Chapter VII…

Chapter VII

RISE OF ECCLESIASTICAL MARRIAGE: THE CHURCH ACCEPTS THE LAY CONTRACT AND CEREMONIAL

[BIBLIOGRAPHICAL NOTE VII.--For the original Christian usage the writings of the early Fathers are of primary interest, and an English version of them is available in The Ante-Nicene Fathers (Buffalo, 1885-87), edited by Roberts and Donaldson and revised by A. C. Coxe. An indispensable handbook and bibliographical guide for the study of this subject, as well as for a multitude of questions connected with the first eight centuries of Christian history, is Smith and Cheetham's Dictionary of Christian Antiquities (London, 1875-80), particularly Meyrick's article, "Marriage," and Ludlow's clear and thoroughly critical discussions of the "Benediction," "Betrothal," and "Arrhae." Important sources for this chapter are also the Corpus juris civilis (Berlin, 1872), edited by Krüger and Mommsen; Richter and Friedberg's Corpus juris canonici (Leipzig, 1881-); Haddan and Stubbs's Councils and Ecclesiastical Documents (Oxford, 1869-78); Wilkins's Concilia (London, 1736-37); Gee and Hardy's Documents (London 1896); Glanville's Tractatus, in Vol. II of Phillips's Reichs- und Rechtsgeschichte (Berlin, 1827-28); and with these may be used to advantage Johnson's Collection of the Laws and Canons of the Church of England (London, 1850). On marriage at the church door, The Old English Homilies (London, 1868); Gregory's Pastoral Care (London, 1871); Hengham's Summa parva (London, 1737); Home's Mirror of Justices (ed. Whittaker, London, 1895); Fitzherbert's New Natura Brevium (Dublin, 1793); as well as Fleta, Britton, and Bracton, have furnished illustrative passages.

The evolution and character of the celebration are best seen in the marriage rituals themselves. For the European practice in general, including the English rites, consult the second book of Selden, Uxor ebraica (Frankfort on the Oder, 1673); or the same in Vol. II (III, as bound) of his Opera omnia (London, 1726); and the first book of Martene, De antiquis ecclesiae ritibus (Antwerp, 1763-64), in both of which works a large number of rituals, with a mass of other useful materials, will be found. Some portions of Martene are extracted by Michelet in chap. ii of his Origines du droit français (Paris, 1857); and many rituals, both of the East, and the West, are epitomized in Palmer, Origines liturgicae (3d ed., Oxford, 1839), the use of which is facilitated by Beal, Analysis of Palmer's Orig. Lit. (Cambridge, 1856). Some of the earliest Christian sacramentaria, the eleventh-century ritual of Rennes, and various other mediæval ordines are republished by Dieckhoff, Die kirchliche Trauung (Rostock, 1878). Sohm, Eheschliessung, gives the Rennes service above named, as well as those mentioned in Bibliographical Note VI; and the principal parts of the twelfth century "Pontifical ou rituel de lire" are quoted by Léon Gautier in his fascinating book La chevalerie (Paris, 1884), where may be found the best and most detailed account existing of the rites and social usages connected with a mediæval French marriage. Most important of all for the present purpose, however, are the ancient English liturgies. That of Sarum (Salisbury) is published by Maskell, Monumenta ritualia ecclesiae anglicanae (Oxford, 1882), with the essential clauses of the York service in the margin; while the rituals of Salisbury, York, and Hereford, together with extracts from ten other marriage services, ranging all the way from the eighth to the fifteenth century, are contained in Vol. LXIII of the Surtees Society Publications (London, 1875). With these may be compared the Catholic forms in the Rituale romanorum Pauli Quinti (Rome, 1816); and those of the Reformation in the Liturgies of Edward VI. (Cambridge, 1844); and the Liturgies of Elizabeth (Cambridge, 1847), both in the publications of the Parker Society. The earlier of these may also be found in the "First" Book of Common Prayer, 1549 (exact reprint, black letter, London, 1844); or in the "Second" Book of Common Prayer, reprinted in the same style at London in the same year. With these collections will be found useful Lathbury, History of the Book of Common Prayer (2d ed., Oxford and London, 1859); and Daniel, The Prayer Book (London, 1877). The marriage rituals of the modern Greek, Roman, and English churches are given in Bingham (J. F.), The Christian Marriage Ceremony (New York, 1871); and the English service, with discussion, may also be found in Tegg, The Knot Tied (London, 1877); and Moore, How to Be Married (London, 1890).

The principal sources for the study of the Council of Trent are Richter-Schulte, Canones et decreti concilii tridentini (Leipzig, 1853); Theiner, Acta genuina concilii tridentini (Zagrabrae, Croatiae, 1874); Father Sarpi (Pietro Soave Polano), Historie of the Council of Trent (London, 1620), opposing the action of the Council; and his antagonist Pallavicino, Istoria del Concilio di Trento (Rome, 1833); or the Latin version of the same by Giattino (Antwerp, 1670). A convenient collection on this subject is Waterworth, Canons and Decrees of the Council of Trent (New York, 1848); while valuable monographs are Salis, Die Publikation des tridentinischen Rechts der Eheschliessung (Basel, 1888); Leinz, Die Ehevorschrift des Concils von Trient (Freiburg, 1888); Fleiner, Die tridentinische Ehevorschrift (Leipzig, 1892); and Meurer, "Die rechtliche Natur des trid. Matrimonial-Decrets," in ZKR., XXII (Freiburg, 1889). The action of the Council is treated in Esmein, Le mariage en droit canonique (Paris, 1891); Madan, Thelyphthora (London, 1781); Bohn, Political Cyclopædia (London, 1860); as also by Sohm and Friedberg. Froude's Lectures on the Council of Trent (New York, 1896) are too general to be of value for the present subject.

For the great case of Regina v. Millis, historically so surprising, the Report of the Cases of Regina v. Millis et Regina v. Carroll in the Queen's Bench, Ireland (Dublin, 1842); and 10 Clark and Finnelly, Reports of Cases Decided in the House of Lords, are indispensable. In connection therewith read Sir John Stoddart, Observations on the Opinion (London, 1844); his Letter to Lord Brougham (London, 1844); and Elphinstone's paper in the Law Quarterly Review, V (London, 1889). To supplement these may be consulted the Jesuit Sanchez's treatise, Disputationum de matrimonii sacramento (Venice, 1625); the older handbook of Lyndwood, Provinciale (n. p., 1505; or Oxford, 1779); and, in general, Bishop, Marriage, Divorce, and Separation (Chicago, 1891); Stephens, Laws of the Clergy (London, 1848); Reeves, History of the English Common Law, IV; Bright, Husband and Wife (New York, 1850); the concise and accurate discussion of Pollock and Maitland, History of the English Law, II; and the masterly investigation of Friedberg in his Eheschliessung. For the more celebrated earlier cases with which the judgments in the Queen v. Millis are not in harmony see 1 Roll, Abridgement, 353 (Foxcroft's case, ca. 1282); Year Book 34 Edward I. (Delheith's case, 1305); 2 Haggard, Consistory Reports, 54-137 (Dalrymple v. Dalrymple, 1811); 2 Coke's Reports, 355-59 (Bunting v. Lepingwell); especially the numerous decisions in Hale's unique Precedents and Proceedings in Criminal Causes, 1475-1640 (London, 1847); and compare the later case of Beamish v. Beamish, 1859-61, in Clark, 9 House of Lords Cases (Boston, 1871), which follows the precedent in Queen v. Millis, giving a history of matrimonial laws from Anglo-Saxon times. On this decision there is a very instructive passage in Pollock, First Book of Jurisprudence (London, 1896). On Dalrymple v. Dalrymple consult Dodson's Report of the Judgment of Sir William Scott (London, 1811). See further the note at the close of this chapter.

At the head of all scientific historical writers on the rise of ecclesiastical marriage is Sohm whose main thesis, that the early canon law of the marriage contract rests on the principles of German custom, has fairly withstood the test of criticism. His principal work on this subject, Eheschliessung, elsewhere mentioned, is supplemented by the Zur Trauungsfrage (Heilbronn, 1879), and the Obligatorische Civilehe (Weimar, 1880); and in these he has proved beyond reasonable doubt that the legal participation of the church in the nuptial celebration is of late origin. Agreeing with Sohm in his main conclusion, but differing on some questions, is Schubert, Die evangelische Trauung (Berlin, 1890); and he is in part anticipated by Biener in the much earlier "Beiträge zu der Geschichte der Civilehe," in Zeitschrift für deutsches Recht und Rechtswissenschaft, XX, 119-44 (Tübingen, 1861). He is stoutly opposed on all the main points in Sehling's able monograph, Die Unterscheidung der Verlöbnisse im kanonischen Recht (Leipzig, 1887); and also, especially regarding the late origin of the legal ecclesiastical celebration, by Dieckhoff in the work already mentioned, as also in his Civilehe und kirchliche Trauung (Rostock, 1880); Moy, Eherecht der Christen (Regensburg, 1833), had already taken the same view; Scheurl holds a medial position in "Consensus facit nuptias," ZKR., XXII, 269-86 (Freiburg, 1889); which paper was preceded by his Entwicklung des kirchlichen Eheschliessungsrechts (Erlangen, 1877), and the "Zur Geschichte des kirch. Eheschliessungsrechts," ZKR., XV (Freiburg and Tübingen, 1880). The last-named article is criticised by Bierling, "Kleine Beiträge," ibid., XVI, 288-316 (1881). In this connection read also Hasse, Das Güterrecht der Ehegattin (Berlin, 1824), who anticipates Sohm on the nature of the Roman nuptial celebration; Cremer, Die kirchliche Trauung (Berlin, 1875); idem, "Bürgerliche Eheschliessung und kirchliche Trauung," in Evangel. Kirchenzeitung (1876), Nos. 32-35; Lindner, "Die Heiligung der Ehe und die Trauung," ibid., Nos. 18-23; Buchka, "Die Bedeutung der kirch. Trauung," ZKR., XVII (Freiburg and Tübingen, 1882); Kahl, "Civilehe und kirch. Gewissen," ibid., XVIII, 295-367 (1883); Freisen, Geschichte des canonischen Eherechts (Tübingen, 1888).

Friedberg's Eheschliessung, supplemented by the Zur Geschichte der Eheschliessung, the Lehrbuch des katholischen und evangelischen Kirchenrechts (2d ed. Leipzig, 1884), and the Geschichte der Civilehe (Berlin, 1877), is a mine of information at every point; and his conclusions as to the validity of clandestine contracts de praesenti have been accepted by Pollock and Maitland in their History of English Law (Cambridge, 1895). Makower's Constitutional History and Constitution of the Church of England (London, 1895) is by far the best work on his subject, the extracts from the sources and the full bibliographical apparatus being of the greatest assistance to the investigator.

In spite of its notorious inaccuracy, Bingham's Origines ecclesiasticae (London, n. d.) is still of service. Conservative discussions may also be found in Göschl, Darstellung der kirch.-christ. Ehegesetze (Aschaffenburg, 1832); Hildebrand, De nuptiis veterum christianorum (Helmstadt, 1701); Moy, Eherecht der Christen mentioned above; and Phillips, Lehrbuch des Kirchenrechts (3d ed., Regensburg, 1881). Zhishman's Das Eherecht der orientalischen Kirche (Vienna, 1864) is the standard treatise on the subject.

In general, besides the works of Beauchet, Loening, Spirgatis, Méril, Lingard, Schmid, Thorpe, Liebermann, and others already mentioned in Bibliographical Note VI, some useful matter for the present chapter may be found in Parker, De antiquitate britannicae ecclesiae (London, 1729); Klein, Das Eheverlöbniss (Strassburg, 1881); Riedler, Bedingte Eheschliessung (Kempten, 1892); Freisen, Geschichte des canonischen Eherechts (Tübingen, 1888); idem, in Archiv für katholisches Kirchenrecht, LIII, 369 ff.]

I. THE PRIMITIVE CHRISTIAN BENEDICTION, THE BRIDE-MASS, AND THE CELEBRATION AD OSTIUM ECCLESIAE

It is a noteworthy fact that the early church accepted and sanctioned the existing temporal forms of marriage. Her energy was directed mainly to the task of enforcing her own rules relating to marriage disabilities, such as those arising in affinity or nearness of kin; to devising restraints upon the freedom of divorce and second marriage; and to administering matrimonial judicature.[937] But the existing legal character and the popular forms of betrothal and nuptials were not disturbed. During the period preceding the Teutonic invasion, speaking broadly, the church adhered to the Roman law and custom; thereafter those of the Germans, even when the marriage consisted in the formal sale and tradition of the bride, were accepted.[938] The betrothal of the early canon law is, therefore, the Roman betrothal. It is a consensus sponsalitius, or free agreement between the man and the woman. Legally it is a pactum de contrahendo, or promise for future joining in marriage, which may be dissolved at the pleasure of either party.[939] It creates no obligation which can give rise to action for damage or fulfilment.[940] It does not constitute even the initiation of marriage. The marriage begins with the nuptials or actual wedded life, which gives expression to the consensus nuptialis, or mutual will of the parties to be husband and wife;[941] though, doubtless, the church demands parental consent, without making it absolutely essential.[942] On the other hand, it has been demonstrated by Sohm, contrary to the view previously accepted, that the two betrothals of the mediæval canon law are based on the German betrothal.[943] If not the marriage itself, it is nevertheless, as already seen, an act for joining in marriage which is not easily dissolved.

[937] LINGARD, Hist. of Anglo-Saxon Church, II, 5-7; FRIEDBERG, Eheschliessung, 7; SOHM, Eheschliessung, 107, and chap. iv; SCHEURL, Das gemeine deutsche Eherecht, 14, 15.

[938] SOHM, op. cit., 108 ff. That the church adopted the Roman marriage forms is the generally accepted view: see SEHLING, Unterscheidung der Verlöbnisse, 24 ff.; SCHUBERT, Die evangel. Trauung, 4 ff.; SCHEURL, Entwicklung des kirch. Eheschliessungsrechts, 8 ff.; idem, "Consensus facit nuptias," ZKR., XXII, 269 ff.; BIENER, "Beiträge," ibid., XX, 119, 120; RICHTER-DOVE-KAHL, Lehrbuch, 1029, 1030; LOENING, Gesch. des deutsch. Kirchenrechts, II, 569 ff.; DIECKHOFF, Kirchliche Trauung, 12 ff.; MOY, Eherecht der Christen, 94 ff., 215 ff., 372 ff.

On the other hand, FREISEN, in Archiv für kath. Kirchenrecht, LIII, 369 ff., holds that the early Christians followed mainly Jewish custom. Cf. idem, Geschichte des canon. Eherechts, 120 ff.

[939] Dig., xxiii, tit. i, 1: "Sponsalia sunt mentio et repromissio nuptiarum futurarum."--Corpus juris civ., I, 294. Cf. SOHM, Eheschliessung, 109, 110; KLEIN, Das Eheverlöbniss, 122 ff.

[940] By the older Roman law the betrothal was in form a contract by stipulatio, and there was an action for damage in case of nonfulfilment: GELLIUS, Noctes atticae, iv, 4; SMITH, Dict. of Greek and Roman Antiquities, II, 139, 140. The later law gave no such action: Dig., xxiii, tit. i, 10: Corpus juris civ., I, 291; Codex, V, 5; though to enter into two betrothals at once was held to constitute infamia, the same as two marriages: Dig., iii, tit. ii, 1: Corpus juris civ., I, 36. Cf. LUDLOW, in Dict. Christ. Antiq., I, 203; KLEIN, Das Eheverlöbniss, 22 ff., 125, 126; RIEDLER, Bedingte Eheschliessung, 11, 12; SCHEURL, Entwicklung, 9-11; LOENING, Geschichte des deutsch. Kirchenrechts, II, 569, 570, who shows that after the third century the betrothal became more important in Roman law; SEHLING, Unterscheidung, 20, 21, notes; REIN, Das röm. Privatrecht, 188, 189; BRISSONIUS, De ritu nuptiarum (Paris, 1654), 1 ff.; BEAUCHET, Étude, 11 ff.; SCHUBERT, Die evangel. Trauung, 11, notes.

[941] But SOHM, Eheschliessung, 110, who was preceded by GLÜCK, Güterrecht, 1, 97 ff., contends, against the common interpretation of the maxim consensus facit nuptias, that a merely "formless" consensus not followed by actual wedded life is not sufficient to constitute a Roman marriage. That would be practically a consensus sponsalitius or Roman betrothal. On the other hand, SEHLING, Unterscheidung der Verlöbnisse, 7 ff., 138 ff., 157 ff., insists that by the Roman law a formless nuptial contract, whether followed by cohabitation or not, constitutes a binding marriage. Such also is the view of DIECKHOFF, Kirch. Trauung, 15; SCHUBERT, Die evangel. Trauung, 4 ff., 11; and SCHEURL, Entwicklung, 11. But SCHEURL, "Consensus facit nuptias," ZKR., XXII, 269 ff., agrees with Sohm, in effect, though not avowedly. For, while he says that marriage by confarreatio, for example, would be a valid marriage, even if the parties never lived together, yet the Roman law, he points out, does not reveal the evils of clandestine unions, because the formless nuptial promise implied the common wedded life. Cf. also BIERLING, "Kleine Beiträge," ZKR., XVI, 288 ff., who criticises Scheurl; FREISEN, Geschichte des can. Eherechts, 101 ff.; and REIN, Das röm. Privatrecht (1836), 188, 189.

[942] "For even on earth children do not rightfully and lawfully wed without their father's consent."--TERTULLIAN, To His Wife, Book II, c. viii: Ante-Nicene Fathers, IV, 48. According to ULPIAN, in Dig., 1, tit. xvii, 1. 30, "Nuptias non concubitus, sed consensus facit." But PAULUS, ibid., xxiii, tit. ii, 1. 2, shows that the consensus "must be at once that of the parties themselves, and of those in whose potestas they are." See the excellent article of LUDLOW, in Dict. Christ. Antiq., I, 433-36.

[943] SOHM, Eheschliessung, 107-52; idem, Trauung und Verlobung, 58-109. In opposition to Sohm's view, SEHLING, Unterscheidung der Verlöbnisse, 138 ff., 165 ff., contends that the sponsalia (betrothal and nuptial promises) of the mediæval canon law are derived from the law of Rome. Such also is the position of ZOEPFL, Deutsche Rechtsgeschichte (4th ed.), III, §§ 81 ff.; SCHULTE, Handbuch des kath. Eherechts (1855), 37, 278; WALTER, Kirchenrecht (14th ed.), § 298; and LOENING, Gesch. des deutsch. Kirchenrechts, II, 601, following Sohm in the main. SCHUBERT, Die evangel. Trauung, 37, takes a medial position: "die Kirche bildete ihr eigenes Recht in Anlehnung an das deutsche Recht aus." SCHEURL, Entwicklung, 93, 94, 95 ff., passim; idem, Das gemeine deutsche Eherecht, 14, 15, reviews and criticises Sohm on various points. FRIEDBERG, Verlobung und Trauung, 25, contrary to the position taken in Eheschliessung, 6, 202, accepts Sohm's view, but with reservations. See also his Lehrbuch, 339 ff.

The only innovation effected by the primitive church was of a purely religious character. Though she might content herself with the Roman or the Germanic forms of marriage, there remained an "ethical mission" peculiarly her own. "In order at the very outset to fill the wedded life with the blessing and spirit of the Christian life, the church, without reference to the matrimonial law in force, demanded of her members that the very beginning of marriage should be placed under the word of God and be hallowed by its power."[944] Hence, from the first century onward, we find evidence of a priestly benediction usually in connection with the betrothal and probably with the nuptials.[945] Thus Ignatius declares that it "becomes both men and women who marry, to form their union with the approval of the bishop," that it may be according to God.[946] Tertullian speaks of marriage being "requested" of bishops, presbyters, or deacons;[947] and he shows in another place that publicity was an important motive for encouraging unions "in presence of the church."[948] In a somewhat obscure passage of the treatise addressed to his wife, which is much relied upon by sacerdotal writers, he exclaims: "How should we be sufficient to set forth the bliss of that marriage which the church brings about, and the oblation confirms, and the benediction seals, angels proclaim, the Father ratifies?"[949] But here a legal importance is given to the benediction which it does not seem to have gained until centuries later.[950] A similar doubt attaches to the words of Ambrose, who, writing against mixed marriages, says: "For since marriage itself should be sanctified by the priestly veil and by benediction, how can that be called a marriage where there is no agreement of faith?"[951] But, "as Selden has observed, the like benedictions were often claimed in behalf of many other kinds of contract besides that of marriage--a sale, for instance."[952] In the eastern church likewise the letters of Gregory Nazienzen and the silence of Chrysostom show that the benediction was without legal significance.[953] By the Roman law no betrothal or nuptial ceremonial is prescribed. The solemnities were determined by local custom; and these the early Christians were willing to accept. For centuries a marriage liturgy was not adopted either in the East or in the West.[954] According to Tertullian, no "breath of idolatry" attaches even to the heathen ceremonies connected with espousals,[955] among which he mentions the ring, the kiss, the veil, and the joining of hands.[956] The ring came more and more under German influence to be used as an arrha.[957] Witnesses were required; and in connection with the nuptials we hear also of the "pomp" or procession to the bridegroom's home, and the "crowning" of the bride or the wedded pair, usually with flowers.[958]

[944] SOHM, Eheschliessung, 107, 108. Cf. idem, Ob. Civilehe, 25; and SCHUBERT, Die evangel. Trauung, 5 ff., who agrees with Sohm. The conservative view of the religious character of early Christian marriage is represented by KLEIN, Eheverlöbniss, 95 ff.; DIECKHOFF, Die kirch. Trauung, 20 ff., passim.

[945] The custom of benediction may have been influenced by Jewish practice. The Hebrew benediction was given "not necessarily by a priest, but by the eldest friend or relative present": MEYRICK, in Dict. Christ. Antiq., II, 1107, who gives the benediction in abridged form. Cf. SELDEN, Uxor ebraica, II, 12.

On the teachings of the Christian fathers as to the form of marriage see MARTENE, De ritibus, II, lib. I, c. ix, 120-44; SELDEN, Uxor ebraica, 179-84, 665-69, passim; SCHUBERT, Die evangel. Trauung, 4 ff.; LOENING, Gesch. des deutsch. Kirchenrechts, II, 573 ff.; DIECKHOFF, Die kirch. Trauung, 20 ff.; FRIEDBERG, Lehrbuch, 337 ff.; PHILLIPS, Lehrbuch, 612 ff.; BIENER, "Beiträge," ZKR., XX, 119-27.

[946] IGNATIUS, Epistle to Polycarp, IV: _Ante-Nicene Fathers_, I, 95.

[947] TERTULLIAN, On Monogamy, xi: _Ante-Nicene Fathers_, IV, 67.

[948] TERTULLIAN, On Modesty, v: Ante-Nicene Fathers, IV, 77. Cf. MEYRICK, art. "Marriage," in Dict. Christ. Antiq., II, 1106, who thinks, aside from the religious motive, members might thus avoid the violation of laws of the state with which they were unacquainted.

[949] LUDLOW, on "Benediction," in _Dict. Christ. Antiq._, I, 193; cf. the reading in Ante-Nicene Fathers, IV, 48.

[950] LUDLOW, loc. cit.

[951] AMBROSE, Book IX, ep. 70; LUDLOW, loc. cit.

[952] LUDLOW, ibid.; SELDEN, Uxor ebraica, Lib. II, cc. xxiv, xxv.

[953] LUDLOW, op. cit., I, 194.

[954] In both East and West, between the sixth and seventh centuries: LUDLOW, ibid.

