Page:The New International Encyclopædia 1st ed. v. 13.djvu/110

* MABBIAGE. 90 MABBIAGE. granted, as also from a vow of celibacy, a dif- fereiU'C of religion, and lack of age. Lack of ajrc moreover, and lack of consent, were curable defects. In most cases, tlierefore. these dividing impediments did not render the marriages void, but only voidable. The hardships logically re- sulting from the annulment of marriage were lessened by the doctrine of the "jjutative mar- riage.' Where one of the parties to the invalid marriage was unaware of the impediment, that party, and also any children born of the union, were entitled to all the rights which would have been theirs if the marriage had been valid. In particiilar, the children were legitimate. This doctrine, however, reached over into a field which, even in the Middle Ages, was regarded as secular. The Church could say what was and what was not a marriage, hut it could not regu- late all the civil results of marriage, nor all the civil results of its annulment. See Divorce. Other impediments were known as 'impeding' or "prohibitive.' To this class belonged, for ex- ample, a pre-contract de fultiro (i.e. a previous Ix'trothal to another person): also the non-oli- servancc of ecclesiastical rules regarding bann-. Disregard of such impediments subjiKted the offender to penalties, but did not invalidate the marriage. It should be noted, however, that the Church's view of betrothal changed in the twelfth century. In the early Middle Ages the Church was strongly inlluenced by the German idea that betrothal was an inchoate marriage. In the twelfth cen- tury it went back to the Roman view that an agreement <le fiiluio was a thing wholly distinct from marriage. Nevertheless some concessions were still made to German ideas. It was ad- mitted that an agreement to marry in future and subsequent concubitu.i constituted marriage. Moreover, marriages not consummated were treated somewhat dilferently from those which had been consummated: they were annulled with more freedom. On the whole, the canonical marriage was the consensual marriage of the Roman law. made indissoluble. The ages of consent were the same, fourteen and twelve. It was customary to pub- lish banns, to exchange troth-plight at the church door, and to have the marriage consecrated by the priest inside of the church, but none of these things was necessary. The sacrament of mar- riage was one which the parties could administer to each other, and the elandesline unconsecrated marriage was completely valid. The consent of parents to the marriages of their children, which was required by the Roman law. was not re- quiri'd by the ('hurch. not even in the ease of minors. The law was changed, after the Reforma- tion, by the Council of Trent. The decrees of that council recpiired that marriage should be celebrated by the priest of the parish in the presence of two witnesses. These decrees, how- ever, were not |mt in force in all Catholic coun- tries (it is aflirmcil that they were not intro- duced into the American possessions of Spain), and where the Trident ine laws are not in force, the Catholic Church continues to recognize the secret and unconsecrated marriage. Prote.stant Ecn.EsiA.STTCAi, T,AW. The Prot- estant churches of the Continent rejected the sacramental theory of marriage They regarded divorce (q.v.) as admissible. T.uther revived the theory that betrothal (q.v.) was an inchoate marriage, and this view was dominant until the eighteenth century. Early in that century, how- ever, Bohmer, a distinguished writer on Protest- ant ecclesiastical law. reintroduced the Roman distinctions. In order to suppress secret mar- riagi's the Protestant churches demanded the consent of parents, or the presence of witnesses, or an ecclesiastical ceremony, or all these things. So long, however, as secret betrothal followed by cuncubilu.i was regarded as a legal marriage, re- quirements of publicity of marriage were in- elleetive. Riilimer insisted that such a marriage was only a 'natural marriage,' and that the benediction of the Church was necessary to its legal validit.v. The ecclesiastical marriage, he held, was the only ])erfect marriage. Biilimer's ideas were generally accepted; bit in cases where concubilus had occurred after a promise of marriage, it wa.s usual not only to compel the man to go through the religious ceremony, but to 'supply' his assent when he refused to give it. The impediments to marriage based on con-, sangiinity and afTinity were greatly reduced. Consanguinity v.as treated as a bar only within the third or fourth degree (civil computation), allinity only in the direct line. Spiritual kin- ship was not recognized. There was manifested also a tendency to treat fraud as a ground for ;ni- nulling marriage, provided it was made dear that but for the fraud the marriage would not have been contracted. Some of these changes were made by civil legislation, but until the nineteenth century legislation was for the most part guided by ecclesiastical opinion. Moi)f:RX CoNTiNF.NTAi, I.EOI.SLATION. Even in Catholic countries marriage is governed at the present time by civil legislation. The most im- portant innovation of the nineteenth century is the civil marriage. In the eighteenth century publicity of marriage, established in Catholic countries by the Tridentine decrees, was secured in Protestiint States in the same way. i.e. by eompul- sorv religious marriage. In some States it was demanded that the rites of the established Church be observed: but exceptions were generally made in favor of the adherents of other confessions or of no confession, first, by permitting marriage to be celebrated according to the forms of any recognized confession, and finally by establishing J civil nuirriage. i.e. nuirriage before a civil offi- ^ cer. The civil marriage is regularly preceded by notices, posted or otherwise i)ublished in the domicile of each of the parlii's. annd Portugal. In a larger nuni- lier of Continental States, however, civil mar- riage is obligatory. The parties may add a re- ligious ceremony, but the religious marriage has no legal cfTect. This system obtains in France, Holland, (Jermany, Switzerland, and Italy. The age of consent has generally been raised (to eighteen and fifteen in Eranee, to twenty-one and sixteen in tiermany). but not in Spain. The consent of parents or guardians is reqiiired for the marriage of niinors. and in many legislations the consent of parents is required even aff«r