestine marriage which the
State will regard as void. It will have no legal effect, but
will be matrimonium conscientiae. In such cases it will be
the duty of the Church, in accordance with canonical prac-
tice, to call upon the parties, failing dispensation, to renew
their contract in facie ecclesiae. A conflict of laws would
thus be averted ; but cases may remain, as when a person
morally bound by such a contract has formed another
alliance with public formalities, which will involve a serious
antagonism between the rules of the Church and the laws
of the State.
More obvious are the possibilities of discord arising out
of divergent rules about impediments. I have endeavoured
to show that the right of the State to create impediments
cannot be impugned, and that such impediments should
be respected by the Church. We have seen the French
Church so acting in the seventeenth century. If there were
reciprocal action on the part of the State, if members of the
Church were not allowed to contract a legal marriage con-
trary to the rules of the Church, there would be no conflict.
But there seems to be no prospect of such agreement. It
follows that legal marriages will be contracted which the
Church cannot regard as valid for spiritual purposes. The
difficulty is acute in England at the present moment in
regard to marriage with a deceased wife's sister. The legal
effect of such a marriage, and the legal obligations ensuing,
are indisputable ; it would seem to be improper for the
Church to encourage either of the parties to repudiate or
evade those obligations, but at the same time it seems abso-
lutely necessary to urge as a religious duty a separatio cor-
porum. As row administered, the law recognizes this if
ANTAGONISM OF CHURCH AND STATE 209
carried out by mutual consent, and tolerates it when effected
by either party, so that active collision between Church
and State need not be feared. A graver trouble comes of
the persistent refusal of many Englishmen to recognize the
real separation of Church and State, and the existence of a
rule of the Church divergent from the law of the State. The
ecclesiastical celebration of any marriage allowed by law
is imperiously demanded, and the right of the Church to
censure its members who contract a forbidden union is
openly impugned.
Graver still, and more frequent, are the possibilities of
conflict arising from the practice of divorce. I have shown
that divorce may best be considered in the category of dis-
pensation, as a permission to withdraw from the chief obliga-
tions of the married state, and that permission to marry after
divorce, whether described as dissolution of marriage or not,
may usually be reduced to a further dispensation, removing
an impediment. The former kind of dispensation seems to
be certainly within the province of the State ; the latter
may be doubtfully allowed. But the Church also has rules
for its own members ; the grounds for a divorce authorized
by the State may be such as the Church cannot approve,
and a dispensation for remarriage may be without exception
reprobated. That is the case alike in France and in Eng-
land, the two countries where contention is sharpest. I will
not speak of the United States, where ecclesiastical confu-
sion may compel a sectarian treatment of the question. The
trouble is not great where divorce only is concerned, though
the Church may sometimes be bound to rebuke and censure
those who separate themselves in course of law. Remar-
riage, and the assertion of a total dissolution of the bond,
is the difficulty. It is double ; the Church condemns two
things which the law allows, must censure any one of its
members who seeks a decree of dissolution, and censure yet
M.C.S. p
210 OF MARRIAGE IN THE MODERN STATE
more severely one who proceeds to a new marriage ; in this
case also, when the wrong has been done, sepamtio cor-
porum must be made -a condition of absolution. In this
case also an insistent demand for the connivance of the
Church must encounter stern refusal. Conflict is inevit-
able, and any extension of the practice of divorce will widen
the field.
Yet it may be curiously observed that an extreme exten-
sion might on the contrary lessen the difficulties of the
Church. There is a demand for a law of divorce allowing
the dissolution of marriage, " either by mutual consent or
at the finally expressed will of either party." 1 That would be,
in effect, a return to the last state of Roman or Jewish law,
and it is not impossible. Should such a law be adopted,
there would arise a grave question whether unions contracted
in accordance with its provisions could be regarded as true
marriages at all, for an agreement of man and woman to
live together during pleasure is not a contract of marriage.
To be precise, it is a contract of concubinage. 2 The con-
tract may be recognized by law, its terms may be enforced
by law, the position of children born of such an union may be
secured by law, but it is doubtful whether any legal regula-
tion can make the relation of the parties true marriage. If
the laws of a State be taken as a connected scheme, and if in
that scheme what is called marriage be treated as a mere
partnership dissoluble by mutual consent or at the will of
either party, it may seem that a contract made in form of law
will be governed by the implications of the law, and will
have no effect beyond what the law contemplates. Civil
1 Kitchin, A History of Divorce, p. 270.
* One can hardly concur with the judgment of Pothier, op. cit.,
torn, i., p. 7, that Roman concubinage was a species of true marriage.
" L'autre espece de mariage," he says, " qu'on appelloit concubinatus ,
etoit aussi un veritable mariage."
ANTAGONISM OF CHURCH AND STATE 211
marriage will then be no real marriage, but legal concubin-
age ; either party will be free, in conscience as in law, to
break off the connexion. The task of the Church will then
be simplified ; real marriage will be a thing of which the
State has no cognizance, and its regulation will fall exclu-
sively into the hands of the Church and of kindred societies.
It is true that, even under such conditions, the parties them-
selves might contract true marriage in the form of the civil
procedure, but the validity of the marriage and the conse-
quent moral obligations would depend on their personal
intention, not on the legal formalities ; if they understood
the contract to be one of true marriage, and intended a life-
long union, they would certainly be married according to the
Law of Nature ; but this fact would have to be ascertained
by particular evidence, as in the case of a clandestine
marriage. I do not pretend to solve so knotty a pro-
blem, leaving it to the judgment of the Church in case the
need should arise. A doubt of this kind may possibly ac-
count for those hesitations of St. Augustine about the
binding effect of Roman marriage to which I have called
attention.
The task of the Church might be simplified, as I have said,
in this way ; but no good Christian would wish to find relief
from present difficulties in the disappearance of the divinely
natural institution of marriage from the laws of his country.
A wider divergence of Church and State might diminish
friction, but it would aggravate the moral evil caused by all
such divergence. This must not be lightly estimated.
Legality and morality can be clearly distinguished by a poli-
tical philosopher, but by the common sort of people they are
pretty sure to be confused. Manners are formed or modified
by legal pressure and legal laxity ; a conflict between the
authority which appeals to conscience and the authority
which directs the strong arm of law will always be injurious
212 OF MARRIAGE IN THE MODERN STATE
to morals. Peace must therefore be sought without sacrifice
of truth.
To seek peace, we should know the causes of conflict.
Why are Church and State antagonistic in regard to mar-
riage ? In so far as they pursue a different object, they
cannot be brought together ; but I have shown that even so
they can for the most part move in different planes, avoid-
ing collision. It is the temper of antagonism which works
most mischief. Why this temper ? It is rooted in history.
The separation of Church and State has not been altogether
amicable. In regard to marriage there has been a rivalry,
each endeavouring to secure the inheritance of its legal con-
trol from the common society out of which both have
emerged. The Church has parted reluctantly with a charge
that was felt to be too sacred for any other guardian. The
State has an abiding suspicion, not altogether unfounded,
that the Church will intrigue for the recovery of a lost pro-
vince. I have been drawn here to the use of abstractions
and personifications which must be employed with caution,
but they stand for genuine facts of modern life. Men who
direct affairs of State, lawyers above all, occupy this out-
look ; ministers of the Church, and theologians in particu-
lar, have this weakness. Nay, one man himself will be
swayed this way and that as he exercises alternately, in
high or low degree, the functions of Statesman and of Church-
man. On both sides there is jealousy; the more acute
where the severance has been less openly avowed, as in Eng-
land, and less logically complete. While the Church even
seems to be desirous of dictating laws to the State, and while
the State resents the independent action of the Church,
there will be continual strife and confusion of simple minds.
A modus vivendi must be sought. The State is not likely
to move first, nor is it unseemly for the Christian Church to
take the lead in a search after peace. The first thing neces-
FUNCTION OF THE CHURCH 213
sary seems to be a clear delimitation of functions. Precedents
are not lacking. For many centuries the hierarchy had
exclusive control of marriage. The results were not happy.
Values were confused, as always in theocratic government.
But for a still longer period the hierarchy had exercised a
limited control of a more purely spiritual kind. For the first
ten Christian centuries the Church was gradually drawing to
itself the power which it eventually grasped, but this was
built on a foundation of another kind, which survives the
ruin of the superstructure. The permanent element is the
exercise of spiritual discipline, directing by appeals to the
conscience or by open censure the conduct of the faithful.
This was overlaid, and almost extinguished, by the secular
business accruing to the ecclesiastical courts in the Middle
Ages. Discharged from the care of that business, the Church
may resume its proper functions. They may be more care-
fully guarded than in earlier times, for mistakes are recorded
in history, and the false moves which once led insensibly to
embarrassing engagements can be avoided. If it is made
plain that the Church intends nothing but the direction of
conscience, a chief cause of jealousy and misunderstanding
will be removed.
This does not mean that the Church will act only in foro
conscientiae. Marriage is too public a thing to be referred
thither in all cases alike. It belongs to the social order of
mankind, and the Church is the social order of mankind
raised to a supernatural power. The validity of the contract,
the obligations ensuing thereon, the duties of the married
state, the relations of husband and wife, are matters of
public notoriety, in regard to religion as well as in regard to
civil order. The Church has need of an external forum, in
which matters of this kind may be publicly determined.
The proceedings should be in reality, as once in form, pro
salute animae. The Church has no longer to determine legal
214 OF MARRIAGE IN THE MODERN STATE
consequences, to assert legal rights, or to redress wrong
by legal remedies ; but the unwary are still to be admonished,
and the recalcitrant are still to be censured, that they may
learn not to offend. Justice requires that discipline of this
open kind should be administered with those safeguards
which are secured by judicial process. If the Church was
overloaded with legalism in the Middle Ages, it is possible
to go too far in the opposite direction.
