26.13. 13. In what Cases, with regard to Marriage, we ought to follow the
Laws of Religion; and in what Cases we should follow the civil Laws.
It has happened in all ages and countries, that religion has been blended
with marriages. When certain things have been considered as impure or
unlawful, and had nevertheless become necessary, they were obliged to
call in religion to legitimate in the one case, and to reprove in
others.
On the other hand, as marriage is of all human actions that in which
society is most interested, it became proper that this should be
regulated by the civil laws.
Everything which relates to the nature of marriage, its form, the
manner of contracting it, the fruitfulness it occasions, which has made
all nations consider it as the object of a particular benediction, a
benediction which, not being always annexed to it, is supposed to depend
on certain superior graces; all this is within the resort of religion.
The consequences of this union with regard to property, the
reciprocal advantages, everything which has a relation to the new
family, to that from which it sprang, and to that which is expected to
arise; all this relates to the civil laws.
As one of the great objects of marriage is to take away that
uncertainty which attends unlawful conjunctions, religion here stamps
its seal, and the civil laws join theirs to it, to the end that it may
be as authentic as possible. Thus, besides the conditions required by
religion to make a marriage valid, the civil laws may still exact
others.
The civil laws receive this power from their being additional
obligations, and not contradictory ones. The law of religion insists
upon certain ceremonies, the civil laws on the consent of fathers; in
this case, they demand something more than that of religion, but they
demand nothing contrary to it.
It follows hence, that the religious law must decide whether the
bond be indissoluble or not; for if the laws of religion had made the
bond indissoluble, and the civil laws had declared it might be broken,
they would be contradictory to each other.
Sometimes the regulations made by the civil laws with respect to
marriage are not absolutely necessary; such are those established by the
laws, which, instead of annulling the marriage, only punish those who
contract it.
Among the Romans, the Papian law declared those marriages illegal
which had been prohibited, and yet only subjected them to a penalty;
[29]
but a Senatus Consultum, made at the instance of the Emperor Marcus
Antoninus, declared them void; there then no longer subsisted any such
thing as a marriage, wife, dowry, or husband.
[30]
The civil laws
determine according to circumstances: sometimes they are most attentive
to repair the evil; at others, to prevent it.
Footnotes
[29]
See what has been said on this subject, in book xxiii. 21, in
the relation they bear to the number of inhabitants.
[30]
See Leg. 16, ff. de ritu nuptiarum, and Leg. 3, 1; also Dig. de donationibus inter virum et uxorem.
