Canon law seriously interfered with this evolution, for, although it had hitherto acknowledged, and had been obliged to acknowledge, the validity of the laws of individual peoples, since the secular courts alone determined the validity of marriage, a change took place in the time of Alexander IIl. The Church now acquired jurisdiction over marriage, and and with it the power of carrying out her principles. As concerned the contracting of marriage, the Church took her stand on the simple maxim of Roman law, consensus facit nuptias, and expressed this maxim in the scholastic form of both espousals. The consent with reference to the future (accipiam te) produced a betrothal in the Roman sense (sponsalia de futuro); the consent with reference to the present (e.g., accipio te in uxorem [or in maritum]) produced marriage (sponsalia de præsenti). If the copula carnis was conjoined with the sponsalia de futuro, it was considered a præsumptio iuris et de iure for the conjugal consent, and required marriage. Nevertheless, all this was merely a new terminology for the simple principles of Roman law.
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In the original Teutonic marriage law there was no place for the cooperation of a priest, but this now became possible. The German people adhered to the ancient formality of giving away; but since in reality nothing more was to be given away, a third person chosen by the parties, hence the priest, could perform the formality. As a matter of fact, it was the will of the parties which made the marriage. This church marriage, however, did not become general in Germany, nor indeed did the Church regard its cooperation as necessary to validity, since mere consent, however expressed, was sufficient. Herein lay the peril to ecclesiastical marriage law, nor was it until the Council of Trent that it was enacted that in future the declaration of consent to wed must be made before the proper priest in the presence of two or three witnesses if the marriage was to be valid.
In the Protestant Church the decided rejection of the validity of secret marriages by no means made their validity dependent on their solemnization by the Church, but resulted at first merely in the non-recognition of clandestine betrothals looking toward immediate marriage, and later in the compulsory completion of public betrothals, whether unconditional or followed by cohabitation, by church marriages. It soon became a general custom, however, to celebrate the marriage by a church wedding; while the decline of the custom of regarding an unconditional public betrothal as a marriage facilitated the prescriptive law which had become firmly established in Switzerland and Germany by the beginning of the eighteenth century, and which fixed the religious ceremony as the proper and necessary form. The movement inaugurated in Evangelical circles by Just Jenning Böhmer against the theory of betrothal in canon law naturally conditioned the importance of the marriage ceremony, which it considered the real marriage act. In England this was first established by the Hardwicke Act in 1753. In Scotland the pre-Tridentine canonical marriage law is still in force, thus explaining the famous marriages in Gretna Green, which, following that law, take place by a mere sponsalia de præsenti without a formal marriage.
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