There is a crying need of a suitable forum for matrimonial
causes in the Church of England. I use a legal term, lest I
should seem to be evading a difficulty, but the questions in
view are not legal, and it would probably be wise to make a
sparing use of legal language in dealing with them. For this
reason, and for others, the existing ecclesiastical courts are
unsuited for the task. Their traditions, their language,
their forms, are legal. They are relics of the medieval polity
that has passed away. Because they belonged to that polity
they were brought, rightly or wrongly, into subjection to
the Crown, and exposed to the control of the temporal courts.
A limited control of this kind, like the French appel comme
d'abus, is neither objectionable nor avoidable, for the State
is the natural guardian of justice ; but a control like that
exercised in England, or under the Coutume de Paris which
still runs in a part of Canada, reduces spiritual disci-
pline to a mere department of law. It survives, an intoler-
able anachronism, to deprive ecclesiastical courts of their
most important characteristic. It would be futile to rely
upon tribunals so bound by the laws of the State for the
administration of a discipline, the essential quality of which
is to be independent of those laws. What seems to be re-
quired is the organization ;by episcopal authority of a peni-
tential jurisdiction which may deal openly with questions
of marriage, divorce, and other elements of public morality. 1
1 For instances of an Archbishop t dealing\vith such matters " plane
FUNCTION OF THE CHURCH 215
Such jurisdiction would need no sanction but that of the
sacred mission of the Church, and no support but that of
the Christian conscience. The law of the State would pass
it by, because moving in a different plane.
That some such solution will be found, I cannot doubt. It
is being reached in countries where the historic causes of
jealousy between Church and State are least operative. It
is being brought on by force of circumstances even where it
is least sought. In this connexion the recent legislation of
the Roman Church is of great importance.
The constitution of the Council of Trent nullifying clandes-
tine marriages was made as for united Christendom, but
from the first there were two causes hindering its universality.
On the one hand, the new rule was to have effect, by order
of the Council itself, only in places where it was expressly
promulgated, and in many places this was not done. On
the other hand, the disruptive forces of the Reformation
withdrew a large part of Christendom from any pretence of
submission to the Council. The two causes worked together,
for the disruption was the main ground, though not the only
ground, for abstaining from promulgation. Many difficul-
ties ensued, of which three are specially noteworthy, (i)
Questions arose about the validity of marriage contracted
between a person subject to the new rule and one residing in
a place where it was not promulgated, and unexpected
nullities were the result. This trouble was acute in Germany,
where contiguous parishes were not unfrequently under
different laws. (2) In places where the rule was promul-
gated, it was held binding, according to canonical precedent,
on all the baptized, heretics and schismatics included. But
in some of these places, as at Malta, canonical marriage
et summarie without the tedious formalities of the law," see Strype's
Parker, pp. 144, 280.
216 OF MARRIAGE IN THE MODERN STATE
was until recently the only kind of marriage recognized by
law. Consequently the presence of the parish priest was
required for the legal marriage even of heretics and schisma-
tics. (3) The great disruption, and the ultimately inevit-
able toleration of heresy and schism, brought in the impedi-
ment of mixed religion. This must not be confused with
disparitas cultus ; heresy was never made in the West, as in
the Eastern Church, a diriment impediment ; it has been
treated only as obstructive, and there grew up in the nine-
teenth century a very confused practice in regard to dispen-
sations and the conditions on which they might be granted.
These difficulties were increased by the mobility of popula-
tions in recent times, and after long debate the authorities
at Rome revised the Trident ine rule to suit modern circum-
stances. This was done by the decree Ne temere, of August,
1907. Subsequent decrees of the Holy See have cleared
away some doubts or obscurities, and the new rule is now
fairly clear. 1
Neglecting many details, I note three things of special
interest : (i) The assistance of the parish priest is more
strictly defined ; his merely accidental presence as witness of
the contract will not suffice ; he must be called in, at least
implicitly, and asked to render his services ; he must himself
demand and receive the consent of the parties ; the marriage
will be invalid if he is put to constraint. (2) In immediate
peril of death, if the assistance of the priest cannot be ob-
tained, and in regions where for a month or more his pres-
ence is impossible, the parties may lawfully and validly con-
tract marriage in the presence of two witnesses. (3) The
rule extends to all persons " baptized in the Catholic Church,
or converted to it from heresy or schism," provided they be
1 For the text see App. A. For a full commentary see Bou-
dinhon, Canonists Contemporain, 1907-8,
THE DECREE NE TEMERE 217
of the Latin rite. It does not apply to Catholics of any
Eastern rite, nor to any who are " acatholici," whether bap-
tized or not. Where one party is Catholic and the other is
not, it holds good in spite of any dispensation, unless it be
otherwise provided by the Holy See for any particular place
or region.
Under the last provision the German Empire seems
to be exempt, but, so far as I am aware, no other place
or region. The operative parts of the decree which bear
on the point now under consideration may be rapidly
estimated. The first has the effect of strengthening the
position of the parish priest, and therefore extends the
impression, already produced by the Tridentine rule, that
the state of marriage is created by the intervention of
an official. The second, on the other hand, testifies in
principle to the validity of a marriage contracted according
to natural law without such intervention. The third is far
more important, and demands careful scrutiny.
The Tridentine rule, as I have said, was by intention uni-
versal, applying to all Christians, and that in a society which
did not tolerate, except sporadically on behalf of Jews,
any diversity of religion. The power thus to legislate was
jealously asserted by the Roman Church, and recognition
was for a long time reluctantly accorded even to patent
facts in conflict with the claim. Even now the conservative
instinct of the Court of Rome forbids any change of language,
and the decree Ne temere is conceived in terms implying that
the legal effect of marriage and the legitimation of offspring
depend upon its provisions. But in its final clause instant
facts are at last recognized. Exemptions from the Triden-
tine rule were merely territorial ; where promulgated, it
was meant for all Christians alike. In the case of Ne temere
also there are territorial exemptions, but more broadly the
decree is confined in express terms to those who have
218 OF MARRIAGE IN THE MODERN STATE
voluntarily submitted themselves to the spiritual rule of the
Roman pontiff. It does not extend to those who in the
language of the Curia are termed " acatholici." That is to
say, the Church of Rome withdraws the claim to control the
marriage law of Christendom at large, and contents itself
with the disciplinary control of those who submit.
It is true that the withdrawal is not definitely asserted.
So far as the words of the decree go, the larger claim may be
reserved. Indeed, the withdrawal is limited by a refusal to
recognize the right of any one to renounce an allegiance once
professed. But this must be expected. The Court of
Rome, with its vast machinery of intricate tradition, moves
slowly even in the recognition of obvious facts. It is much
that it moves at all. What I have to note is the direction
in which it is moving.
I have this also to note. There is now, I believe, no coun-
try in which the canons of the Roman Church regarding
marriage have exclusive legal effect ; but there are some
countries, notably the Russian Empire, the Austrian domin-
ions, Spain, and the island of Malta, in which they more or
less completely bind individual persons publicly adhering
to the Roman communion. Yet even here it is allowed
that such legal effect is consequent upon positive laws of the
country, may be varied by the legislature and must be inter-
preted by the judicature of the State. At most the national
government is bound by a diplomatic instrument, a con-
cordat with the Holy See, which may be denounced and can-
celled. Nowhere does the medieval conception of the legal
control of marriage by the hierarchy survive. The Court of
Rome accepts this state of things in fact, if not in theory,
and the decree Ne temere is an adjustment of canonical prac-
tice to existing facts. It is addressed to all adherents of
the Roman communion as such, whatever be the civil laws
under which they live, and it appeals exclusively to their
NEED OF AN UNIFORM SYSTEM 219
consciences. It has no legal effect, unless accidentally, and
it is not held back on that account. In reality, if not
avowedly, the Roman Church falls back upon a position of
purely spiritual discipline.
This may pave the way for a great reform. The confusion
now existing in the laws of diverse States regarding marriage
and divorce cannot but be regarded as a great evil. 1 Not
only do States entirely independent go their own way, but
even within the great federal communities of the United
States, [of Canada, and of Australia, the component parts
have laws differing in various degrees. The jurisprudence
of different countries follows different rules in applying the
principle of domicile or of international comity, with the
consequence that a marriage held valid in one country is
elsewhere annulled, and the married in passing from one
place of residence to another may find themselves for all
legal purposes disunited. This state of things is inevitable,
so long as States jealously assert their right severally and
entirely to control the law of marriage in regard to their sub-
jects and denizens. But marriage is not a matter merely
of national or local institution. It is the foundation of
human society ; the great development of nationalities dur-
ing the last three centuries has not destroyed the real unity
of mankind, nor entirely obliterated all sense of it, and the
extensive movement of individuals and families which
characterizes modern life makes the recognition of that unity
more important. International commerce compels a certain
unification of method in all civilized communities ; inter-
national intercourse of life renders a similar unification of the
law of the family at least equally desirable. It can be effected
1 Their diversity and complexity may be studied in Renton and
Phillimore's Comparative Law of Marriage and Divorce, my deep
indebtedness to which I will here once for all acknowledge.
220 OF MARRIAGE IN THE MODERN STATE
only by international agreement. Marriage should be a
subject of International Law, and the evil wrought by the
shattering of the unity of Canon Law may thus be remedied.
A very small beginning has been made by The Hague Confer-
ence in determining how far the lex loci and the national law
of the parties shall respectively apply to cases of divorce ;
in the same kind of procedure lies the main hope of a
larger unity.
If unity is to be achieved, its roots must be sought in the
Natural Law. English lawyers are impatient of this, and
even French jurists, wrapt in the study of their finished
Code, pay it comparatively small attention ; but inter-
national jurists are compelled to build upon it as their only
foundation. It is therefore necessary to insist on the
essential character of marriage as founded in the order of
nature. Unity can be attained only by the abandonment
of what is merely artificial, by the limitation of restrictions
and requirements which represent a peculiar tradition, by
a return to the broad principles underlying narrow pro-
vincialisms.
