A History of Matrimonial Institutions, Vol. 1 of 3

by George Elliott Howard

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]

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.

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]

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.

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]

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]

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]