Stahl on the Law of Marriage

The Marriage Bond

The essence of marriage is the complementarity of the sexes. The difference between the sexes, and their union as the origin of all new life, is a general law of physical nature. What significance this law has is not a problem of ethics but of natural philosophy. ⁽¹⁾

So much is certain, that the sexes are the expression of two general principles of nature, a spiritual begetting [zeugenden] principle and a material conceiving [empfangenden] principle. The essence of human marriage however is the elevation of these principles and their bond in the character of the personal.

Natural principles here become personalized [personifizirt] in that gender difference is not merely a difference of physical capacity but also of ethical spiritual determinateness [Bestimmtheit], through which in particular the gender characteristic of the woman becomes a specific virtue (modesty [Schamhaftigkeit], maternal love, etc.) and the union of the sexes at the same time becomes a mutual impulse and support [Förderung] of ethical spiritual essence. The bond itself however becomes personalized in that from the mere union of sexual functions it is elevated into the union of persons for which the former only serves as substrate, thus into a bond not of mere momentary complementarity but of the persons concerned immutably becoming as one in feeling, knowledge, and will, into a living union [Lebenseinigung]. ⁽²⁾

Marriage is therefore a bond of love, however love of a specific sort, namely complementarity, and so has as its final ground the insufficiency of one’s own existence and therefore mutual need, physical and spiritual. Furthermore, it is for this reason not a primarily ethical relation but a natural relation elevated into the ethical, which for that reason has natural functions as its necessary basis. It is the transfiguration [Verklärung] of nature, the culmination of the physical process of creation, just as the church, as the bond between Christ and the congregation out of which spiritual life springs, is the transfiguration of spiritual relations.

Accordingly, marriage is necessarily monogamy. Polygamy does not allow for such mutual devotion, such a thorough union of persons. It is contrary to the essence of marriage and the right of the wife. In it, the husband cannot entirely devote himself to any of the wives, nor can the wife devote herself entirely to the husband, in that she cannot make his love for the other women into her own. Polygamy belongs to that stage of nature in which the full character of personality is lacking, and where on the other hand fertility is the main goal. Man sank back into this stage; “from the beginning it was not so.” It therefore has no climatic justification, for the highest ethical relations of man cannot depend on climate; it has only world-historical license during earlier periods in accordance with the leading of Providence. But precisely because of this, since the revelation of true ethics it can no longer be overlooked. Justifiably did the church, upon converting polygamous peoples, always insist that the husband only maintain the first woman he married, and separate from the others.

The Elements of Marriage

Accordingly, the purpose (τέλος) of marriage is the complete personal union of both spouses upon the foundation of sexual union, to which procreation is linked. It therefore has a goal outside of itself, the begetting of children; but its first and sole independent goal lies in itself, the union of the spouses. Therefore the sterile marriage is no less binding and sanctified than the fertile one. The contrary viewpoint, which only recognizes the begetting of children as a positive goal and attributes to marriage itself only a negative goal, to guard against fornication, does not attribute to marriage its full right and ignores its positive goal, the life union of the spouses. ⁽³⁾ This may also have a connection with the exaggerated preference attributed to celibacy even apart from the spiritual order.

The juristic concept of marriage is the union of both sexes in a complete life and legal community. Accordingly, marriage is:

1. Sexual community (conjunctio maris et feminae). This is an essential aspect of marriage, although by virtue of the ethical nature of man it is only the basis, not the actual content of the same. For this reason, its later cessation (imponentia superveniens) does not affect [afficiren] the marriage, and even in the case of its absence from the start, the consent of the spouses establishes a valid marriage, only not with the effect of indissolubility it otherwise has; this latter might be termed a naturally incomplete marriage. Where however the union of sexes is lacking not only in individual instances but is impossible by general natural laws, there can and should not exist a marriage. ⁽⁴⁾
2. Life community (consortium omnis vitae), that is, the community of livelihood, household, domicile, sharing in prosperity and adversity. The ethical nature of human marriage only exists in this full life community. It therefore may not by way of exception (for a specific marriage) be forsaken, by contract be relinquished as with the physical basis, otherwise the concept of marriage is abolished.
3. Legal community (juris communicatio), that is, the community of rank, class, legal domicile [Gerichsstandes], bequest to children. This legal community can by way of exception be lacking in important relations. So for example in our unequal marriage (misalliance, morganatic marriage). One may characterize this as a civil incomplete marriage. ⁽⁵⁾

Marriage thus has a natural, an ethical and a civil element.