[955] TERTULLIAN, On Idolatry, xvi: Ante-Nicene Fathers, III, 71. Cf. LUDLOW, on "Betrothal," op. cit., I, 203.

[956] TERTULLIAN, loc. cit.; idem, On the Veiling of Virgins, xi: Ante-Nicene Fathers, III, 71; IV, 34. On the ring see Dict. Christ. Antiq., I, 248, 249, 202; II, 1105, 1807, 1808; for the kiss see ibid., II, 905, 906. By the Theodosian Code, lib. v, tit. 3, leg. 16, one-half of the bridegroom's gifts, after his death, were delivered to his betrothed in case the betrothal were sealed by a kiss; otherwise all was given to his relatives: ibid., II, 1110. In England, and elsewhere, the kiss was a characteristic of public spousals; and when these were recognized by the church the kiss was sanctified by the priest: JEAFFRESON, Brides and Bridals, I, 65-67; BRAND, Pop. Antiq., II, 139-41. Cf. also MÉRIL, Des formes et des usages, 37, 38; SPIRGATIS, Verlobung und Vermählung, 16, 17. The veil was originally used at the betrothal, from the time of which ceremony onward in early days it was worn habitually by the betrothed as well as by the married woman: MEYRICK, in Dict. Christ. Antiq., II, 1108, 1109.

[957] LUDLOW, on "Arrhae," in Dict. Christ. Antiq., I, 142-44: MEYRICK, ibid., II, 1105.

[958] For the crowning in the eastern church see ZHISHMAN, Das Eherecht der orient. Kirche, 135, 156, 692 ff.; cf. MARTENE, De ritibus, I, 125. The crown was made of flowers, often of olive or myrtle, and sometimes of silver or gold. The custom appears in the West, but it became at length so important in the East that the "whole marriage was called the crowning, as in the West it was called the veiling": MEYRICK, in Dict. Christ. Antiq., II, 1108, 1109; cf. ibid., I, 511. The pomp is, of course, the Greek pompa: FUSTEL DE COULANGES, Ancient City (Boston, 1896), 55 ff., corresponding to the Roman traductio and the German Brautlauf.

It seems probable, then, that during the first three or four centuries Christian marriages were not as a rule celebrated in church.[959] The betrothal or nuptial benediction was not essential to a valid marriage, however important it may have been regarded from a religious point of view.[960] Gradually it became an established custom for the newly wedded pair, after solemnization of the nuptials, to attend religious services in the church and partake of the sacrament, at the close of which the priest invoked a blessing upon the future married life. But at first the church service was the ordinary service; only after a considerable interval were phrases introduced into the prayers especially applicable to the wedded pair.[961]

[959] Pope Nicholas (A. D. 860), in his replies to the Bulgarians, who had asked his counsel concerning marriage rites, says concerning the nuptials: "First of all they are placed in the church with oblations, which they have to make to God by the hands of the priest, and so at last they receive the benediction and the heavenly veil." On this letter see SELDEN, Uxor ebraica, Lib. II, c. xxv, 179; MARTENE, De ritibus, I, 124, 125; DIECKHOFF, Die kirch. Trauung, 47 ff.; BEAUCHET, Étude, 34. From this letter and the statements of the Fathers concerning the benediction, already mentioned, MEYRICK, in Dict. Christ. Antiq., II, 1106, 1107, concludes, "There is no reasonable doubt that the place in which Christians were ordinarily married was a church, so soon as it became safe and customary for them to meet in churches for religious purposes, and that the way in which they were ordinarily married was by a religious ceremony," though especially in the East (CHRYSOSTOM, Hom. xlviii, in Gen., c. 24) the religious ceremony often took place in houses. But so far as western Christendom is concerned, the sources show that marriage in church was of slow growth. JEAFFRESON, Brides and Bridals, I, 48, 49, doubts whether the Anglo-Saxons always celebrated marriage in their homes.

[960] SOHM, Eheschliessung, 153 ff., insists that the priestly benediction, unless here and there by local custom, was connected with the nuptials (Trauung) and not with the betrothal, which he regards as the essential element in marriage. But DIECKHOFF, Die kirch. Trauung, 20 ff., 30 ff., 47 ff., 65 ff., claims that from the earliest period among the Christians it was customary for the priest to bless the betrothal; and that at least from the fourth century the same is true of the nuptials. In his Zur Trauungsfrage, 17, note, SOHM seems to accept Dieckhoff's view, while denying anything but religious meaning to the benediction in either case.

SIRICIUS, Epist. ad Himer., § 4, mentions a "benediction of the priest at betrothal, of so solemn a nature as to make it sacrilege in the betrothed woman to marry another man;" but this epistle may be spurious: MEYRICK, in Dict. Christ. Antiq., II, 1106. Cf. SCHEURL, Entwicklung, 24, 25; SEHLING, Unterscheidung, 25, notes, 110; LOENING, op. cit., II, 573; and, for the eastern church, ZHISHMAN, Das Eherecht der orient. Kirche, 126, 135, 156, 672, 289 ff., passim.

[961] SOHM, Eheschliessung, 157. This stage of the bride-mass is disclosed by the oldest sacramentaria, of about the fifth century; and the same ritual was in use in the Frankish church in the ninth century.

Thus stood the custom in the period immediately following the conversion of the Teutonic nations. The nuptials consisted of two distinct acts. The first was the gifta, or traditional ceremony in the usual form. Thereafter, often on the day following the bridal night,[962] the newly wedded couple celebrated the bride-mass (Brautmesse) and received the benediction of the priest. But this religious act had no legal significance. No doubt it was performed by all good Christians as a religious duty. The benediction was invoked on the married life, a fact of such immense ethical importance, just as it was invoked on all important undertakings. It was observed as a fitting solemnity for a believer and not as a part of the marriage. Therefore in the case of second marriages it was omitted.[963] Broadly stated, the canon law maintained the validity of all proper marriages solemnized without the priestly benediction, though spiritual punishment might be imposed for neglect of religious duty. Such is the view of Sohm, and it has been generally accepted.[964] Dieckhoff,[965] however, contests it at every point. He holds that from early days the priestly benediction, whether of betrothal or of nuptials, was an essential part of the Christian marriage celebration. In support of the theory, that originally the church really undertook to join persons in wedlock, he presents three services from Roman sacramentaria of the age of Charles the Great.[966] But it is by no means certain that the words of the text relied upon for proof are not of too recent origin to be convincing as to early usage; and if they really belong to the time assigned, they cannot, in face of other evidence, be accepted as showing the general custom of the West, but rather, like the often-cited Capitulary,[967] of 802, as merely revealing the aim and desire of the church.

[962] FRIEDBERG, Eheschliessung, 78-93, where numerous proofs from the mediæval poets and other sources are given; but sometimes marriage in church appears. Cf. SOHM, op. cit., 159 n. 16.

[963] In all the early rituals the benediction is not allowed in case of a second marriage, at any rate unless the first marriage of one or both of the parties had not been blessed by the priest; and long paragraphs of the service are devoted to explaining the alleged reasons for this, and to the still harder task of showing how a second marriage can be a sacrament and yet less holy than a first marriage. This dilemma led to curious compromises, as in the service used at the marriage of King Ethelwulf with Judith, his father's widow, in the year 856; see the service in PERTZ, Monumenta, leg., I, 420; and DIECKHOFF, Die kirch. Trauung, 73, 74. On this topic compare the York, Sarum, and Hereford rituals in Surtees Society Publications, LXIII, 35-37, Appendix, 23, 24, 117, 118; and the Sarum (Salisbury) ritual in MASKELL, Monumenta ritualia, I, 71-74; also Rituale romanum Pauli Quinti, 198; MARTENE, De ritibus, II, 121, 122; Excerp. Ecgberti, 91: in Thorpe, II, 110; AELFRIC'S Canons, 9; ibid., II, 347; FRIEDBERG, Eheschliessung, 36; SCHMID, Gesetze, 562; BOHN, Pol. Cyc., III, 319. SELDEN, Uxor ebraica, II, c. 30, maintains that the practice of celebrating nuptials before a priest was not general among primitive Christians. This is declared an error by BINGHAM, Origines, VII, 328 ff., who, like Dieckhoff and most ecclesiastical writers, holds that the custom was general and obligatory.

[964] SOHM, Eheschliessung, 107 ff., 153 ff.; idem, Zur Trauungsfrage, 10 ff.; idem, _Obligat. Civilehe_, 25 ff. In substantial agreement with Sohm are LOENING, Gesch. des deutsch. Kirchenrechts, II, 569-606: FRIEDBERG, "Zur Geschichte," ZKR., I, 374 ff.; BIENER, "Beiträge," ibid., XX, 119-47; SCHEURL, Entwicklung, 110 ff. Cf. BEAUCHET, Étude, 30 ff.; SPIRGATIS, Verlobung und Trauung, 4 ff.; SCHUBERT, Die evangel. Trauung, 14 ff.; KLIEFOTH, Liturgische Abhandlungen (2d ed., 1869), I, 136 ff.

[965] DIECKHOFF, Die kirch. Trauung, 29 ff., 45, 46 ff., 65 ff.; idem, Civilehe und kirch. Trauung, 14 ff. Much earlier, MOY, Eherecht der Christen, 216, 217, had taken the same view.

[966] DIECKHOFF, Die kirch. Trauung, 35 ff.: sacramentaria of Popes Leo, Gelasius, and Gregory I. These, he thinks, show not merely a "divine benediction of the marriage already concluded, but essentially a divine joining in marriage." These services are also contained in DANIEL, Codex liturgicus, I, 257 ff.; and that of Gelasius in MARTENE, De ritibus, II, 127.

[967] Charles the Great in the Capitulary of 802, c. 35, WALTER, Corpus juris germ., II, 167, prescribes the benediction of the nuptials by a priest; but this is thought to have had little effect. The benediction is also required by several false capitularies: FRIEDBERG, Eheschliessung, 58, 59. On this decree of 802 see also SCHUBERT, Die evangel. Trauung, 19; BEAUCHET, Étude, 30, 31.

The introduction of the bride-mass constitutes the second stage in the history of clerical marriage. In English history it is represented by several spousal services which have been published by the Surtees Society.[968] They cover the period from the eighth to the eleventh century, beginning with the Pontifical of Egbert, archbishop of York (732-66) and ending with the Rede Boke of Darbye (ca. 1050), now in the library of Corpus Christi College, Cambridge. These services consist wholly of prayers and benedictions. There is no mention of the mass, though doubtless the husband and wife have already partaken of the communion before the service. Apparently the function of the priest is purely religious. It is merely an invocation of the divine blessing upon the life of the newly wedded pair, and has no legal significance. The nuptials have already been solemnized, whether in the presence of the priest or not the formularies do not explain.

[968] Surtees Society Publications, LXIII, Appendix, 157 ff. In the Ordo of Archbishop Egbert, for instance, a blessing is invoked upon the parties, the bridal chamber, and the marriage bed; and the other Ordines there printed are of the same general character.

But already in the tenth century we reach the beginning of a third stage in the rise of the ecclesiastical ceremony.[969] The nuptials still consist of two distinct acts. The first is the gifta proper, according to the usual temporal forms. It is no longer a strictly private transaction,[970] but it takes place before the church door--ante ostium ecclesiae[971]--in the presence of the priest, who participates in the ceremony and closes it with his blessing. The second act consists in the entrance into the church and the celebration of the bride-mass, followed by a second benediction. But the gifta, even in this stage, is temporal and not ecclesiastical. It occurs "before and not within the church," the motive usually assigned being to induce an immediate attendance upon communion on the very day of the nuptials instead of after an interval. In reality, however, the custom is but a recognition of the temporal nature of wedlock, which ought therefore to be celebrated before and not within the consecrated building.[972] That such was the prevailing custom throughout the western church during the Middle Ages is established by a mass of evidence of the most convincing character. Besides the testimony of chroniclers, historians, and literary men, we have that of the law-books and legal writers, lay and ecclesiastical, which make frequent mention of the assignment of the wife's dower at the church door during the nuptial celebration.[973] Moreover, many of the ancient rituals themselves have been preserved. All these "are unanimous," says Léon Gautier, following Martene, "in placing the principal act of the marriage celebration, that is to say the consent of the parties, at the entrance or in the porch of the church;"[974] and what is thus affirmed for the rituals of France is equally true for those of Germany[975] and England. "In the first place," runs the opening rubric of the Sarum Ordo ad faciendum sponsalia, "let the man and the woman stand before the church door in the presence of God, the priest, and the people, the man on the right of the woman, and the woman on the left of the man." Here the bride and groom remain during the nuptial celebration, the assignment of the dower, and the closing benediction. Thereupon, as the rubric directs, "let them enter the church as far as the steps of the altar," where, after a psalm, they are to prostrate themselves while a prayer is said in their behalf.[976] The usage of Sarum in this regard is typical, differing only in words and arrangement from that of York, Hereford, or the other churches. Indeed, marriage continues to be celebrated at the church door until the sixteenth century, the liturgies of Edward VI. and Elizabeth first requiring as a general observance the ceremony to be performed in the body of the church.[977]

[969] It need not surprise us that these phases of evolution chronologically overlap each other; for social development is seldom uniform.

[970] Haustrauung: SOHM, Eheschliessung, 158.

[971] Also ad valvas ecclesiae, in facie ecclesiae, in conspectu ecclesiae, ad fores ecclesiae, etc.

[972] "By performing the civil rite outside the walls of the church they declared the fundamental nature of the matrimonial contract, and asserted the doctrine of the common law of the land respecting its meaning and purpose."--JEAFFRESON, Brides and Bridals, I, 53. This view is of course rejected by DIECKHOFF, Die kirch. Trauung, 76, note, 79 ff., who regards the ecclesiastical transaction as a real ecclesiastical celebration necessary to the marriage in the eyes of the church. Cf. BIERLING, "Kleine Beiträge," ZKR., XVI, 288 ff., who criticises DIECKHOFF (Civilehe und kirch. Trauung), and agrees with SOHM (Zur Trauungsfrage, 10) that the ecclesiastical transaction must not be confused with ecclesiastical marriage.

[973] GLANVILLE, Tractatus, lib. vi, c. 1: PHILLIPS, II, 381. "The term dower is used in two senses. Dower in the sense in which it is commonly used means that which any free man at the time of his being affianced (tempore desponsationis) gives to his bride at the church door": GLANVILLE, vi, c. 1, as translated by JOHN BEAMES (London, 1812). Cf. also SELDEN, Fleta, lib. v, c. 23, pp. 340, 341; BRACTON, De legibus, lib. ii, c. 39 (fol. 92), Vol. II, 48; HORNE, The Mirror of Justices (ed. WHITTAKER, London, 1895), 11; FITZHERBERT, New Natura Brevium (Dublin, 1793), 352 (150); HENGHAM, Summa parva, c. ii: "Brevia de dote ad ostium ecclesiae;" SELDEN, Uxor ebraica, 198, or in Opera, III, 680.

That the gifta, or celebration as a temporal act, should take place before the church door is thoroughly in harmony with the early view that there purification or preparation should be made for the rites or service within the sanctuary. The atrium sometimes seems to be regarded as the medial ground between the world on the one hand and the sacred temple of God on the other; see, for example, Old Eng. Homilies, I, 72, 73: children are to be baptized in holy church, "and their godfathers and godmothers are to answer for them at the church-door, and enter into pledges (covenants) at the font-stone, that they should be believing (faithful) men." This passage is referred to in MÄTZNER, Altenglisch. Sprachproben (Berlin, 1878), II, 578, at "chirchedure." GREGORY, in his Pastoral Care, 104, 105, referring to the brazen basins before the Temple supported by twelve oxen, says the bishops when they "descend to wash the sins of their neighbors, when they confess, they support, as it were, the basin before the church-door." According to the Capitula et fragmenta Theodori, THORPE, Ancient Laws (folio), 313, "Si in atrio ecclesiae quislibet injuriaverit aliquem presbyterum, vel ibidem aliquod sacrilegium perpetraverit, altari et Domino componatur." With this compare ÆTHELRED, Laws, VII, 13: THORPE, Ancient Laws (folio), 142; GRIMM, Wörterbuch, s. v. "Kirchthor;" MURRAY, New Eng. Dict., Part V, 406, at "church-door;" Ormulum, I, 43, ll. 1326, 1327; CHAUCER, Prolog., 460: "Housbondes at chirche dore she hadde fyve." See also WARNKÖNIG AND STEIN, Französische Verfassungsgeschichte, II, 257; WEINHOLD, Deutsche Frauen, I, 377, 378; WHITGIFT, Works, II, 461-64; BRAND, Pop. Ant., II, 133-35; JEAFFRESON, Brides and Bridals, I, 46-59; SPIRGATIS, Verlobung und Trauung, 20, 21; SCHUBERT, Die evangel. Trauung, 20.

[974] LÉON GAUTIER, La chevalerie, 424 n. 3: ap. MARTENE, De ritibus, who says: "Nuptiae communiter solent celebrari ad valvas ecclesiae;" and places before us abundant proof in the sixteen ordines which he publishes, ibid., II, 127-44. Gautier cites also ÉTIENNE DE BOURBON, ed. of LECOY DE LA MARCHE, 366: "Cum duceretur ... ad parrochiam ... et esset sub porticu ecclesiae ut sponsa sua ei consentiret et matrimonium ratificaretur per verba de praesenti, ut moris est, et sic in ecclesia matrimonium solempnizaretur in misse celebratione et aliis." The same writer makes a thorough examination of the "Pontifical ou rituel de lire" (published by MARTENE, II, coll. 356-59, who assigns it to the twelfth century), comparing it with other rituals, with illustrations and proofs from many sources. In chaps. ix to xi inclusive, entitled "Le mariage du chevalier" (op. cit., 341-450), Gautier gives a learned and most interesting discussion of mediæval marriage rites and customs. Compare DANIEL, Codex liturgicus; and the summaries in PALMER, Origines liturgicae, I, 106 ff.

[975] See SOHM, Eheschliessung, 153-63; and FRIEDBERG, Eheschliessung, 37, 38, who reach this conclusion from an examination of the various English and continental rituals; especially the ritual of Rennes, ca. eleventh century, in MARTENE, II, 127; also SOHM, op. cit., 159, 160; DIECKHOFF, Die kirch. Trauung, 77, 78.

[976] "Manual ad usum Sarum," in Surtees Society Publications, LXIII, Appendix, 17-20; also in MASKELL, Monumenta ritualia, I, 50-77. Compare the rituals of York, Hereford, and the others contained in Surtees Society Publications, LXIII, 24 ff., 115 ff., 160 ff.; also the "Rituel de lire" in LÉON GAUTIER, La chevalerie, 424-31, as summarized in capitals in the margin; and the ritual of Rennes in MARTENE, De ritibus, II, 127; or in SOHM, Eheschliessung, 159, 160: "In primis veniat sacerdos ante ostium ecclesiae indutus alba atque stola cum benedicta aqua; qua aspersa, interroget eos sapienter, utrum legaliter copulari velint, et quaerat quomodo parentes non sint, et doceat quomodo simul in lege Domini vivere debeant. Deinde faciat parentes secuti mos est dare eam, atque sponsum dotalitium dividere, cunctisque audientibus legere, ipsumque suae sponsae libenter dare.... Qua finita, intrando in ecclesiam, missam incipiat," etc.

[977] Liturgy of Edward VI. (Parker Society), 127; Liturgy of Elizabeth (Parker Society), 217. Compare WHITGIFT, Defence of the Answer, II, 462, where he defends the requirement of the "book," that "persons to be married shall come into the body of the church, with their friends and neighbours, there to be married," against THOMAS CARTWRIGHT in his Reply to the Answer, 105, sec. 2, who ridicules the prescribed ceremonial. "Likewise for marriage," says Cartwright, "he (the priest) cometh back again into the body of the church, and for baptism unto the church-door: what comeliness, what decency, what edifying in this? Decency (I say) in running and trudging from place to place: edifying in standing in that place, and after that sort, where he can worst be heard and understanded."

One of the very earliest references to the presence of the priest at the nuptials is contained in the last two sections of the old English ritual of the tenth century already quoted in part,[978] and this ritual may be regarded as marking the transition to the period under consideration.

[978] This is next to the oldest mention, after the Germanic conquest, of the priestly benediction; the first is the marriage of Judith to the Saxon king Æthelwulf, 856, elsewhere mentioned.

"8. At the nuptials there shall be a mass-priest by law; who shall with God's blessing bind their union to all prosperity.

"9. Well is it also to be looked to, that it be known, that they, through kinship, be not too nearly allied; lest that be afterwards divided, which before was wrongly joined."[979]

[979] SCHMID, Anhang VI, 392, 393: THORPE, I, 255, 257.

It is evident, as Friedberg has remarked, that the office of mass-priest in this ritual is of no legal significance. The invocation of a divine blessing is merely a religious act after the marriage is complete.[980] It is no more a part of the gifta than is the caution, in the last section, against marriage within the degrees of relationship forbidden by the canons. It is plain that in this formulary the betrothal and not the nuptials absorbs well-nigh the whole attention of the lawgiver. It is manifestly the thing of deepest concern; and in this the priest has no part.[981]

[980] FRIEDBERG, Eheschliessung, 35; compare LINGARD, _History and Antiquities of the Anglo-Saxon Church_, II, 7-11, who gives the form of benediction.

[981] SOHM, Eheschliessung, 100 n. 60. This view is of course opposed by DIECKHOFF, Die kirch. Trauung, 69 ff.

According to Lingard, "there is no trace of any form of marriage contract in ancient English sacramentaries previously to the close of the twelfth century; and the earliest mention of it appears in the constitutions of two English prelates, Richard Poere, bishop of Sarum, and Richard de Marisco, bishop of Durham, who ordered the parish priests to teach the bridegroom this form, 'I take thee N. for my wife,' and the bride a similar form, 'I take thee N. for my husband.'"[982] This statement, however, may now require some modification. Judging from its brevity and its condensed, almost crude, diction, the ritual published by the Surtees Society from a pontifical in the library of Magdalen College, Oxford, may have originated at an earlier date in the twelfth century;[983] and this seems all the more probable, for French rituals, in which the priest takes a leading part in directing the spousal contract, are preserved from a still earlier period.[984] However this may be, the rituals of Sarum, York, and Hereford are among the most ancient, the most elaborate, and the most instructive which have anywhere been preserved, those of Sarum and York having been in force from about the end of the twelfth century until 1549. They contain a rich store of material for the student of the marriage contract, carrying him back to the cradle of the English race in the Saxon forests. Beneath the ecclesiastical covering, the adventitious mass of prayers, psalms, and benedictions, is a kernel of primitive Teutonic custom which he will at once recognize.

[982] LINGARD, op. cit., II, 10, note; ap. WILKINS, Conc., I, 582.

[983] Surtees Society Publications, LXIII, Appendix, 160, 161. See also the "Benedictio annuli, sponsi et sponsae" from the Ely Pontifical, Cambridge University library, of the twelfth century, ibid., 161, 162, in which the priest leads in blessing the ring, assigning the dower, and directing the "giving" of the woman. It is probably a part of a very early ritual.

[984] See the rituals of Rennes, ca. eleventh century, and de lire, twelfth century, already referred to.

The York service may be taken as a type, for it does not differ in any important particular from the other two. In it the advance of the clergy is very marked. The priest directs or participates in the whole procedure. The ceremony takes place before the church door, as the rubric directs, the man standing "on the right of the woman and the woman on the left of the man."[985] Then the priest is to ask the banns in the mother-tongue, following the Latin formula prescribed in the ritual, first addressing the people:

"Lo, bretheren, we are comen here before God and his angels and all his halowes, in the face and presence of our moder holy Chyrche, for to couple and to knyt these two bodyes togyder, that is to saye, of this man and of this woman, that they be from this tyme forthe, but one body and two soules in the fayth and lawe of God and holy Chyrche, for to deserue everlastynge lyfe what someuer that they have done here before."