This does not mean that all local or national laws will be
superseded. Such an achievement, even if it be desirable,
is beyond the widest range of possibility. It does mean
that there shall be the least possible interference, whether
by addition or by dispensation, with the Law of Nature.
It means, above all, the reduction of diriment impediments
within the narrowest bounds, the abandonment of rules
requiring for the validity of a marriage the intervention of
an official or the fulfilment of onerous precautions. It is
idle to suppose that these can be made even approximately
identical in all countries, and they are the chief cause of the
existing confusion. Their disappearance need not hinder
the enforcement of stringent laws imposing penalties on
those who contract marriage without regarding the rules
NEED OF AN UNIFORM SYSTEM 221
of publicity established by law ; it will only intercept the
wrong that is not unfrequently done where a contract
made in good faith, and fulfilled in person, is found to be
legally void for lack of some formality. The abandonment
of false positions should not be impossible ; the detailed
marriage laws of most modern states are not conspicuously
wise. If jealousy of ecclesiastical dictation is diminished,
the jealous defence of national rules may give way. Nor
is there lacking an example of what is needed. The marriage
law of Scotland, in its august and austere simplicity, affords
a model. But for the Calvinistic teaching that adultery
or malicious desertion ipso facto dissolves the bond, it in-
volves little or no disturbance of the natural order, and
adds the smallest amount of matter required for public
discipline. I speak of Scottish law because it is fairly well
known to Englishmen, but it is not merely Scottish ; it is
directly derived from the Roman-Dutch law as taught in
the school of Leyden. That school has bred also the greatest
of international jurists. If a Conference at The Hague is
to give the civilized world the benefit of an unified law of
marriage, the proximity of Leyden may be the best of omens.
But this is a vision of many days. In the meantime
there are local reforms to be effected, and here we must
ask what is the duty of the instructed Christian. He is
obviously bound to direct his own personal conduct by the
Christian rule. In the absence of any public forum effec-
tively controlling marriage by penitential discipline, he is the
more bound to a proper regard for the forum conscientiae. The
laxity of the English law, and the almost unlimited facilities
which it affords for evasions of the obligations of the married
state, give to this moral discipline a paramount importance.
But the duty of a Christian is not fulfilled with the regulation
of his own conduct. He is a member of two public com-
munities, Church and State, in regard to both of which he
222 OF MARRIAGE IN THE MODERN STATE
has public obligations. They must be considered separately,
and in their interaction.
It is the duty of a Christian to support the authority of
the Church. It may be his duty also to lend his aid for the
reform of abuses in the Church. In the present condition
of latent or open antagonism between Church and State,
it is his duty to labour for a just settlement ; in England
there is urgent need of a wise and courageous defence of
the right of the Church to exercise discipline over its members
in cases where the civil law of marriage conflicts with the
sacred canons. That right is challenged, and the challenge
has the support of weighty precedents. The hierarchy
must assert and exercise the power of excluding from
communion those who under cover of law resist the ordinance
of God or the rule of the Church. " This principle/' the
Archbishop of York has lately said, " is inherent in any
claim of the Church to be a spiritual society, and is in no
way inconsistent with the true understanding of its consti-
tutional relations with the State." 1 But the hierarchy
needs the constant support of the faithful. The power
must be exercised at any cost ; the cost will be less, the
difficulty will be reduced, in proportion as the faithful
generally bring their neighbours to acknowledge its reason-
ableness. " There seems to me," says the Bishop of Oxford,
"to be no principle more certain than the principle that
this judicial power belongs to the Church only, and that
the Church cannot surrender its authority to the State
without fundamental treason. I believe, therefore, that it
is our duty to abide by this principle and to face the conse-
quences without violent language or intemperate action,
but solemnly and with due sense of the gravity of the issue.
And we ought to pray with all our hearts that our bishops,
clergy, and laity may be given in this matter the virtue of
1 Pastoral Letter of July, 1912.
THE DUTY OF A CHRISTIAN 223
courage and simplicity and the wisdom to commend the
principle of our action to the common religious conscience
of the nation." *
To commend a principle to the common sense of mankind
is to apply it wisely, with open sincerity, and with evident
justice. So to apply this principle is not impossible In
asserting the rights of the Church, it is not necessary to
decry the rights of the State. I have laboured to show
that the State has inherent rights in the matter of marriage
and divorce. It would be well if the laws of the Church
and of the State should coincide, but it is not necessary.
The rule of the Church will be most wisely defended when
the rule of the State is treated with respect. When the
State allows things plainly repugnant to natural morality,
there must be plain speaking. But when the State allows
things which the Church forbids, or which the Church
teaches on the ground of revelation to be contrary to the
Divine Law, there is no place for intemperate or contemptu-
ous words. Not all the subjects of the State are subjects of
the Church, and the State legislates for all its subjects alike.
The Church may forbid its own members to use a liberty
which the State allows, or even to do what the State com-
mands, but it is not reasonable to object to the liberty or
the command merely on the ground of its disagreement
with a rule of the Church. If the State allows a marriage
which the Church disallows on the score of kinship, it is
perfectly just to call that marriage incestuous in the course
of ecclesiastical discipline, to warn the faithful against con-
tracting it, and to censure those who disobey ; but it is
not just to treat it as of no account at all, and to speak of
the married as living in mere fornication. " There is a
marked distinction," says the Archbishop of Canterbury,
1 Pastoral Letter of July, 1912.
224 OF MARRIAGE IN THE MODERN STATE
" between the case of a man who has conscientiously con-
tracted a marriage ecclesiastically irregular but expressly
legalized and validated, and the case of a man who is living
with a woman not legally his wife, is producing illegitimate
children, and is capable during his partner's lifetime of
forthwith marrying another woman." Account should be
taken of legality ; and, doing this honestly, the Church
will stand on firmer ground in asserting that something
more than legality must be considered where it is a question
of spiritual discipline. " The contention that it rests with
Parliament/' says the Archbishop again, " or with the civil
courts, and not with the Church itself, which has authorities
and courts for the purpose, to determine the conditions of
the admission of our members to Holy Communion, is
untenable, and if it were to be authoritatively asserted,
acquiescence in it would be impossible." *
It is the duty of a Christian to support the authority
of the State. It may be his duty also to labour for the
reformation of the laws of the State. In doing this he has
no right to put aside what he has learnt as a Christian, and
in the quality of citizenship to act as a mere natural man.
Such a division of personality is intolerable. But neither
is he bound to insist that the laws of the State, in regard
to marriage or in regard to anything else, shall conform
exactly to Christian teaching. Not all the subjects of the
State are Christian, and the State must legislate for all.
He is bound, however, to use his Christian illumination for
ascertaining what is naturally just, and he is no less bound
to ensue peace by endeavouring to bring the law into such
a frame that it will not actually conflict with his obligations
to the Church.
1 Letter to the Bishop of London. The text of this important
document is given below in Appendix B.
PARTICULAR NEEDS OF ENGLAND 225
The present state of the English law of marriage affords
ample scope for such endeavour. Apart from the misuse
of divorce and the peril of interference with spiritual dis-
cipline, about which I have said enough, four conspicuous
defects are apparent. There is evil in the law which annuls
a marriage contract by reason of the neglect of arbitrarily
imposed formalities ; this law, enacted for the repression
of clandestinity, recognizes three different methods of con-
tracting which provide the most inadequate safeguards
for publicity ; the requirement of the intervention of an
official person, who appears to be actually joining the parties,
engenders a false opinion about the nature of the contract ;
the confusion of functions, ecclesiastical and civil, in the
solemnization of marriage hinders a clear recognition of
the respective rights and powers of Church and State.
The first of these four defects of the law requires separate
treatment ; reform means the abandonment of a principle
incorporated into legislation within the last hundred and
sixty years, and the assimilation of English law to the laws
of Scotland and Ireland. The other three faults can be
remedied by a single reform. The State should insist on
adequate publicity of marriage, by requiring previous
notification of an effective kind, and by imposing severe
penalties on all persons concerned in a contract of marriage
made without such notification ; simplicity and efficiency
demand the commission of these preliminaries, and of sub-
sequent registration, uniformly in all cases alike to a public
official, but his intervention at the actual making of the
contract is neither necessary, convenient, nor desirable,
all that is needed being a record of sufficient witness to what
is done. An amendment of the law conceived in this
fashion would provide for that publicity and uniform regis-
tration which it is the proper function of the State to guard,
would leave the parties free to contract in facie ecclesiae or
M.C.S.
226 OF MARRIAGE IN THE MODERN STATE
otherwise according to their judgment, and would enable
the Church to solemnize their nuptials with such rites, such
publicity, and such record as the sacred canons require.
It would secure perfect religious equality, and would empha-
size, instead of obscuring, the natural relation which human
law can but observe and regulate. 1
The graver questions of divorce remain. The necessity
of a legal system of divorce cannot, I think, be denied.
That its control falls properly within the dispensing power
of the State I have tried to prove. Its abuse may be re-
strained by a healthy public opinion, to the formation of
which every Christian is plainly bound to contribute what
lies in his power ; but he is not bound to insist that the
State shall be restricted to those grounds for separation
which the Church considers adequate. It is hardly possible
to hope for exact agreement, either here or in the recognition
of impediments to marriage, since the State legislates for
all men, and the Church for Christians alone. The candid
acknowledgment of diversity makes for that mutual
toleration which will secure for the Church freedom in the
exercise of spiritual discipline.