The Role of Consent

As a bond of personal union, marriage can only be effected by the persons to be joined together, through their act of union, “consent.” The motive behind this action (physical attraction [Sinnlichkeit], paternal authority, considerations of rank, attraction of personality [Anziehung der Individualität]) is the business of subjective morality. Even so, part of the concept and legal order of marriage is that it is validly concluded only through free consent. For all that, however, marriage itself is still by no means a contract, in that it stands, not under the spouses, but over them; it has a norm, content, and binding power not through them but through its own ethical nature, and since this is not based on their will, it cannot be abolished by them either. Not only the ethical but also the legal effects of marriage – common domicile, mutual aid, etc. – are far from being the effects of contract. They also undeniably come about according to the nature of marriage. Even the consent (consensus) upon which the ceremony [Schließung] of marriage is based is distinguished from other contracts in that it does not comprise individual provision under protection of separate interests but nothing less than [sondern selbst schon] a complete devotion of the person (see above, §. 54). By all means is the marriage ceremony subject to the juristic principles regarding consent (e.g., invalidity of coerced consent, etc.); but these principles nevertheless are essentially modified in consideration of the special nature of this consent and the nature of marriage itself (e.g., restricted effect of error, impermissibility of conditions, determination of time, etc.).

The Role of Religion

Marriage is primarily and on the whole an ethical and civil relation, not a religious one. ⁽⁶⁾ For it serves the purpose of maintaining humanity in itself to give it completed shape, not to bind men to God (Book I, §. 24 and 25). To this end it stands primarily and on the whole under the ordering power of the state and not the church. For all that, it has no less a relation to religion and the church, and that is a dual one, a truly religious or ritual [kultliche] and a dogmatic.

Marriage has firstly a religious, i.e., ritual character.

Already the miracle of procreation laid up in nature produces the consciousness of the proximity and love of God to the creature, which explains the idolatry [Anbetung] in pagan cults. In human marriage, the ethical miracle of full personal union of spouses arises on the foundation of this natural miracle, which in Christian doctrine is even referred to as the symbol of the bond between Christ and the congregation. This, as true ethical union, as union in pure love, standing over natural inclination and its mutability, can however go on in no other manner than in the innermost focal point of human personality, in the bond with God, i.e., only owing to the spouses joining with each other in God and He being with them in immediate proximity. Here, where that which is ethical involves the person himself and his entire devotion [Hingebung] as a person, appears its inseparability from that which is religious (Book I, §. 24). This proximity of God and the human need for God’s blessing are therefore that which lends marriage its religious character. Pursuant to this, it is also to be concluded by the church and under its blessing and not through the spouses alone or merely by the civil ruling authority (civil marriage). With a mere civil marriage, then, no religious sentiment is actually assuaged or satisfied, and already from the first ages of Christianity the ecclesiastical union was considered to be a requirement of a true marriage ceremony.

For all that, however, marriage is still not in any way a sacrament. For it is not the means of bringing the spouses closer to God, to augment their religiosity, thus not a means for the benefit of religion, but vice versa, religion (the bond with God) is here the means to fulfilling and transfiguring the human relation. The divergence of both churches here is based admittedly in the first place on a discrepancy of the concepts one attaches to the word “sacrament.” The Catholics label as sacrament every visible relation to which an invisible divine grace attaches, while the Protestants only label those institutions sacraments which serve as signs and seals of the redemption purposes of the new covenant. To this degree it is only a verbal dispute. But the combination of marriage with baptism and the Lord’s Supper indicates that in consequence of that concept marriage is conceived not as a human relation in need of grace and assured of grace, but is itself a means of grace, is conceived as a relation aimed at religion and redemption. ⁽⁷⁾ This conception has significant practical consequences. One of these is the strengthening of the indissolubility, without exception, of the bond; for indissolubility by all means exists entirely independently of the concept of the sacrament, is based upon entirely different biblical texts and even is historically more ancient, but it is confirmed by it in that a sacrament as indelible sign (signum indelebile) may sometimes be repeated but cannot be abolished. A further consequence is the maintenance of marriages that otherwise must be held to be null and void (e.g., by error regarding the pregnancy of the bride). This conception finally however and mainly, the claim to exclusive jurisdiction of the church regarding the validity of the marriage, is based on this conception. For if marriage truly is a means of grace in this sense, like baptism and the Lord’s Supper, it is entirely in accordance herewith that only the church and by no means the state can judge and determine regarding the requirements and the existence, that is, the efficacy of it.