[985] "Statuantur vir et mulier ante ostium ecclesiae coram Deo et sacerdote et populo, vir a dextris mulieris et mulier a sinistris viri": York manual, in Surtees Society Publications, LXIII, 24. Cf. the Sarum, Hereford, and Welsh rituals, ibid., Appendix, 17, 115, 167; also the Sarum ritual in MASKELL, I, 50. All these place the man on the right of the woman; but in "one MS. Manual of Sarum Use (early XVth century)," the woman "stands on the right hand of the man": HENDERSON, in preface to Surtees Society Publications, LXIII, xviii, xix.

"I charge you on Goddes behalfe and holy Chirche, that if there be any of you that can say any thynge why these two may not lawfully be wedded togyder at this tyme, say it nowe outher pryuely or appertly, in helpynge of your soules and theirs bothe."

Secondly, addressing the man and the woman:

"Also I charge you both and eyther be your selfe, as ye wyll answer before God at the day of dome, that yf there be thynge done pryuely or openly, betwene yourselfe, or that ye knowe any lawfull lettyng why that ye may nat be wedded togyder at thys tyme, say it nowe or we do any more to this mater."[986]

[986] Compare the similar provisions, in more archaic words, in the Salisbury manual in the British Museum: MASKELL, Monumenta ritualia, I, 52-54, margin; and the Latin form there given in the text.

If no objection to the marriage is made, the priest, in several long paragraphs of the service, explains the canons relating to publication of banns, the times when the ecclesiastical celebration is forbidden, and the evils growing out of clandestine unions, with the penalty of three years' suspension from office for the priest who fails to prohibit such marriages in his parish. Then follows the essential act, the celebration of the sponsalia. This, as already mentioned, is in two distinct parts. The first part is the repetition of the betrothal per verba de futuro, the priest putting the vows in the form of a question to each party. He says to the man:

"N., wylt thou haue this woman to thy wyfe and loue her [and wirschipe hir[987]] and keep her, in sykenes and in helthe, and in all other degrese be to her as a husbande sholde be to his wyfe, and all other forsake for her, and holde the only to her to thy lyues ende."

[987] The words in the brackets in the formulæ for both parties are added in the Cambridge MS. of the York ritual.

The man is to answer: "I wyll." The priest then says to the woman:

"N., wylt thou haue this man to thy husbande, and to be buxum to hym [luf hym, obeye to him, and wirschipe[988] hym], serue hym and kepe hym in sykenes and in helthe: and in all other degrese be unto him as a wyfe shulde be to her husbande, and all other to forsake for hym, and holde the only to hym to thy lyues ende."

[988] It will be noted that in the Cambridge MS. both the man and the woman promise to "worship." The same is true of the manuscript Salisbury ritual in the British Museum: MASKELL, op. cit., I, 53.

The woman is to say: "I wyll."

This closes the first part. The second part is the gifta, or marriage properly so called, per verba de praesenti. The priest says: "Who gyues me this wyfe?" "Then," runs the Latin rubric, "shall the woman be given away by her father or by a friend; if a maid, she shall have her hand bare; if a widow, she shall have it covered."[989] The man shall receive her to keep in God's faith and his own, as he has vowed before the priest; and holding her by the right hand with his right hand, he shall plight the woman his troth in words of the present tense, saying after the priest:

"Here I take thee N. to my wedded wyfe, to haue and to holde, at bedde and at borde, for fayrer for fouler, for better for warse, in sekeness and in hele, tyl dethe us departe, and thereto I plyght the my trouthe;" and the woman makes the same vow in the same words.

[989] This provision is found in all these early rituals. Cf. LÉON GAUTIER, La chevalerie, 427, note.

"Then shall the man place gold, silver, and a ring upon a shield or a book. And the priest shall enquire whether the ring has already been blessed." If not, the priest is to bless it in prescribed form, and sprinkle it with holy water. Then follows a curious ceremony. The bridegroom "takes the ring with his three principal fingers, and says after the priest, beginning with the thumb of the bride, 'In nomine Patris;' at the second finger, 'et Filii;' at the third finger, 'et Spiritus Sancti;' at the fourth or middle finger, 'Amen;'[990] and there he leaves the ring, because according to the Decree ... 'in the middle finger there is a certain vein extending to the heart.'"[991]

[990] This formula is common to the early rituals. It is omitted in the modern service of the English church, but retained in the present Roman ritual: BINGHAM The Christian Marriage Ceremony, 180.

[991] "Et ibi dimittat annulum secundum decretum xxx. quaestione v. Feminae, ad finem: quia in medico est quaedam vena procedens usque ad cor": p. 27. Cf. GRATIAN'S Decretum, in RICHTER-FRIEDBERG, Corpus jur. can., I. The "vein extending to the heart" is likewise mentioned in the rituals of Hereford and Sarum, and in the Welsh ritual of the fifteenth century. The Sarum ritual adds: "et in sonoritate argenti designatur interna dilectio, quae semper inter eos debet esse recens": Surtees Society Publications, LXIII, Appendix, 20.

After this delicious bit of popular superstition, handed down to our own days from remote antiquity, the bridegroom, holding his bride by the hand, says after the priest: "With this rynge I wedde the, and with this golde and siluer I honoure the, and with this gyft I dowe thee."

The priest next "asks the dower of the woman." If "land is given her in the dower," the bride "prostrates herself at the feet of the bridegroom;" but the York ritual does not go so far as one manuscript of the Sarum manual, in requiring that the woman shall "kiss the right foot" of her spouse.[992]

[992] Thus a "MS. Manual of Sarum Use" provides, "whether there is land in the doury or not": "Tunc procidat sponsa ante pedes ejus, et deosculetur pedem ejus dextrum; tunc erigat eam sponsus": Surtees Society Publications, LXIII, 20, note; and HENDERSON, ibid., xix. On the York and Sarum rituals see SELDEN, Uxor ebraica, 193 ff.; and the points discussed are all illustrated in the Ordines published in MARTENE.

The ceremony ends with prayer and benediction, followed by the entrance into the church for celebration of the bridal mass.[993]

[993] This ritual also provides a form for the priestly blessing of the bridal chamber (benedictio thalami) and the nuptial couch: "Nocte vero sequenti cum sponsus et sponsa ad lectum pervenerint, accedat Sacerdos et benedicat thalamum;" the blessing concluding with the direction: "Tunc secundum morem antiquum thurificentur torus et thalamus": 39, 40. Similar forms are given in the Hereford, Sarum, and Bangor rituals: Surtees Society Publications, LXIII, Appendix, 25, 26, 120; MASKELL, I, 76, 77 n. 47.

The historical significance of the ritual just analyzed is readily perceived.[994] In the ring, the gold, and the silver there is a plain recognition of the arrha, though it was coming to be regarded as a kind of symbolical assignment of the wife's dower.[995] It is noticeable that the tradition is still conducted by the "father or a friend." It is a private lay transaction in which the priest has no legal part. He is still a mere orator, rather than a necessary actor, though there is a manifest effort to gain the recognition of the priestly office as essential to a Christian marriage. Martene has pointed out that in all the early rituals the words vos conjungo[996] are unknown. It is the "parties who marry themselves." The matrimonial contract arises solely in their consent.[997]

[994] For a good summary of the Sarum and other rituals see FRIEDBERG, Eheschliessung, 36 ff.; and see the ceremonies of 1502 and 1554, in the "Gentlemen's Magazine Library," Manners and Customs, 57.

[995] Thus a manuscript manual of Salisbury use has this "curious addition;" the priest says: "Loo this gold and this siluer is leyd doun in signifyinge that the woman schal haue hure dower, thi goodes, zif heo abide aftur thy disces": fol. 17; ap. MASKELL, Monumenta ritualia, I, 58 n. 14. LÉON GAUTIER finds in the similar French custom a "reminiscence" of the marriage per solidum et denarium of the Salic law. "When the bridegroom pronounces these words: 'De mon bien je vous doue,' he delicately places in the little purse of the bride three pretty pieces of money, three new deniers. Not being able to put into her hands the fields, woods, and manors constituting the dower, he gives her its symbol. They went so far on account of this usage as to coin special deniers, 'deniers pour espouser'": La chevalerie, 428.

[996] "I pronounce that they be man and wife together, in the name of the Father," etc.: Ritual of the English church, in BINGHAM, Christian Marriage Ceremony, 166. "I join you together in marriage," etc.: Roman ritual, ibid., 178. The presence of similar phrases in all our modern ceremonies, civil or religious, is a striking proof of the essential difference between the function of the magistrate or priest now and that of his mediæval predecessor.

[997] LÉON GAUTIER, La chevalerie, 426 n. 1; ap. MARTENE, De ritibus.

II. THE PRIEST SUPERSEDES THE CHOSEN GUARDIAN, AND SPONSALIA PER VERBA DE PRAESENTI ARE VALID

Thus it appears that between the first and twelfth centuries the religious element in the marriage ceremony runs through three phases, not sharply defined by dates, but overlapping and blending; and for the sake of clearness it may be well to summarize the history of this development before proceeding farther. (1) During about four centuries no liturgy was prescribed; the ancient popular forms of contract were accepted; the nuptials were usually celebrated in the home of the bride, less often in church; and the priestly benediction, though doubtless commended as a religious duty, was not exacted by the church as essential to a legal or a canonical marriage. (2) Between about the end of the fourth century and the middle of the tenth the custom became well established for the newly wedded pair to attend religious service in the church to partake of the sacrament and receive the priestly benediction on their future married life; and this practice soon led to the institution of the regular bride-mass, containing phrases directly applicable to the nuptials. In the bride-mass may be found the genesis of the ecclesiastical marriage liturgy; but it is a purely religious office and adds nothing to the validity of the private contract. (3) In the next phase, falling between the tenth and the twelfth centuries, the clergy makes rapid progress. An elaborate and imposing ritual is developed; the priest, inheriting the functions of the ancient orator, directs the entire celebration; the nuptial ceremony takes place before the church door, and is followed by the bridal mass in the church itself; but even now the priest is a mere helper, and the religious service adds nothing to, nor its omission takes nothing from, the validity of the nuptial contract.

The next and final step is comparatively easy and already assured. By the beginning of the thirteenth century the western church had entered upon a fourth phase in respect to the solemnization of marriage. This was facilitated, according to Sohm,[998] by the custom, already mentioned, of choosing any third person as guardian to officiate at the nuptials, marking the transition from the ancient tradition through the natural guardian to the stage of self-gifta or tradition by the bride herself--a stage which is fairly being entered upon at the beginning of the thirteenth century. This new and more liberal form of lay tradition led directly to the gifta by the priest, or to ecclesiastical marriage properly so called.[999] In the third stage of development the priest could not venture to interfere with the prerogative of the natural guardian to give his ward in marriage. He could at most assist as orator and bestow his benediction. But from the moment that custom sanctioned the choice of any third person in place of the father or other natural protector, the clergy appropriated this function as their exclusive right. While the church "bestowed her blessing upon the tradition through the natural guardian, she directed against the lay chosen guardian her excommunication."[1000] So at this point arose the antagonism between private and ecclesiastical marriage.[1001] The motive of the church was clearly twofold. While she very naturally strove to gain control of the nuptial celebration, to give more and more a religious form to the institution already declared by her to be a sacrament, she doubtless foresaw something of the evils which would ensue from clandestine or private unions, now that the consent of the parent or natural guardian was no longer necessary, as in early days, for a valid marriage, and therefore began to legislate in the interest of publicity.

[998] SOHM, Eheschliessung, 164 ff., 67 ff.; cf. FRIEDBERG, Eheschliessung, 94 ff.

[999] SOHM, op. cit., 164.

[1000] Ibid., 164 ff., 179 ff.

[1001] The ecclesiastical act, Handlung, was old; the ecclesiastical nuptials, geistliche Trauung, was new. This is SOHM'S view, op. cit., 179 ff., 183, as opposed to FRIEDBERG, Eheschliessung, 85.

Henceforth the rituals of the continent show plainly that marriage was usually celebrated by the priest and not merely in his presence; though the ceremony still takes place at the church door. The parties no longer simply "marry themselves," repeating after the priest the solemn words of the nuptial vow; but in addition the priest "gives the woman to the man, saying in Latin words: I join you in the name of the Father, the Son, and the Holy Ghost. Amen;" and this formula, taken from a typical French ritual of the fourteenth century,[1002] is never found, as already explained, in the liturgies of the preceding period. It is highly important to note that these words of power on the part of the priest do not appear in the English service before the period of the Reformation. In the earlier as well as in the later rituals the parties are the real actors, although the priest is leader and teacher in the whole ceremony. At most, so far as the form of tradition is concerned, evidence of a mere transition[1003] from the third phase in the rise of ecclesiastical marriage may be discerned. The priest does not step quite into the place of the father or other relative. He is not quite a "chosen guardian;" for he receives his power to "give" the bride to the bridegroom from the natural guardian or his representative, and not from the woman herself. Thus, according to the ancient liturgy of York, the priest says, "who gyues me this wyfe? Then the woman is given by her father or by a friend;"[1004] and this transitional form in substance is still preserved in the modern service of the English church.[1005] But, apparently, the function of the priest in the gifta is more pronounced in the York manual than in any of the other mediæval rituals which have been preserved. In some of them, as a matter of fact, it receives no mention at all.[1006]

[1002] "Tunc sacerdos det eam viro dicens verbis latinis: Et ego conjungo vos in nomine Patris et Filii et Spiritus Sancti. Amen": quoted in SOHM, op. cit., 165, 166, from a Rouen ritual of the fourteenth century in Martene's collection. DIECKHOFF, Die kirch. Trauung, 82 ff., takes a different view. The Rouen ritual, he holds, is not a typical service. The priest does not now gain an essentially new function at the nuptials. His office has always been necessary to a Christian marriage. In addition to his original power of joining in wedlock, he merely adds the function exercised by the father or guardian in the formal tradition. Moreover, Dieckhoff's position is supported by some rituals, which seem to show that development on the continent was not uniform in this regard. Cf. SCHEURL, Entwicklung, 110 ff., who discusses the divergent views of Sohm and Friedberg.

The last stage of evolution has not yet been reached in the eastern church. In the presence of the priest the bride and groom betroth and give themselves in marriage. The priest merely prays and blesses: SOHM, Zur Trauungsfrage, 19 ff.; ZHISHMAN, Das Eherecht, 128, 135, 692 n. 1, 694 n. 1. For the marriage ritual of the Greek church see MARTENE, De ritibus, II, 140-44.

[1003] Pointed out by SOHM, Eheschliessung, 164, 165.

[1004] Surtees Society Publications, LXIII, 26.

[1005] "Who giveth this woman to be married to this man? Then shall they give their troth to each other in this manner. The minister receiving the woman at her father's or friend's hands," etc.: BINGHAM, The Christian Marriage Ceremony, 164.

[1006] Thus the Hereford ritual simply says, after declaration of the dower, "et pater vel propinquus mulieris accipiat eam, et tradat homini per manum dexteram" (Surtees Society Publications, LXIII, Appendix, 116). Similarly the Pontifical of Anianus, bishop of Bangor, of the thirteenth century declares, "Primo dicatur (dos) feminae, deinde detur" (ibid., 162); and this form agrees substantially with that of the Hanley Castle Missal of the same period (ibid., 163). In the ritual of the fifteenth-century Harleian MS., in the British Museum, after asking the banns, "the woman shall be given in this manner: Sacerdos utriusque manu dextera apprehensa, jungat eos similiter, sicut faciunt qui fide se obligant" (ibid., 166); but here, of course, the words "jungat eos" are not words of power, for they precede the marriage vow of the parties. According to the Welsh ritual of the fifteenth century, "the woman is given by her father or by another friend" (ibid., 167); and this form is observed in the Sarum liturgy published both by MASKELL (Monumenta, I, 56), and the Surtees Society (LXIII, Appendix, 19), while in one MS. of the same service the words "deinde detur [Ecclesiae] femina a patre suo, vel ab amicis ejus" (ibid., loc. cit., 19) appear, thus in effect agreeing with the form of the York manual. An interesting variation occurs in the Pontifical of Magdalen College, Oxford, of the twelfth century, where the priest does not receive the woman from her guardian, but joins with him in giving her to the husband: "Sacerdos et patronus sponsae dent ipsam sponso per dexteram" (ibid., 160). A ritual of Arles (ca. 1300) affords evidence of a similar transition in the form of tradition: see the extract in SOHM, Eheschliessung, 165 n. 27; and compare on this subject FRIEDBERG, Eheschliessung, 38, 62. On the English celebration cf. JEAFFRESON, Brides and Bridals, I, 88-98.

It appears, then, as regards the form of celebration, that previous to the Reformation the church had not made so great progress in England as in many places on the continent. The gifta is still essentially the ancient private tradition, in which the priest has at most a subordinate place; and the words of power following, and as it were sealing, the nuptial vow do not appear. Still there is a decided gain; for the whole procedure is given a religious character through the solemn prayers and benedictions, the authoritative definitions of the nature of marriage, and the stately ceremonial of the bridal mass, in all of which the priest is the central figure.

If now, turning from the evidence afforded by the content of the prescribed rituals, we examine the legislation of the church for enforcing the acceptance of these rituals, we shall reach a similar result. Stated broadly in advance, the English canons created a sharp distinction between legality and validity. Lay marriages--that is, marriages solemnized without the intervention of the church, including clandestine unions as well as those privately contracted before witnesses with parental consent--were opposed to canonical marriages: and lay marriages were declared illegal under severe penalties, even excommunication; while at the same time, if once contracted in words of the present tense, they were maintained as equally valid and equally sacramental in their nature with those celebrated according to the authorized liturgy before the priest.[1007]

[1007] In general, for the canons relating to the priestly benediction and the ecclesiastical celebration see JOHNSON, _Collection of the Laws and Canons of the Church of England_, I, 202; II, 19, 27, 64, 89, 91, 340, 395, 410; PEMBERTON'S historical summary in 10 CLARK AND FINNELLY, 616 ff.; and the summaries of MASKELL, Monumenta ritualia, I, cclxiv-ix; and MAKOWER, Const. Hist. of Church of England, 213, 214 n. 5. For the early period see the collections of Thorpe, Schmid, Haddan and Stubbs, and Wilkins. An excellent discussion of the subject is given by POLLOCK AND MAITLAND, Hist. Eng. Law, II, 364 ff.; and a very detailed treatment in FRIEDBERG'S Eheschliessung, 33 ff., 309 ff.

During the Anglo-Saxon period various orders and regulations commanding the benediction were passed. Theodore thus requires the priest, in the case of a first marriage, to celebrate the mass, doubtless the ordinary service, and to ask a benediction upon both parties;[1008] while by the ritual of the tenth century, already quoted, the nuptials are to be celebrated before a mass-priest "who shall with God's blessing bind their union to all prosperity."[1009] But after the Conquest more stringent measures were taken to secure publicity and enforce the observance of religious rites. Especially important is the celebrated constitution of Archbishop Lanfranc, alleged to have been enacted at the Council of Winchester in 1076, ordaining "that no man give his daughter or kinswoman in marriage without the priest's benediction," and declaring that otherwise "the marriage shall not be deemed legitimate but as fornication."[1010] Twenty-six years later, at the Council of London, an attempt was made by Anselm to put a check upon clandestine contracts, in a provision which really defines the principle governing the decisions of the ecclesiastical courts throughout the west. "Promises of marriage made between man and woman without witnesses" are declared to be "null if either party deny them."[1011] In 1175 these acts were reinforced by a canon of Archbishop Richard, taken from the decrees of Pope Ormisdas (Hormisdas) of the year 514, ordering that "no faithful man, of what degree soever, marry in private, but in public, by receiving the priest's benediction. If any priest be discovered to have married any in private let him be suspended from his office for three years."[1012] By a constitution of Archbishop Walter, in the year 1200, it was further ordained that "no marriage be contracted without banns thrice published in church, nor between persons unknown;" and no marriage not publicly solemnized in face of the church is "to be allowed of, except by the special authority of the bishop."[1013]

[1008] Poenit. Theod., Book I, c. 14, §1: HADDAN AND STUBBS, Councils, III, 187; MAKOWER, _Const. Hist. Church of Eng._, 213, 214 n. 5.

[1009] SCHMID, Gesetze, Anhang VI, 392, 393; THORPE, Ancient Laws, I, 255-57; MAKOWER, loc. cit. Cf. also the Excerptiones Ecgberti, c. 90 (or 88), THORPE, II, 110, reproducing a canon of the Council of Carthage requiring that "the bridegroom and bride be offered by the parents, and bridefolk, to receive the priest's benediction": JOHNSON'S Canons, I, 202, and the so-called Canones Ælfrici (A. D. 992-1001), sec. 9, in THORPE, II, 347, declaring that "the layman may, however, with the apostle's leave take a wife a second time; if his wife falls away from him; but the canons forbid blessing thereto and have ordered such men to do penance": MAKOWER, loc. cit.

[1010] "Praeterea statutum est, ut nullus filiam suam, vel cognatam, det alicui, absque benedictione sacerdotali. Si aliter feceret, non ut legitimum conjugium, sed ut fornicatorium, judicabitur."--PARKER, De antiquitate britannicae ecclesiae (London, 1729), 173; also WILKINS, Concilia, I, 367; MAKOWER, loc. cit.; and translated in JOHNSON'S Canons, II, 19. Cf. POLLOCK AND MAITLAND, Hist. Eng. Law, II, 368 n. 2.

[1011] "Ut fides inter virum et mulierem, occulte et sine testibus, de conjugio data, si ab alterutro negata fuerit, irrata habeatur."--WILKINS, Concilia, I, 382; JOHNSON, Canons, II, 27; MAKOWER, loc. cit.

[1012] JOHNSON, Canons, II, 64.

[1013] Ibid., 91.

These measures, and others later enacted in a similar spirit,[1014] have led to a serious misapprehension of the real doctrine of the canon law. From them it has been zealously argued that the prescribed religious celebration was essential to a valid contract; and this view was strengthened by the decree of Innocent III. at the fourth Lateran council, 1215, requiring the publication of banns as a general law of the western church, which by a similar error was understood to have ordained ecclesiastical marriage.[1015] But in the light of history it seems clear that all which was intended by this decree, or by the constitution of Lanfranc and its successors, was to declare the unblessed marriage illegal, involving certain penalties or disadvantages, without touching its validity.[1016] The lay courts, as will appear in the next chapter, might deny full rights of dower and inheritance to the issue of such unions; but after the thirteenth century, as well as before, marriages celebrated without the intervention of priest or magistrate were sustained by the church as binding. As already emphasized at the outset of this discussion, the private, even secret, agreement of the parties, without consent of parent or guardian, if expressed in words of the present tense, sponsalia per verba de praesenti,[1017] though not followed by cohabitation, was held to constitute a valid marriage; and it could be sustained against a subsequent contract publicly celebrated according to ecclesiastical forms and followed by years of wedded life. This is unquestionably the doctrine of the canon law of western Christendom, as emphatically expressed in the decretal epistle of Alexander III. to the bishop of Norwich presently to be noticed;[1018] and that it was accepted by the English courts as a part of the law of the land is established by conclusive evidence. Not until the Council of Trent, in the middle of the sixteenth century, was there any general legislation of the church to enforce ecclesiastical rites. This council, after anathematizing those who deny that clandestine marriages theretofore contracted by the sole agreement of the parties and without parental consent are "true and valid," decreed, contrary to the opinion of fifty-six prelates, that thenceforward all marriages not contracted in the presence of a priest and two or three witnesses shall be void.[1019] This decree was not accepted in England, and "clandestine" marriages continued to be valid until the middle of the eighteenth century; and until 1856, in Scotland, as is well known, the mere consent of the parties, however expressed, constituted a binding marriage.[1020]

[1014] Especially the constitution of Reynolds, 1322; that of Stratford, 1343; and that of Zouche, 1347: ibid., 340, 341, 395, 410, 411.