1 For a scheme of reform in detail, see Appendix C.
Appendix A
i. THE DECREE NE T EM ERE
Ne temere inirentur clandestina conjugia, quae Dei Ecclesia justis-
simis de causis semper detestata est atque prohibuit, provide cavit
Tridentinum Concilium, cap. i, Sess. XXIV de reform, matrim.
edicens : " Qui aliter quam praesente parocho vel alio sacerdote
de ipsius parochi seu Ordinarii licentia et duobus vel tribus teStibus
matrimonium contrahere attentabunt, eos Sancta Synodus ad sic
contrahendum omnino inhabiles reddit, et hujusmodi contractus
irritos et nullos esse decernit."
Sed cum idem Sacrum Concilium praecepisset, ut tale decretum
publicaretur in singulis paroeciis, nee vim haberet nisi iis in locis
ubi esset promulgatum ; accidit ut plura loca, in quibus publicatio
ilia facta non fuit, beneficio tridentinae legis caruerint, hodieque
careant, et haesitationibus atque incommodis veteris disciplinae
adhuc obnoxia maneant.
Verum nee ubi viguit nova lex, sublata est omnis difficultas.
Saepe namque gravis exstitit dubitatio in decernenda persona
parochi, quo praesente matrimonium sit contrahendum; Statuit
quidem canonica disciplina, proprium parochum eum intelligi de-
bere, cujus in paroecia domicilium sit, aut quasi-domicilium alter-
utrius contrahentis. Verum quia nonnunquam difficile est judicare,
certone constet de quasi-domicilio, baud pauca matrimonia fuerunt
objecta periculo ne nulla essent : multa quoque, sive inscitia homi-
num sive fraude, illegitima prorsus atque irrita deprehensa sunt.
Haec dudum deplorata, eo crebrius accidere nostra aetate videmus,
quo facilius ac celerius commeatus cum gentibus, etiam disjunctis-
simis, peificiuntur. Quamobrem sapientibus viris ac doctissimis
visum est expedire ut mutatio aliqua induceretur in jure circa for-
mam celebrandi connubii. Complures etiam sacrorum Antistites
omni ex parte terrarum, praesertim e celebrioribus civitatibus, ubi
gravior appareret necessitas, supplices ad id preces Apostolicae Sedi
admoverunt.
Flagitatum simul est ab Episcopis, turn Europae plerisque, turn
aliarum regionum, ut incommodis occurreretur, quae ex sponsalibus,
idest mutuis promissionibus futuri matrimom'i privatim initis,
228 APPENDIX A
derivantur. Docuit enim experientia satis, quae secum pericula
ferant ejusmodi sponsalia : primum quidem incitamenta peccandi
causamque cur inexpertae puellae decipiantur ; postea dissidia ac
lites inextricablies.
His rerum adjunctis permotus SS mus D.N. Pius PP.X, pro ea
quam gerit omnium Ecclesiarum sollicitudine, cupiens ad memorata
damna et pericula removenda temperatione aliqua uti, commisit S.
Congregation! Concilii ut de hac re videret, et quae opportuna
aestimaret, S. Sedi proponeret.
Voluit etiam votum audire Consilii ad jus canonicum in unum
redigendum constituti, nee non E moram Cardinalium qui pro
eodem codice parando speciali commissione delecti sunt : a quibus,
quemadmodum et a S. Congregatione Concilii, conventus in eum
finem saepius habiti sunt. Omnium autem sententiis obtentis,
ggmufl Dominus S. Congregation! Concilii mandavit, ut decretum
ederet quo leges, a Se ex certa scientia et matura deliberatione
probatae, continerentur, quibus sponsalium et matrimonii disciplina
in posterum regeretur, eorumque celebratio expedita, certa atque
ordinata fieret.
In executionem itaque Apostolici mandati, S. Concilii Congregatio
praesentibus litteris constituit atque decernit ea quae sequuntur.
DE SPONSALIBUS
I. Ea tantum sponsalia habentur valida et canonicos sortiuntur
effectus, quae contracta fuerint per scripturam subsignatam a
partibus et vel a parocho, aut a loci Ordinario, vel saltern a due bus
testibus.
Quod si utraque vel alterutra pars scribere nesciat, id in ipsa
scriptura adnotetur ; et alius testis addatur, qui cum parocho, aut
loci Ordinario, vel duobus testibus, de quibus supra, scripturam
subsignet.
II. Nomine parochi hie et in sequentibus articulis venit non
solum qui legitime praeest paroeciae canonice erectae ; sed in
regionibus, ubi paroeciae canonice erectae non sunt, etiam sacerdos
cui in aliquo definito territorio cura animarum legitime commissa
est, et parocho aequiparatur ; et in missionibus, ubi territoria necdum
perfecte divisa sunt, omnis sacerdos a missionis Moderatore ad
animarum curam in aliqua statione universaliter deputatus.
DE MATRIMONIO
III. Ea tantum matrimonia valida sunt, quae contrahuntur
coram parocho vel loci Ordinario vel sacerdote ab alterutro delegate,
et duobus saltern testibus, juxta tamen regulas in sequentibus arti'
APPENDIX A 229
culis expressas, et sal vis exceptionibus quae infra n. VII et VIII
ponuntur.
IV. Parochus et loci Ordinarius valide matrimonio adsistunt,
i a die tantummodo adeptae possessionis beneficii vel initi
omcii, nisi publico decreto nominatim fuerint excommunicati vel
ab officio suspensi ;
2 intra limites dumtaxat sui territorii : in quo matrimoniis
nedum suorum subditorum, sed etiam non subditorum valide adsis-
tunt ;
3 dummodo invitati ac rogati, et neque vi neque metu gravi
constricti requirant excipiantque contrahentium consensum.
V. Licite autem adsistunt,
i constito sibi legitime de libero statu contrahentium, servatis
de jure servandis ;
2 constito insuper de domicilio, vel saltern de menstrua com-
moratione alterutrius contrahentis in loco matrimonii ;
3 quod si deficiat, ut parochus et loci Ordinarius licite matri-
monio adsint, indigent licentia parochi vel Ordinarii proprii alter-
utrius contrahentis, nisi gravis intercedat necessitas, quae ab ea
excuset.
4 Quoad vagos, extra casum necessitatis, parocho ne liceat eorum
matrimoniis adsistere, nisi, re ad Ordinarium vel ad sacerdotem ab
eo delegatum delata, licentiam adsistendi impetraverit.
5 In quolibet autem casu pro regula habeatur ut matrimonium
coram sponsae parocho celebretur, nisi aliqua justa causa excuset.
VI. Parochus et loci Ordinarius licentiam concedere possunt alii
sacerdoti determinato ac certo, ut matrimoniis intra limites sui
territorii adsistat.
Delegatus autem, ut valide et licite adsistat, servare tenetur
limites mandati, et regulas pro parocho et loci Ordinario n. IV et V
superius statutas.
VII. Imminente mortis periculo, ubi parochus, vel loci Ordinarius,
vel sacerdos ab alterutro delegatus, haberi nequeat, ad consulendum
conscientiae et (si casus ferat) legitimationi prolis, matrimonium
contrahi valide ac licite potest coram quolibet sacerdote et duobus
testibus.
VIII. Si contingat ut in aliqua regione parochus locive Ordinarius,
aut sacerdos ab eis delegatus, coram quo matrimonium celebrari
queat, haberi non possit, eaque rerum conditio a mense jam perse-
veret, matrimonium valide ac licite iniri potest emisso a sponsis
foimali consensu coram duobus testibus.
IX. i. Celebrate matrimonio, parochus, vel qui ejus vices
gerit, statim describat in libro matrimoniorum nomina conjugum
ac testium, locum et diem celebrati matrimonii, atque alia, juxta
230 APPENDIX A
modum in libris ritualibus vel a proprio Ordinario praescriptum ;
idque licet alius sacerdos vel a se vel ab Ordinario delegatus matri-
monio adstiterit.
2. Praeterea parochus in libro quoque baptizatorum adnotet,
conjugem tali die in sua parochia matrimonium contraxisse. Quod
si conjux alibi baptizatus fuerit, matrimonii parochus notitiam initi
contractus ad parochum baptismi sive per se, sive per curiam epis-
copalem transmittat, ut matrimonium in baptismi librum referatur.
3. Quoties matrimonium ad normam n. VII aut VIII contra-
hitur, sacerdos in priori casu, testes in altero, tenentur in solidum
cum contrahentibus curare, ut initum conjugium in praescriptis
libris quam primum adnotetur.
X. Parochi qui heic hactenus praescripta violaverint, ab Ordin-
ariis pro modo et gravitate culpae puniantur. Et insuper si alicujus
matrimonio adstiterint contra praescriptum 2 et 3 num. V,
emolumenta stolae sua ne faciant, sed proprio contrahentium parocho
remittant.
XI. i. Statutis superius legibus tenentur omnes in catholica
Ecclesia baptizati et ad earn ex haeresi aut schismate conversi
(licet sive hi, sive illi ab eadem postea defecerint), quoties inter se
sponsalia vel matrimonium ineant.
2. Vigent quoque pro iisdem de quibus supra catholicis, si cum
acatholicis sive baptizatis sive non baptizatis, etiam post ob ten tarn
dispensationem ab impedimento mixtae religionis vel disparitatis
cultus, sponsalia vel matrimonium contrahunt : nisi pro aliquo
particular! loco aut regione aliter a S. Sede sit statutum.
3. Acatholici sive baptizati sive non baptizati, si inter se contra-
hunt, nullibi ligantur ad catholicam sponsalium vel matrimonii
formam servandam.
Praesens decretum legitime publicatum et promulgatum habeatur
per ejus transmissionem ad locorum Ordinarios : et quae in eo dis-
posita sunt ubique vim legis habere incipiant a die solemni Paschae
Resurrectionis D.N.J.C. proximi anni 1908.
Interim vero omnes locorum Ordinarii curent hoc decretum
quamprimum in vulgus edi, et in singulis suarum dioecesum paro-
chialibus ecclesiis explicari, ut ab omnibus rite cognoscatur.
