FRIEDBERG ON THE CONSTITUTION OF MARRIAGE

Das Recht der Eheschliessung in seiner geschichtlichen Entwicklung. Von EMIL FRIEDBERG, Doctor der Rechte und PrivatDocent an der Universität zu Berlin. Leipzig, 1865. [Second Notice.]

PROTESTANTISM did not, like Romanism, attain to a fixed and uniform doctrine in matrimonial matters. The Protestant ecclesiastical law was essentially a continuation of the ante-tridentine, but its development was affected by many circumstances. In the great controversies which have repeatedly raged as to "civil marriage," the authority of Luther has been invoked by the advocates of ecclesiastical rights as well as by their opponents. Dr. Friedberg examines his various statements with some minuteness, and notwithstanding various contradictions in his writings, concludes that he held marriage to be essentially a secular matter (ein weltlich Ding) "He did not content himself, like the medieval schoolmen,* with recognising the secular along with the ecclesiastical side of marriage, but he demanded, before all things, that its constitution should be subject to rules laid down by the civil magistrate, and he desired the jurisdiction in matrimonial causes, as well as the legislation concerning marriage, to be left to the State." At the same time that he called it ein weltlich Ding," Luther guarded himself from degrading marriage according to the notions of that time. In other passages he enlarges much on the sacredness of the institution, and its divine origin and symbolism, as indeed was natural in one who repudiated clerical

* Cf. Thom. Aquin. contra Gentes, C. IV., c. 78. “Considerandum est, quod quando aliquid ad diversos fines ordinatur, indiget habere diversa dirigentia in finem, quia finis est proportionatus agenti: generatio autem humana ad multa ordinatur, scilicet ad perpetuitatem alicujus boni positivi, puta populi in aliqua civitate; ordinatur etiam ad perpetuitatem Ecclesiae, quae in fidelium collectione consistit: unde oportet, quod hujusmodi generatio a diversis dirigatur. In quantum igitur ordinatur ad bonum naturae, quod est perpetuitas speciei, dirigitur in finem a natura inclinante in hunc finem: et sic dicitur esse naturae officium. In quantum vero ordinatur ad bonum politicum, subjacet ordinationi civilis legis. In quantum igitur ordinatur ad bonum Ecclesiae, oportet, quod subjaceat regimini Ecclesiastico," etc. The practice of the later jurists was less liberal. Take, for example, one of the Canonists best known to Scottish jurisprudence. Covarruvias, in discussing the doctrine started by Bartolus, that the secular judge may deal with a matrimonial question incidenter, si controversia in facto non in jure consistat, concludes thus-"Unde consultius res agetur si oblata incidenter, super matrimonio vel alia causa ecclesiastica, quæstione etiam facti, coram sæculari judice, is cujus interest ad ecclesiasticum judicem accesserit ab eoque petierit ut illius quæstionis cognitionem assumat, atque judicem laicum inhibeat, ne in ea etiam incidenter procedat; tunc enim si judex sæcularis nondum coepit id negotium tractare, ecclesiasticus citatis his quos id tangit, eandem incidentem causam expediet."-De Matrimonio, ii. 8, 12, 10.

celibacy. But the contrast between the secular and the religious, the political and the ecclesiastical, was in the early days of Protestantism not yet visible. The State was in many things the ally of the new religionists; it was no longer, as in the middle ages, unholy, as being part of the unholy world outside the holy Church. After the Reformation, the State was invested with a moral character and functions, and secular matters within its administration ceased to be unholy. The secular and the ecclesiastical were no longer opposed to one another, because the State now included the Church, and made it an integral part of itself. It was no degradation, therefore, for marriage to be a secular thing, and to be cared for and regulated by princes who were the Church's nursing fathers and nursing mothers, and who ranked their duties to the Church even above their duties to the State.*