Secondly, marriage also has a dogmatic character.

Marriage is the primeval relation of human existence, more ancient than any civil order, according to our Christian faith even more ancient than the limitations of the earthly condition, that is to say, established by God in paradise. But from the beginning it had inviolable divinely sanctioned laws. Now that man finds himself outside of God, consciousness of these commands is yet maintained only in the church, as the conserver of the immediate divine revelation. ⁽⁸⁾ For this reason, although the church in the Christian state is not the lawgiver regarding marriage such that the legal arrangement must issue from it and through its authority be valid in civil life – this is the affair of the state; even so, what the church attests to be such unchangeable divine law (jus divinum) and maintains as such within its ambit, is the insuperable norm and limit for the legislation of the Christian state.

Besides, beyond these laws as divinely attested it certainly befits the church that it, by virtue of its power of education, itself issues arrangements regarding the validity and permissibility of marriage. But that which the church in this latter capacity, and thus according to its own human insight, arranges (e.g., the forma Tridentini) it cannot proclaim as an inviolable rule over against the state. Accordingly, the state should not declare valid those marriages which the church by jus divinum (dogmatically) declares invalid, but in its legislation it may ignore hindrances that it considers dispensable (e.g., the fourth degree of consaguinity); concessions which the church in its judgement wishes to make and in general may make, the state may unconditionally require of the church (e.g., allowance of the Tridentine form, unconditional provision of assistance or proclamation, etc., regarding mixed marriages). All of this it may do lawfully. Whether it acts wisely in this is another question, which can only be answered in each individual case.

Furthermore, the church conversely may not refuse the arrangements regarding the validity of marriage made by the state from ethical and civil considerations, where they do not conflict with that divine law. As everyone knows, a great dispute is taking place in the Catholic church regarding this issue. The Curia does not concede any effect regarding ecclesiastical validity to regulations concerning the validity of marriage established by the secular ruling authority (e.g., requirement of parental or governmental/royal consent), since marriage, it being a sacrament, comes only under its jurisdiction. A more moderate party (Gallican [i.e., French nationalist – rca]) vindicates the right of the state to establish such regulations with ecclesiastical effect on the grounds that the civil contract indirectly is material [Stoff] for the sacrament, because where the civil contract is invalid (which the Curia does not dispute) the sacrament likewise does not extend. ⁽⁹⁾ In favor of the Curia, this has been countered especially by Walter, that “the substance of the sacrament is the natural and not the civil contract,” thus in judgement of the sacrament the positive arrangements of the state cannot receive any consideration. This argumentation, upon which the entire decision in the final analysis depends, evidently presupposes the principle that everywhere where the natural elements of the marriage contract, consent and in any case [allenfalls] consummation, are present, and a divine prohibition does not exist, there the sacrament irrefutably steps in. This principle however refutes the Curia’s own proceedings, in that it itself issues human-positive arrangements apart from which those natural elements would have no effect, thus especially the entire Tridentine form (parochus ordinarius, duo testes). If it is no divine commandment that each naturally concluded marriage of necessity be a sacrament, but rather the church can in human wisdom, for the sake of praiseworthy order, establish conditions of sacraments, such as the presence of two witnesses, then there is no ground why it should not concede this to the state as well. ⁽¹⁰⁾ The material of the sacrament is therefore much more the natural and at the same time ethically permissible marriage contract. Ethically permissible it is not, however, where a well-proportioned civil or ecclesiastical regulation runs counter to it. ⁽¹¹⁾