Praesentibus valituris de mandato speciali SS ml D.N. Pii PP.X.,
contrariis quibuslibet etiam peculiar! mentione dignis minime
obstantibus.
Datum Roma* die 2* mensis Augusti anni 1907.
VINCENTIUS Card. Ep. Praenest., Praefectus.
C. DE LAI, Secretarius.
APPENDIX A 231
2. SUBSEQUENT DECREES.
The decree Ne temere has subsequently been elucidated by various
decrees of the Sacred Congregation of the Council, of which I select
the following :
i Feb., 1908.
An decreto Ne temere adstringantur etiam catholic! ritus orien-
talis ?
Resp. Negative.
Num in imperio Germaniae catholici, qui ad sectam haereticam
vel schismaticam transierunt, vel conversi ad fidem catholicam ab
ea postea defecerunt, etiam in juvenili vel infantili aetate, ad valide
cum persona catholica contrahendum adhibere debeant form am
in decreto Ne temere statutam, ita scilicet ut contrahere debeant
coram parocho et duobus saltern testibus ?
Resp. Affirmative.
28 Martii, 1908.
Utrum validum sit matrimonium contractum a catholica ritus
atini cum catholico ritus orientalis, non servata forma a decreto
Ne temere statuta ?
Resp. Negative.
An in art. XI 2 ejusdem decretisub nomine acatholicorum com-
prehendantur etiam schisma.tici et haeretici rituum Orientalium ?
Resp. Affirmative.
27 Julii 1908.
Ar vi decreti Ne temere, etiam ad matrimonia mixta valide contra-
henda, ab Ordinario vel a parocho exquirendus et excipiendus sit
contrahentium consensus ?
Resp. Affirmative, servatis ad liceitatem, quod ad reliqua, prae-
scriptionibus et instructionibus S. Sedis.
An et quomodo providere expediat casui quo parochi a lege civili
graviter prohibeantur quominus matrimoniis fidelium assistant nisi
praemissa caerimonia civili, quae praemitti nequeat, et tamen pro
animarum salute omnino urgeat matrimonii celebratio ?
Resp. Non esse interloquendum.
Appendix B
LETTER OF THE ARCHBISHOP OF CANTERBURY.
LAMBETH PALACE, June 25, 1912.
MY DEAR BISHOP OF LONDON, It is not surprising that people
should be disquieted by things which have been said in the recent
lawsuit respecting the interpretation of an Act of Parliament relied
on by Canon Thompson as justifying his refusal of Holy Communion
to Mr. and Mrs. Banister. The legal points involved are intricate
and technical, and you may perhaps remember that I endeavoured
more than two years ago, in a published letter to Dr. Inge, now Dean
of St. Paul's, to point out their very limited bearing upon the large
and vitally important question of the Church's rights and juris-
diction in her own Courts and over her own members. I showed
that the only point which had been really before the Court of King's
Bench and the Court of Appeal was whether or not the Dean of
Arches had rightly interpreted a particular clause in an Act of Parlia-
ment. Recent utterances and dicta by the highest judicial author-
ities, and still more the current popular interpretation of these
utterances, increase the importance of the distinction to which I
drew attention between the responsibility of the Court of King's
Bench and the higher tribunals for interpreting an Act of Parliament
and the responsibility of our Ecclesiastical Courts for interpreting and
applying our own Rubrics
The contention that it rests with Parliament or with the Civil
Courts and not with the Church itself, which has authorities and
Courts for the purpose, to determine the conditions of the admission
of our members to Holy Communion is untenable, and if it were to
be authoritatively asserted acquiescence in it would be impossible.
It has not, so far as I can see, been authoritatively asserted, though
I own that some of the judicial language used in the Civil Courts
seems to go perilously near to such a contention. The much more
rough-and-ready conclusions drawn in certain newspapers and
elsewhere may be ascribed, I think, to a popular misunderstanding
of the technical points involved, and of the true position of our
ecclesiastical law.
APPENDIX B 233
I will not attempt to re-argue what I said on that subject in 1910.
Those who are interested in these grave but technical considerations
will find in my letter (see The Times of February 8, 1910, and Guar-
dian of February n, 1910, page 215, and elsewhere) as careful a
statement of the facts as I could give in short compass. 1 What I
there said has never, so far as I know, been controverted.
As regards the practical question which underlies these technical
points the question, namely, whether a man who under the existing
law marries his deceased wife's sister ought or ought not to be ad-
mitted to Holy Communion no universal or sweeping decision
has been, or, I think, can rightly be, laid down.
A few weeks after the passing of the Act I wrote, as you may
remember, to my own diocese a long letter (published by Macmillans
in pamphlet form) in which I tried to deal with the whole question
which had arisen. In it I pointed out (pages 49-50) that, greatly as I
deplored the Act, it is in my judgment impossible to regard a man
as becoming ipso facto " an open and notorious evil-liver " on account
solely of contracting that particular marriage after it had as a civil
contract been expressly sanctioned by English law. If, as is
perfectly possible, he is to be rightly repelled from Communion
either for a time or permanently, such repulsion would have to
be on other grounds than, the application of the words which I
have quoted.
I wrote on my own sole responsibility, and indeed I felt myself
precluded from consulting ecclesiastical Judges, before whom
the question might officially come. But it was a satisfaction to
1 The most important passage in the Archbishop's letter of Feb. 4th, 1910,
is the following :
"The Dean of the Arches seems to me to have said no' word which could imply
that the Church has lost the right a right which we must regard as essential
to determine the conditions of admission to Holy Communion. He pointed out,
for example, that he had not before him the question whether the parties
could be, or ought to be, excommunicated by a sentence of the Bishop's Court
under the jurisdiction which used in former days to be freely exercised
and which is, I believe, still recognized by express statutory enactment. The
question before him was restricted to the validity or invalidity of the incumbent's
act of repulsion carried out on his individual responsibility. I pass over the
Bishop's private communications, for these obviously could not be officially
recognized.
"This question had to be answered by a consideration of what is the extent of an
incumbent's personal power in the matter. With this the judgment of the Court
of Arches dealt. The Dean of the Arches ruled that to contract a legally valid
marriage with a deceased wife's sister does not, of itself, bring the parties into th
category of ' open and notorious evil-livers ' within the meaning of the rubric ;
and, further, that a particular proviso in the recent Act of Parliament does not,
when properly construed, bear the construction for which the incumbent con-
tended. This, and this only, is the finding of the Church Court."
234 APPENDIX B
me a few months later to find my view on that particular point
supported by the Dean of Arches in his formal judgment.
Again, when the Lambeth Conference of Bishops from all parts
of the world considered in 1908 the marriage problems submitted
to it, the great committee of thirty-four Bishops agreed to a report
in which they say (page 143) :
" We are of opinion that marriage with a deceased wife's sister,
where permitted by the law of the land, and at the same time pro-
hibited by the Canons of the Church, is to be regarded not as a non-
marital union, but as marriage ecclesiastically irregular while not
constituting the parties ' open and notorious evil -livers.' "
So far, then, as the ecclesiastical opinion of our Church has found
formal expression, it would seem to accord with what has inciden-
tally been said on this particular point by the Judges of our highest
civil Courts, although, as I have pointed out, the interpretation or
application of the Rubric (apart from the Act of Parliament) was
not technically before them.
It is popularly contended by some of those who have not, I think,
given adequate attention to the Dean of Arches' judgment, that as a
matter of fact the Act of Parliament does effectively change the
Church's law, because a man who would before the passage of
the Act have been rightly repelled from Communion as "an open
and notorious evil-liver," is no longer, after the Act, in a position
to which these words are applicable. Upon that contention I
would say two things first, that as a matter of fact the stoutest
opponents of the Act of whom I claim to be one must admit
that there is a marked distinction between the case of a man who has
conscientiously contracted a marriage ecclesiastically irregular but
expressly legalized and validated, and the case of a man who is living
with a woman not legally his wife, is producing illegitimate children,
and is capable during his partner's lifetime of forthwith marrying
another woman. The words " open and notorious evil-liver "
may surely be applicable in the second case and inapplicable in the
first, however strongly we may disapprove the course which the man
has taken. In the next place, it has nowhere, so far as I can see,
been authoritatively declared that the passage of the Act has made
discipline impossible in the case of an ecclesiastically irregular
marriage. The Ecclesiastical Court has said that the particular
marriage in question does not per se make those who contract it
" open and notorious evil-livers," and further, the Ecclesiastical
Court has been supported by the Civil Courts in saying that the
Parliamentary subsection on which Canon Thompson relied has not
the effect which he supposed it to have. That is all. Quite ob-
viously the position in which matters stand is anxious and difficult.
APPENDIX B 235
We have anticipated it ever since these controversies began. That
the difficulties are insuperable I do not believe.
It seems to me that the most important thing to bear in mind
at this moment, in view of current and not unnatural anxiety,
is that nothing has really been done which impairs the Church's
right through her own authorities and tribunals to interpret her own
rubrics and to regulate her own terms of Communion. Our Repre-
sentative Church Council in 1910 recorded its " emphatic opinion that
any assumption that the State can by Parliamentary legislation
practically dictate the terms of admission to Holy Communion is a
position which cannot be accepted by the Church." When putting
to the vote that resolution, which was carried by Bishops, clergy,
and laity nemine contmdicente, I ventured to describe it as a self-
evident proposition which hardly required the vote of the Council.
It is difficult to exaggerate the importance of maintaining these
principles at a time when it is regarded by some people as not
improbable that an attempt may be made in Parliament to alter our
marriage laws in a more drastic and far-reaching way than was
effected by what we regard as the unhappy Act of 1907.
I am, yours very truly,
RANDALL CANTUAR.
Appendix C
A PROPOSED MODE OF CONTRACTING MARRIAGE.
