The primitive and mediæval marriage whose development has thus been traced to the thirteenth century was not "civil" marriage in the strict sense of the word; that is, a marriage contracted under sanction of the civil authority, as opposed to one solemnized by authority of the church and according to ecclesiastical forms.[934] It was a civil marriage only as being a lay marriage. There is no trace of any such thing as public license or registration; no authoritative intervention of priest or other public functionary. It is purely a private business transaction. Either the guardian gives away the bride and conducts the ceremony; or else the solemn sentences of the ritual are recited independently by the betrothed couple themselves. These formalities and the presence of the friends and relatives[935] are the only means of publicity, the only substitute for the modern cognizance of the state.[936] Rights and obligations growing out of the marriage contract are enforced in the local or national courts just as other civil rights and obligations are enforced. Only gradually was the ancient usage in this regard superseded. Slowly but firmly was the exclusive jurisdiction of the church in matrimonial causes established. Spiritual courts and the canon law came into existence. In England after the Norman Conquest the removal of ecclesiastical suits from the temporal to the new church tribunals led eventually to serious evils. With the Reformation the way was open for the intervention of the civil power. Beginning in Holland and America, the state has claimed her right to control the marriage celebration and the administration of matrimonial law as being of vital interest to society. How this came to pass will be explained in the following chapters.
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.
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]
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]
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.