Where however, as in the German Lutheran countries, church government is joined with the state power in the princes, thus where a separate church order is lacking, just for that reason the church there is to be accorded a concurrency [Konkurrenz] with the state, at least if the state wishes to answer to its Christian character. Even at the present time, where Protestant marriage laws no longer form part of the church order but are promulgated in the civil code, they nonetheless thereby ought to be enacted with the prior attestation of the church (approval of the synods, consistories, faculties, and the like). Should in the meantime the prevailing condition of public mores and opinion demand some other arrangement, then it ought to be possible for the church to make a statement for itself regarding which marriages it attests to be permissible or otherwise in accordance with the divine Word, and in no way may an unconditional sanction be required from the church, viz. [bez.] its servants, for mere state laws. The prince, in our constitution the organ also of the church for its binding statements and regulations, currently issues no statements and regulations anymore as organ of the church; for this he must have consulted the church itself (consistories, synods, etc.); instead, he issues these merely as legislator of the state. Thus in this the church in actuality has had its mouth closed; it has been made impossible for it to issue any regulation, in fact any guidance for its members.

Likewise as with legislation and on the same grounds, jurisdiction [Gerichtsbarkeit] over affairs of marriage is primarily and with legal effect a matter for the state. The consequence of the sacrament concept certainly leads to the conclusion that only the church can judge regarding the invalidity of marriage or divorce. But the true nature of marriage as a likewise religious relation does not remove it from civil jurisdiction but only requires that this religious dimension be protected. One such concerns the religious influence on the spouses, in the antecedent spiritual admonition and attempt at reconciliation; another concerns the ecclesiastical soundness of the verdict in the mixed courts: consistories, contemporary Württemberg marriage courts [Ehegerichten], etc. With respect to this latter, the Christian or [bez.] denominational [konfessionelle] confession of the judge can serve if need be as sufficient guarantee, when for the rest the laws themselves agree with the doctrine of the church. Beyond this, the church’s disciplinary maintenance of the religious commandments regarding marriage and pastoral influence and discipline can never be taken away by the jurisdiction of the state. It is only the legal consequence which must be vindicated [vindicirt] by the secular jurisdiction. However, it comports with the sanctity of the marriage bond and the dignity of the publicly recognized church when the state vests ecclesiastical courts with its authority to this end.

The Role of the Civil Order

As long as the church was persecuted by the state, conflict over legislation regarding marriage did not yet arise. Both institutions pursued their separate paths. The secular power, as is self-evident, took no concern of the church, and the church maintained in its sphere its ethical commands regarding marriage without concern for secular legislation, through ecclesiastical means, penance, and excommunication. Even after the Byzantine empire assumed the Christian confession, no essential change took place in this as would have been expected. The clear awareness regarding the connection of state and church was lacking, the malleability for shaping the national condition as yet lacked the Christian principle. It therefore lasted quite some time before the Christian principles of marriage passed into legislation in any degree at all; the church strove after this, and rightly so, but without success. ⁽¹²⁾ So for example divorce by mutual agreement and by reason of barrenness of the wife were only abolished by Justinian in a later ordinance, and divorce for imprisonment was not even abolished by him. The legislative authority in marriage matters was however simply and indisputably vested in the emperor. Even the ordinances of Theodosius and Justinian, bearers of true Christian sentiment, were issued through pure imperial omnipotence and discretion apart from any cooperation of the church.

By contrast, in the Western kingdoms the Roman church asserted legislation and jurisdiction over marriage, and that by divine authorization. Not merely the principles, which it attested as divine regulations, but also its own human arbitrary ordinances had unconditional validity, and conversely the secular power issued no command regarding the validity of marriage. But more than this: the entire legal order and civil validity of the bond of marriage rested exclusively and immediately on its authority, the secular ruling authority had no share in this, but was simply directed to maintain and execute by means of its external power (brachium saeculare) what the church established or judicially decided.