With the author's permission I have extracted from the Rev.
J. Fovargue Bradley 's Religious Liberty in England the following
proposal for reform in the manner of contracting marriage. The
outlines of the scheme were furnished by a Committee on which I
served, but Mr. Bradley worked them out with so much thorough-
ness that I am glad to avail myself of his labours.
The scheme forms part of a draft Bill, " To terminate the Estab-
lishment of the Church of England, to make provision in respect
of the Temporalities thereof ; to secure religious liberty in England
and Wales and for other purposes." Mr. Bradley saw that such a
sweeping measure would make a revision of the Marriage Law
necessary, but the scheme is detachable from the rest of his proposals.
I have made some criticisms in the margin.
PART II. MARRIAGE
Notice of Intended Marriage without licence. 6. On and after the
date of disestablishment the following order, form, and procedure
shall be the order, form, and procedure for contracting marriage,
with or by licence, any Act or Acts, or any ecclesiastical custom,
practice, or privilege, to the contrary notwithstanding
(i) Any person intending to contract marriage, without licence, shall
apply in person or through the post to the Superintendent Registrar
of the district in which such person resides and has been residing
for not less than seven clear days before the application, and the
Superintendent Registrar shall forthwith deliver to the applicant,
or within forty-eight hours send through the post to both contracting
parties if residing within his district a form of notice of Intended
Marriage as prescribed in the First Schedule to this Act. 1
(2) The form of Notice of Intended Marriage shall be filled up and
signed by the contracting party and shall be returned by person,
1 I have not thought it necessary to reproduce the Schedules.
APPENDIX C 237
or free through the post to the Superintendent Registrar of the
district in which the contracting party resides.
(3) The Superintendent Registrar shall, on the Friday of each week,
make a complete list of all Notices of Intended Marriages without
licence within his district, received by him from Thursday to Thurs-
day, which are in accordance with the provisions of this section, and
shall publish, or cause to be published, on Friday or Saturday of each
week the names of the contracting parties, in the form prescribed
in the Third Schedule to this Act, by being posted up in his office
and on the notice board or some other convenient and visible position
in connection with the places for public worship in the parish or
ward in which the contracting party or parties reside, and otherwise
as the Registrar-General may direct.
Persons before whom marriage can be contracted, and procedure of
marriage. 7. (i) When a Notice of Intended Marriage has been pub-
lished in the manner aforesaid, for not less than fourteen clear days,
and no lawful impediment has been reported to or received by the
Superintendent Registrar, at his office, he shall send through the
post or by person to both contracting parties, or to the one
contracting party residing within his district, a form of Certificate
of Marriage prescribed in the Fourth Schedule to this Act.
(2) When the contracting parties have certified themselves husband
and wife in the presence of a Principal Witness who shall for the
purposes of this Act be a Minister of Religion, a Justice of the Peace,
a Notary Public, or a Commissioner of Oaths, or the Superinten-
dent Registrar of the district who shall not refuse to act, and in
the presence of at least two other witnesses, both forms of Certificate
of Marriage shall thereupon be signed by both contracting parties,
by the Principal Witness, and, at least, two other witnesses and one
witness at least shall certify in the manner and form prescribed
in the Fourth Schedule to this Act that the contracting party or
parties are personally known to such witness.
(3) When both Certificates of Marriage have been signed by both
contracting parties and the witnesses aforesaid in the manner
prescribed the Principal Witness shall within forty-eight hours
return free through the post, or by person, both Certificates of
Marriage, endorsed as prescribed in the Fourth Schedule to this Act,
to the Superintendent Registrar of the district in which the marriage
has been contracted.
(4) Immediately upon receipt from the Principal Witness of both
Certificates of Marriage the Superintendent Registrar shall cause the
particulars of such marriage to be entered in his Register of Marri-
ages and thereafter shall cause one of the Certificates of Marriage
to be filed and duly preserved in his office, or such other place as
238 APPENDIX C
the Registrar-General shall direct, and shall send by post the
other Certificate of Marriage to the male contracting party which
shall be the property of the contracting parties. 1
(5) The Superintendent Registrar shall on the Friday or Saturday
of each week publish or cause to be published in his office and other-
wise as the Registrar- General shall direct in the form prescribed in
the Fifth Schedule to this Act a complete list of all marriages without
or by licence which have been contracted within his district during
the week.
Fees. 8. (i) The contracting parties, or one of them, shall remit to
the Superintendent Registrar with the Notice of Intended Marriage
the sum of two shillings and sixpence as his registration fee, provided
both contracting parties reside within his district, and in case
one of the contracting parties only resides within his district such
contracting party shall remit the sum of one shilling and sixpence
with the Notice of Intended Marriage.
(2) The contracting parties, or one of them, shall pay to the Super-
intendent Registrar as his fee as Principal Witness two shillings and
sixpence and to any other Principal Witness not less than two
shillings and sixpence.
Marriage by licence. 9. (i) In the event of the contracting parties
desiring to contract marriage by licence application shall be made
for a form of Notice of Intended Marriage as provided by section
six of this Act and the Superintendent Registrar of the district in
which the marriage is to be contracted shall immediately upon
receipt of such Notice of Intended Marriage publish or cause to be
published a notice of such marriage both in his office and on the
notice board of any other public buildings as the Registrar-General
shall direct, and also in two local daily papers issued either in the
morning or evening, and if there be not two such local papers in any
one local paper, and if there be no local paper in two London daily
papers circulating within the district in which such marriage is to
be contracted.
(2) The Superintendent Registrar shall the day following the issue of
such notice in a local or other daily paper, provided that no lawful
impediment to the intended contract of marriage is reported to or
received by him at his office, send by post or by person to both con-
tracting parties the form of Certificate of Marriage prescribed in the
Fourth Schedule to this Act and it shall be lawful for any Principal
Witness named in section seven (2) to forthwith complete the con-
tract of marriage. 2
1 It would seem better that a copy of the certificate should be sent to
each of the parties.
2 The wording is faulty here. The parties themselves "complete the
contract of marriage."
APPENDIX C 239
(3) The provisions of this Act named in section seven for the com-
pletion of a contract without licence shall apply to the completion of
a contract by licence.
(4) For marriage by licence no resident qualification shall be re-
quired, but where neither of the contracting parties have their usual
place of abode in the district where the intended marriage is to be
contracted both contracting parties shall make an affidavit before the
Superintendent Registrar declaring their fixed abode and that they
know of no lawful impediment to such marriage, and that in case
either of the parties, not being a widower or widow, is under the age
of twenty-one years that the consent of the persons or person re-
quired by law has been obtained thereto, or that there is no person
having authority to give such consent as the case may be.
(5) The cost and fees for marriage by licence shall be five shillings
stamp on each Certificate of Marriage, twelve shillings and sixpence
to the Superintendent Registrar as his fee and cost of advertisements,
and ten shillings if he acts as Principal Witness, and not less than ten
shillings to any other Principal Witness as his fee.
Marriage by Special Licence. 10. In the event of any party to an
intended contract of marriage being unable to contract marriage
under the provisions of this Act by reason of approaching death
or by reason of any physical or other infirmity, it shall be
lawful for the contracting parties to apply, through the Superin-
tendent Registrar, for a special licence for contracting such marriage,
and the Registrar-General, with the sanction of the Lord Chancellor,
shall have power to issue a special licence for contracting such
marriage on such conditions and terms as the Registrar-General
shall determine.
Illegalities. n. Any Principal Witness or any other witness who
shall wrongly and wilfully sign any Certificate of Marriage made
under this Act for the purpose of securing or aiding an illegal contract
of marriage shall be liable to prosecution before His Majesty's High
Court of Justice by the Superintendent Registrar of the district
acting on behalf and with the authority of the Registrar-General,
and shall suffer the penalties of perjury.
Ministers of Religion protected. 12. Nothing in this Act or any
other Act or Acts directing, controlling, or affecting marriages shall be
construed as requiring any Minister of Religion to act as Principal
Witness under this Act, or as requiring him to officiate at the religious
ceremony of any marriage, and nothing in this Act or any other Act
or Acts shall be construed as requiring any Minister of Religioner
the authorities of any church or of any place of worship to use or
lend his or their church or place of worship for the solemnization of
any marriage.
240 APPENDIX C
Laws requiring buildings to be registered for public worship, and
licensed for solemnisation of marriage repealed. 13. On and after the
date of the passing of this Act, any Act or Acts requiring buildings
used or to be used for places of worship to be registered and any
Act or Acts, requiring places of worship to be licensed for the solemni-
sation of marriage shall be repealed.
This Act to be cited with other Marriage Acts. 14. On and after the
date of disestablishment Part II of this Act shall be incorporated
and cited with the Marriage Acts, 1823 to 1907, except so far as
these Acts are repealed by the Sixth Schedule annexed to this Act,
and the said recited Acts, or parts of the same not hereby repealed,
shall be construed and interpreted in harmony with this Act, and
nothing in this Act shall repeal, alter or affect any of the said recited
Acts or parts of the same not hereby repealed except so far as is
necessary to construe and interpret the same in harmony with this
Act, and to carry out the provisions of this Act.
Foreign Marriage Acts not affected. 15. Nothing in this Act shall be
construed or interpreted to repeal or alter any of the Marriage Acts,
1849 to 1891, dealing with marriages in foreign countries.
Notary Public. 16. On and after the date of disestablishment the
name of the Lord Chancellor shall be read for the name of the
Archbishop of Canterbury or the Master of Faculties in any Act or
Acts affecting the appointment or controlling the office of Notary
Public.