We get curious glimpses here and there in this book into the medieval theories of the relations of Church and State; but they are little more than glimpses, the author referring for ampler details to his little work "De finium inter Ecclesiam et Civitatem regundorum Judicio quid medii ævi Doctores et Leges statuerint" (Leipzig; Tauchnitz.) "Throughout the middle ages," he says, "the Church had absorbed nearly all spiritual interests, and the State was neither admitted to have the right, nor was it endowed with the power of interfering with anything beyond the merely material. The Church had claimed for itself divine origin, and held itself and its influence to be co-extensive with the sphere of the spiritual (des Geistes); the State was not in itself holy-Gregory VII. said kings sprung from the devil-(Epist. lib. 8, cp. 21 in Mansi Con., tom. 21) and it received the divine blessing in an indirect way, only in so far as it accommodated itself to the requirements of the Church, and obeyed them, just as the body obeys the commands of the soul (Comp. c. 23. C. xxiii. qu. 5.) Nay, this view of the subordinate position of the State, which degraded it into a mere instrument of the Church, was declared without a blush, by princes themselves, to be the true one (Frederick II., at least, adopted without protest the comparison, so frequent in ecclesiastical writers, of the State and the Church with the sun and the moon); although even in the earliest period of the middle ages a reaction was observable in the theory, and although their actual relations never exactly corresponded with the theory." The great effort of the Reformers was to keep Church and State apart, as Occam, Dante, and others had urged of old. But their views were not logical or homogeneous. They were unanimous and consistent only in rejecting the previous domination of the Church. On one side they denied the right of kings to intermeddle with ecclesiastical affairs, and strove according to their abilities against it (See a letter of Luther, anno 1543, (in De Wette Luther's Briefe, &c., Berlin, 1825 v. 596.) "Satan pergit Satan esse. Sub Papa miscuit ecclesiam politiæ, sub nostro tempore vult miscere politiam ecclesiæ. Sed nos resistemus Deo favente et studebimus pro nostra virili vocationes distinctas servare;") and on the other, they accommodated their doctrine without more ado to the circumstances in which they were placed, when the march of events had left their theory behind. The sovereigns of Germany were sufficiently zealous in Church politics, and their interest was of such importance to the success of the great religious revolution, that they could not easily be disregarded as a merely secular power. Hence the conception of the Christian State and the Christian magistrate, (of which some traces were already to be found in Huss and Tauler,) "the theory that kings were the holders of a divine office, instruments of a divine will, that, like the Old Testament kings, they were guardians of the divine laws, custodes utriusque tabulæ.” Such a State and such rulers necessarily obtained a certain authority, even in matters where an ethical or quasi-religious element had formerly excluded the State, and without lowering the dignity of marriage, might, one would suppose, have regulated the law matrimonial, and directed the proceedings of its courts.

In his views of the substance of the law matrimonial, Luther differed materially in one or two points from the Canon Law. The ecclesiastical ceremony he regarded as good and desirable, though he did not pronounce it absolutely necessary. The essence of marriage he placed in the consent of the spouses, and this consent, if expressed openly and unconditionally, he held as constituting marriage even without the presence of the priest. He allowed the same effect to the conditional and secret expression of consent when followed by copula carnalis. He admitted no distinction, however, between sponsalia de præsenti and de futuro. It seems also (p. 210, 226, &c.) that he denied all effect to espousals without the consent of parents, even when followed by copula. In this lay the main difference between his theory and that of the Canonists, and the great cause of dissension between him and the contemporary Protestant jurists who adhered to the principles of the old Papal law, and against whom he often expressed himself with extreme bitterness (pp. 188, 226.) He intended, indeed, to write a book against them, but was dissuaded from doing so by the Elector of Saxony. The great Reformer having been removed by death from the controversy, the lawyers remained victors, and the Canon Law, which Luther would have consigned to the dust-heap, continued for some centuries longer the chief storehouse of jurisprudence for the Protestant Church.

It was indeed but a natural result of the arrangement by which matrimonial causes were placed under the jurisdiction of special Courts, that the ancient law was in all material points preserved; and as these Courts were mainly composed of ecclesiastics, or at least of jurists trained in the learning of the Canon Law, marriage came gradually to occupy a position contrasted with, and yet curiously like that which it held in Catholic countries. "According to the Canon Law the matrimonial jurisdiction was claimed by the Church because marriage was a sacrament; among Protestants it almost became a sacrament because the Church exercised matrimonial jurisdiction," (p. 192.) This erroneous view of marriage* called forth the

The sacramental notion of marriage had already been violently assailed by the Reformers, especially by Calvin, e.g., "Et quis tandem finis aut modus? nihil hac ratione sacramentum non erit. Quot in scriptura parabolæ sunt et similitudines, tot erunt sacramenta. Quia etiam furtum sacramentum erit: quandoquidem scriptum est: Dies domini sicut fur." And again he adverts to the contradiction between the sacramental theory of marriage and the celibacy of the clergy, "Quam absurdum est, arcere a sacramento sacerdotes? Si a sacramento se arceri negent, sed a coitus tantum libidine, non ita mihi elabuntur. Nam et coitum ipsum partem esse sacra

censures of many distinguished writers, both theologians and jurists, and John Samuel Stryk wrote a special work, "de Reliquiis Sacramenti in Matrimonialibus," (Halle 1711), in which he pointed out the consequences of the theory.