The resistance of the Reformers was directed against this as well as against the content of then-existing ecclesiastical legislation. It is by no means the divine order that the church has exclusive jurisdiction over affairs of marriage; the secular ruling authority has jurisdiction just as well, in fact the latter has the duty to issue marriage statutes when the church proceeds against God’s Word and Christian freedom, as this actually was the case regarding divorce, spiritual kindredness ⁽¹³⁾ [geistlichen Verwandschaft], etc. It never came into the Reformers’ minds, however, to proclaim that marriage is purely a secular affair, standing only under civil considerations and not under religious commands, or that the witness of the church over divine marriage laws is not a binding norm for the legislation of the state, or that jurisdiction is more appropriately exercised by the secular than the spiritual authority. In fact, the contrary is emphatically the case. ⁽¹⁴⁾ To state expressly that there is an immutable commandment of God for marriage would not have occurred to them, since at that time it was self-evident; but in all their discussions and even in their exhortations to the princes to act against Catholic statutes, they factually invoke a divine command. Thus, even when Luther in many of his private expressions declares marriage to be a “secular affair [weltlich Geschäft]” the connection and the perspective thereof was for the clergy not to “govern” directly therein but for that which in reality stands under human discretion (humani juris), and at the same time until then was largely conducted by the church, should much rather be left to the secular authorities or the mores of the country, such as, e.g., whether at nuptials one should attend services once or twice, how often public notice of the upcoming marriage is to be given; ⁽¹⁵⁾ by contrast, Luther is far from leaving the decision as to whether the innocent party is free to remarry after divorce, or whether one may “repudiate his wife due to leprosy or bad breath,” to the discretion of the secular ruling authority separated from the church. Rather, in this regard he himself gave inviolable ecclesiastical testimonial. ⁽¹⁶⁾ Regarding marriage courts, however, the Reformers spoke the same principle under all conditions, that they should be ecclesiastical and not secular courts, and held the consistories to be the most expedient. Thus the sense of the Reformers is neither separation of the content of marriage law from the doctrines of faith and testimonies of the church, nor the exclusion of ecclesiastical cooperation for its arrangement and upholding, but only the restoration of the state in that supreme and sole legal authority which befits it in that matter, and the freedom to make human praiseworthy ordinances outside the divine commandments, which the church had presumed up until then.

This intention is also confirmed by subsequent actual arrangement in Protestant countries, which undeniably springs from it. This is based on the connection of secular and ecclesiastical power in the person of the sovereign, which eliminated the conflict; ⁽¹⁷⁾ but even so, marriage was predominantly treated as an affair of the church, the confession of faith was considered its supreme guide, its arrangement was issued by the church government, effected in the church ordinances, not in the national statutes, thereby on the advice of the ecclesiastical organs, while the consistories had jurisdiction.

First since the time of Thomasius did the viewpoint gain ground, partly from misunderstanding the Reformers, that marriage is a secular matter and as such solely the responsibility of the civil ruling authority. A similar development has proceeded in the Catholic countries since the Josephine era. ⁽¹⁸⁾ Finally, the newer philosophic doctrine conceives of marriage as a purely civil relation, in fact as a mere contractual relation. Hereby in recent times in many states the conversion has come not only in formal perspective, that the determinations regarding the marriage bond form part of the civil code and fall under the jurisdiction of the civil courts – against which, under the modifications indicated in §. 68, nothing can be objected – but in material perspective as well, that legislation has been entirely detached from the Christian teaching regarding marriage.

[This development in the civil codes of Prussia, Austria, and France, sanctioning civil marriage.]

This separation of the secular and the spiritual everywhere had the same defect: it placed a dichotomy between state and church, which were harmoniously to foster the human race, in that the state would sanction marriages which the members of one of the officially recognized churches concluded under the faith and commandments of that church. It is the declaration of the profanation of marriage and therefore weakens, to the degree that it has an effect, the consciousness of marriage’s sanctity and God-given ordinances. It leads to marriage legislation of lesser strictness and purity. The French civil code is of course strict to a degree, in consequence of Catholic custom and the reaction against the previous period of general dissolution; but it is by no means derived from pure principles appropriate to the ethical essence of marriage; further [vollends], the marriage statutes of the Prussian civil code go to the extreme opposite of strictness and purity. The expected advantage, that civil marriage would eliminate the conflict between church and state and thus a great deal of confusion [Verlegenheit], is only apparent. For the conflict then shifts to another area, between the church and its members, which excommunicates them in the absence of state aid, and between the two confessions. This conflict would be much more appropriately and fundamentally eliminated if the civil legislation were brought into closer correspondence with the ecclesiastical, than when it is separated from it. The actual motivation behind civil marriage does not however lie in such advantages, but simply in Christianity being recognized not as the public faith of the nation and the authoritative power in the state, but merely as a private conviction of individuals, and indeed here alone lies the decision for ecclesiastical or civil marriage. The civil conclusion of marriage (not civil marriage in general) is appropriate as an exception, to wit, in relation to sects which the state tolerates, but the clergy of which cannot be extended public authority to conclude valid marriages. ⁽¹⁹⁾