INDEX
" Acatholici " not under Ne
temere, 217
Adultery, n
our Lord's teaching about,
22-24
Affinity, 9, 31, 123, 126, 149, 157
Agde, Council of, 151
Age of consent, 26
Alexander VI, 101
Ambrose, St., 45
American law, 105
Appel comme d'abus, 194, 214
Aquinas, St. Thos., on control of
marriage by civil law, 85
on marriage of unbelievers, 56
on polygamy, 14, 1 6
on sacramental grace of mar-
riage 51
political theory of, 167
Aristotle, definition of civilized
man, i
Politics, 164, 167
Aries, Council of, 120
Arsenius of Mount Athos, 124
Articles Organiques of Napoleon,
198
Artificial restraint on marriage,
57
Athanasius, St., 124
Athenagoras, Legatio pro
Christianis, 118
Augustine of Canterbury, St.,
131
M.C.S.
Augustine of Hippo, St., dissol-
ubility of marriage before
baptism, 19
on Old Testament poly-
gamy, 103
on polygamy, 12
on sacramental character of
marriage, 40, 57
three ends of marriage, 14
Baeda, Historia Ecclesiastica,
132 n.
Bellarmine, doctrine of inten-
tion, 55
Benedict XIV, on dispensation,
95
on matter and form, 83
on matrimonium conscientiae,
99
Benediction, The nuptial, 50
Benedictio thalami, 46
Beveridge, Synodicon, 180
Bigamy in English law, 186, 203
Billuart, on contract and sac-
rament, 54, 195
on matter and form, 44
Bingham, 120
Birth before wedlock, legitima-
tion of, 142
Bishop, a husband of one wife, 13
Bobbio, Sacramentary of, 46
Bona matrimonii, 14
241
242
INDEX
Boniface VIII, 155, 157
Borgia, St. Francis, 160
Boudinhon, Le Canoniste Con-
temporain, 198, 216 n.
Bousset, Wilhelm, 24
Bradley, The Rev. J. K, pro-
posed reform, 236-40
Brouwer, De iure connubiorum,
173
Callistus, case of, 73, in, 119,
121
Calvinism, influence of, 196
Calvin, on civil control of mar-
riage, 170
Calvin's conception of the
Church, 1 66
Canada, French law in, 214
Canon Law from apostolic
times, 117
in Eastern Church, 1 1 1
in English Church, 206
in Western Church, 1 1 1
Celibacy of clergy, 58
Ceremony, twofold, 47
Christian, duty of the instructed,
221 ff.
Empire, The, 120 f.
Law, Original, 116 ff.
Chrysostom, St. John, 45
Church and State, conflict be-
tween, 206, 209 ff., 223
The task of the, 72, 213
Civilization, standard of, 2, 4
Civil law of Rome, 74
Marriage, 79, 197 ff., 200, 207
Civitas Dei, 163
Clandestine marriages in Lon-
don, 189
Clandestinity, 83, 99, 160 ff., 189
Clergy, marriage of, 122
Clothaire, King, case of, 131
Code Napoleon, 174, 196, 201
Cognatio, 148
Coke, Sir Edward, 184, 189
Communitas perfecta, 164
Community of goods, 10
abatement of, 98
Concubinage and marriage,
difference between, 27, 64,
210
Concupiscence, 52, 54
Confarreatio, 47
Consanguinity, 30, 126
dispensation for, 101
Consent necessary, 28
of parents held essential, 26
Consuetudo, 141
Consummation of marriage, 7, 32
Continence, 52
Contract becoming a Sacrament,
86, 195
distinguished from the Sacra-
ment, 194
of marriage, 25
Contractual nature recognized
in Jewish Church, 112 |
theory of marriage, 27, 63
Converts, marriage of, 56
Corpus luris Canonici, 138
Counter-Reformation, The, 175
Coutume de Paris, 194 n., 214
Crowning of Bride, 49
Cyprian, St., on the Episcopate,
71 f.
Davidson, Archbishop, of
Canterbury, 223 f., 232-5
Death dissolves marriage, 16
Deceased Wife's Sister, 131, 182,
184, 205
Decretals, The forged, 136
Decretum of Gratian, 136, 153
De excommunicatio capiendo, 147
De Smet, De Sponsalibus et
Matrimonio, 85 n., 153 n.
Deuteronomic Law and Our
Lord, 116
INDEX
243
Diaspora, The, 69
Dionysius Exiguus, 136
Disparitas Cultus, 80, 130, 154,
216
Dispensation, 61, 87, 144
bad effects of, 92, 100, 119, 159
difference between human and
divine law, 95
in Eastern Canon Law, 126
Dissolubility of marriage, al-
lowed by Reformed Theo-
logians, 172, 197
condemned, 103
not taught by Greek Church,
104
Dissolution of marriage, alleged
grounds of, 17
Divine law of marriage, 6
Divorce Act of 1857, The, 203
by mutual consent, 98
in Eastern Canon Law, 126
in England, 209, 226
in France, 201
in Reformation times, 171
in Western Canon Law, 146
Jewish, 115
strict definition of, 96
Dollinger, Hippolytus and Cal-
listus, 73 n.
Dowry, 98
Eastern Church, re-marriage of
divorced persons, 104
relations with State, 128
Ecclesia Anglicana, 177
Ecclesia, significance of the
word, 109
Ecclesiastical tribunals, proce-
dure of, 145
Economy of grace, 61
TEyKparcia, 52
Enforced consent, 28
England, particular needs of,
225
English Canon Law, 206
Marriage Acts, effect of, 207
Marriages Act of 1753, see
Hardwicke, Lord
Reformation, 177
Episcopate, authority of, 71, 144
Epistola ad Diognetum, 118
Esmein, Le Mariage en Droit
Canonique, 71,94
Espousals de futuro, 30
in Eastern Canon Law, 126
Jewish, 113
Exclusiveness of marriage bond,
10
Exogamy, 30 f., 80
Fardell, The Higher Aspects of
Greek Religion, 43 n.
Fleet Marriages, 190
Foljambe, case of, 186
Fornication as a reason for
divorce, 23
French Constitution of 1792,
The, 197
Law, 79, 83
Gasparri, Tract. Can. de Matri-
monio, 85 n.
Gelasian Sacramentary, 45
Germany, marriage difficulties
in, 215
Gore, Bishop, of Oxford, 222
Gratian, Decretum of, 48, 136,
157 n.
Gregorian Sacramentary, 45
Gregory Nazianzen, St., 45
Gregory the Great, St., 131
Guardianship of both parents, 7
Hadrian II, case of, 155
Hague Conference, The, 220
Halizah, 114
244
INDEX
Hardwicke, Lord, Marriages Act
of i?53> 8 3> 191. 20 7
Harnack, on the origins of Canon
Law, 69 f .
Hefele, 120
Helvetic Reformation, 166
Henri IV of France, Edict of,
176
Henry VIII, 101, 103, 150, 158,
165, 177, 181
Hermas, on cohabitation with
adulteress, 25
Pastor, 118
Hincmar of Reims, on con-
summation of marriage, 48
Hooker, Richard, on human law,
59
on sacraments, 41
on union of Church and State,
1 7<9
Hort, The Christian Ecclesia, 109
Hugh of St. Victor, 84
Human law v. Divine law, 60, 75
v. Natural law, 59, 66, 68
Human love, 3
Ignatius, St., 117
Illiberris, Council of, 119, 155
Impediments, affinity, 31, 123,
126, 149
civil in France, 205
classification of, 151
cognatio spiritualis, 126, 157
consanguinity, 30, 126
crime, 158
diriment, 82 fi., 125, 153
disparitas cultus, 80, 130, 154,
216
dispensation of, 145
enforced consent, 28
error, 28
force, 28
Holy Orders, 128, 155
imperfect intention, 27
Impediments, impotence, 28
in Eastern Canon Law, 126
in Jewish Law, 113 f.
legal, 82, 208
ligamen, 29, 102
natural, 80
precontract, 29
publica honestas, 158
raptus, 196
restriction of, 149
tempus feriatum, 81, 152
vows of religion, 81, 154
Imperium in imperio, 68
Incest, 30, 10 1, 223
Incontinency, 53
Indissolubility of marriage, 16, 18
in medieval Canon Law, 160
Individuality, 8
In facie Ecclesiae, marriage
required to be, 78, 189
Innocent I, 121 n., 122, 134
Intention, doctrine of, 55
International law of marriage
desired, 220
Irish Law, 78
Isidore of Seville, 6 n., 136
lus connubii, 80
Jansenism, influence of, 196
Jesuit Theologians, The, 167
Jewish divorce, 115
Law, 112,
Jurists of Leyden, see Leyden,
University of
Justinian, Laws of, 123
Kiddushin, act of contracting
marriage, 112
Krmcaja Kniga, 125
Landeskirche, 165
Lang, Archbishop, of York, 222
Laodicea, Council of, 152
INDEX
245
Lateran Council of 1215, The,
148, 150
Lateran Council II, 155 f.
Laws of Church and State con-
current, 87
of marriage, different, 78 f.
Legislative power of the Church,
70
of the Church, resides in the
Episcopate, 71
Leo the Philosopher, Emperor,
124
XIII, 85 n., 168 n.
Leonine Sacramentary, 45
Lerida, alleged Council of , 152
Levirate, Law of the, 114
Levitical degrees, 182-5
Leyden, University of, 170, 173,
221
Licence, Marriage by, 92, 238 f .
Lombard, Peter, on the seven
Sacraments, 42
Luther, on civil control of mar-
riage, 169
Luther's revolt against Canon
Law, 165
Lyndwood, Provinciate, 134
Macchiavelli, 175
Macfadyen, Rev. D., on indis-
solubility of marriage, 18 n.