[1015] FRIEDBERG, Eheschliessung, 39, note, gives a list of the authors making this mistake. "This belief is stated by Blackstone, Comment., I, 439, and was in his time traditional among English lawyers. Apparently it can be traced to Dr. Goldingham, a canonist who was consulted in the case of Bunting v. Lepingwell (Moore's Reports, 169)": POLLOCK AND MAITLAND, Hist. of Eng. Law, II, 368, 369, note; FRIEDBERG, op. cit., 314.

[1016] Even the words of Lanfranc, strong as they are, do not invalidate an unblessed marriage. "He does not say that the union will be mere fornication; he says that it will be coniugium fornicatorium, an unlawful and fornicatory marriage. Lanfranc's words recall those of the Pseudo-Isidorian Evaristus which appear in c. 1, C. 30, q. 5"; POLLOCK AND MAITLAND, op. cit., II, 368 n. 2; FREISEN, Geschichte des can. Eherechts, 139.

[1017] For some account of the distinction between sponsalia de praesenti and de futuro, with references, see the next chapter.

[1018] This epistle sustained a marriage by private consent as against one subsequently contracted and consummated. The opposing view is thus set forth by Pemberton in The Queen v. Millis: "In 1160 Pope Alexander issued edicts in which marriages without the presence of a priest were declared good; but almost immediately afterwards came the canons already cited [those of 1175 and 1200 mentioned in the text], to guard against the abuse of the permission thus given by the pope. But from what follows it is clear that the law which admitted the canon law in other countries, as part of the law of the land, was never adopted in England. In 1253 the attempt was made to introduce the canon law of marriage recognized by the popes, against the ecclesiastical law of England and the answer was the well-known answer that the barons would not consent to have the laws of England changed": 10 CLARK AND FINNELLY, 617. This is a strange perversion of the truth: see POLLOCK AND MAITLAND, op. cit., II, 370 n. 1.

[1019] BOHN, Pol. Cyc., III, 319, 320. FRIEDBERG, Eheschliessung, 123, 124, gives the text of the decree; and his second book, 101-50, contains an interesting history of the proceedings of the council on the subject of marriage. An English version of the text of the decree may be found in WATERWORTH, Canons and Decrees of the Council of Trent, 196-99, who also describes the proceedings (ccxxi-xxxvi). Cf. SALIS, Die Publikation des trid. Rechts der Eheschliessung, 2 ff.; FLEINER, Die trident. Ehevorschrift, 1 ff.; ESMEIN, Le mariage en droit canonique, II, 119-37; MADAN, Thelyphthora, III, 238 ff. SOHM, Eheschliessung, 187-96, shows that the Tridentinum still maintains the Germanic principle of consensus as the valid marriage.

For the sources see the collections of Theiner and Richter-Schulte and the works of Sarpi and Pallavicino mentioned in Bibliographical Note VII.

[1020] On Scotch marriages see EDGAR, _Marriages in Olden Times_, 134-203; WALTON, _Scotch Marriages_; GEARY, Marriage and Family Relations, 534 ff.; HAMMICK, The Marriage Law, 221 ff.; FRIEDBERG, Eheschliessung, 57, 58, 426, 427, 437-59; BOHN, Pol. Cyc., III, 326; STEPHENS, _Laws of the Clergy_, I, 672, 688; ROBERTSON, _Encyc. Britannica_, XV, 567; KENT, Commentaries, II, 90. Cf. especially the case of Dalrymple v. Dalrymple, in 2 HAGGARD'S Consistory Reports, 54-137.

It follows that the unanimous opinion of the English judges in the great case of the Queen v. Millis, 1844, against the validity of a marriage not celebrated before an ordained priest of the established church, is not supported by the evidence of history as revealed in the doctrines of the canon law and in the action of the ecclesiastical courts during six centuries.[1021] The following are the main facts in the history of this famous suit: In January, 1829, at Banbridge, county of Down, Ireland, George Millis and Hester Graham "entered into a contract of present marriage" in the presence of John Johnstone, the "placed and regular minister of the congregation of Protestant dissenters commonly called Presbyterians, at Tullylish, near Banbridge," who performed a solemn religious ceremony according to the usual rites of his sect. Thus there was a perfect and binding contract de praesenti according to ecclesiastical law. Later, while Hester was still living, Millis married Jane Kenedy in England, using the forms of the established church, of which he was a member. At the spring assizes of 1842, for the county of Antrim, Ireland, Millis was indicted for bigamy. The case was removed by certiorari into the Irish court of Queen's Bench, where the four judges were evenly divided; but Justice Perrin, who favored the validity of the first marriage, withdrew his opinion pro forma, that the case might go to the House of Lords for definite settlement.[1022] The Lords submitted the case to the English judges for advice; and they unanimously decided against the validity of the first marriage on the ground that it had not been celebrated before a regular clergyman of the English church. That the decision was hasty and in direct opposition to history, as revealed in all the great cases, there can now be small doubt. "We have here," says Bishop, "a question of almost pure ecclesiastical law, submitted to a tribunal composed of common-law and equity lawyers, who necessarily possessed little or no knowledge of the subject. So they ask advice, not from the ecclesiastical judges, whose functions had qualified them to give it, but from the uninstructed common-law judges. The latter were competent to learn, but they were not allowed the necessary time. Lord Chief-Justice Tindal, who delivered their opinion, complained of the want of time for investigation; and the opinion throughout shows the complaint to have been well founded."[1023]

[1021] See the cases mentioned in the Bibliographical Note at the head of this chapter. Of course, most of the decisions are cited and elaborately discussed by the counsel and judges in Queen v. Millis and Beamish v. Beamish. An important case is given in Harvard Law Review, VI, 11. Cf. SWINBURNE, Of Spousals, 13, 104, 193, passim; and especially HALE'S Precedents and Proceedings in Criminal Laws, 1475-1640, taken from the act-books of ecclesiastical courts in the diocese of London, and containing a mass of most interesting and convincing evidence relating to the subject (see the Index at "Matrimonial Causes").

[1022] For the record of the proceedings in Ireland see Report of the Cases of Regina v. Millis, et Regina v. Carroll in the Queen's Bench in Ireland (Dublin, 1842).

[1023] BISHOP, Mar., Div., and Sep., I, §§ 400, 401.

This view is strongly supported by the action of the Lords. In spite of the united opinion of the judges, the final deliberation of the six law peers resulted in a tie: Lords Cottenham, Abinger, and Chancellor Lyndhurst holding the first marriage to be void; and Lords Brougham, Denman, and Campbell maintaining its validity. But since the case was on appeal from the decision of another court, the result of the tie was to declare the invalidity of unblessed wedlock.[1024]

[1024] The case is given in 10 CLARK AND FINNELLY, Reports of Cases Decided in the House of Lords, 534-907. The text of the opinion of the English judges may also be found in STEPHENS, Laws of the Clergy, I, 675-94. It was ably refuted by SIR JOHN STODDART in his Observations on the Opinion and his Letter to Lord Brougham (both London, 1844).

Thus by a remarkable sequence of circumstances and accidents was established the judicial interpretation of the English law governing the marriage celebration.[1025] The decision was therefore followed in another celebrated case, that of Beamish v. Beamish, which came before the House of Lords in 1861. This was a case of "clandestine" marriage, the bridegroom himself performing the ceremony in a private house according to the ritual of the established church. In the record we are told that the "Rev. S. S. Beamish, in the year 1831, became attached to a young lady named Isabella Frazer (both being members of the United Church of England and Ireland), and as he did not obtain his father's consent to his marriage with her, he persuaded her into a clandestine marriage, which, according to the special verdict found in the case, was performed in the following manner: 'On the 27th November, 1831, the Rev. Samuel Swayne Beamish, being then a clergyman in holy orders, went to the house of one Anne Lewis, in the city of Cork, and there performed a ceremony of marriage between himself and Izabella Frazer, by reading between them ... the form of solemnization of matrimony used in said United Church of England and Ireland, as set forth in the Book of Common Prayer, ... by declaring' in words of the present tense that he took the bride 'to his wedded wife,' she making a similar avowal; by placing a ring on her finger; and by pronouncing the blessing in the appointed form." The court held the contract void, declaring that, since it was "settled by the decision in the Queen v. Millis, that to constitute a valid marriage by the common law of England, it must have been celebrated in the presence of a clergyman in holy orders, the fact that the bridegroom is himself a clergyman in holy orders, there being no other clergyman present, will not make the marriage valid." For "as to the manner in which a marriage is to be celebrated, the law does not admit of any difference between the marriage of a clergyman and of a layman."[1026]

[1025] In 1844, by the act of 7 and 8 Victoria, c. 81, the essential features of 6 and 7 Will. IV, c. 85, which had made the public observance of ecclesiastical or civil forms necessary to a valid marriage in England, were extended to Ireland; and this was the result of the excitement caused by the case of the Queen v. Millis of the same year.

[1026] Case of Beamish v. Beamish in 9 House of Lords Cases, 274-358. The report in this case, like that in Queen v. Millis, constitutes an extended history of English matrimonial law.

The singular motives underlying this decision have been recently discussed in an instructive way by Sir Frederick Pollock. It appears that a former judgment of the Lords must be maintained, however absurd or however inconsistent with history or justice it is felt to be. Already in 1852 and again in 1860 Lord Chancellor Campbell had committed himself to the dogma that the House of Lords is bound by its own decisions. At the former date, answering Lord St. Leonards, who holds the opposite view, he says: "I consider it the constitutional mode in which the law is declared, and that after such a judgment has been pronounced it can only be altered by an Act of the Legislature."[1027] When the case of Beamish v. Beamish came "before the House of Lords, the late Mr. Justice Willes virtually, though not professedly, demonstrated, in a full and most learned opinion, that the supposed difference between the law of England and that of the rest of western Christendom was imaginary. His reasons convinced Lord Campbell and Lord Wensleydale, but Lord Campbell declared himself not at liberty to act on his conviction;" though, for sound reasons which he admits, he confessed that if competent for him he would ask their Lordships to reconsider their judgment in the Queen v. Millis. "But it is my duty," he adds, "to say that your Lordships are bound by this decision as much as if it had been pronounced nemine dissentiente." A "rule of law thus judicially expressed must be taken as for law till altered by an act of Parliament." The "law laid down as your ratio decidendi, being clearly binding on all inferior tribunals, and all the rest of the Queen's subjects, if it were not considered as equally binding upon your Lordships, this house would be arrogating to itself the right of altering the law, and legislating by its own separate authority." It "may seem startling," comments Pollock, "that questions of legitimacy and property should be treated as irrevocably settled by the result of an equal division of the House of Lords, on argument and information admittedly imperfect with regard to the history of the law; that result, moreover depending on the accident of the form in which the appeal was presented: but so they were." Thus in Beamish v. Beamish an opinion of seventeen years earlier was accepted as binding, "which in 1861 was believed by a majority of the House of Lords and the judges who advised them, and is now believed by most competent scholars, to be without any real historical foundation."[1028]

[1027] In Bright v. Hutton, 3 H. L. C., 391, 392. For his opinion in 1860 see A.-G. v. Dean and Canons of Windsor, 8 H. L. C., 391-93.

[1028] Following POLLOCK, First Book of Jurisprudence (London, 1896), 311-17.

In general, on these decisions and those preceding see the masterly discussion of FRIEDBERG, Eheschliessung, 39-57, 427, 464 ff. His conclusions are supported by SOHM, Eheschliessung, 125 ff.; POLLOCK AND MAITLAND, Hist. of Eng. Law, II, 367 ff.; and by the article of ELPHINSTONE, in Law Quarterly Review, V, 49 ff. Compare REEVES, Hist. of the Common Law, IV, 52 ff.; BISHOP, Marriage, Divorce, and Separation, II, 171, 172; KENT, Commentaries, II, 87 ff., notes; BRIGHT, Husband and Wife, II, 398. These judgments are regarded as historically just by DIECKHOFF, _Die kirch. Trauung_, 70, note; and COOK, "The Marriage Ceremony in Europe," Atlantic, LXI.

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Chapter VIII

RISE OF ECCLESIASTICAL MARRIAGE: THE CHURCH DEVELOPS AND ADMINISTERS MATRIMONIAL LAW

[BIBLIOGRAPHICAL NOTE VIII.--For the evolution of the canonical theory of marriage the Richter-Friedberg Corpus juris canonici (Leipzig, 1881 ff.), Peter Lombard's Sententiae (Incunabula, Textus sententiarum, 1488, Sutro Library), and the Ante-Nicene Fathers (Buffalo, 1885-87) are of the first importance. The collections of Haddan and Stubbs, Thorpe, Schmid, Hale, and Johnson, mentioned in Bibliographical Note VII, are available for this chapter; as are also the collections of Richter-Schulte, Theiner, and Waterworth, the works of Sarpi and Pallavicino, the monographs of Salis, Fleiner, Riedler, and Leinz, the papers of Meurer and Schulte, with the other authorities already cited for the Council of Trent. Well-known treatises on the canon law are Lyndwood, Provinciale (ed. of 1505 and Oxford, 1679); Sanchez, Disputationum de s^{to} matrimonii sacramento (Venice, 1625); and Godolphin, Repartorium canonicum (3d ed., London, 1687). With these may be used Smith, Elements of Ecclesiastical Law (New York, 1882); Phillimore, Ecclesiastical Law (London, 1873-76); Stephens, Laws Relating to the Clergy (London, 1848); Burn, Ecclesiastical Law (London, 1842); and the excellent summary of Geary, Marriage and Family Relations (London, 1892), chap, xvi, where the principal sources are mentioned. Dodd's History of the Canon Law (London, 1884) is too general to be of much service. A good handbook of Catholic doctrine, with full citation of authorities, is Gury's Compendium of Moral Theology; and in this connection may also be consulted Amat's convenient Treatise on Matrimony (San Francisco, 1864); the works of Cigoi, Didon, Roskovány, Perrone, and Scheicher-Binder described in Bibliographical Note XI.

The rise of the system of enforced celibacy of the clergy, with the consequent evils, is most fully treated by the brothers Theiner, Die Einführung der erzwungenen Ehelosigkeit (3d ed., Barmen, 1891-98), whose book, first published in 1828, has been fiercely attacked by Catholic critics; and Lea, Sacerdotal Celibacy (2d ed., Boston, 1884); supplemented by his History of Auricular Confession and Indulgences in the Latin Church (Philadelphia, 1896). The immorality of the mediæval clergy is also described by Bouvet, De la confession et du célibat des prêtres (Paris, 1845); Gage, Woman, Church, and State (Chicago, 1893); idem, an article under the same title in History of Woman Suffrage (New York, 1881); Lecky, History of European Morals (3d ed., New York, 1881); and Huth in the third chapter of Marriage of Near Kin (2d ed., London, 1887). For a later period the subject is dealt with by Michelet, Le prêtre, la femme, et la familie (new ed., Paris, 1889); and "A. F. R.," Betrachtungen über den Klerikal- und Mönchsgeist im neunzehnten Jahrhundert (1805). In this connection see also Bucksisch, De apostolis uxoratis (new ed., Wittenberg, 1734); Essich, De clericis maritis dissertatio historica (Augusta Vindelicorum, 1747); Feyerabend, De privilegiis mulierum (Jena, 1667); Recherches philosophiques et historiques sur le célibat (Geneva, 1781); De l'institution du célibat (Paris, 1808); Klitsche, Geschichte des Cölibats ... zum Tode Gregor's VII. (Augsburg, 1830); Lind, De coelibatu christianorum per tria priora secula (Havniae, 1839); the anonymous Letters on the Constrained Celibacy of the Clergy (London, 1816); Zimmermann, Der Priester-Cölibat (Kempten, 1899), presenting the loyal Catholic point of view; and the monograph of Schulte, Der Cölibatszwang und dessen Aufhebung (Bonn, 1876). A favorable view of the conventual life is taken by Eckenstein, Woman under Monasticism (Cambridge, 1896); and curious monuments of the contempt for woman produced by asceticism are the books of Valens Acidalius and his adversary Simon Geddicus, mentioned in a footnote below. For the controversy in France regarding the validity of the marriage of a priest under the temporal law see Nachet, Liberté du mariage des prêtres: Mémoire produit à la Cour de Cassation pour M. Dumonteil (Paris, 1833); and Horoy, Du mariage civil du prêtre en France (Paris, 1890).

The manifold evils arising from the canonical distinction between sponsalia de praesenti vel futuro are best described in the vigorous words of Martin Luther. In particular should be read the thirty-sixth chapter of the Tischreden (folio, Frankfort, 1571), and the Von Ehesachen: Werke, XXIII (Erlangen ed.) or Vol. V in Bücher und Schriften (Jena, 1555-80). The quaint and learned book of Swinburne, Of Spousals (London, 1686), contains a striking passage bearing on the subject; while for the mediæval English law should be consulted Glanville's Tractatus; Bracton's De Legibus (ed. Twiss, London, 1878-83); idem, Note Book (ed. Maitland, London, 1887); and Maitland's Select Pleas of the Crown. With Sohm's view as to the essential identity in form of the two kinds of sponsalia compare the various works of Biener, Bierling, Sehling, Scheurl, and Dieckhoff mentioned in Bibliographical Note VII. The text of Master Vacarius's Summa de matrimonio is edited by Maitland in Law Quarterly Review, XIII (London, 1897); and in the same volume he discusses Vacarius's theory of marriage, differing essentially from that of Gratian or Lombard. Assistance may also be had from Weber, De vera inter sponsalia de praesenti et nuptias differentia (Parchimi, 1825); Hoffmann, De aetate juvenili contrahendis sponsalibus (Regiomonti et Lipsiae, 1743); Lipold, Arbor consanguinitatis et affinitatis (n. p., n. d.); Niemeier, De conjugiis prohibitis dissertationes (Helmstadt, 1705); Born, De bannis nuptialibus (Leipzig, 1716); and the dissertations on parental consent and clandestine marriage mentioned in Bibliographical Note IX.

Remarkable testimony as to the existence of clandestine marriage in England during the first half of the sixteenth century is given by Richard Whitforde, A Werke for householders (1530; 2d ed., 1537); and in Miles Coverdale's translation of Bullinger's Christen State of Matrimonye (1st ed., 1541, in British Museum).

Indispensable guides for the study of the entire subject are still the works of Sohm, Friedberg, and Pollock and Maitland; but by far the best systematic histories of canon-law marriage are Freisen's Geschichte des canonischen Eherechts (Tübingen, 1888; Paderborn, 1893); and Esmein's masterly Le mariage en droit canonique (Paris, 1891). A similar work for the eastern church is Zhishman's Das Eherecht der orientalischen Kirche (Vienna, 1864). Illustrative decisions are communicated by Frensdorff, "Ein Urtheilsbuch des geistlichen Gerichts zu Augsburg aus dem 14. Jahrhundert," in ZKR., X (Tübingen, 1871); and Loersch, "Ein eherechtliches Urtheil von 1448," ibid., XV (Freiburg and Tübingen, 1880). There is an article on the beginnings of ecclesiastical jurisdiction by Sohm, "Die geistliche Gerichtsbarkeit im frankischen Reich," ibid., IX (Tübingen, 1870). Wunderlich has a serviceable edition of Tancred's Summa de matrimonio (Göttingen, 1841); and among the works relating to special questions are Sehling, Die Wirkungen der Geschlechtsgemeinschaft auf die Ehe (Leipzig, 1885); Heinlein, Die bedingte Eheschliessung (Vienna, 1892); Andreae, Einfluss des Irrthums auf die Gültigkeit der Ehe (Göttingen, 1893); Eichborn, Ehehinderniss der Blutsverwandtschaft (Breslau, 1872); Gerigk, Irrtum und Betrug als Ehehinderniss (Breslau, 1898); Benemann, De natura matrimonii (Halle, 1708); Baier, Die Naturehe in ihrem Verhältniss zur ... christlich-sakramentalen Ehe (Regensburg, 1886); Hahn, Die Lehre von den Sakramenten (Berlin, 1864); and the standard Catholic treatise of Oswald, Die dogmatische Lehre von den heiligen Sakramenten (5th ed., Münster, 1894).

In general, besides the works of Gide, Loening, Combier, Tissot, Burn, Thwing, Blackstone, Jeaffreson, Lingard, Makower, Madan, and Morgan, elsewhere described, the following have been drawn upon in various connections: Wasserschleben, Bussordnungen (Halle, 1851); Schmitz, Bussbücher (Mainz, 1883); Lobethan, Einleitung zur theoretischen Ehe-Rechts-Gelahrtheit (Halle, 1785); Schott, Einleitung in das Eherecht (new ed., Nuremberg, 1802); Goeschl, Ehegesetze (Aschaffenburg, 1832); Stäudlin, Geschichte der Vorstellungen und Lehren von der Ehe (Göttingen, 1826); Palgrave, English Commonwealth (London, 1832); Kemble, Saxons in England (London, 1876); Ellis, Introduction to Domesday Book (Record Commission, 1833); Bigelow, Placita anglo-normannica (Boston, 1881); Stubbs, Select Charters (Oxford, 1881); idem, Constitutional History (Oxford, 1875-78); idem, Seventeen Lectures (Oxford, 1886); Denton, England in the Fifteenth Century (London, 1888); Traill, Social England (New York, 1898); Nisbet, Marriage and Heredity (London, 1888); Smith, The Parish (London, 1857); Kent, Commentaries (Boston, 1873); Gibbon, Decline and Fall (London, 1830); and some of the Reformation writers referred to in Bibliographical Notes IX and XI.]

I. THE EARLY CHRISTIAN DOCTRINE AND THE RISE OF THE CANONICAL THEORY

It was most unfortunate for civilization that the Christian conception of the nature of marriage should have sprung from asceticism, and that the verbal subtlety of the schoolmen should have produced the cardinal definitions upon which the validity of marriage contracts, and therefore the practical administration of matrimonial law, were made to depend. The mediæval teaching regarding forbidden degrees, the sacramental nature of matrimony, and the difference between contracts de futuro and de praesenti are mainly responsible for the shameful abuses which disgrace the record of ecclesiastical judicature previous to the Council of Trent. With regard to an institution upon which in so high a degree the welfare of society depends, anarchy was practically sanctioned by the canon law. Where the utmost clearness and simplicity were needed, obscurity and complexity prevailed; and where publicity was urgently required by the plainest rule of common-sense, there secrecy was in effect invited and rewarded.

The early church was only too ready to take in hand the supervision of marriage and the development of matrimonial law. With regard to the form, as already shown, her progress was cautious and slow. Not until the thirteenth century, as a general rule, does the priest appear with authority as one especially qualified by his religious office to solemnize the nuptials. But long before this, in nearly every other respect save only the betrothal, the church was taking sole possession of the field of matrimonial law and jurisdiction.[1029] Yet the institution of marriage was accepted, as it were, under protest. Here and there, of course, the early Fathers admit the purity of the marriage state,[1030] but usually with a tone of apology or depreciation which is itself very suggestive of the pervading trend of the ascetic mind. If wedlock be holy, celibacy is much more holy. "It is better to marry than to burn," is a dictum which sounds the keynote of ecclesiastical dogma. "Few texts," declare Pollock and Maitland, "have done more harm than this. In the eyes of the mediæval church marriage was a sacrament; still it was but a remedy for fornication. The generality of men and women must marry or they will do worse; therefore marriage must be made easy; but the very pure hold aloof from it as from a defilement. The law that springs from this source is not pleasant to read."[1031]

[1029] ESMEIN, Le mariage en droit canonique, I, 3, 4, distinguishes the three phases in the growth of the canon law: "D'abord, elle s'est développée à côté du droit séculier, celuici restant indépendant et souverain dans son domaine, et n'a exercé qu'une action parallèle. Dans une seconde phase, elle a supplanté et éliminé le droit séculier, elle seule régissant le mariage dans l'Europe chrétienne. Enfin, devant un reflux puissant de la législation civile, elle a dû, dans le temps moderne, abandonner le terrain qu'elle avait ainsi occupé, pour garder seulement son autorité première, et reprendre son ancienne position."