It is impossible for us to follow Dr Friedberg through his long review of Protestant doctrine on this subject, or to give even a sample of his notices of such writers as Melanchthon, Erasmus, Sarcerius, Bidembach, Beust, Schneide win, Vultejus, Bullinger, Beza, Chemnitz, Spener, Havemann, Gerhard, Mevius, Brunnemann, Carpzow, Schilter, Samuel Stryk, Johann Samuel Stryk, Pufendorf, Brouwer, Samuel von Cocceji, Thomasius, Böhmer, and fifty others, of whose names we have hitherto been happily ignorant. Neither shall we follow him in his notices of legislation and practice during the centuries subsequent to the Reformation. It will be enough to sum up in his own words the results of his narrative of the development of Protestant opinion.

"Marriage in facie ecclesiae was not made a dogma, or a binding and absolutely necessary ecclesiastical institution. Neither could it be referred to a special command of the Deity, and although such an attempt was made, e.g. by Carpzow and some very late theologians, it was almost universally regarded as erroneous in the eighteenth century, and the same view must be maintained as the scientific and correct one in the present century also. Here of course we entirely put aside the question how far such a divine command, even if it existed, could claim an outward authority in the state. Marriage in facie ecclesiae has rather been appointed by the State, and the priest in marrying is essentially the delegate of the State. His solemnization has moreover no efficacy in constituting marriage if the State refuses to recognize it, or if it takes place under conditions which the State, though not the Church, regards as impediments to marriage.(Böhmer, J. E. P. iii., 1300 foll., Thomas., Diss. Ac. I., 665.)

"In the 16th century the ecclesiastical ceremony was regarded only as an act confirmatory of the marriage already contracted by sponsalia. Matrimonium inchoatum and consummatum were distinguished, and in regard to their dissolubility, they were placed on the same line; the consummation of marriage was effected by copula as well as by the priestly benediction; by either the spouses became one flesh, in short there was no ecclesiastical constitution of marriage, but nothing beyond an ecclesiastical confirmation of marriage.

mentum tradunt." Luther was highly indignant because lawyers persisted in applying Canon Law rules to matrimonial matters, and so retaining and prizing the popish filth which had been cast out of the Church with so great an effort. It would be curious to trace the causes which have produced the phenomenon now to be seen in Scotland, of an ultra Protestant clergy defending against modern encroachments a system of marriage law originally elaborated by the labour of successive Popes, and now forming almost the only remnant of Romanism in our national institutions.

"In the seventeenth century also this theory was the prevailing one, although the opinion already gained ground, that the ceremony in the church made the marriage, a view which obtained the predominance in the course of the 18th century.

"From that time it was first possible to speak correctly of an ecclesiastical constitution of marriage.

"Still however the theory of sponsalia de praesenti comes into conflict with the necessity of the ecclesiastical solemnity, and at least Böhmer recognized espousals followed by copula as true marriages. For this case at least the ceremony before a priest is therefore only confirmatory of marriage. The practice of compulsory solemnization, which has continued down to our own times, rests upon the same principle, and is in truth only a consequence of the doctrine that the ecclesiastical solemnity constitutes no marriage.

"The absolute necessity of marriage in the face of the church, was now, on the contrary, but rarely asserted, and the civil marriages in use in Holland were universally declared not to be inconsistent with the Protestant law and the statutes of the church.

"The last step was to declare that sponsalia de praesenti even where copula had followed, were binding only if entered into before the priest and followed by the benediction. It was the modern legislative enactments establishing the ecclesiastical ceremony as the only form of constituting marriage, which chiefly led to the adoption of this theory. By these enactments for the first time, and therefore only at the end of the last and the beginning of the present century, was the quality of absolute necessity thoroughly impressed on the solemnization in the face of the church in Germany, although it has been falsely claimed since the time of the Reformation.

"The doctrine as to Brautkinder (i.e., children borne by a bride, sponsa,) which is even yet particular law, and indeed a subject of controversy, (Vangerow, Lehrb. d. Pand, § 413, Arndt. Lehrb. d. Pand, § 476, Puchta Pand, § 41) may be regarded as the last remnant of the old doctrine of the constitution of marriage.

"The tendency of legal theory finally, which was hostile to the ecclesiastical ceremony, as it was to everything ecclesiastical, had no important influence so far as regards the constitution of marriage on German practice or legislation.

"It has still to be remarked that the full civil effects were generally allowed to a marriage, only if the concubitus had taken place, and that therefore the mere priestly benediction was not sufficient for this end. This deserves a prominent mention in connection with the objection that espousals have never been identified with marriage, because the former have never had the patrimonial effects of the latter. These effects as we have said, did not always take place even after the blessing of the priest, and therefore nothing is thereby proved."

The Fourth Book of Dr Friedberg's work, occupying somewhere about three-fifths of his volume, is a history of the progress of "Civil Marriage." The author treats separately of the various countries of Europe and America, beginning with England. He