5. Theory of Marriage in Early Lutheran Rituals

For the cooperation of the Church in contracting marriage Protestantism retained essentially unchanged the church banns and marriage by the Church. Luther's marriage ritual makes the ceremony take place before the church, only the Scripture lesson and the prayer of benediction being given at the altar. In Luther's book and in most Protestant rituals the marriage form reads: "I pronounce you joined in wedlock in the name of the Father, Son, and Holy Ghost." The Nördlingen agenda of 1676 has the fuller form: "I pronounce and give you joined in wedlock in like manner as God joined our first parents in Paradise, and this in the name," etc. Some rituals, especially in South Germany, read like the Brandenburg-Nuremberg agenda: "The marriage vows which ye have pledged one to the other in the presence of God and his holy congregation, I here confirm at the command of the Christian congregation in the name," etc. In other rituals both forms are combined, as in the Eisleben manual of 1563: "This marriage, ordered and ordained by God Almighty between you, I confirm as a minister of the Church in his stead, and in the presence of this congregation I here pronounce you publicly joined in wedlock in the name," etc. From this it follows that the real and essential meaning of the "joining together" in the name of the Trinity represents the divine joining together in wedlock, but that it does not imply that the marriage is performed by the act of the minister. Marriage was originally held to be contracted by the engagement preceding the ceremony and the banns. In the introduction to the marriage ritual it is sometimes said (as in the Lower Saxon agenda of 1585) "The persons here present have, in the customary manner, with the knowledge of their parents on both sides, etc., entered into the holy estate of matrimony." The wedded life already begun was merely completed by the church ceremony. When, at a later time, the distinction between inchoatum and consummatum matrimonium was disregarded, and a sharp line was again drawn between betrothal and wedded life (marriage being deemed necessary for the latter), the "pronouncing together" in the name of God came to denote the declaration of marriage, which could be celebrated only by such a declaration. Nevertheless, this new development did not supersede the original and main significance of the "pronouncing together," for as a religious act it never lost this meaning, its declarative aspect arising from the legal character which it had now assumed in addition to its religious functions. The actual validity of the marriage contract was always held to reside in the mutual agreement of the parties concerned, as expressed in their assent to the questions in the marriage ceremony. They themselves thus contracted with each other the marriage which the minister merely confirmed solemnly by his declaration, although the latter ceremony was necessary for the validity of the marriage. Herein Protestant canon law finally differed from Tridentine Roman Catholic, the latter holding that a formal wedding was not necessary to the validity of marriage, if a declaration of mutual consent had previously been made.

Various grave difficulties arising from the requirement of a religious ceremony for the legal validity of marriage led to the development of a civil marriage service, which then became either sufficient for or necessary to its civil validity. This civil ceremony, as found in the sixteenth century in Holland, and in France in 1787, had for its ¹ object the protection of the liberty of conscience of sectaries or members of Protestant communities which were merely tolerated; since by observing a prescribed civil form of marriage they were enabled to obtain the same public recognition for it as could properly be obtained only by the cooperation of the State Church. A French law of 1792 made the civil ceremony obligatory upon all citizens on the principle that "the citizen belongs to the State, irrespective of religion," the legal basis

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being the distinction between contractus sacramentalis and naturalis (see above). The obligatory civil ceremony thus introduced was adopted in the civil Code Napoléon, and remained authoritative in those parts of Germany where it had become naturalized under French rule. The same theory forms the basis of the obligatory civil ceremony in Holland, Italy, Chile, Mexico, Rumania, Hungary, and Japan [and in some parts of the United States]. In England, Scotland, and Ireland the civil ceremony was introduced in 1653 to free the Church from secular affairs. Abolished at the Restoration (1660), civil marriage was again introduced as optional into England for practical reasons in 1836. In Germany the obligatory civil ceremony, first introduced by the law of Feb. 6, 1875, was based on the principle of the separation of Church and State according to the Belgian precedent. In case the State permits a marriage when a religious ceremony is impossible, the civil ceremony is employed fn Austria, Denmark, Sweden, Norway, Spain, Portugal, and Russia. In North America, where the principle prevails that consensus facit nuptias, both ministers of the different denominations and judicial officers have the right to perform marriages.

According to the law of the Roman Catholic Church, a marriage performed by a civil magistrate may become ratum and legitimum matrimonium only where the Tridentine Decree has not been promulgated; where it has been promulgated, or is practised without being promulgated, the civil ceremony becomes a ratum matrimonium only by a subsequent religious marriage according to the form prescribed by the Decree. The Protestant Church, on the contrary, must consider marriage as binding the conscience from the instant the civil ceremony is performed, and can not, therefore, regard a subsequent religious ceremony as a marriage.

The validity of marriage in the Roman Catholic Church underwent a very important development under Pius X. by the constitution "Provide" of 1906 (see below) and by the decree "Ne temere" of Aug. 2, 1907. By the decree "Ne temere" there was introduced a special form for betrothal (a written contract to be signed by the parties, the priest, or ordinary, or by at least two witnesses); the validity of the Tridentine form of consummating marriage (which, of course, is acknowledged everywhere) is made actual by the presentation of the decree "Ne temere" to the diocesan bishop and extends to all people baptized in the Roman Catholic Church and to those that have returned to her from heresy or schism. The declaration in contracting a marriage must take place before the priest whose presence has been requested, who officiates of his own will (these are innovations), and before two witnesses. The priest must be chosen from the proper diocese; but if that is not the case, marriage is not declared void as formerly, provided the priest officiates within his own official district.