Notes

1. Compare Schelling, On the Relation of the Real and the Ideal in Nature, Hegel, Encyclopedia, Pt. I, §. 220, 221, pt. II, §. 367, 368. But who is of the opinion that the mystery of the sexes and procreation is revealed through these and similar expositions? I withdraw (and did so already in the second edition) my own deduction of marriage in the first edition. Certainly the sense that one imputed to the incautious expression on p. 244 is not there; the entire conception is not any the less erroneous for that reason, since I placed in God Himself what only belongs to the creation.

2. Regarding the climax of nature with respect to the physical process of procreation, see Steffen’s Anthropology, Vol. 2, pp. 214, 222, 234.

3. Extremely precisely expressed, e.g., Tancred., Wund. edition, p. 61: “Omne matrimonium aut causa suscipiendi prolis aut causa incontinentiae fit.” This of course is based on isolated biblical texts, but these do not have the intention of comprehensively expressing the essence of marriage.

4. This is the basis for the prohibition on the marriage of eunuchs. Roman law (Justinian, Digest,23.3.39.1, de jure dot., also compare 1.7.9, J. de adopt.) understands it according to its logical aspect: the concept of marriage is lacking in it; canon law (Bull. magn. II. 634) does so according to its ethical aspect: the community of sexes without the natural goal of marriage is sin and offense.

5. One nearly universally (already from J.H. Böhmer onward) falsely chooses morganatic marriage and the like as an example of matrimonium ratum sed non legitimum. But it is just as much legitimate as well. Such an example is much rather formed by marriage without parental consent according to Roman Catholic ecclesiastical law [Kirchenrechte]. Morganatic marriage is only civiliter imperfectum. In the same manner, one may designate mixed marriage as an ecclesiastically incomplete marriage.

6. The description of marriage as a “civil relationship” has absolutely nothing in common with its description as a “contractual relationship.” The civil order, and in particular the ethical order, upon which it is based, entails requirements regarding the will and the agreement of parties in the same degree as does the religious order. This is quite often confused, however, especially by Catholic writers, who then oppose the contractual character instead of the civil character to the ecclesiastical character of marriage (the sacrament).

7. In this therefore the opposition between Protestant and Catholic doctrine by no means consists in Protestants only recognizing “the natural sanctity and divine consecration of the married state,” as Walter (Textbook of Canon Law, §. 288) represents it. The divine foundation of marriage is also taught by Protestants.

8. It is proper that the church itself in this regard diverges or varies within itself. For the essential ethical form of marriage is everywhere preserved in it, while outside of it that form is nowhere to be found.

9. Most clearly in Héricourt, Les lois ecclesiast. de France P. III c. 5 art. 2: “Comme le sacrement de mariage a pour fondement le consentement mutuel des parties — — — ce contract est en même temps civil et spirituel. D’où il faut conclure, que les souyerains peuvent mettre des empêchements au mariage, non pas en donnant atteinte directement au sacrement; mais en déclarant nul le contract civil, sans lequel il ne peut y avoir de sacrement.” In the same manner in Theiner: “Variae doctor. cathol. opinion. de jure statuend. etc.” in extensive implementation, and in many others.

10. Already prior to the Council of Trent, the church in this respect could be opposed in its extending the prohibition of marriage to degrees not divinely prohibited. Should the church through such a positive arrangement hinder the admittance of the sacrament, where after all the natural contract of marriage was present and no divine law opposed, why could not the state do this as well, through positive arrangement, e.g., that parental consent be required?

