MARRIAGE is a contract by which a man and a woman enter into a mutual engagement, in the form prescribed by the laws of the country in which they reside, to live together as husband and wife during the remainder of their lives.
Marriage is treated as a civil contract even by those Christians who regard it as a sacrament, and as typical of the union between Christ and the church. The religious character of the transac tion does not arise until there has been a complete civil contract, binding accord ing to the laws of the country in which the marriage is contracted. The autho rity of the sovereign power in regulating and prohibiting marriages is therefore not affected by the superinduced religious character.
Among Protestants marriage has ceased to be regarded as a sacrament, yet in most Protestant countries the entrance into the marriage state is accompanied with religious observances. These are not, however, essential to a valid mar riage any further than the sovereign power may have annexed them to, and incorporated them with, the civil con tract.
After the establishment of Christianity it became usual to make the marriage promise in the presence of the assembled people, and to obtain at the same time the blessing of the priest upon the union, except when one of the parties had been married before, in which case no nuptial benediction was antiently pronounced, by which distinction it was perhaps intended to intimate that second marriages, though tolerated, were not approved by the church. So late however as the twelfth century, in a decretal epistle of Alexan der 111. to the bishop of Norwich. the pope says, " We understand from your letter that a man and woman mutually accepted one another without the pre sence of any priest, and without the ob servance of those solemnities which the Anglican church is wont to observe, and that before consummation of this mar riage he had contracted marriage with another woman, and consummated that marriage. We think right to answer, that if the man and the first woman ac cepted one another de priesenti, saying one to another, I accept thee as mine, and I accept thee as mine,' although the wonted solemnities were not observed, and although the first marriage was not consummated, yet the woman ought to be restored to her husband ; since after such consent he neither should nor could marry another."
Private marriages, designated clandes tine marriages by the clergy, continued to be valid till the Council of Trent, which, after anathematizing those who should say that private marriages there tofore contracted by the sole consent of the parties were void, decreed, contrary to the opinion of 56 prelates, that thence forward all marriages not contracted in the presence of a priest and two or three witnesses should be void. This decree, being considered as a usurpation upon the sovereign power, which alone can prescribe whether any and what for shall be required to be added to the consent of the parties in order to con stitute a valid marriage, has never been received in France and some other Ca tholic countries.
A marriage was clandestine if con tracted otherwise than in public, that is, in face of the church; and it was called an irregular marriage if it was clandes tine, or if, though not clandestine, it was contracted without the benediction of a priest in the form prescribed by the rubric, the intervention of a priest having latterly been required in all cases, even though one of the parties were a widower or a widow. Claudestinity and irregu larity subjected the parties to ecclesias tical censures, but did not affect the vali dity of the marriage.
The decrees of the Council of Trent had no force in England. A marriage by mere consent of parties, until- the passing of the Marriage Act in 1753, con stituted a binding engagement; though if application were made to the ecclesias tical courts for letters of administration, &c., under a title derived through such irregular marriage, those courts some times showed their resentment of the irregularity by refusing their assistance, more especially where the non-compliance with the usual formalities could be traced to disaffection to the Established Church. What the formalities required by the Church before the Marriage Acts were, it is now immaterial to consider. Such of them as are not incorporated into any of the Marriage Acts are now of no force for any purpose.