spread gradually to Protestant lands. The belief that marriage is primarily a religious rite became established; by the close of the eighteenth century “a religious ceremony was generally regarded as indispensable. Such ceremony was then ordained by law, and the minister celebrating it was made the delegate of the civil power.”
The reaction began with the French Revolution, which marked the beginning of a new epoch in marriage legislation. In 1787 a decree of Louis ⅩⅥ. gave Protestants the option of celebrating their marriages before the civil authorities by means of le mariage civil facultatif. In 1792 the establishment of le marriage civil obligatoire made the civil celebration of marriage compulsory. This principle, that marriage is primarily a civil institution, survived the French Revolution, and in 1804 it was incorporated in the Code Napoleon, which reënacted le mariage civil obligatoire. The civil ceremony is compulsory; the banns are published by the registrar, or municipal officer, who, after the presentation of birth-certificates and affidavits of consent of the necessary parties, declares the parties united in marriage in the town-hall in the presence of witnesses, and in the name of the law. The registration of the marriage is then drawn up and signed.
A subsequent religious ceremony is optional.
Since that time the principle has rapidly spread. Recent history shows a tendency in European law to approach a “common type” of marriage celebration, — that of the French compulsory civil marriage. Italy adopted it in 1866; a large majority of the States of the German Empire followed suit in 1875.
“Switzerland, like France, Germany, Italy, Belgium, and Holland, has carefully separated the civil from the religious celebration, prescribing the former as the only source of the legal status, and the civil registry as the only means of proof. Even where this French principle has not yet been adopted, steps preparatory to this have been taken, and its substantial acceptance by most Continental countries seems near. That marriage is at least an institution of society, and as such its celebration must be guarded and regulated by the State for the common good, has become a fundamental principle.”
British law is different. Even prior to the Council of Trent the presence of an Episcopal clergyman was always necessary to the legal validity of a marriage, although it might be clandestine. In 1653 Cromwell’s Barebones Parliament established compulsory civil marriage, but for a day only. In 1753 Lord Hardwicke’s Act did away with the validity of clandestine marriages and made solemnization in facie ecclesiæ the only legal form. At length, in 1836, Lord John Russell’s Act introduced optional civil marriage. “Those persons unwilling to be married by Episcopal rites are permitted to resort either to the customs of any other denomination, or to a ceremony wholly civil.” The presence of the civil registrar is required except for Jews and Quakers. Ireland and Scotland present some modifications, but in general “in the British Isles, as well as on the Continent, the development of the law is toward the adoption of the civil celebration of marriage. In both, laxity, multiplicity, and confusion are gradually giving place to strictness, unity, and definiteness. In both, the functions of the State, as compared with those of the Church, have constantly increased in extent and in importance. But while in the former the prevailing type is le mariage civil facultatif, in the latter it is le mariage civil obligatoire.”