The history of the marriage-system of modern civilized peoples begins in the later days of the Roman Empire at the time when the foundations were being laid of that Roman law which has exerted so large an influence in Christendom. Reference has already been made[[315]] to the significant fact that in late Rome women had acquired a position of nearly complete independence in relation to their husbands, while the patriarchal authority still exerted over them by their fathers had become, for the most part, almost nominal. This high status of women was associated, as it naturally tends to be, with a high degree of freedom in the marriage system. Roman law had no power of intervening in the formation of marriages and there were no legal forms of marriage. The Romans recognized that marriage is a fact and not a mere legal form; in marriage by usus there was no ceremony at all; it was constituted by the mere fact of living together for a whole year; yet such marriage was regarded as just as legal and complete as if it had been inaugurated by the sacred rite of confarreatio. Marriage was a matter of simple private agreement in which the man and the woman approached each other on a footing of equality. The wife retained full control of her own property; the barbarity of admitting an action for restitution of conjugal rights was impossible, divorce was a private transaction to which the wife was as fully entitled as the husband, and it required no inquisitorial intervention of magistrate or court; Augustus ordained, indeed, that a public declaration was necessary, but the divorce itself was a private legal act of the two persons concerned.[[316]] It is interesting to note this enlightened conception of marriage prevailing in the greatest and most masterful Empire which has ever dominated the world, at the period not indeed of its greatest force,—for the maximum of force and the maximum of expansion, the bud and the full flower, are necessarily incompatible,—but at the period of its fullest development. In the chaos that followed the dissolution of the Empire Roman law remained as a precious legacy to the new developing nations, but its influence was inextricably mingled with that of Christianity, which, though not at the first anxious to set up marriage laws of its own, gradually revealed a growing ascetic feeling hostile alike to the dignity of the married woman and the freedom of marriage and divorce.[[317]] With that influence was combined the influence, introduced through the Bible, of the barbaric Jewish marriage-system conferring on the husband rights in marriage and divorce which were totally denied to the wife; this was an influence which gained still greater force at the Reformation when the authority once accorded to the Church was largely transformed to the Bible. Finally, there was in a great part of Europe, including the most energetic and expansive parts, the influence of the Germans, an influence still more primitive than that of the Jews, involving the conception of the wife as almost her husband's chattel, and marriage as a purchase. All these influences clashed and often appeared side by side, though they could not be harmonized. The result was that the fifteen hundred years that followed the complete conquest of Christianity represent on the whole the most degraded condition to which the marriage system has ever been known to fall for so long a period during the whole course of human history.
At first indeed the beneficent influence of Rome continued in some degree to prevail and even exhibited new developments. In the time of the Christian Emperors freedom of divorce by mutual consent was alternately maintained, and abolished.[[318]] We even find the wise and far-seeing provision of the law enacting that a contract of the two parties never to separate could have no legal validity. Justinian's prohibition of divorce by consent led to much domestic unhappiness, and even crime, which appears to be the reason why it was immediately abrogated by his successor, Theodosius, still maintaining the late Roman tradition of the moral equality of the sexes, allowed the wife equally with the husband to obtain a divorce for adultery; that is a point we have not yet attained in England to-day.
