Marriage, in a civil sense, is the legitimate union of a man with a
woman for the procreation of children, to secure their due nurture and
education, and in order to assure unto them their rights and properties
under the protection of the laws. In order to confirm and establish this
union, it is accompanied by a religious ceremony, regarded by some as a
sacrament, and by others as a portion of public worship; a genuine
logomachy, which changes nothing in the thing. Two points are therefore
to be distinguished in marriage--the civil contract, or natural
engagement, and the sacrament, or sacred ceremony. Marriage may
therefore exist, with all its natural and civil effects, independently
of the religious ceremony. The ceremonies of the Church are only
essential to civil order, because the State has adopted them. A long
time elapsed before the ministers of religion had anything to do with
marriage. In the time of Justinian, the agreement of the parties, in the
presence of witnesses, without any ceremonies of the Church, legalized
marriages among Christians. It was that emperor who, towards the middle
of the sixth century, made the first laws by which the presence of
priests was required, as simple witnesses, without, however, prescribing
any nuptial benediction. The emperor Leo, who died in 886, seems to have
been the first who placed the religious ceremony in the number of
necessary conditions. The terms of the law itself indeed, which ordains
it, prove it to have been a novelty.
From the correct idea which we now form of marriage, it results in the
first place, that good order, and even piety, render religious forms
adopted in all Christian countries necessary. But the essence of
marriage cannot be denationalized, and this engagement, which is the
principal one in society, ought uniformly, as a branch of civil and
political order, to be placed under the authority of the magistracy.
It follows, therefore, that a married couple, even educated in the
worship of infidels and heretics, are not obliged to marry again, if
they have been united agreeably to the established forms of their own
country; and it is for the magistrate in all such instances to
investigate the state of the case.
The priest is at present the magistrate freely nominated by the law, in
certain countries, to receive the pledged faith of persons wishing to
marry. It is very evident, that the law can modify or change as it
pleases the extent of this ecclesiastical authority.
Wills and funerals are incontestably under the authority of the civil
magistracy and the police. The clergy have never been allowed to usurp
the authority of the law in respect to these. In the age of Louis XIV.
however, and even in that of Louis XV., striking examples have been
witnessed of the endeavors of certain fanatical ecclesiastics to
interfere in the regulation of funerals. Under the pretext of heresy,
they refused the sacraments, and interment; a barbarity which Pagans
would have held in horror.