Maitland, Roman Canon Law in
the Church of England, 141
Malta, Marriage Law of, 215
Marriage, a natural institution,
3
a remedy against sin, 52 f.
artificial restraints on, 57
best law of, 107
breach of bond a sacrilege, 66
crowns, 49
whether dissolved by unfaith-
fulness, 105
Marriage, Divine law in, 6
equality in, 33-5
forbidden at certain seasons,
81
laws for the faithful, 74
original and natural institu-
tion of, 116
purpose of God in, 5
religious institution in Russia,
a, 129
sacramental character of, 15,
34-44. 54. 6 4 f -
sacramental grace of, 50
sacramental, peculiar to
Christians, 54
special legal disqualifications,
81
Married Women's Property Act,
99, 204
Marsiglio of Padua, 70, 164, 178
Matrimonium conscientiae, 99,
208
Matter and form, 43, 83
Mental incapacity, 26
Mielziner, The Jewish Law of
Marriage and Divorce,ii2 n.,
114 n.
Milasch, Bishop of Zara, Das
Kirchenrecht der Morgan-
Idndischen Kirche, 104 n.,
124 f. n., 127, 129
Mileve, Council at, 121
Mixed marriages, 201, 216
Modern State, definition of, 162
States claim regulation of
marriage, 74
Mohammedan laws of marriage,
74
Monogamy, reason for in nature,
14
Morel, E. D., Nigeria, its People
and Problems, 103 n.
Morganatic marriages, 99
37
246
INDEX
Mysteries, Greek, 43
of God, 36-43
g Philo, on, 38
seven Holy, 42
Mystery, meaning of the word, 39
Nantes, Edict of, 194
Natural law, definition of, 6 n
Necessity, laws yield to, 61
Ne temere decree, 216, 227-31
Nicholas I, Responsa ad Bul-
garos, 46
Nomocanon, 124
Northampton, Marquis of, case
of, 185
Nullity, 82, 151
of marriage in English
Courts, 78
of marriage in Roman Courts,
78
Nuptial masses, 45
Origen, on divorce, 118 f.
Orleans, second Council of, 130
third Council of, 131
Pallavicino, Istoria del Cone, di
Trento, 104 n.
Panormia of Ivo of Chartres,
136
Papacy, 144, 164
Parental instinct, consequences
of, 3
Parents, consent of, 26
Parker, Archbishop Matthew,
Admonition of , 183
P atria potestas, 8, 81
Peculiars, 143
Philip of Hesse, 102
Philo, on mysteries, 38
Physical incapacity, 28
Pistoia, Synod of, 197
Plato, marriage ignored in Re-
public, 63
Plato's conception of an ideal
society, 7
Polygamy, n, 13, 101
dispensation for, 102 ff.
English Courts on, 102
evils of, 15
Luther on, 102
of Old Testament Saints, 12
prohibited for Jews, 112
successive, 103
Portalis, 196
Pothier, Traite du contrat de
Marriage, 176 n., 194 n.,
195, 210 n.
Power of bishops, 72
Precontract, 123, 182
Primitive man not represented
by savage tribes, 4
Privilegium Paulinum, 20, 171,
< 194 n.
Prohibited degrees, Archbishop
Parker upon, 183, 205
Puller, Fr., Marriage with a De-
ceased Wife's Sister, 31 n.
Punishment for disobedience to
Divine law, 75
Purpose of God in marriage 5,
Quaker marriages, 190, 191, 192
Quinisext Council, see Trullo.
Raymond of Pefkfort, 138
Reformatio Legum, 185
Reformation, The impulse of the,
175
Reformed Theologians, The, 171
Reforms suggested, 225
Registration of marriage, 79
Remarriage after divorce, 21,
127, 185, 187, 202, 210
Remedy against sin, Marriage
a, 36, 5<>. 52 f.
INDEX
247
Renton and Phillimore, Com-
parative Law of Marriage,
219 n.
Respublica Christiana, 133, 162
Restitution of conjugal rights,
79, 204
Restriction as to age, 81
as to consent, 81
as to crimes, 82
as to season, 81
Rituale Romanum, 153
Ritual of marriage, Christian,
44
English, 48, 50
Greek, 43
Roman, 47, 49
Rituel d" 'A let, 205 n.
Roman Law, definition of mar-
riage in, 7
effect of the study of, 164
Roos, Lord, case of, 187
Rota at Rome, decision of, 78
Royal Marriages Act, 83, 91
Sacramental character of mar-
riage, 15, 36-44, 51 ff., 64
Sacrament inseparable from
Christian marriage, 55
Sacramentum, meaning of the
word, 39
Sanatio in radice, 89, ioo> 125
Sarum Manual, 48
Schools of Shammai and Hillel,
"5
Scottish Law, 76 ff., 87, 174,
200, 221
Reformation, 167
Seasons, marriage forbidden at
certain, 81, 152
Second marriages, 58, 102
Separation of Church and State,
176, 193
resistance to, 179
separation orders, 203
Social animal, Man a, i
Societas perfecta, 167
Societies within the State, 66
Sohm, Rudolf, on legalism in
the Church, 68, 108, no,
165
Special licence, 92
Spiritualty, power of the,
134 ff., 188 ff.
Sponsalia, 29
Standard of civilization, 2, 4
State control cannot be denied, 87
Submission of Clergy, Act for the,
178, 181
Switzerland, Federal Code of, 99
Tametsi decree, 162
Tempus feriatum, 152
Territorial exemptions from
Ne temere, 217 f.
Tertullian, on Marriage, 45
on marriage with unbelievers,
119
Theocracy, evils of, 116, 139 f.
Theodore of Tarsus, Archbishop
of Canterbury, 127
Toledo, First Council of, 121
Trent, Council of, 104, 153, 157,
167
on Clandestinity, 83, 160,
i95 214
Trullo, Council in, 58, 122 ff.,
127
Turkish Law, 128
Uncle and niece, marriage of, 114,
123
Uniform system needed, 219
Union marital, produces natural
affection, 9
Unitary sovran state, the theory
of an, 67
Urban II, Decretal of, 156
248 INDEX
Valid marriage, conditions of, 27 Western Church upheld Church
Veiling of Bride, 49 rule, 74
Verba de praesenti, 48, 190 Wood, E. G., on nature of dis-
Virginity, St. Paul's preference pensation, 94 .
for, 52 Worms, Rabbinical Synod of, 113
PRINCIPAL SCRIPTURE REFERENCES
Leviticus xviii. . 182
Deuteronomy xxiv. i, 2. .115
,, xxv. 7-10. .114
Ruth iv. 7. .114
Jeremiah iii. 14 . . 37
Hosea ii. 19. .37
Wisdom ii. 22. .38
xiv. 15, 23.. 38
Tobit vii. 14. .113
Matthew i. 18 . . 1 13
,, v. 32. .23, 116
xvi. 18. .109
xviii. 17. .109
xix. 3-9. .116
xix. 4-8. .7 f.
xix. 9.. 23
xix. ii. .97
Markx. 8.. 8
x. ii.. 23
Luke ii. 27. .113
Acts xv. 29. .117
,, xvii. 30. .61
Romans vii. 1-3. .22
i Corinthians v. i. .32, 73,
10 1, 149
vi. I6..8
vii... 73
vii, 2-4. .16
vii. 9.. 51
vii. 10, ii. .20
vii. 14.. 57
vii. 36. .115
vii. 39.. 17, 81
Galatians v. 23 . . 52
Ephesians v. 28, 29. .10
v. 32.. 37
i Timothy iii 2. .13
v. 9..I3
James i. i . .69
i Peter i. i . . 69
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ST. PAUL'S EPISTLE TO THE GALATIANS [CHAP, iv
Spirit of his Son into our hearts, crying, Abba, Father.
7 So that thou art no longer a bondservant, but a son ;
and if a son, then an heir through God.
desire for prayer, for approach to
God as Father, is a witness to our
divine nature ; it is the yearning of
the soul made in the image of God
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the Spirit of his Son] The
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Abba, Father] Rom. viii. 15 ;
Mark xiv. 36. Abba is the Aramaic
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a liturgical formula, derived from
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Prayer. Moulton, Grammar ofNeiv
Testament Greek, Prolegomena,
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liar sacredness of its associations'.
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and mari qlri (or kiri), the Aramaic
and Greek for 'my lord', is found
in Rabbinical writings (Lukyn
Williams).
7. no longer a bondservant]
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SERMONS IN A NUTSHELL. A New Handbook of Outlines for Busy
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A Treasury of Helpful Suggestions.
IN QUIETNESS AND CONFIDENCE. Fifty-six Readings for Sundays and
Holy Days on various aspects of Christian experience.
By the VEN. ARCHDEACON WYNNE, D.D. Cloth, 2s. 6d. net
MINIATURE SERMONS FOR BUSY PEOPLE.
By the REV. H. O. MACKEY. Cloth, 2s. 6d. net
OUTLINE STUDIES. For Sermons and Addresses.
By the REV. JAMES DINWOODIE. Cloth, 2s. 6d. net
IDEALS FOR THE CHRISTIAN LIFE.
By the REV. W. D. M. SUTHERLAND. Introduction by RCT. G. H. MORRISON.
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"A work of really original power." British Weekly.
THE USE OF THE EYES IN PREACHING. Preaching and Speaking
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By the REV. JOHN NEVILLE. Paper, Is. net ; Cloth, Is. 6d. net.
SUNDAY-SCHOOL TEACHING. Helps, Counsels, and Suggestions.
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TWO TREATISES ON THE CHURCH,
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THE MESSENGER OF GOD. Studies on Malaehi.
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THE PROBLEM OF UNITY: A Symposium by Leaders of Evangelical
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TOOLS FOR TEACHERS.
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MY MATES. Sunday Talks to Young People.
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THE FULNESS OF THE GOSPEL.
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THE LORD'S TREASURES, Bible Talks with the Children.
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WORKS ON CONFIRMATION AND COMMUNION.
CONFIRMATION LECTURES. A Series of Notes on the Church Catechism.
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CONFIRMATION. A Manual for Candidates and Teachers.
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