[1030] For examples see IGNATIUS, Epis. to Philadel., c. iv; Epis. to Polycarp, c. v, in Ante-Nicene Fathers, I, 81, 95; JUSTIN, First Apol., cxv, ibid., 167; ATHENAGORAS, Plea for Christians, c. xxxiii, ibid., II, 147; CLEMENT OF ALEX., ibid., 259-63, 377-79. In this last passage Clement is less coarse than usual. "Marriage, then, as a sacred image," he concludes, "must be kept pure from those things which defile it." Cf. also TERTULLIAN, ibid., III, 293-95, 443; ORIGEN, To His Wife, ibid., IV, 40-44. Compare BUCKSISCH, De apostolis uxoratis, 9 ff., who holds that, with the exception of John and Paul, all the apostles had wives. In general, on the development of the early Christian conception of marriage from its Roman and Hebrew beginnings, see FREISEN, Geschichte des can. Eherechts, 32 ff.; ZHISHMAN, Das Eherecht der orient. Kirche, 93 ff.; SCHULTE, Der Cölibatszwang, 5 ff.; THEINER, Die Einführ. der erz. Ehelosigkeit, I, 5 ff.; STÄUDLIN, Geschichte der Vorstellungen und Lehren von der Ehe, 259 ff.; Letters on the Const. Celibacy of the Clergy, 22 ff., 51 ff.; Recherches phil. et hist. sur le célibat, 67 ff. On the influence of Paul's teaching see THWING, The Family, 47 ff.; and compare NISBET, Marriage and Heredity, 33-57, who takes an unfavorable view of the influence of the church as opposed to that of Christianity; and GAGE, Woman, Church, and State, 49 ff.; HUTH, Marriage of Near Kin, 108 ff.

[1031] POLLOCK AND MAITLAND, Hist. Eng. Law, II, 383. Compare the excellent account of the canonical conception of marriage in ESMEIN, Le mariage en droit canonique, I, 63-92. "Enfin, le mariage étant conçu comme un remède à la concupiscence, le droit canonique sanctionnait, avec une énergie toute particulière, l'obligation du devoir conjugal, non seulement dans le forum internum, mais encore devant le forum externum. De là toute une série de règles que les canonistes du moyen âge exposaient avec une précision minutieuse et une innocente impudeur, et qu'il est parfois assez difficile de rappeler, aujourd'hui que les mœurs ont changé et que l'on n'écrit plus en latin."--Ibid., 84, cited also by POLLOCK AND MAITLAND, II, 383. It is well, for instance, that the editors of the Ante-Nicene Fathers have concealed the "innocent immodesty" of Clement of Alexandria (The Instructor, c. x, ibid., II, 259 ff.; Stromata, Book III, ibid., II, 381 ff.) in the Latin version. The indecency of the Penitentials is so shocking as almost to justify Gibbon's severe epigram that in them "some sins are enumerated which innocence could not have suspected, and others which reason cannot believe."--Decline and Fall, chap. lviii, 1070. "I know of no more fatal sources of antichristian error," says Kemble of the Penitentials, "no more miserable records of the debasement and degradation of human intellect, no more frightful proofs of the absence of genuine religion."--Saxons, II, 403, 404. See the Poenitentiale Theodori, lib. i, c. ii: HADDAN AND STUBBS, Councils, III, 178, 179; and especially WASSERSCHLEBEN'S excellent collection of Bussordnungen.

The monstrous indecencies of the mediæval confessional are revealed by BOUVET, De la confession et du célibat des prêtres, 195 ff. On the other hand, a word of justification may be found in ELLIS, Psychology of Sex, I, pp. viii-ix.

Here we have a double paradox, two irreconcilable contradictions, which in due time produced their natural evil fruit. On the one hand, marriage is a sacrament, a holy mystery, yet it rests upon a mere human contract.[1032] On the other hand, though possessing a sacramental character, it is but a compromise with lust, from which the saint may well abstain. Hence a premium is placed upon sacerdotal celibacy, though for centuries priests are not absolutely forbidden to marry. Thus in England, at any rate until the days of Dunstan, celibacy had not been strictly enforced in the monastic bodies;[1033] and until a still later day marriage was practiced by the secular clergy,[1034] the priestly office in some instances practically becoming hereditary, passing on from father to son.[1035] But in the western church asceticism at last gained a complete victory; and the priest taking orders after marriage was obliged to put away his wife; while in both East and West marriage after the taking of orders was forbidden.[1036] The causes of the low esteem in which marriage was held by the early Christian theologians have been well described by Meyrick. "For some time before the Christian era a change of sentiment as to the relative excellence of the married and single life had been growing up among a section of the Jews. The national feeling was strongly in favour of marriage, and a man who was unmarried or without children was looked upon as disgraced. But the spirit of asceticism, cherished by the Essenes, led to an admiration of celibacy, of which no traces are to be found in the Old Testament; so that, instead of a shame, it became an honour to be unmarried and childless. In the early church this spirit, at first exhibiting itself only to be condemned in the Encratites," and some other sects, "struggled with a healthier feeling, till at length it stifled the latter. But another cause was working in the same direction. The days of chivalry were not yet; and we cannot but notice, even in the greatest of the Christian fathers, a lamentably low estimate of woman, and consequently of the marriage relationship. Even St. Augustine can see no justification for marriage, except in a grave desire deliberately adopted of having children."[1037] If "marriage is sought after for the sake of children, it is justifiable; if entered into as a remedium to avoid worse evils, it is pardonable; the idea of 'the mutual society, help, and comfort, that the one ought to have of the other, both in prosperity and adversity,' hardly existed and could hardly yet exist.[1038] In the decline of the Roman empire, woman was not a helpmeet for man, and few traces are to be found of those graceful conceptions which western imagination has grouped round wedded love and home affections. The result was that the gross, coarse, material, carnal side of marriage being alone apprehended, those who sought to lead a spiritual life, that is, above all, the clergy, instead of 'adorning and beautifying that holy estate' and lifting it up with themselves into a higher sphere and purer atmosphere, regarded it rather as a necessary evil to be shunned by those who aimed at a holier life than that of the majority."[1039]

[1032] The Council of Trent declared marriage to be a sacrament, but did not settle the mediæval dispute as to the relation of its different elements. A strong party held that it is necessary to distinguish between the contract and the sacrament. The church might regulate the former and not the latter, for it was established by Christ himself. This doctrine would logically have led to civil marriage, which the council was not ready to sanction. "In every sacrament a distinction is made between the minister, that is the agent who produces the sacrament, and its materia, the objective or real content." From this distinction arose an important controversy; one party regarding the priest, and the other the parties, as the minister of the sacrament. According to the former theory, which was adopted by the French church, the bare consent of the parties constituted the contract, and the marriage gained its sacramental character later through the priestly benediction. The form of valid contract as a temporal matter may therefore be determined by the state. As a direct consequence of this doctrine in the eighteenth century civil marriage arose in France: FRIEDBERG, Geschichte der Civilehe, 26-29; idem, Eheschliessung, 546 ff., 509 ff. Cf. SALIS, Publikation des trid. Rechts, 46 ff.; RIEDLER, Bedingte Eheschliessung, 12, 18 ff.; ESMEIN, Le mariage en droit canonique, I, 78 ff.; II, 159 ff. The modern Catholic church rejects the doctrine that there can be a distinction between the contract and sacrament, the parties being the ministers of the sacrament. Yet in effect a distinction is really made. The benediction, we are told, is not "necessary in order to the validity of the sacrament; but it is the presence of the parish priest, which is a necessary condition sine quâ non in order to the validity of the contract."--HUMPHREY, Christian Marriage, 70 ff., 73 ff.; OSWALD, Die dogmat. Lehre von den heil. Sakramenten, II, 501 ff. On this controversy see especially RICHTER, Lehrbuch, 1047-49; MEURER, "Die rechtl. Natur des trid. Matrimonialdecrets," ZKR., XXII; and SCHULTE, "Die Statthaftigkeit der Civilehe nach kath. Grundsätzen," ibid., XI, holding that the action of the Council of Trent regarding the marriage contract is not dogmatic in character, and that hence the state, without violating Catholic doctrine, may rightly institute a compulsory civil marriage form. Compare ROSKOVÁNY, De matrimonio in ecc. cath., 35-42; PERRONE, De matrimonio christ., I, 46-159.

[1033] KEMBLE, Saxons, II, 434 ff., 454, 455; LINGARD, Hist. Anglo-Saxon Church, I, 156-62; II, 235 ff., 260 ff.; STUBBS, CONST. HIST., I, 224; THEINER, Die Einführ. der erz. Ehelosigkeit, I, 267-69.

[1034] In 376 "a Gallic synod excommunicated those who should refuse the ministrations of a priest on the ground of his marriage," though this need not imply that the church resisted celibacy: KEMBLE, Saxons, II, 441. Married priests were still allowed in the western church in 961. "The priests were enjoyned not to marry without the leave of the Pope, on which account a great disturbance took place in the diocese of Teilaw, so that it was considered best to allow matrimony to the priests."--"Brut y Twigsog.," in HADDAN AND STUBBS, Councils, I, 286. For England there is abundant evidence of the marriage of priests, sometimes of bishops, even as late as the twelfth century: KEMBLE, op. cit., II, 443 ff.; HADDAN AND STUBBS, op. cit., III, 19 (temp. Gregory); II, 178 (Scotland); LEA, Sacerdotal Celibacy, 147, 159 ff., 197 (concubines), 271 ff.; THEINER, op. cit., II, 183 ff.; LINGARD, Hist. Anglo-Saxon Church, I, 156-62; II, 235, who thinks at first the rule of celibacy was enforced; STUBBS, Const. Hist., I, 223, 224, notes; ELLIS, Int. to Domesday, I, 342 (two examples, an. 1086); especially the excellent discussion of celibacy in England by MAKOWER, Const. Hist. Eng. Church, 212-24, where the sources are cited.

[1035] STUBBS, Const. Hist., I, 243, 244, notes; _Cod. Dipl._, xxxiii, cxlvi, ccxv, lxxx, cxxvii, lxxxii, cxxiv, clxix; HADDAN AND STUBBS, op. cit., II, 178 (Scotland); THEINER, op. cit., I, 321-47.

[1036] After centuries of struggle and divergent practice, this was decreed by the Roman council under Nicholas II., 1059; and by the first Lateran council under Calixtus II., 1123: MEYRICK, in Dict. Christ. Ant., II, 1100; Hard. Concil., tom. vi, 1052; vii, 1111. "The eastern church has never forbidden marriage before ordination to its presbyters, and has never laid upon them the burden of abstinence from their wives; and there is no doubt that the eastern discipline in this respect was the discipline of the whole of the early church." But eventually, in the East as well as the West, bishops were forbidden to have wives: MEYRICK, op. cit., 1098, 1099, where the sources are cited on the whole subject of the rise of celibacy. Cf. ZHISHMAN, Das Eherecht der orient. Kirche, 165 ff., 449 ff.; LYNDWOOD, Provinciale (ed. 1505), foll. xc-xcv; LINGARD, Hist. Anglo-Saxon Church, I, 156 ff.; KEMBLE, Saxons, II, 439 ff.; SCHULTE, Der Cölibatszwang, 5 ff.; Recherches phil. et hist. sur le célibat, 147 ff.; LEA, Sacerdotal Celibacy, 59 ff.; THWING, The Family, 74 ff.; GAGE, Woman, Church, and State, 49 ff., 55 ff.; NISBET, Marriage and Heredity, 44 ff.

[1037] Citing AUGUSTINE, Serm. ix, li, Op., tom. v, pp. 88, 345, ed. MIGNE. Augustine's view is that of the earlier Fathers; see the references in n. 2, p. 325, above, to which many more might be added. Cf. ESMEIN, Le mariage en droit canonique, I, 83-87; THEINER, Die Einführung der erz. Ehelosigkeit, I, 23 ff. (teachings of the "heretical sects"), 81 (teachings of the "Fathers"); Recherches phil. et hist. sur le célibat, 177 ff. (doctrines of the early "heretics").

[1038] In the Stromata, c. xxiii: Ante-Nicene Fathers, II, 378, CLEMENT OF ALEXANDRIA approaches the loftier view of marriage. "Philosophers" are "to take advantage of marriage for help in the whole of life, and for the best self-restraint." It is a "sacred image;" and "every foul and polluting practice" must be purged away from it.

[1039] MEYRICK, in Dict. Christ. Ant., II, 1198. The early theological conception of marriage is much lower than that of the mature Roman law: "Nuptiae sunt conjunctio maris et feminae et consortium omnis vitae, divini et humani juris communicatio": MODESTINUS, in Digest, xxiii, tit. 2, l. 1: Corpus juris civilis, I, 295. Cf. FREISEN, Geschichte des can. Eherechts, 22. As if to emphasize the paradoxical nature of the prevailing dogma, the Council of Trent anathematizes those who say "that matrimony is not truly and properly one of the seven sacraments;" as well as those who say "that the marriage state is to be placed above the state of virginity, or of celibacy, and that it is not better and more blessed to remain in virginity, or in celibacy, than to be united in matrimony."--WATERWORTH, Canons and Decrees, 194, 195. The Reformation Fathers constantly reproach their Roman antagonists with this anomaly and with having debased the state of marriage which is right for all according to the law of God and nature: see the Parker Society collection of the Works of Fathers and Early Writers of the Reformed English Church, General Index, at "Marriage," 515-17. Cf. the curious book of MADAN, Thelyphthora, or a Treatise on Female Ruin (2d ed., London, 1781), who endeavors to show that sacerdotal celibacy, the theory of impediments, and the invention of the sacrament of matrimony have lowered the ideal of marriage which is an institution divinely ordained for all men. He brings together in convenient form for reference a mass of extracts from the teachings of the Fathers, the papal and conciliar decrees, the utterances of the schoolmen, and other sources.

But, in spite of theology and priestly asceticism, there is little doubt that the loftier ideals and the gentler affections which we now associate with wedded life were beginning to make themselves felt in the early Christian family; just as despite the licentiousness found in the imperial and noble circles of the capital, most observed and doubtless exaggerated by historian and satirist, and notwithstanding the surviving coldness[1040] of the patriarchal age, the same ideas and sentiments, independently of Christian influences, must already have been springing up among the common people of the provinces, and presently in the Stoic families of the Antonine era were to reach a splendid development worthy of the days in which we live.[1041] It is doubtless true, as so often urged, that there is a bright side to the history of celibacy. Incidentally the monk organized schools, taught the barbarous tribes the dignity of labor, demonstrated the power of industry,[1042] and handed down to the men of the Renaissance some of the materials of classic learning. So, likewise, the convent afforded an outlet for the energy and the ambition of woman. Here in a large measure she enjoyed independence and could assert her individuality. "For the convent accepted the dislike women felt to domestic subjection and countenanced them in their refusal to undertake the duties of married life." The "outward conditions of life were such that the woman who joined the convent made her decision once for all. But provided she agreed to forego the claims of family and sex, an honorable independence was secured to her, and she was brought into contact with the highest aims of her age. At a period when monasteries, placed in the remote and uncultivated districts, radiated peace and civilization throughout the neighborhood, many women devoted themselves to managing settlements which, in the standard they attained, vied in excellence with the settlements managed by men." "The career open to the inmates of convents both in England and on the continent," continues Eckenstein, in summarizing the results of her valuable researches, "was greater than any other ever thrown open to women in the course of modern European history."[1043] Still, granting all that can be said for the conventual life, the motives which sustained it only throw into bolder relief the social evils of the age and the low ideal of marriage fostered by asceticism itself. History all too plainly shows that the benefits conferred by monasticism and the enforced celibacy of the secular clergy come far short of balancing the evils flowing from the conception of wedlock as a "remedy for concupiscence." The influence of the church did, indeed, tend to condemn the breach of conjugal fidelity by the husband as equally sinful with that of the wife; although this righteous principle has by no means always been observed in Christian legislation. On the other hand, celibacy bred a contempt for womanhood and assailed the integrity of the family.[1044] The gross immorality of the mediaeval clergy, regular and secular, and the shocking abuses of the confessional have often been recorded and fortunately need not here be dwelt upon.[1045]

[1040] FARRAR, Seekers after God, 10 ff.

[1041] CAPES, Early Empire, 223 ff., discusses the exaggeration of the satirists; and in his Age of the Antonines, 85, 86, 89, 90, 117 ff., he describes the family life of Marcus Aurelius and analyzes his meditations.

[1042] TAINE, Ancient Régime, 1-5.

[1043] ECKENSTEIN, Woman under Monasticism, 5, 478. This important and very interesting book throws much new light on the position of woman in the Middle Ages. The convent was a refuge from the "tyranny" of the family; and the author believes that the desire for independence was a survival of the "mother-age." The woman saint is thus a successor of the "tribal goddess" and the "heathen prophetess."

[1044] The doctrine that woman was the cause of the "original sin" arose among the early fathers of the church, and it was well established by the time of Augustine. At the Council of Macon (585) the question, "Does woman possess a soul?" was seriously discussed. "Upon one side it was argued that woman should not be called 'homo;' upon the opposite side that she should, because, first, the Scriptures declared that God created man, male and female; second, that Jesus Christ, son of a woman, is called the son of man. Christian women were therefore allowed to remain human beings in the eyes of the clergy, even though considered very weak and bad ones."--GAGE, Woman, Church, and State, 56.

Nevertheless for many this problem remained for centuries a topic for theological debate. In 1595 appeared ACIDALIUS'S Disputatio nova contra mulieres, qua probatur eas homines non esse. In the same year it was republished, with an answer, by SIMON GEDDICUS under the common title, Disputatio perjucunda, qua anonymus probare nititur mulieres homines non esse: cui opposita est Simonis Geddici sacros. theologiae doctoris defensio sexus muliebris (editio novissima, Hagae-Comitis, 1644). At the end Simon writes: "Scriptum Halae Saxonum, 10. Februarii, Anno Filii Dei nati, Hominis veri, ex Maria Virgine, homine vera, 1595."

Still later (1667) FEYERABEND, De privilegiis mulierum (3d ed., Jena, 1672), 2-5, starts with the inquiry, "an mulieres sint homines?"

[1045] For details consult THEINER, Die Einführung der erz. Ehelosigkeit, I, 44 ff., 54-60, 167 ff., 239, 296, passim; II, 183-209; III, 96-148 (contemporary evidence for the period 1448 to the Reformation), 305 ff. (influence of the Jesuits on morals); LEA, Sacerdotal Celibacy, 78 ff., 109 ff., 115 ff., 129, 135 ff., 161-77, 330-61, 566-80 (abuse of the confessional, especially since the Council of Trent), 631 ff.; idem, Hist. of Auricular Confession, I, 378-400 (solicitations), 240 ff., 261, 272, 426 ff.; LECKY, Hist. of European Morals, II, 120 ff., 148 ff., 316-72; HUTH, Marriage of Near Kin, 108 ff.; the vigorous arraignment of the church and the canon law for their alleged degrading influence on woman by GAGE, Woman, Church, and State, 49 ff., 113 ff., 152 ff.; and idem, in Hist. of Woman Suffrage, I, 753-99. For the opposite view read Christian Marriage, by REV. WILLIAM HUMPHREY, S. J.; ZIMMERMANN, Der Priester-Cölibat, 11 ff.; GIDE, La femme, 169-82; and compare THWING, The Family, 45 ff.; Letters on the Const. Celibacy of the Clergy, 266 ff., 294 ff.; and BOUVET, De la confession et du célibat des prêtres, 195-238, containing extracts from BURCHARD'S Decretorum, showing the abominable questions put to women. For the literature relating to celibacy (to 1887) see especially ROSKOVÁNY'S Coelibatus et breviarium (13 vols., 1861-88), enumerating 6,785 books, essays, and articles on the subject, of which (according to THEINER, op. cit., III, 379) 3,285 are antagonistic.

We may next consider the second member of the paradox, the dogma which constitutes the very basis of the canon law of marriage and the source of manifold hardships and confusion. By the second half of the twelfth century the doctrine that marriage is a sacrament was thoroughly established in the western church.[1046] The early Christian teachers had, indeed, regarded it as one of the many holy "mysteries" to which the name "sacrament" was given.[1047] But it was long before any of these were differentiated as distinct rites superior to the rest in religious efficacy. Not until 1164, in the fourth book of Peter Lombard's Sentences, do we find the first clear recognition of the "seven sacraments," among which that of marriage appears;[1048] and these were approved by The Council of Florence in 1439 and later by the Council of Trent.[1049] The theory of the sacramental character of wedlock had two consequences of vast importance for the history of matrimonial law. First is the dogma of the indissolubility of the marriage bond, involving the whole problem of separation and divorce, which must be reserved for discussion in another chapter;[1050] and, second, the exclusive jurisdiction of the church in matrimonial causes.[1051] This ecclesiastical function, like so many others, is of slow growth. "We are here confronted by a conception which certainly does not belong to the primitive sources. It is not by a revindication of principles that the church conquers jurisdiction in marriage. After having shared it with the state for centuries, she obtained it in the Middle Ages without partition;" and "when her competence was well established and a theory for it was required, it was justified by saying that the church alone could take cognizance of sacraments;" and "at the Council of Trent when this jurisdiction was solemnly affirmed in a canon sanctioned by anathema, the majority of the orators brought it expressly into connection with the sacrament."[1052] In England between the seventh and the twelfth centuries the ecclesiastical authority in matrimonial questions was slowly established. Gregory writes to Augustine concerning forbidden degrees.[1053] Later Theodore regulates marriage and divorce.[1054] "When the conqueror had paid the debt that he owed to Rome by a definite separation of the spiritual from the lay tribunals,[1055] it cannot have remained long in doubt that the former would claim the whole province of marriage law as their own. In all probability this claim was not suddenly pressed; the leges Henrici[1056] endeavor to state the old law about adultery; the man's fine goes to the king, the woman's to the bishop; but everywhere the church was beginning to urge that claim, and the canonists were constructing an elaborate jurisprudence of marriage. By the middle of the twelfth century, by the time when Gratian was compiling his concordance of discordant canons, it was law in England that marriage appertained to the spiritual forum."[1057] From the time of Glanville the "marriage law of England was the canon law."[1058]

[1046] Thoroughly to appreciate the nature of the controversy over the sacramental nature of marriage the writings of the Reformation Fathers should be studied. See General Index to the Parker Society publications; and cf. MADAN'S Thelyphthora, already mentioned.

[1047] The early Fathers render the Greek μυστήριον by sacramentum, which is defined by St. Augustine as "the visible form of invisible grace," or "a sign of a sacred thing"; Encyc. Brit., XXI, 131. Cf. also FRIEDBERG, Eheschliessung, 153, 154; FREISEN, Geschichte des can. Eherechts, 29 ff.; ZHISHMAN, Das Eherecht der orient. Kirche, 124 ff.; OSWALD, Die dogmat. Lehre von den heil. Sakramenten, I, 25 ff.; PERRONE, De mat. christ., I, 1-21; SCHULTE, Lehrbuch, 349; RICHTER, Lehrbuch, 1044, 1045; THWING, The Family, 81; and the monograph of BAIER, Die Naturehe in ihrem Verhältniss zur christlich-sakramentalen Ehe; AMAT, Treatise on Matrimony, 3 ff.