It seems to be admitted on all sides that it was largely the fatal influence of the irruption of the barbarous Germans which degraded, when it failed to sweep away, the noble conception of the equality of women with men, and the dignity and freedom of marriage, slowly moulded by the organizing genius of the Roman into a great tradition which still retains a supreme value. The influence of Christianity had at the first no degrading influence of this kind; for the ascetic ideal was not yet predominant, priests married as a matter of course, and there was no difficulty in accepting the marriage order established in the secular world; it was even possible to add to it a new vitality and freedom. But the Germans, with all the primitively acquisitive and combative instincts of untamed savages, went far beyond even the early Romans in the subjection of their wives; they allowed indeed to their unmarried girls a large measure of indulgence and even sexual freedom,—just as the Christians also reverenced their virgins,[[319]]—but the German marriage system placed the wife, as compared to the wife of the Roman Empire, in a condition little better than that of a domestic slave. In one form or another, under one disguise or another, the system of wife-purchase prevailed among the Germans, and, whenever that system is influential, even when the wife is honored her privileges are diminished.[[320]] Among the Teutonic peoples generally, as among the early English, marriage was indeed a private transaction but it took the form of a sale of the bride by the father, or other legal guardian, to the bridegroom. The beweddung was a real contract of sale.[[321]] "Sale-marriage" was the most usual form of marriage. The ring, indeed, probably was not in origin, as some have supposed, a mark of servitude, but rather a form of bride-price, or arrha, that is to say, earnest money on the contract of marriage and so the symbol of it.[[322]] At first a sign of the bride's purchase, it was not till later that the ring acquired the significance of subjection to the bridegroom, and that significance, later in the Middle Ages, was further emphasized by other ceremonies. Thus in England the York and Sarum manuals in some of their forms direct the bride, after the delivery of the ring, to fall at her husband's feet, and sometimes to kiss his right foot. In Russia, also, the bride kissed her husband's feet. At a later period, in France, this custom was attenuated, and it became customary for the bride to let the ring fall in front of the altar and then stoop at her husband's feet to pick it up.[[323]] Feudalism carried on, and by its military character exaggerated, these Teutonic influences. A fief was land held on condition of military service, and the nature of its influence on marriage is implied in that fact. The woman was given with the fief and her own will counted for nothing.[[324]]
The Christian Church in the beginning accepted the forms of marriage already existing in those countries in which it found itself, the Roman forms in the lands of Latin tradition and the German forms in Teutonic lands. It merely demanded (as it also demanded for other civil contracts, such as an ordinary sale) that they should be hallowed by priestly benediction. But the marriage was recognized by the Church even in the absence of such benediction. There was no special religious marriage service, either in the East or the West, earlier than the sixth century. It was simply the custom for the married couple, after the secular ceremonies were completed, to attend the church, listen to the ordinary service and take the sacrament. A special marriage service was developed slowly, and it was no part of the real marriage. During the tenth century (at all events in Italy and France) it was beginning to become customary to celebrate the first part of the real nuptials, still a purely temporal act, outside the church door. Soon this was followed by the regular bride-mass, directly applicable to the occasion, inside the church. By the twelfth century the priest directed the ceremony, now involving an imposing ritual, which began outside the church and ended with the bridal mass inside. By the thirteenth century, the priest, superseding the guardians of the young couple, himself officiated through the whole ceremony. Up to that time marriage had been a purely private business transaction. Thus, after more than a millennium of Christianity, not by law but by the slow growth of custom, ecclesiastical marriage was established.[[325]]
It was undoubtedly an event of very great importance not merely for the Church but for the whole history of European marriage even down to to-day. The whole of our public method of celebrating marriage to-day is based on that of the Catholic Church as established in the twelfth century and formulated in the Canon law. Even the publication of banns has its origin here, and the fact that in our modern civil marriage the public ceremony takes place in an office and not in a Church may disguise but cannot alter the fact that it is the direct and unquestionable descendant of the public ecclesiastical ceremony which embodied the slow and subtle triumph—so slow and subtle that its history is difficult to trace—of Christian priests over the private affairs of men and women. Before they set themselves to this task marriage everywhere was the private business of the persons concerned; when they had completed their task,—and it was not absolutely complete until the Council of Trent,—a private marriage had become a sin and almost a crime.[[326]]
It may seem a matter for surprise that the Church which, as we know, had shown an ever greater tendency to reverence virginity and to cast contumely on the sexual relationship, should yet, parallel with that movement and with the growing influence of asceticism, have shown so great an anxiety to capture marriage and to confer on it a public, dignified, and religious character. There was, however, no contradiction. The factors that were constituting European marriage, taken as a whole, were indeed of very diverse characters and often involved unreconciled contradictions. But so far as the central efforts of the ecclesiastical legislators were concerned, there was a definite and intelligible point of view. The very depreciation of the sexual instinct involved the necessity, since the instinct could not be uprooted, of constituting for it a legitimate channel, so that ecclesiastical matrimony was, it has been said, "analogous to a license to sell intoxicating liquors."[[327]] Moreover, matrimony exhibited the power of the Church to confer on the license a dignity and distinction which would clearly separate it from the general stream of lust. Sexual enjoyment is impure, the faithful cannot partake of it until it has been purified by the ministrations of the Church. The solemnization of marriage was the necessary result of the sanctification of virginity. It became necessary to sanctify marriage also, and hence was developed the indissoluble sacrament of matrimony. The conception of marriage as a religious sacrament, a conception of far-reaching influence, is the great contribution of the Catholic Church to the history of marriage.