11. According to the confession of the early church, marriage concluded by sons [Haussöhne] or slaves without the consent of the father or master was not a marriage but a “fornicatio,” therefore also no sacrament; should not the same hold true for marriages concluded by subjects against the laws of their ruling authority? However, neither the state nor the church should lightly establish such requirements which do not lie in general natural ethical principles but are of a mere positive-legal character (e.g., approval of a superior for someone in the military, of the sovereign for members of princely households), as disuniting impediments to marriage [trennende Ehehindernisse]. They should restrict positive-legal disuniting impediments to marriage primarily to the form of public composition [öffentlichen Zusammensetzung], through which in fact all other considerations most certainly can be preserved.

12. Here belongs in particular the decision of the African synod (c. 4. C. 32 qu. 7). The “in qua causa legem imperialem petendam promulgari” could not possibly have the meaning, as Eichhorn (Canon Law, p. 299) states it, of getting the imperial law to recognize ecclesiastical penance, because that would not have occurred to the synod, but rather the meaning of getting the ecclesiastical law of marriage to be sanctioned civilly.

13. Marriage hindrance centering on the godparent relationship – RCA.

14. Compare my The Church Constitution According to the Doctrine and Law of Protestants, 1^st ed., p. 74.

15. Luther’s Works, (Walch) X. 854. “The saying goes, ‘as many countries, as many customs.’ Thus, since the marriage ceremony and the married state are a secular affair, our ministers and sextons have nothing in that regard to order or govern, but to leave to each city and country its usage and custom as they are. Some bring the bride twice to the church, both in the evening and in the morning, some only once, some announce and invite from the pulpit two or three weeks prior. I allow the lords and councils to create and make [schaffen und machen] such-like as they wish, it is none of my concern. But if one desires of us to be blessed before the church or in the church, to be prayed over, or to be married, we are obligated to do that.”

16. Luther’s Works, (Walch) X. 797.

17. Accordingly, although a split in matrimonium ratum and legitimum formally is not possible., materially it remains of importance. For example, there are now countless marriages which are matrimonia legitima and yet not matrimonia rata according to the principles of the Protestant church. Marriages which are not matrimonia legitima and yet rata do not exist because the Protestant church does not grant ecclesiastical sanction to a civilly inadmissible marriage. But even the concept of a matrimonium non legitimum and yet ratum could become applicable in the case of the state not merely setting requirements for the validity of marriage but also absolute prohibitions on marriage, in particular to the extent that they abolish those of Christian freedom as advocated by Protestants, for example, when marriage is declared by state law, as occurred in France, to be indissoluble in terms of the marriage bond [dem Bande nach], or marriage is denied to priests who have gone over to the Protestant church, etc. It is therefore groundless when J.H. Böhmer and others describe this distinction as something purely Catholic, which Protestants must abandon.

18. A reference to the reign of Emperor Joseph of Austria (1780-1790) – rca.

19. Civil marriage as introduced in England by the legislation of William IV and Queen Victoria is something entirely different from civil marriage in the sense of the Continent. The occasion and goal there was only the liberation of dissenters from being forced to have their marriages concluded by the state church. The civil character therefore extends only the conclusion of marriage and not to the marriage laws and jurisdiction; these have retained their ancient Christian character, and even the civil conclusion of marriage does not consist in the marriage being concluded through a civil act of a civil servant – this only takes place through the highest registering official (superintendent registras) in London, who certainly is only seldom approached – but through dissenting clerics through religious rites answering to their congregation, albeit concluded in the presence of secular officials (registras) along with two witnesses, and certified by them. Beyond this, the clerics of the state church and the religious communities which previously were hereto entitled (Jews and Quakers) do not even require civil participation, but as yet conclude marriage merely through the religious act, in legally valid fashion. With regard to lists of marriages, as with those of baptisms (births) and deaths, the clergy of the state church, where they still draw up these lists, is required to send them to the same supreme civil servant in London, and thus in this respect has been made into a subordinate civil servant. However, such lists are not, as is marriage, an ecclesiastical but a civil affair. Accordingly, marriage in England has retained its ecclesiastical character as it was, even in the most recent legislation; this legislation, in contrast with that on the Continent has a declaration of secularity and the greater relaxation of marriage laws neither as motive nor as consequence.