[1048] See the incunabula edition of PETRUS LOMBARDUS, Textus sententiarum (1488). Cf. MADAN, Thelyphthora, III, 262; NISBET, _Marriage and Heredity_, 46; FREISEN, _Geschichte des can. Eherechts_, 34 ff.; OSWALD, _Die dogmat. Lehre von den heil. Sakramenten_, I, 29; II, 458 ff.; CIGOI, Unauflösbarkeit, 107 ff.; PERRONE, De mat. christ., I, 22 ff.

[1049] Encyc. Brit., XXI, 132; WATERWORTH, _Canons and Decrees_, 193-96.

[1050] See chap. xi, below.

[1051] For the growth of ecclesiastical jurisdiction in the West see ESMEIN, Le mariage en droit canonique, I, chap. i.

[1052] Ibid., 73, 74, where the sources are cited; WATERWORTH, Canons and Decrees, 196.

[1053] HADDAN AND STUBBS, Councils, III, 20.

[1054] Ibid., 199-202.

The theories adopted and developed by the canonists favor the forming of marriages. "All those are urged to marry who are unable to bear the superior state of virginity or continence and who are not restrained by solemn vows." Consequently the canon law "renders the formation of marriage as easy as it had rendered its dissolution difficult."[1059] At first, as already explained, it adopted the Roman betrothal, which possessed no legal significance, the marriage beginning with the nuptials or actual living together. Later it accepted the principles of Germanic custom, according to which the legal effects of betrothal became far more stringent, and the marriage was perfected at the nuptials or tradition, and not through the Beilager, or physical union. Hence by the mediæval canon law, if the nuptials were solemnized by priestly benediction, though not followed by copula or physical union, a marriage was formed which could not be annulled by means of subsequent espousals thus consummated.[1060] Gradually, however, as the betrothal gained, the nuptials lost, in importance. Before the middle of the twelfth century the doctrine prevailed that the copula carnalis is the supreme legal moment in marriage.[1061] This theory, which had arisen with Hincmar of Rheims,[1062] is especially associated with the name of Gratian, in whose Decretum the arguments for and against it are weighed, with the result of its practical acceptance, though he tries to reconcile it with the Roman view, that the nuptial consensus constitutes the marriage.[1063] According to him, there are two degrees in marriage: one is the conjugium initiatum, arising in the simple consent of the espoused; second, the conjugium ratum, created by the copula carnalis and perfecting the former. The conjugium initiatum may be dissolved at pleasure; but the conjugium ratum is indissoluble. Thus the former is merely the Roman betrothal under another name. But the Bolognese jurists made it more stringent, assigning eight reasons for which alone such a marriage could be dissolved.[1064]

[1055] On the separation of the lay and spiritual jurisdictions see STUBBS, Const. Hist., I, 300, 307; idem, Select Charters, 85; idem, Lectures, 300. SCHMID, Gesetze, 357, and THORPE, Anc. Laws, II, 213, give William's law, the date of which is unknown. See also MAKOWER, Const. Hist. of English Church, 465, 466, 392 ff.

[1056] Leges Henrici Primi, 11, § 5.

[1057] POLLOCK AND MAITLAND, Hist. of Eng. Law, II, 365. The Concordia discordantium canonum, or Decree of Gratian, comprises the first volume of RICHTER AND FRIEDBERG'S fine edition of the Corpus juris canonici (Leipzig, 1879). The bringing together of the scattered rules of the ecclesiastical authorities by Ivo of Chartres in the reign of Henry I., and especially by Gratian (1151), was of vast importance in building up the ecclesiastical jurisdiction. On the history of the canon law see STUBBS, Lectures, 292-333; idem, Const. Hist., I, 308 ff.; DODD, Hist. Canon Law, 150 ff., 161 ff.; BLACKSTONE, Commentaries, I, 14, 15, 19; ESMEIN, Le mariage en droit canonique, I, 3 ff., 56 ff., 108 ff. The best account of the rise and jurisdiction of ecclesiastical courts in England will be found in MAKOWER, Const. Hist. of Eng. Church, 384-464.

[1058] POLLOCK AND MAITLAND, op. cit., II, 365, 366; GEARY, Marriage and Family Relations, 1 ff.

[1059] ESMEIN, op. cit., I, 85.

[1060] This is the view established by SOHM, Eheschliessung, particularly 120 n. 22, 151 n. 89. Compare SEHLING, Unterscheidung der Verlöbnisse, 1 ff., 14 ff., 34 ff.; SCHEURL, Kirch. Eheschliessungsrecht, 35 ff.

[1061] SOHM, op. cit., 150-52; idem, Trauung und Verlobung, 61 ff.; FRIEDBERG, Eheschliessung, 209; ESMEIN, op. cit., I, 83. RIEDLER, Bedingte Eheschliessung, 15 ff., discusses the different views as to the relation of consensus and the copula carnalis, in connection with the sacramental nature of marriage. See also FREISEN, Geschichte des can. Eherechts, 151 ff., 164 ff., on the whole subject.

[1062] SEHLING, Unterscheidung der Verlöbnisse, 33-59.

[1063] GRATIAN, Decreti sec. pars. causa xxvii, quest. ii, c. 16 ff.: RICHTER AND FRIEDBERG, Corpus juris canonici, I, 1069 ff. Cf. ESMEIN, op. cit., I, 97-119; SOHM, Eheschliessung, 111 ff.; FREISEN, op. cit., 164 ff.; SCHEURL, op. cit., 58-75; SEHLING, op. cit., 81 ff.; HEUSLER, Institutionen, II, 290; DIECKHOFF, Die kirch. Trauung, 115 ff.

[1064] On the whole subject see ESMEIN, op. cit., I, 97-119.

The theory of the classic canon law, formulated by Gratian, that there is no marriage "until man and woman have been one flesh,"[1065] does not receive so much emphasis in any other legal system.[1066] It had far-reaching consequences in matrimonial jurisprudence.[1067] Marriage became a simple consensual compact. "In strictness of law all that was essential was this physical union accompanied by the intent to be thenceforth husband and wife. All that preceded this could be no more than an espousal (desponsatio) and the relationship between the spouses was one which was dissoluble; in particular it was dissolved if either of them contracted a perfected marriage with a third person."[1068]

[1065] POLLOCK AND MAITLAND, op. cit., II, 366.

[1066] ESMEIN, op. cit., I, 83. Esmein traces the origin of this doctrine of the canonists in part to the influence of the "popular" or "naturalistic" view of marriage; in part to certain texts of the Old and New Testament (particularly Gen. 2:23, 24; 1 Cor. 16:16): and in part to the conception of marriage as a remedy for concupiscence: op. cit., 83, 84, 97 ff. Cf. POLLOCK AND MAITLAND, op. cit., II, 367 n. 1; FREISEN, op. cit., 173.

[1067] It affected the "théorie de la formation et de la dissolution du mariage, théorie de la nullité pour cause d'impuissance, théorie de l'affinité, théorie des droits et des devoirs des époux."--ESMEIN, op. cit., I, 83.

[1068] POLLOCK AND MAITLAND, op. cit., II, 366.

But before the close of the twelfth century theological subtlety had conceived and gained the acceptance of a distinction in the forms of contract which was fatal to the security of the marriage bond. The famous classification of contracts as sponsalia per verba de praesenti and sponsalia per verba de futuro, though its principle was earlier asserted, is due mainly to Peter Lombard;[1069] and through the influence of Alexander III. ("Magister Rolandus") it was accepted generally by the western church.[1070] The theory of Lombard represents the triumph of Gallic theology over the doctrine of Gratian, as maintained by the Italian jurists; and, in effect, it is an attempt to combine the principles of the Roman with those of the German--that is to say, the canonical--betrothal.[1071] In sponsalia de praesenti, in words of the present tense, the man and woman declare that they take each other now, from this moment onward, as husband and wife. Such a contract is a valid marriage, though not followed by actual wedded union; and since in theory it is a real marriage, it is necessarily sacramental in character. It creates a bond which can be dissolved only with the greatest difficulty. It constitutes "at all events an initiate marriage; the spouses are coniuges; the relationship between them is almost as indisseverable as if it had already become a consummate marriage. Not quite so indisseverable however; a spouse may free himself or herself from the unconsummated marriage by entering religion, and such a marriage is within the papal power of dispensation."[1072] But even the unconsummate marriage de praesenti cannot be dissolved by a subsequent marriage which either party may contract, though followed by wedded union.[1073] Espousals de futuro, on the other hand, are a promise for future joining in marriage. Physical union when preceded by such a contract is held to constitute a binding marriage. The canonists went farther than this, as Esmein declares, and "in a way set a snare for human nature to beguile the imprudent into the matrimonial state" through the theory of "presumptive marriage." The copula carnalis was made a legal ground for assuming the foregoing promise to wed. "The rule was laid down that it is always necessary to judge in favor of marriage unless the contrary be clearly understood."[1074] Moreover, the church steadily refused to make the validity of marriage depend upon forms and conditions such as the civil law prescribes. There was no absolute requirement of parental consent[1075] or of a certain age. All persons on reaching the years of puberty were declared capable of wedlock solely on their own authority. No religious ceremony, no record, or witness was essential. The private, even secret, agreement of the betrothed, however expressed, was declared sufficient for a valid contract.[1076] All these things might be enjoined under sanction of severe discipline for their neglect; but the marriage, if formed without them, was not the less binding. A puzzling and disastrous antagonism between legality and validity was thus created. Even the Council of Trent, while making the validity of the marriage depend upon its conclusion in the presence of a priest and two or three witnesses, declined to go farther and give an equal sanction to banns, registration, or the benediction, though these were enjoined in its decree. After the council as well as before children barely arrived at the age of puberty might contract a valid marriage without the consent, or even against the will, of their parents.[1077] In short, as Esmein has so well shown, lest without a safety-valve the temptations of the flesh should become too strong for weak human nature, and lest access to a sacrament should be hindered, it was deemed necessary to discard all restraints originating in mere "human convention."[1078] It is a noteworthy fact that the dogma of marriage as a sacrament came near being a fatal obstacle in the way of the action of the Council of Trent against secret marriages.[1079] For how could the church legislate concerning a holy mystery which Christ himself had given her, without suggesting the human nature of the matrimonial contract and by implication admitting the right of the state to exercise a similar control? But even in this domain her exclusive jurisdiction was affirmed.

[1069] Peter Lombard (d. 1164) was a professor in the University of Paris, and later was ordained a bishop: cf. SOHM, Eheschliessung, 121 ff.; ESMEIN, op. cit., I, 119 ff. His theory is set forth in the Sententiae, lib. iv, dist. 27, 28: "Efficiens autem causa matrimonii est consensus, non quilibet, sed per verba expressus: nec de futuro sed de praesenti. Si enim consentiunt in futurum, dicentes, Accipiam te in virum, et ego te in uxorem, non est iste consensus efficax causa matrimonii": dist. 27, § 3. "Consensus, id est pactio conjugalis, matrimonium facit, et extunc est conjugium etiamsi non praecessit, vel secuta est copula carnalis": dist. 27, § 4. The consensus, if expressed by a verb of the present tense, accipio te, constitutes a valid marriage without copula. Opposed to this is a promise, expressed by a verb in the future tense, accipiam te, which is binding only when followed by copula. Compare TANCRED, Summa de mat., 3 ff.; and see the masterly discussion of the history of the distinction, in SOHM, op. cit., chap, iv, and his Trauung und Verlobung, 73-109. Cf. SCHEURL, Kirch. Eheschliessungsrecht, 76 ff.; DIECKHOFF, Die kirchl. Trauung, 115 ff.; SEHLING, Unterscheidung der Verlöbnisse, 72 ff., 115 ff.; FREISEN, Geschichte des can. Eherechts, 179 ff., 205 ff.; KENT, Commentaries, II, 87; BISHOP, Marriage, Divorce, and Separation, I, §§ 313 ff., 353 ff.; FRIEDBERG, Eheschliessung, 203, 206; STEPHENS, Laws of the Clergy, I, 672 ff.; especially POLLOCK AND MAITLAND, Hist. of Eng. Law, II, 366 ff.; ESMEIN, op. cit., I, 119-37; SALIS, Die Publikation des trid. Rechts, 2, 3.

[1070] SOHM, Eheschliessung, 124 ff.

[1071] This is proved by SOHM, op. cit., chap, iv; idem, Trauung und Verlobung, chap, iii; and by ESMEIN, op. cit., I, 119-37.

Magister Vacarius, who lived in England ca. 1148-98 and probably taught law at Oxford, has a theory differing from that of Gratian or Lombard. According to him, the "true act of marriage, the act which marks the moment at which the marriage takes place, is the mutual delivery (traditio) of man and woman each to each. Of course as a condition there must exist a pact of the appropriate kind.... Again, as a condition there must be the natural power of effecting a carnal union; but the carnalis copula is unessential." The marriage is made by the tradition: MAITLAND, "Magistri Vacarii summa de matrimonio," Law Quart. Rev., XIII, 136-38. In the same volume, 270-87, MAITLAND publishes the text of the Summa.

On the two kinds of canonical sponsalia see the dissertations described in Bibliographical Note VIII.

[1072] POLLOCK AND MAITLAND, op. cit., II, 366.

[1073] This doctrine was already sanctioned by Innocent III. (1130-43): ESMEIN, op. cit., I, 126.

[1074] ESMEIN, op. cit., I, 85. Cf. POLLOCK AND MAITLAND, op. cit., II, 366.

[1075] The effect of this neglect on clandestine marriage is forcibly described by LUTHER, Tischreden, foll. 355, 356. "Dass aber die Juristen fürgeben und anziehen den Canon, und sagen: Dass der Eltern Autoritet, Rath, und Will wol Ehren halben möge dabey sein, aber nicht auss not, dass es also sein müsste, denn die Bewilligung derer, die mit einander wollen Ehelich werden, ist die Substantz, die nötig ist. Der Eltern will aber ist ein accidens, ein zufellig ding, das nur Erbarkeit und Ehrenhalben geschieht, macht aber noch hindert nicht die Ehe.

"Es ist ein Gottloser Canon, und der Canonisten wahn wider Gott, gleich als ein Buler, der in der ersten Brunst und unsinnigkeit daher gehet, nicht viel nach Erbarkeit fragt. Also gehet der Eltern autoritet, ansehen, gewalt, und gehorsam zu Boden."

On the marriage of minors see SELDEN, Uxor ebraica, 99-104; Opera, III, 605-8; MORGAN, Marriage, Adultery, and Divorce, I, 283 ff.; LAUGINGER, De consensu parentum, quaest. viii ff.; LOHEN, De parentum ad nuptias a liberis contrahendas consensu (Regiomonti, 1685).

[1076] On the lack of prescribed conditions see ESMEIN, op. cit., I, 149 ff.; FREISEN, _Geschichte des can. Eherechts_, 307-29.

[1077] SALIS, Die Publikation des trid. Rechts, 14, 15, 31 ff.; FRIEDBERG, Eheschliessung, 103, 122, 123; FLEINER, Die trid. Ehevorschrift, 3; WATERWORTH, Canons and Decrees, 196 ff., ccxxvi ff.

[1078] ESMEIN, op. cit., I, 85, 86; POLLOCK AND MAITLAND, op. cit., II, 367-72; SALIS, op. cit., 3, 4.

[1079] Ibid., 44-47, notes, where the evidence is collected from the sources. Cf. also RIEDLER, _Bedingte Eheschliessung_, 12, 18 ff.; ESMEIN, op. cit., I, 78 ff.; II, 159 ff.; FRIEDBERG, op. cit., 109; WATERWORTH, op. cit., pp. ccxxv ff., 193-96.

II. CLANDESTINE MARRIAGES THE FRUIT OF THE CANONICAL THEORY

The way was thus cleared for clandestine marriages. All efficient restraints upon hasty unions were rejected; and often it became impossible for the courts or even the parties themselves to know whether a man and a woman were legally husband and wife or their children legitimate. Seldom have mere theory and subtle quibbling had more disastrous consequences in practical life than in the case of the distinction between sponsalia de praesenti and de futuro. The difference was not essential, but purely verbal.[1080] The canonist had before his mind the tense inflections of a Latin verb. He insisted on a distinction which found no place in popular ideas and which the usages of popular speech refused to observe. In the English as well as the German idiom the contrast between the present and the future tense is not always sharply defined.[1081] This anomaly is described by Martin Luther in his usual trenchant style. "They have played a regular fool's game," he says, "with their verbis de praesenti vel futuro. With it they have torn apart many marriages which were valid according to their own law, and those which were not valid they have bound up.... Indeed I should not myself know how a churl ... would or could betroth himself de futuro in the German tongue; for the way one betroths himself means per verba de praesenti, and surely a clown knows nothing of such nimble grammar as the difference between accipio and accipiam; therefore he proceeds according to our way of speech and says: 'I will have thee,' 'I will take thee,' 'thou shalt be mine.' Thereupon 'yes' is said at once without more ado."[1082]

[1080] SOHM, Eheschliessung, 133 ff.; idem, Trauung und Verlobung, 1 ff., has demonstrated that in their "content" the two kinds of sponsalia are identical; the one is no more nor less a betrothal than the other, each looking to a subsequent perfected marriage. The distinction is not "eine Unterscheidung verschiedener Thatbestände, sondern nur eine verschiedene rechtliche Behandlung desselben Thatbeständes."--Eheschliessung, 137. The differences in tense were arbitrarily made to have different legal consequences.

On the controversy as to the legal significance of the two kinds of sponsalia with Sohm compare SCHEURL, Kirch. Eheschliessungsrecht, 76-107; idem, "Zur Geschichte des kirch. Eheschliessungsrechts," ZKR., XV, 65-92, who agrees with Sohm that both species of sponsalia are forms of betrothal (Verlobungen), but insists that they have different legal consequences. This article is criticised by BIERLING, "Kleine Beiträge," ZKR., XVI, 288-316; who is answered by SCHEURL, "Consensus facit nuptias," ibid., XXII, 269-86. See also DIECKHOFF, Die kirch. Trauung, 115 ff.; SEHLING, Unterscheidung der Verlöbnisse, 40 ff., 60 ff., 72 ff.; LYNDWOOD, Provinciale (Oxford, 1679), lib. quart., tit. I, 270, 271; SANCHEZ, Disputat. de s^{to}. mat. sac., I, 3-220; SELDEN, Uxor ebraica (ed., 1673), 92 ff., or Opera, III, 599 ff.

[1081] "Es kam hinzu, das der Gegensatz der Zeitform in der deutschen Sprache regelmässig überhaupt unerkennbar war, denn zu deutsch heisst es nicht: 'ich nehme dich,' noch: 'ich werde dich nehmen,' sondern 'ich will dich nehmen.'"--SOHM, Eheschliessung, 135.

[1082] "Ja, ich wüsste selbs nicht wol, wie ein Knecht oder Magd sollten oder kunnten in deutscher Sprache per verba de futuro sich veloben; denn wie man sich verlobet, so laut's per verba de praesenti, und sonderliche weiss der Posel von solcher behender Grammatica nichts, dass accipio und accipiam zweierlei sei; er führet daher nach unserer Sprachen Art und spricht: 'Ich will Dich haben,' 'ich will Dich nehmen,' 'Du sollt mein sein,' etc. Da ist die Stunde ja gesagt ohn weiter Aufzug oder Bedenken."--LUTHER, "Von Ehesachen," Werke (Erlangen ed.), XXIII, 102, 103; also in Bücher und Schriften (Jena, 1561), V, 240, 241; and in STRAMPFF, 318, 319. This whole interesting passage, of which a portion is translated in the text, is given by SOHM, Eheschliessung, 139; and by FRIEDBERG, Eheschliessung, 206, 207. Cf. also LUTHER'S Tischreden (Frankfort ed., 1571), c. 36, p. 356. Luther's view is accepted by SCHEURL, Das gemeine deutsch. Eherecht, 64; and SALIS, Die Publikation des trid. Rechts, 3.

That German rustics were not the only lovers caught in the meshes of grammatical forms appears from the following passage written toward the close of the Tudor period by Swinburne, who nevertheless defends the canonical distinction, whether the contract be made in the Latin or in the vulgar tongue.[1083] After refuting, as he believes, the reasoning of those who hold that the forms "I will take thee to my wife" ("Ego volo te accipere in uxorem") and "I do take thee to my wife" ("Ego accipio te in uxorem") are equally a contract in the present tense, he proceeds to attack the argument "drawn from the Simplicity of the Vulgar sort, who albeit they intend to tye such a Knot as can never be loosed, and make the Contract so sure as it may never be dissolved; yet such is their unskilfulness and ignorance herein, that they cannot frame their words to their minds, nor know whether it be all one to say 'I will take thee to my wife' or 'I do take thee to my wife,' much less do they know the difference betwixt these words, 'I will marry thee' and 'I will have thee to my wife,' or betwixt these words, 'I will take thee to my wife' and 'I will hold thee for my wife,' or betwixt these words, 'I will espouse thee' and 'I will intreat thee as my wife,' or betwixt these words, 'I will Contract Matrimony with thee' and 'I will provide for thee as my Wife,' or betwixt these words, 'I will make thee my wife' and 'thou shalt be my Wife,' with an hundred such differences wherein appeareth no dissimilitude. And therefore, since it is the very Consent of Mind only which maketh Matrimony, we are to regard not their Words, but their Intents, not the formality of the Phrase, but the drift of their Determination, not the outward sound of their Lips, which cannot speak more cunningly, but the inward Harmony or Agreement of their Hearts, which mean uprightly." Otherwise, especially in case of people of the "ruder sort, whose Sayings are to be expounded with all favour to the furtherance of Matrimony," if "we shall curiously descant upon every word proceeding from a simple Conceit, we cannot but miss of their meanings, and with our fine and dainty Distinctions (which never came within the compass of their gross Understandings) incumber the Consciences of them which be coupled.... Lest therefore any Man's Conscience (through ignorance of Terms) might be intangled in the Snares of this subtle and more captious Distinction of 'I will' and 'I do' with the rest of the Differences more subtle and more captious, ... are the same to be rejected, and this reasonable and conscionable Conclusion received ... where two intend to Contract Spousals de praesenti, there is Matrimony always contracted, although the words import but future Consent only."[1084] Time has approved the soundness of this plea, in spite of the remonstrance of Swinburne and the logic of the worthy doctors whom he cites.

[1083] SWINBURNE, Of Spousals, 55-73, gives a most interesting discussion of the verbal difficulties arising in sponsalia de praesenti vel futuro, comparing the legal writers for and against the distinction.

[1084] Ibid., 62 ff. Cf. JEAFFRESON, Brides and Bridals, I, 114 ff., 124-37 (on "Pre-Contracts" before and after the Reformation).