It is important to remember that, while Christianity brought the idea of marriage as a sacrament into the main stream of the institutional history of Europe, that idea was merely developed, not invented, by the Church. It is an ancient and even primitive idea. The Jews believed that marriage is a magico-religious bond, having in it something mystical resembling a sacrament, and that idea, says Durkheim (L'Année Sociologique, eighth year, 1905, p. 419), is perhaps very archaic, and hangs on to the generally magic character of sex relations. "The mere act of union," Crawley remarks (The Mystic Rose, p. 318) concerning savages, "is potentially a marriage ceremony of the sacramental kind.... One may even credit the earliest animistic men with some such vague conception before any ceremony became crystallized." The essence of a marriage ceremony, the same writer continues, "is the 'joining together' of a man and a woman; in the words of our English service, 'for this cause shall a man leave his father and mother and shall be joined unto his wife; and they two shall be one flesh.' At the other side of the world, amongst the Orang Benuas, these words are pronounced by an elder, when a marriage is solemnized: 'Listen all ye that are present; those that were distant are now brought together; those that were separated are now united.' Marriage ceremonies in all stages of culture may be called religious with as much propriety as any ceremony whatever. Those who were separated are now joined together, those who were mutually taboo now break the taboo." Thus marriage ceremonies prevent sin and neutralize danger.
The Catholic conception of marriage was, it is clear, in essentials precisely the primitive conception. Christianity drew the sacramental idea from the archaic traditions in popular consciousness, and its own ecclesiastical contribution lay in slowly giving that idea a formal and rigid shape, and in declaring it indissoluble. As among savages, it was in the act of consent that the essence of the sacrament lay; the intervention of the priest was not, in principle, necessary to give marriage its religiously binding character. The essence of the sacrament was mutual acceptance of each other by the man and the woman, as husband and wife, and technically the priest who presided at the ceremony was simply a witness of the sacrament. The essential fact being thus the mental act of consent, the sacrament of matrimony had the peculiar character of being without any outward and visible sign. Perhaps it was this fact, instinctively felt as a weakness, which led to the immense emphasis on the indissolubility of the sacrament of matrimony, already established by St. Augustine. The Canonists brought forward various arguments to account for that indissolubility, and a frequent argument has always been the Scriptural application of the term "one flesh" to married couples; but the favorite argument of the Canonists was that matrimony represents the union of Christ with the Church; that is indissoluble, and therefore its image must be indissoluble (Esmein, op. cit., vol. i, p. 64). In part, also, one may well believe, the idea of the indissolubility of marriage suggested itself to the ecclesiastical mind by a natural association of ideas: the vow of virginity in monasticism was indissoluble; ought not the vow of sexual relationship in matrimony to be similarly indissoluble? It appears that it was not until 1164, in Peter Lombard's Sentences, that clear and formal recognition is found of matrimony as one of the seven sacraments (Howard, op. cit., vol. i, p. 333).
The Church, however, had not only made marriage a religious act; it had also made it a public act. The officiating priest, who had now become the arbiter of marriage, was bound by all the injunctions and prohibitions of the Church, and he could not allow himself to bend to the inclinations and interests of individual couples or their guardians. It was inevitable that in this matter, as in other similar matters, a code of ecclesiastical regulations should be gradually developed for his guidance. This need of the Church, due to its growing control of the world's affairs, was the origin of Canon law. With the development of Canon law the whole field of the regulation of the sexual relationships, and the control of its aberrations, became an exclusively ecclesiastical matter. The secular law could take no more direct cognizance of adultery than of fornication or masturbation; bigamy, incest, and sodomy were not temporal crimes; the Church was supreme in the whole sphere of sex.