A History of Matrimonial Institutions, Vol. 1 of 3

by George Elliott Howard

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]

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]

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]

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]

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]