Scholastic hairsplitting had set a veritable trap for the feet of the unwary. "Of all people in the world lovers are the least likely to distinguish precisely between the present and the future tenses. In the Middle Ages marriages, or what looked like marriages, were exceedingly insecure. The union which had existed for many years between man and woman might with fatal ease be proved adulterous, and there would be hard swearing on both sides about 'I will' and 'I do.'"[1085] Accordingly the ecclesiastical courts were given a dangerous power[1086]--a perilous discretion in matrimonial causes, which, however wisely exercised, was sure to work much hardship and injustice. Since in substance espousals de praesenti and de futuro were identical, differing only in the consequences which the law attached to the tense form, it was inevitable that decisions should be arbitrary and wavering; and, as a matter of fact, practically the same form of contract was held at one time to constitute sponsalia de praesenti; at another, a promise de futuro;[1087] and the Liber officialis of St. Andrews, Scotland, contains the record of a divorce granted from a second union because the man had already contracted a previous marriage in these words: "I promyth to yow Begis Abirnethy that I sall mary yow, and that I sall neuere haiff ane uther wiff and therto I giff yow my fayth." It is a striking illustration of the entanglements resulting from the canonical theory that this contract is styled in the record "both sponsalia de futuro and praesenti."[1088] The worst of it was that the spiritual salvation or damnation of the man and woman, the genuineness of whose union was in question, depended upon the decision. The valid marriage was no less a sacrament, though dissolved through ignorance, error, or perjury; and the invalid marriage was no more a sacrament, though in the same way declared binding. For by a rule of the spiritual courts, in a suit growing out of a secret marriage, the plaintiff who affirmed the validity of the espousals, if the fact were denied by the defendant, had to prove his allegation. If he failed to do so--and this might easily happen, since often the espousals were formless and absolutely without witness[1089]--the case was dismissed, the contract dissolved, and the parties were free to form new marriages elsewhere. But if the secret marriage were after all really valid, and therefore a sacrament, though not sustained for lack of proof, the husband and wife were still bound in their consciences; and if either should form a second union with another person, though it were publicly solemnized in face of the church, he would be guilty of the sin of bigamy.[1090] To the existence of this cruel embarrassment Luther bears witness in a characteristic passage of his Tischreden.[1091] "Now the pope and the jurists say that marriage may never be dissolved. What happens? The wedded people fall out and separate. So they come to me in the cloister or wherever an official can be found and swear themselves apart; then they marry again. Thereafter they come to me or to some confessor and say: Dear sir, I have now a wife whom I espoused secretly. What am I to do about it? Help me, dear Doctor, lest I despair. For Greta whom I first married is my proper wife. But this Barbara whom I espoused later is not my wife, and yet must I not sleep with her? The former I dare not take, though I should like to have her if I could; but I cannot for I have another wife and she likewise has another husband; yet no one knows that she is my wife except God in heaven. O, I shall be damned, I know not what to do!"[1092] Luther's testimony is fully sustained by similar evidence afforded by the proceedings and decrees of the Council of Trent.[1093]

[1085] POLLOCK AND MAITLAND, Hist. of Eng. Law, II, 367.

The rule laid down by Anselm in 1102, already mentioned, really invites such "hard swearing": "Promises of marriage made between man and woman without witnesses" are to be "null if either party deny them."--JOHNSON'S Canons, 11, 27. The following is an example of what repeatedly happened in the ecclesiastical courts: "Omnium Sanctorum Honylane.--Thomas Potynger comparuit coram comissario [of London] in domo officii xxii die Augusti [1481], et prestitit juramentum, quod nunquam contraxhit matrimonialiter cum Margareta Hudson de eadem, ibidem presente, et confitente, quod nullum testem habuit ad probandum contractum, et ideo commissarius remisit eos regulae conscientiarum suarum."--HALE, Precedents and Procds. in Crim. Causes, 5. For another example see ibid., 6.

[1086] They obtained a Freibrief, or license, for their practice: SOHM, Eheschliessung, 138. Cf. FRIEDBERG, Eheschliessung, 16 ff., on the abuses of matrimonial jurisdiction.

[1087] "The promise, se ducturum in conjugem, or one similar, is conceived to be consensus de futuro in c. 5, 15, 17, 22x. de sponsal. (4, 1); but as consensus de praesenti in c. 5x. de sponsa duor. (4, 3)."--SOHM, Eheschliessung, 135 n. 51.

[1088] Ex et pro eo quia dictus David diu ante solemnizationem dicti pretensi matrimonii ... alia sponsalia tam verba de futuro quam de praesenti cum Margareta Abirnethy, impressentiarum superstite, carnali copula subsecuta, contraxit," etc.--FRIEDBERG, Eheschliessung, 58; Liber officialis S. Andree, 21. This book, 19, 33, 66, 73, 75, contains, according to Friedberg, other records of marriages de futuro, sometimes copula subsecuta, dissolved on account of later sponsalia de praesenti. Cf. also SOHM, op. cit., 135.

[1089] In the spiritual courts two good witnesses were required to establish a fact. On the "proof of marriage" see ESMEIN, Le mariage en droit canonique, I, 189 ff.; II, 127 ff.; POLLOCK AND MAITLAND, Hist. of Eng. Law, II, 382 ff.; Law Review (English), I, 378 ff.

[1090] SALIS, Die Publikation des trid. Rechts, 6, 7; POLLOCK AND MAITLAND, op. cit., II, 382, 383; ESMEIN, op. cit., I, 189 ff.; II, 127 ff.; FRIEDBERG, Eheschliessung, 102 ff.; SOHM, Eheschliessung, 187 ff.

[1091] Da spricht der Papst und die Juristen, die Ehe dürfe nimmermehr gescheiden werden. Was geschah? Die Eheleute wurden darnach uneins und schieden sich wieder von einander. Also ging mirs im Kloster auch; oder wo man fur den Official kam, so schwur sich eines vom andern, freieten wieder. Darnach kamen sie zu mir oder einem Andern in die Beichte und sprachen: Lieber Herr, ich habe itzt eine Frau, der hab ichs heimlich gelobt; wie thue ich ihm immermehr? Helft mir, lieber Herr Doctor, dass ich nicht verzweifele. Denn Greta, mit der ich mich am ersten verlob hab, ist mein recht Eheweib. Aber diese Barbara, die mir darnach vertrawet, ist nicht mein Weib und muss doch bei ihr schlaffen? Jene darf ich nicht nehmen, die ich doch gerne möcht haben, da es sein könnte; aber ich kann nu nicht, denn ich habe eine Andere, so hat sie auch einen Andern: doch weiss es Niemand, dass sie mein Weib ist, denn allein, Gott im Himmel, dem ist bewust. O, ich werde verdampt, ich weiss keinen Rath."--"Tischreden," in Werke (Erlang. ed.), LXII, 229; quoted also in SALIS, 7, 8, who gives other proofs; likewise in SOHM, op. cit., 189, 190; FRIEDBERG, op. cit., 102; and ESMEIN, op. cit., II, 129.

[1092] In LUTHER'S "Von Ehesachen," Werke (Erlang., XXIII, 98), is another interesting passage forcibly describing the danger of bigamy through the confusion wrought by clandestine marriages. The passage is also in STRAMPFF, Luther: Ueber die Ehe, 313 ff.; and it is partly quoted by SOHM, op. cit., 188, 189.

[1093] RICHTER-SCHULTE, Canones et dec. conc. trid., 216 ff.; PALLAVICINO, 1st. conc. Trent., IV, lib. XXII, 1, 16; THEINER, Acta gen. conc. trid., II, 314, 335. Cap. 1 of the decree of the council for the reform of marriage contains the following: "Cum sancta synodus animadvertat prohibitiones illas propter hominum inoboedientiam jam non prodesse, et gravia peccata perpendat, quae ex eisdem clandestinis conjugiis ortum habent, praesertim vero eorum qui in statu damnationis permanent, dum priore uxore cum qua clam contraxerant, relicta cum alia palam contrahunt et cum ea in perpetuo adulterio vivunt, cui malo cum ab ecclesia, quae de occultis non judicat, succurri non possit, nisi efficacius aliquod remedeium adhibeatur;" also in WATERWORTH'S Canons and Decrees, 196, 197. Compare the passage on the evil resulting from the canon law of marriage in the address with which Hieronymus Ragazzoni opens the last or xxv. solemn session of the council: THEINER, Acta gen., II, 502. See this and other excerpts in SALIS, op. cit., 1, 9, passim.

The evil of clandestine marriages prevailed generally throughout Christendom.[1094] The provincial church councils as well as the temporal powers, local and national, were kept busy in devising penalties or other restraints in the vain hope of putting a stop to it. Such was the case in Holland, where, in spite of the decrees of the church and the statutes of the state, secret marriages, without the presence of witness, magistrate, or priest, were common.[1095] The same is true of Portugal;[1096] and Pope Alexander III. confesses that they were frequent in Italy, at least in the bishopric of Salerno, and they gave rise to vexatious litigation.[1097] Suits were sometimes brought to enforce an alleged secret marriage for impure purposes. So severe were the provisions of Swiss legislation to check this evil, toward the close of the Middle Ages, that even the innocent were deterred from appealing to the courts to enforce their matrimonial rights. Before bringing suit security was required; and the unsuccessful plaintiff was fined and compelled to pay damage.[1098] "Against a Zürich law of this kind an official of Konstanz remonstrates, declaring that 'without doubt there are in the bishoprick of Konstanz hundreds of persons who before the Lord God are married people, legally joined together, and yet who are so much in dread of the penalty as not to dare to enforce their legal rights against one another.'"[1099] At the Council of Trent report was made of secret marriages in Africa[1100] and the West Indies;[1101] while in Germany they gave trouble both to the temporal and spiritual law-maker long after the Reformation.[1102] The uncertainty and complexity of matrimonial law bore their natural fruit in Spain[1103] and in France.[1104] It was the king of France who through his oratores, or representatives, brought before the Council of Trent the proposal which prevailed to reform the abuse by making the validity of marriage depend upon its public solemnization;[1105] while a measure of Alfonso the Wise of Castile, in 1258, not only defines the well-known three kinds of clandestine marriages, but shows clearly, what Gratian[1106] had already pointed out, that the permanence or dissolution of such a marriage really depends upon the will of the parties themselves, or even one of them. "Three kinds of marriage are called 'secret;' the first is one concluded privately and without witnesses, so that it cannot be proved. The second is one formed before witnesses, but without the consent of the bride's father, or mother, or other relative in whose protection she is, and without payment of the arrha or observing the other forms (honors) which holy church demands. The third is one whose banns have not been published in the parish where the parties live.... The reason why the holy church forbids secret marriages is this: When a difference arises between the wedded pair, and the one will no longer live with the other, the church has no means to prevent the separation, even when in truth a marriage exists; because it cannot be proved. For the church cannot pass judgment on secrets; but only on the allegations of the parties which are proved."[1107]

[1094] In general see FRIEDBERG, Index, at "Ehe, heimliche;" SALIS, op. cit., 1-14; SOHM, op. cit., 187 ff., 132 ff.; ESMEIN, op. cit., II, 121 ff.; I, 189 ff.; GEARY, Marriage and Family Relations, 434 ff., Index; POLLOCK AND MAITLAND, op. cit., II, 367 ff., 382; SCHELHAS, De clandestinis sponsalibus juratis (Jena, 1716); LYNDWOOD, Provinciale (Oxford, 1679), 273 ff.; SANCHEZ, Disputat. de s^{to}. mat. sac., I, 221-358. LUTHER'S "Von Ehesachen," Bücher und Schriften, V, 237-57, is largely devoted to a discussion of secret betrothals.

[1095] FRIEDBERG, op. cit., 66-69.

[1096] Ibid., 75.

[1097] SALIS, op. cit., 8; FRIEDBERG, op. cit., 75-77.

[1098] SALIS, op. cit., 8, 9; ap. Zeitschrift für schweiz. Recht, 1878, XX, 114 ff.

[1099] "Und ist ungezwyfelt, es sitzen im Bisthum Costanntz hundert und aber hundert parthyen, die vor Gott dem Herrn Eelüt sin und mit recht zusammen gewyst wurden, und doch umb sorg des penfals einander mit gepürlichen Rechten nit thüren fürnemmen."--SALIS, op. cit., 9.

[1100] See the letter of Mutio Calini to Cardinal Luigi Cornara, July 29, 1563, in SALIS, op. cit., 13.

[1101] THEINER, Acta gen., II, 367, 513; PALLAVICINO, 1st. conc. trid., Vol. IV, lib. xxii, 4, 24; SALIS, op. cit., 12.

[1102] FRIEDBERG, Eheschliessung, 79, 260, 261.

[1103] Ibid., 71-74; SALIS, op. cit., 11, 12.

[1104] FRIEDBERG, op. cit., 62 ff., 499; SALIS, op. cit., 9, 11, 12.

[1105] THEINER, op. cit., II, 316; SALIS, op. cit., 9; FRIEDBERG, op. cit., 110.

[1106] "Coniugia, que (quae) clam contrahuntur, non negantur esse coniugia, nec iubentur dissolui, si utriusque confessione probari poterunt: uerumtamen prohibentur, quia mutata alterius eorum uoluntate, alterius professione fides iudici fieri non potest. Unde publice, cum alterius uota in alteram partem se transtulerint, pro priore coniugio, quod iudici incertum est, sentencia ferri non poterit."--GRATIAN, Decreti sec. pars causa xxx, quest. v, c. ix: RICHTER-FRIEDBERG, Corpus juris can., I, 1107. The passage is also quoted from different text by SALIS, op. cit., 6, who adds the statement of the cardinal of Lothringen at the Council of Trent: "Clandestinum matrimonium est causa disjunctionis conjugum; tales enim cum nullos habeant testes matrimonii contracti, pro libito possunt separari."--Ap. THEINER, op. cit., II, 314.

[1107] The document, of which a part is translated in the text, will be found in FRIEDBERG, op. cit., 72, 73. On the kinds of clandestine marriage see SALIS, op. cit., 5, 6; BOHN, Pol. Cyc., III, 320; ESMEIN, Le mariage en droit canonique, I, 181 ff.; LYNDWOOD, Provinciale, 276.

Nowhere perhaps is the history of secret marriages so interesting as in Scotland[1108] and mediæval England. Many proofs and illustrations from literature, early rituals, law-books, and judicial decisions have been collected by Friedberg.[1109] Usually the nuptials were celebrated in presence of a priest at the church door according to popular forms, or, in the later period, according to more elaborate religious rites. But by custom the simple hand-fasting, with or without giving to the bride a penny or piece of gold, sufficed; and the hand-fasting is found also in connection with the ecclesiastical ceremony. Even in the case of secret marriages "it is characteristic that mention is almost always made of the presence of a priest who confers his blessing."[1110] Miles Coverdale's translation of Bullinger's Christen State of Matrimonye (ca. 1541) contains the following instructive passage:

"Yet in thys thynge also must I warne everye reasonable & honest parson to beware, that in contractyng of maryage they dyssemble not, nor set forthe any lye. Every man lykewyse must esteme the parson to whom he is hand-fasted, none otherwyse than for his owne spouse, though as yet it be not done in the church nor in the streate. After the hand fasting & makyng of the contracte, the church goyng & weddyng shulde not be deffered to long, lest the wicked sowe hys vngracious sede in the mene season. Likewise the wedding (& cohabitaciō of the parties) ought to be bego[=n]e with god, & with the ernest prayer of the whole church or congregaciō.... In to this dishe hath the devill put his foote, & myngled it with many wicked vses & customes. For in some places ther is such a maner, wel worthy to be rebuked that at the hand fastynge there is made a great feast & superfluous bancket, & even the same night are the two hād fasted persones brought & layed together, yea certayne wekes afore they go tot [sic] the church."[1111]

[1108] For Scotland see GEARY, _Marriage and Family Relations_, 534 ff.; FRIEDBERG, op. cit., 57, 58, passim; JEAFFRESON, Brides and Bridals, II, 259, 260.

[1109] FRIEDBERG, op. cit., 36-57, 317, 335, 344, 355. Secret marriages are censured by CRANMER, _Misc. Writings_, 82, 159; HOOPER, Later Writings, 137, 149; LATIMER, Sermons, II, 243. Consent of parents is urged by SANDYS, Sermons, 50, 281, 325, 326, 455; BECON, Catechism, 355, 358, 371, 372; idem, Prayers, 199, 532; TYNDALE, Early Writings, 169, 170, 199; JEAFFRESON, Brides and Bridals, II, 104-14; I, 113 ff., discusses clandestine marriages, mainly after the Reformation.

[1110] FRIEDBERG, op. cit., 39, 40. This appears plainly from the constitution of Stratford, 1343, against clandestine marriages; as well as from that of Zouche, 1347: JOHNSON'S Canons, II, 395-97, 410, 411.

[1111] MILES COVERDALE, _The Christen State of Matrimonye_ (1st ed., 1541), xlviii, xlviiii.

This passage was transcribed for me from a copy of the first edition (1541) in the library of the British Museum by Professor William H. Hudson. To his kindness I am also indebted for the extract from Whitforde's book taken from a copy in the possession of the same library. In 1899 Sotheran offered for £4 10s. a "probably unique" copy of a 24mo edition of Coverdale's work, 1543. This he regards as a copy of the second edition, the title differing somewhat from that of the first edition. An 8vo edition appeared also in 1543, with a preface by Becon. FRIEDBERG, op. cit., 40, quotes the same passage; but the different spelling indicates that he has not used the first edition.

Eleven years earlier similar testimony is given in Richard Whitforde's Werke for housholders. "The ghostly ennemy," he says, "doth deceyue many psones by y^e pretence & colour of matrymony in pryuate & secrete contractes. For many men whan they can not obteyn theyr vnclene desyre of the woman wyl promyse marryage, & thervpon make a contracte promyse, & gyue fayth & trouth eche vnto other sayenge. Here I take the Margery vnto my wyfe, I therto plyght the my trouth. And she agayne, vnto hym in lyke maner. And after that done, they suppose they maye lawfully vse theyr vnclene behauyour, and somtyme the acte and dede doth folow, vnto the great offence of god & theyr owne soules. It is a great ieopardy therfore to make ony suche contractes, specyally amonge them selfe secretely alone, without recordes, whiche must be two at the least."[1112]

[1112] RICHARD WHITFORDE, A Werke for housholders (2d ed., 1537), sign. E. iii and following page. There is no pagination. For the date see BAYNE, in Dict. Nat. Biog., LXI, 125-27.

In Scudmore's A Woman's a Weathercocke the priest who is expected to solemnize the marriage of a lady with Count Frederick says:

"She is contracted, sir, nay married, Unto another man, though it want forme: And such strange passages and mutuall vowes, I would make your short haire start, through youre blacke Cap, should you heare it."[1113]

[1113] FRIEDBERG, op. cit., 41.

Many similar proofs may be found in the plays and ballads of the sixteenth and seventeenth centuries.

III. THE EVILS OF THE SPIRITUAL JURISDICTION

The separation of the temporal and spiritual courts and the tenacity with which early custom and theory were preserved in the common law[1114] render the history of matrimonial judicature anomalous in England. The leading case occurs in the reign of Stephen. "Richard de Anesty's memorable law-suit[1115] was the outcome of a divorce pronounced in 1143 under the authority of a papal rescript, and one that to all appearance illustrated what was to be a characteristic doctrine of the canon law: a marriage solemnly celebrated in church, a marriage of which a child had been born, was set aside as null in favour of an earlier marriage constituted by a mere exchange of consenting words."[1116] By the time of Henry II. this doctrine was completely established in England, as shown by the famous decretal epistle of Alexander III. to the bishop of Norwich: "A strong case is put. On the one hand stands the bare consent per verba de praesenti, unhallowed and unconsummated, on the other a solemn and a consummated union. The latter must yield to the former."[1117] Such remained the law of England until the passage of the Hardwicke act in 1753.[1118]

[1114] Ibid., 47, 48.

[1115] Discussed in PALGRAVE, Commonwealth, II, v-xxvii; BIGELOW, Placita Anglo-Normannica, 175; POLLOCK AND MAITLAND, Hist. of Eng. Law, I, 137, 138.

[1116] Ibid., II, 365.

For further illustration see LOERSCH, "Ein eherechtliches Urtheil," ZKR., XV, 407-10; and FRENSDORFF, "Ein Urtheilsbuch des geist. Gerichts zu Augsburg," ibid., X, 1-37, publishing a manuscript containing decisions for the years 1348-52 which afford abundant proof of the doctrine and practice regarding sponsalia de praesenti.

[1117] POLLOCK AND MAITLAND, op. cit., II, 369, where a translation of the epistle is given. Cf. BOHN, Pol. Cyc., III, 319; SOHM., Eheschliessung, 124 ff., who discusses from the canons the influence of Alexander III. on this doctrine.

[1118] This principle is illustrated in a suit for jactitation of marriage before the commissary of London, 1501: HALE, Precedents, 72, 73; and in a case of punishing clandestine marriage by prescribing penance by the same court in 1502: ibid., 78, 79.

The perils arising in the canonical theory of espousals were greatly increased by the doctrine of impediments to marriage, particularly those growing out of forbidden degrees of affinity, consanguinity, and spiritual relationship.[1119] "Reckless of mundane consequences, the church while she treated marriage as a formless contract, multiplied impediments which made the formation of a valid marriage a matter of chance."[1120] The stringency of the law in this regard appears to be entirely inconsistent with the theory that marriage should be encouraged. But doubtless the apparent contradiction is due largely to the same ideas which shaped that theory. The Fathers dreaded the sins of the flesh through which the sacramental nature of marriage might be defiled;[1121] and they may have felt a reaction against the freedom of the German custom touching the marriage of blood kindred.[1122]

[1119] The canonists distinguished cognatio from affinitas. There are three sorts of cognatio: (1) consanguinitas; (2) cognatio legalis, or adoption; (3) cognatio spiritualis, arising in a participation in the same sacrament: ESMEIN, op. cit., 335 ff., 374 ff. On the whole subject see NIEMEIER, De conjugiis prohibitis, comprising ten separate dissertations with critical and bibliographical "supplementa," but relating largely to post-Reformation doctrine; SANCHEZ, Disput. de s^{to}. mat. sac., II, 1-402; TANCRED, Summa de mat. (ed. WUNDERLICH), 16 ff.; the monograph of EICHBORN, Die Ehehinderniss der Blutsverwandtschaft nach kan. Rechte (Breslau, 1872); SCHULTE, Lehrbuch, 355-57; FRIEDBERG, Lehrbuch, 337, 359; SEHLING, Die Wirkungen der Geschlechtsgemeinschaft (impotence); GEARY, Marriage and Family Relations, 20 ff.; POLLOCK AND MAITLAND, Hist. of Eng. Law, II, 383 ff.; FREISEN, Geschichte des can. Eherechts, 371 ff.; JEAFFRESON, Brides and Bridals, I, 108 ff.; II, 306 ff.; MORGAN, Marriage, Adultery, and Divorce, I, 199 ff. The Catholic doctrine is set forth at great length by SCHEICHER-BINDER, Praktisches Handbuch, 8-354; and in PERRONE, De mat. christ., II, 31 ff.

[1120] POLLOCK AND MAITLAND, op. cit., II, 383 ff.

[1121] ESMEIN, op. cit., I, 87, 90, 335 ff., discusses the causes which produced this irrational and intricate system.

[1122] KEMBLE, Saxons, II, 406-8; LINGARD, Hist. Anglo-Saxon Church (2d ed.), II, 5 ff. Gregory advises Augustine to relax the rules of the church in England so as to allow marriage beyond the second degree: HADDAN AND STUBBS, Councils, III, 20, 21. Cf. also ESMEIN, op. cit., I, 344 ff.; EICHBORN, Ehehinderniss, 11 ff.

The development of the law of forbidden degrees, through the doctrines of the early Christian teachers and a long series of conciliar decrees, cannot here be described. In the thirteenth century the various rules were codified by the schoolmen under fifteen heads; "and their code has been accepted and acted upon by the greater part of western Christendom down to the present day."[1123] For a time prohibition was extended to the seventh degree of consanguinity, counting, as did the canonists, in the collateral line, from the common ancestor and not through the same according to the Roman method.[1124] A distinction, however, was made. Kinship in the sixth or seventh degree was held to be only "impedimentum impediens, a reason for a refusal to solemnize a marriage, not impedimentum dirimens, a cause which would render a marriage null;" and this doctrine was "received in England as well as elsewhere."[1125] At the Lateran council of 1215 Innocent III. adopted the rule that "marriages within the fourth degree of consanguinity are forbidden and null."[1126] But the doctrines of the church touching affinity and relationship did not therefore cease to perplex the courts, molest the happiness of individuals, and threaten the tranquillity of nations.[1127] In England the perennial "deceased wife's sister" bill, the stubborn resistance to which has so long attested the amazing tenacity of theological prejudice, has not even yet successfully run the gauntlet of the House of Lords.[1128]

[1123] MEYRICK, "Marriage," in Dict. Christ. Ant., II, 1092-1103. See also his article "Prohibited Degrees," ibid., 1725-30; and ESMEIN, op. cit., I, 205 ff.

[1124] Thus, according to the Roman law, brother and sister are in the second degree; but by the canon law they are in the first degree. Second cousins by the canonists are regarded as in the third degree; by the Romans, as in the sixth (if they are equally distant from the common ancestor): MEYRICK, op. cit., II, 1725; POLLOCK AND MAITLAND, op. cit., II, 383-85; ESMEIN, op. cit., I, 351 ff.; FREISEN, Geschichte des can. Eherechts, 371-439. For the eastern church see ZHISHMAN, Das Eherecht der orient. Kirche, 213-373.

[1125] POLLOCK AND MAITLAND, op. cit., II, 385; ESMEIN, op. cit., I, 75 ff., 203-5.

[1126] POLLOCK AND MAITLAND, op. cit., II, 385.

[1127] Much trouble grew out of the theory of spiritual affinity. Thus "in 1462, John Howthon, of Tonbridge, was sentenced by the Consistory Court of Rochester to be whipt three times round both market and church for having married Dionysia Thomas, for whom his former wife had been godmother. The like spiritual relation occasioned (Jan. 7, 1465) a dissolution of the marriage between John Trevennock and Joan Peckham; Letitia, the former wife of the said John having been godmother to a child of the said Joan." On December 29, 1472, William Lovelasse, of Kingsdown, was cited to appear "on a charge of having married his spiritual sister, viz., a woman whom his mother had held at her confirmation."--BURN, Parish Registers, 3, 4, notes, citing THORPE, Customale. The case of Henry VIII. and Catherine, wife of his elder brother Arthur, and the anecdote of Andowera and Fredegonda, wife of King Chilperic of Neustria (THIERRY, Narratives of the Merovingian Era, London, n. d., 20), are in point. On the evils of the complex system see THWING, The Family, 83; Law Review (English), I, 353 ff.; WOOLSEY, Divorce, 120 ff.; and especially HUTH, Marriage of Near Kin, 113 ff.

[1128] ESMEIN, op. cit., I, 203-402, gives an elaborate historical account of matrimonial impediments.

The relation of the temporal to the spiritual courts in the administration of English matrimonial law was anomalous.[1129] Strictly speaking, there was no lay jurisdiction whatever with regard to the genuineness of marriage. Only the ecclesiastical judge could determine whether a valid marriage existed.[1130] In such a case the jury could not "declare the right." The question was referred to the spiritual court for decision. On the other hand, the law tribunal, without aid of the spiritual judge, could say whether or not there was a de facto marriage as opposed to a marriage de jure. The jury could determine, in a possessory action, whether there had been a public ceremony in face of the church. This was a decisive proof; for the mere fact of living together as husband and wife was not always conclusive.[1131] "If a man and woman have gone through the ceremony of marriage at the church door, we may say that we have here a de facto marriage, a union which stands to a valid marriage in somewhat the same relation as that in which possession stands to ownership. On the other hand, if there has been no ceremony, we cannot in the thirteenth century say that there is a de facto marriage; mere concubinage, especially among the clergy, is far too common to allow us to presume a marriage wherever there is a long-continued cohabitation. But a religious ceremony is a different thing; it is definite and public; we can trust the jurors to know all about it; we can make it the basis of our judgments whenever the validity of the union has not been put in issue in such a fashion that the decision of an ecclesiastical court must be awaited."[1132]

[1129] The relation of the two jurisdictions is carefully examined by FRIEDBERG, Eheschliessung, 47-57, with citation of the principal cases; also in a very clear and interesting way by POLLOCK AND MAITLAND, op. cit., II, 370 ff., to whom I am particularly indebted. Cf. GEARY, Marriage and Family Relations, 1-6.

[1130] GLANVILLE, Tractatus, lib. vii, c. 13: PHILLIPS, II, 402. Idem, c. 14: PHILLIPS, II, 402, gives the form of writ by which a question of valid marriage is referred to the archbishop.

[1131] See, however, FRIEDBERG, op. cit., 51: "Lag aber die Frage vor, haben die Parteien wie Mann und Frau zusammen gelebt, haben sie sich verlobt, war mithin über das Recht der Ehe ['the right of marriage'] keine Entscheidung zu fällen, sondern allein über den factischen Thatbestand, so urtheilte der weltliche Richter." But this led to strange embarrassments. Thus it was in doubt whether a compulsory marriage belonged to the spiritual or to the temporal court: ROLLE, Abridgment (1688), I, 340; and "still greater was the doubt in case of the question, whether a second marriage were invalid if the first still existed": FRIEDBERG, op. cit., 51 n. 2; Year Book, 49 Ed. III., 18.

[1132] POLLOCK AND MAITLAND, op. cit., II, 378. Cf. FRIEDBERG, op. cit., 56. "The canonists themselves having made marriages all too easy, and valid marriages all too difficult, had been driven into a doctrine of possessory marriage." In a case where a valid or canonical marriage could not be proved by the plaintiff, he was given a possessory action, actio spolii, and "in this the defendant will not be allowed to set up pleas which dispute, not the existence of a de facto marriage, but its validity," while the "plaintiff must prove a marriage celebrated in face of the church": POLLOCK AND MAITLAND, op. cit., II, 379. Cf. ESMEIN, op. cit., II, 15 ff.

The practical application of this doctrine appears in the two cases of divorce and inheritance. Here the temporal courts tried indirectly to put a check upon clandestine marriages, to remedy the evils resulting from the scholastic dogma that mere consent secretly expressed in words of the present tense constitutes a valid marriage, by making the acquisition of certain property rights depend upon the publicity of the espousals.[1133] The widow could not receive her dower unless it had been publicly assigned at the nuptials before the church door.[1134] "The result is curious, for at first sight the lay tribunal seems to be rigidly requiring a religious ceremony which in the eyes of the church is unessential.... We soon see, however, that what our justices are demanding is, not a religious rite nor 'the presence of an ordained clergyman,' but publicity.... Marriages contracted elsewhere may be valid enough, but only at the church door can a bride be endowed. There is a special reason for this requirement. The common-law contrast to the church-door marriage is the death-bed marriage.[1135] At the instance of the priest and with the fear of death before him, the sinner 'makes an honest woman' of his mistress. This may do well enough for the church, and may, one hopes, profit his soul in another world, but it must give no rights in English soil."[1136] So also with regard to inheritance, in certain cases,[1137] the lay court made the rights of children depend upon public solemnization of the nuptials, thus adopting the canonical theory of "putative marriages."[1138] Although there may be no valid marriage on account of the existence of certain impediments, such as too near kinship, the children are nevertheless legitimate if the nuptials were publicly celebrated at the church door, and if at least one of the parents, at the time the children were begotten, was "ignorant of the fact which constituted the impediment." They are entitled to inheritance, though the parents are not really husband and wife. On this point in the thirteenth century church and state were at one;[1139] but later a less liberal doctrine was adopted by the secular tribunals. "The ultimate theory of the English lawyers took no heed of good or bad faith, and made the legitimacy of the children depend on the fact that their parents while living were never divorced."[1140]

[1133] On the divergence of the temporal and ecclesiastical laws as to legitimacy see GLANVILLE, Tractatus, lib. vii, c. 15: PHILLIPS, II, 403. Compare SWINBURNE, Of Spousals, 15, 233 ff.

[1134] FRIEDBERG, Eheschliessung, 50; POLLOCK AND MAITLAND, op. cit., II, 372; BRACTON, De leg. et consuetud., foll. 302-4; idem, Note Book, placita 891, 1669, 1718, 1875, MAITLAND'S ed., II, 688; III, 517, 559, 659.

[1135] Ap. BRACTON, De leg. et consuetud., fol. 92; Note Book, pl. 891, 1669, 1718, 1875, MAITLAND'S ed., II, 688; III, 517, 559, 659.

[1136] POLLOCK AND MAITLAND, op. cit., II, 372, 373.

[1137] GLANVILLE, op. cit., lib. vii, c. 15: PHILLIPS, II, 403. For an interesting case, showing that the spiritual court could determine only the question of the validity of marriage, and not that of inheritance, which belonged to the king's courts, see Corpus juris can., c. 17, x, 1, 29; c. 4, x, 4, 17; c. 7; quoted by FRIEDBERG, op. cit., 50 n. 2.

[1138] On "putative" marriages see ESMEIN, op. cit., II, 33-37; FREISEN, Geschichte des can. Eherechts, 857-62; especially POLLOCK AND MAITLAND, op. cit., II, 373-77.

[1139] "To this agreement between church and state there was the one well-known exception: our temporal courts would not allow to marriage any retroactive power; the bastard remained incapable of inheriting land even though his parents had become husband and wife and thereby made him capable of receiving holy orders and, in all probability, of taking a share in the movable goods of his parents.... But about all other matters the church could have, and apparently had, her way.... 'You are a bastard, for your father was a deacon': that was a good plea in the king's court, and the king's court did nothing to narrow the mischievous latitude of the prohibited degrees."--POLLOCK AND MAITLAND, op. cit., II, 375, 376. On legitimation through subsequent marriage by the canon law see ESMEIN, op. cit., II, 37 ff.; SWINBURNE, Of Spousals, 233 ff.

[1140] POLLOCK AND MAITLAND, op. cit., II, 375 n. 3; ap. PIKE, Year Book, 11-12 Ed. III., pp. xx-xxii.

The refusal of the church to prescribe a proper age condition for those entering matrimony led, as might be expected, to child marriages; and in this case the rules of the English common law only tended to magnify the evil. By the canonists the age of consent to marriage was fixed at seven years.[1141] Thereafter a marriage formed without consent of parent or guardian, and even in opposition to it, was held to be legal; but it was "voidable so long as either of the parties to it was below the age at which it could be consummated. A presumption fixed this age at fourteen years for boys and twelve years for girls. In case only one of the parties was below that age, the marriage could be avoided by that party but was binding on the other. So far as we can see, this doctrine was accepted by our temporal courts."[1142] By the teaching of the common lawyers a widow of nine years of age at her husband's death could claim dower, though the marriage would have been voidable by her at the age of puberty.[1143] The English temporal courts appear to have disregarded the canonical rule that a marriage is absolutely void when formed below the age of seven. "Coke tells us that the nine years old widow shall have her dower 'of what age soever her husband be, albeit he were but four years old,' and certain it is that the betrothal of babies was not consistently treated as a nullity. In Henry III.'s day marriage between a boy of four or five years and a girl who was no older seems capable of ratification, and as a matter of fact parents and guardians often betrothed, or attempted to betroth, children who were less than seven years old. Even the church could say no more than that babies in the cradle were not to be given in marriage, except under the pressure of some urgent need."[1144] For such infant marriages, however, there were two practical motives during the Middle Ages. In England, just as in India and often among lower races,[1145] the betrothal or espousal of very young children was a means of peaceful treaty or alliance; and the "rigour" of the feudal law was also in this way avoided.[1146] "As deaths were early in those days, and wardship frequent, a father sought by early marriage of his son or daughter to dispose of their hands in his lifetime, instead of leaving them to be dealt out to hungry courtiers who only sought to make as large a profit as they could from the marriage of the wards they had bought for that purpose;"[1147] and the lord's right of marriage might in like manner be defeated by conferring knighthood upon a son in tender years.[1148] Even as late as the age of the Tudors "much immorality resulted from the child marriages which were common in fashionable life."[1149]

[1141] For the growth of the doctrines of the canonists as to the age of consent and the consequences of espousals before puberty see FREISEN, Geschichte des can. Eherechts, 323 ff.; ESMEIN, op. cit., II, 149 ff., with whom POLLOCK AND MITLAND, op. cit., II, 387 ff., appear to agree. Read also JEAFFRESON, Brides and Bridals, I, 70 ff., 276 ff., who gives interesting illustrations of infantile betrothals and marriages; the learned monograph of HOFFMANN, De aetate juvenili, 22 ff.; LYNDWOOD, Provinciale (ed. 1505), liber quartus, fol. cxcvi; TANCRED, Summa de mat., tit. 4, pp. 4, 5.

The constitution De desponsatione impuberum of the primate Edmund de Abingdon (1233-40) runs thus: "Ubi non est consensus utriusque non est conjugium. Igitur qui pueris dant puellas in cunabulis, nihil faciunt, nisi uterque puerorum, postquam venerit ad tempus discretionis, consentiat. Hujus ergo Decreti auctoritate inhibemus, ne de caetero aliqui, quorum uterque vel alter ad aetatem legibus constitutam et canonibus determinatam non pervenerit, conjungantur; nisi urgente necessitate pro bono pacis talis conjunctio toleretur."--LYNDWOOD, Provinciale; quoted by JEAFFRESON, op. cit., I, 74.

[1142] POLLOCK AND MAITLAND, op. cit., II, 387, 388, who cite as proof the case of Thomas of Bayeux and Elena de Morville. The king's court decided that Elena should remain in ward to the king until the age of puberty, that "she may then consent or dissent."

[1143] POLLOCK AND MAITLAND, op. cit., II, 388: ap. LITTLETON, sec. 36; COKE upon Lit., 33_a_.

[1144] POLLOCK AND MAITLAND, op. cit., II, 388, 389, and the sources there cited.

[1145] See above, chap. iv.

[1146] "A treaty of peace involved an attempt to bind the will of a very small child, and such treaties were made not only among princes, but among men of humbler degree, who thus patched up their quarrels or compromised their law-suits. The rigour of our feudal law afforded another reason for such transactions; a father took the earliest opportunity of marrying his child in order that the right of marriage might not fall to the lord."--POLLOCK AND MAITLAND, op. cit., II, 389. See the case of Grace, supposititious child of Thomas of Saleby, married at four years of age to Adam Neville, and after his death sold in marriage twice by King John: ibid., 389, 390: ap. Magna vita S. Hugonis, 170-77; and in general on early marriages, especially as a means of alliance, compare ESMEIN, op. cit., I, 151 ff.

[1147] DENTON, England in the Fifteenth Century, 161. For an illustration of the lord's marriage rights see the case of 1220 (H. III.) in Select Pleas of the Crown (ed. MAITLAND), I, 135-38.

[1148] "As knighthood prevented wardship, a father sometimes endowed his son with land to qualify him for knighthood at an early age, so as to bar the claims of the mesne lord or of the crown to wardship. An instance occurs of knighthood at the age of seven years avowedly procured for this reason."--DENTON, Eng. in Fifteenth Century, 261 n. I: ap. SMITH, Lives of the Berkeleys, 140.

[1149] TRAILL, Social England, III, 578.

IV. PUBLICITY SOUGHT THROUGH BANNS AND REGISTRATION

Without doubt the wrong and confusion arising in the ecclesiastical theory and definition of marriage were manifold, and they were patent to every observer. At the Council of Trent it was asserted that some action to put a check upon clandestine marriages was demanded by all the temporal powers;[1150] and the provincial church councils, aided by state legislation, had done what they could by imposing; penalties to remedy the abuse.[1151] Nevertheless, strange as it may seem to one not acquainted with the devious logic of scholastic theology, many members of the Council of Trent, on dogmatic grounds, were stubbornly opposed to the only reform which experience showed could be effective. They affirmed that severer discipline would suffice. They apologized for clandestine marriages on the pretext that they are sometimes useful, even necessary; or they denied that to declare them null would prove an efficient remedy.[1152]

[1150] THEINER, Acta gen., II, 334, 347, 351, 352, 391, 395: SALIS, Pub. des trid. Rechts, 10 n. 16. Cf. WATERWORTH, Canons, ccxxiii.

[1151] So, for instance, in France: FRIEDBERG, Eheschliessung, 64 n. 5; and in Spain, ibid., 74.

[1152] SALIS, Pub. des trid. Rechts, 11, 12, collates the evidence for the various opinions from THEINER, Acta gen., II. Cf. FRIEDBERG, op. cit., 108 ff.

Hence we are better able to appreciate at its true value the significance for the Catholic world of the victory gained by the common-sense of the majority. It was a victory in favor of that publicity which the state demanded. Indeed, the church had already done something, in spite of dogma, to change marriage from a private to a public transaction. Her collision with the state, her anomalous position with respect to social order, was involuntary. She was caught, as it were, in the meshes of her own philosophy. Yet in the interest of morality she strove to secure publicity. The priest at the nuptials, declares Sohm, "appears first of all as a public person."[1153] In particular the church tried to gain publicity for marriage by the institution of banns. The custom of publishing banns seems first to have made its appearance in France, probably as early as the fifth century.[1154] It is enforced by the capitulary of 802, which gains its real significance from this fact, and not from the mention of the priestly benediction.[1155] From France it gradually made its way into other countries of Europe. Thus in the year 1200, as already noted, banns were enforced by Archbishop Walter; and they were first made a general requirement by Innocent III. at the fourth Lateran council in 1215.[1156] Later the English archbishops found it necessary from time to time to impose more stringent penalties for neglect of the proper publication of banns;[1157] and they were enforced, without making the publication essential to a valid marriage, by the Council of Trent. From the twelfth century onward the marriage rituals contain directions for the asking and publication of banns;[1158] while the punishment of persons guilty of violating the canons in this regard gave much employment to the spiritual courts during the Middle Ages.[1159]

[1153] SOHM, Eheschliessung, 175.

[1154] Ibid., 181.

[1155] Capit. 802, c. 35: WALTER, Corpus juris germ., II, 167: "conjunctiones facere non praesumant, antequam episcopi presbyteri cum senioribus populi consanguinitatem conjungentium diligenter exquirant, et tune cum benedictions jungantur." Cf. SOHM'S interpretation, op. cit., 181, vs. that of FRIEDBERG, Eheschliessung, 59.

[1156] See p. 314, above; and cf. POLLOCK AND MAITLAND, op. cit., II, 368; FRIEDBERG, op. cit., 10, 653, 654, for the present practice as to banns in various countries.

[1157] JOHNSON's Canons, II, 91, 340, 352, 395, 410.

[1158] See the rituals of York, Sarum, Hereford, and others, in Surtees Society Publications, LXIII, 26 ff., Appendix, 17 ff., 115 ff., 155 ff.; and the Salisbury ritual in MASKELL'S Monumenta, I, 50 ff.

[1159] For many cases see HALE'S Precedents, 6, 33, 38, 39, 54, 56, 65, 82, 83, 85, 92, 166, 181, 182, 199, 255.

The institution of banns has a special historical interest as being in some sense the mediæval substitute for the modern registration and official license to wed. The practice was to announce the marriage, usually on three successive Sundays preceding the nuptials, that any objection on the ground of relationship or other disability might be brought forward. But the decrees of the church were not carefully enforced. Dispensation from the obligation to publish banns was the right of the bishop, but his license was usually granted only in favor of the nobility and higher classes; and the right constituted an important source of revenue.[1160]

[1160] FRIEDBERG, Eheschliessung, 10, 124; ESMEIN, Le mariage en droit canonique, II, 170 ff., who shows that the rules relating to banns were too vague to be effective. On the requirement of banns see CRANMER, Misc. Writings, 159; GRINDAL, Remains, 126; HOOPER, Later Writings, 126, 138, 149; RIDLEY, Works, 531; SANDYS, Sermons, 434. Cf. on the history of the institution JEAFFRESON, Brides and Bridals, I, 99-107, 130 ff. Compare BORN, De bannis nuptialibus (Leipzig, 1716), secs. 1 ff.

The year 1538 marks an important epoch in the administration of English matrimonial law. It was then, according to the researches of Burn, that parish registers of births, deaths, and marriages were first introduced; although before this time it had been customary in some places to inscribe such records in the missals and psalters of the church.[1161] The first article of the injunctions issued by Thomas Cromwell, vice-regent under Henry VIII., provided: "Item, That you and every parson, vicar, or curate within this Diocese, for every Church keep one Book or Register, wherein he shall write the day and year of every Wedding, Christening, and Burial, made within your parish for your time, and so every man succeeding you likewise, and also there insert every person's name, that shall be so wedded, christened, and buried. And for the safe keeping of the same Book the parish shall be bound to provide of their common charges one sure coffer, with two locks and keys, whereof the one to remain with you, and the other with the Wardens of every parish wherein the said Book shall be laid up, which Book ye shall every Sunday take forth, and in the presence of the said Wardens or one of them, write and record in the same, all the Weddings, Christenings, and Burials made the whole week afore, and that done, to lay up the Book in the said coffer as afore; and for every time that the same shall be omitted, the party that shall be in the fault thereof, shall forfeit to the said Church iij^s. iiij^d. to be employed on the reparation of the said Church."[1162]

[1161] BURN, Hist. of Parish Registers, 1-16. Compare WATERS, Parish Registers, 5. Mention is made of registers in France as early as 1308; and by an order of Cardinal Ximenes, 1497, they were to be kept in every parish of the diocese of Toledo "in order to remedy the disorders occasioned by the frequency of divorces in Spain, on the ground of spiritual affinity."--BURN, 3; MARSOLIER, Histoire du ministère du Cardinal Ximenes, tom. 1, liv. 2, 263; WATERS, Parish Registers, 4. Cf. PALGRAVE, in Quart. Rev., LXXIII, 561, who thus goes too far in saying that "parish registers were never kept in any part of the world until the sixteenth century."

There is some evidence, held to be inconclusive by BURN, op. cit., 5-15, that an order for the use of registers may have been made earlier than 1538. The fact that at least eight registers begin before that date points to instructions given at the time of the suppression of the smaller monasteries: WATERS, op. cit., 6. At the time of the insurrection in Yorkshire, 1536, in order to draw the common people, it was given out "that the king designed to get all the gold of England into his hands, under colour of recoining it; that he would seize all unmarked cattle, and all the ornaments of parish churches, and they should be forced to pay for christenings, marriages, and burials (orders having been given for keeping Registers thereof), and for licenses to eat white bread."--CARTE, Hist. of England. See also the rare tract by Holmes (1537), and the letter of Sir Piers Edgcumb to Cromwell (April 20, 1539), both quoted by BURN, op. cit., 8, 9. For the date see WATERS, op. cit., 7; and compare BURN'S Fleet Marriages, 3.

[1162] BURN, Parish Registers, 17, 18. Cf. also FRIEDBERG, Eheschliessung, 319, 320. The same provision, with slight alteration, is contained in the injunction of 1547, Edward VI. It is quoted by TOULMIN SMITH, The Parish, 187, 188; BOHN, Pol. Cyc., IV, 625; BURN, op. cit., 18, 19.

Thus in this, the most ancient English registration act, the parson or incumbent appears as the original registrar; and that the importance of keeping such record was keenly appreciated is shown by the anxious, almost painful, minuteness with which his duties are defined. The order of Henry VIII. was enforced or supplemented under Edward VI., Elizabeth, William III., and other monarchs; but, save during the Commonwealth, no material change was made in the mode of registration until in 1836 the present system was introduced.[1163]

[1163] For a review of the various proposals, acts, and "visitations" to enforce them see BURN, op. cit., 18-39; FRIEDBERG, op. cit., 320-22; TOULMIN SMITH, op. cit., 188, 189; BOHN, op. cit., IV, 625, 626.

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