422. Roman "free marriage." The passages quoted in the last paragraph refer to "free marriage" after the manus idea had been lost. They could be applied also to the German notion of marriage after the Germans abandoned the mund idea. They also correspond to the Greek view of marriage, for in Greece the authority of the father early became obsolete in its despotic form. From the time of Diocletian the woman who was sui juris was a subject of the state without intermediary, just as her brother or husband was, and she enjoyed free disposition of herself. The same view of marriage passed into the Decretals of Gratian and into our modern legislation.[1337]
423. Free marriage. At the end of the fourth century A.D. the church set aside the Roman notions of the importance of the dos and donatio propter nuptias, and made the consensus the essential element in marriage. This was an adoption of that form of "free marriage" of the time of the empire which the class from which Christians came had practiced. That is to say, that the church took up the form of marriage which had been in the class mores of the class from which the church was recruited. This is really all that can be said about the origin of "Christian marriage." It is a perpetuation of the mores of the lowest free classes in the Roman world. Justinian reintroduced the dos and donatio for persons of the higher classes who were, in his time, included in the church. People of the lower class were to utter the consensus in a church before three or four clergymen, and a certificate was to be prepared.[1338] The lowest classes might still neglect all ceremony. This law aimed to secure publicity, a distinct expression of consent, and a record. There is no reference to any religious blessing or other function of the clergy. They appear as civil functionaries charged to witness and record an act of the parties.[1339] In another novel[1340] all this was done away with except the written contract about the dower, if there was one.[1341]
424. Transition from Roman to Christian marriage. The ideal of marriage which has just been described came into the Christian church out of the Roman world. Roman wedding sacrifices were intended to obtain signs of the approval of the gods on the wedding. They were domestic sacrifices only, since the sacred things of the spouses were at home only. The auspices ceased to be taken at marriages from the time of Cicero. It became customary to declare that nothing unfavorable to the marriage had occurred. There are many relief representations of late Roman marriages on which Juno appears as pronuba, a figure of her standing behind the spouses as protectress or patroness. Rossbach[1342] thus interprets such a relief: "The bethrothed, with the assistance of Juno, goddess of marriage, solemnly make the covenant of their love, to which Venus and the Graces are favorable, by prayer and sacrifices before the gods. By the aid of Juno love becomes a legitimate marriage." Rossbach mentions exactly similar reliefs in which Christ is the pronuba, and the transition to Christianity is distinctly presented. In a similar manner ideas and customs about marriage were brought under Christian symbol or ceremony, and handed down to us as "Christian marriage." The origin of them is in the mores of the classes who accepted Christianity, which were subjected to a grand syncretism in the first centuries of Christianity.
425. Ancient German marriage. No documents were necessary until the time of Justinian (550 A.D.), an oral agreement being sufficient, if probable. There were essential parts of the Roman wedding usages which were independent of paganism and which were necessarily performed at home. In the Eastern empire concubinage was abolished at the end of the ninth century. The heathen Germans had two kinds of marriage, one with, the other without, jural consequences. Both were marriage. The difference was that one consisted in betrothal, endowment, and a solemn wedding ceremony; the other lacked these details. Here, again, it is worth while to notice that property and rank would very largely control the question which of these two forms was more suitable. Consequences as to property followed from the former form which were wanting in the latter. If the pair had no property, the latter form was sufficient. In mediæval Christian Germany the canon law obliterated the distinction, but then morganatic marriage was devised, by which a man of higher rank could marry a woman of lower rank without creating rights of property or rank in her or her children. In such a form of marriage the Roman law saw lack of affectus maritalis and of deligere honore pleno; hence the union was concubinage, not marriage. The German law held that the intention to marry made marriage, and that property rights were another matter.[1343] The ancient mores lasted on and kept control of marriage, and the church, in its efforts to establish its own theories of marriage, property, legitimacy, rank, etc., was at war with the old mores.
426. Early church usage. In the Decretals of Gratian[1344] are collected the earliest authorities about marriage in the Christian church, some of which are regarded now as ungenuine. "Nevertheless it is impossible to say that, in the early times of Christianity, there was any church wedding. Weddings were accomplished before witnesses independently of the church, or perhaps in the presence of a priest by the professiones." Then followed the pompous home bringing of the bride. Afterwards the spouses took part in the usual church service and the sacrament and gave oblations.[1345] Later special prayers for the newly wedded were introduced into the service. Later still special masses for the newly wedded were introduced. Such existed probably before the ninth century.[1346] The declaration of consensus still took place elsewhere than in church, and not until the rituals of the eleventh and twelfth centuries does the priest ask for it, or is it asked for in his presence. In the Greek ritual there has never yet been any declaration of consensus.[1347]
427. The usage as to religious ceremony. The more pious people were, the more anxious they were to put all their doings under church sanction, and they sought the advice of honored ecclesiastics as to marriage. Such is the sense of Ignatius to Polycarp, chapter 5. Tertullian was a rigorist and extremist, whose utterances do not represent fact. In our own law and usage a common-law marriage is valid, but people of dignified and serious conduct, still more people of religious feeling, do not seek the minimum which the law will enforce. They seek to comply with the usages in their full extent, and to satisfy the whole law of the religious body to which they belong. In like manner, there was a great latitude from the fourth to the sixteenth century, while the Christian church was trying to mold the barbarian mores to its own standards in the usages which were current, but an ecclesiastical function was not necessary to a valid marriage until the Council of Trent. In fact a wedding in church never was an unconditional requirement for a valid marriage among German Roman Catholics until the end of the eighteenth century.[1348] Somewhat parallel cases of the addition of religious ceremonies to solemn public acts which had been developed in the mores are the emancipation of a slave, and the making of a knight.[1349]
428. Mode of expressing consensus. If the consent of the parties is regarded as essential, then the public proceedings must bring out an expression of will. The ancient German usage was that the friends formed a circle in which the persons to be married took their place, and the woman's guardian, later her most distinguished friend, asked them (the woman first) whether it was their will to become man and wife,—these terms being defined in the mores. This was a convenient and rational proceeding, of primitive simplicity and adaptation to the purpose. In Scandinavia and Iceland the ancient laws contained exact prescriptions as to the person who might officiate as the conductor of this ceremony. Relatives of the bride, first on her father's side, then on her mother's, were named in a series according to rank.[1350] Such a prolocutor is taken for understood in the Constitutio de Nuptiis (England).[1351] To him the man promises to take the woman to wife "by the law of God and the customs of the world, and that he will keep her as a man ought to keep his wife." Evidently these statements convey no idea of wedlock unless the mores of the time and place are known. They alone could show how a man "ought to keep his wife." The man also promises to show due provision of means of support, and his friends become his sureties. Through the Middle Ages great weight was given to the provision for the woman throughout her life, especially in case of widowhood. In fact, a "wife" differed from a mistress by virtue of this provision for her life. In the Constitutio de Nuptiis it is added, "Let a priest be present at the nuptials, who is to unite them of right, with the blessing of God, in full plenitude of felicity."
429. Marriage at the church door. In a French ritual of 700 A.D. the priest goes to the church door and asks the young pair (who appear to be walking and wooing in the street) whether they want to be duly married. The proceedings all concern the marriage gifts, after which there is a benediction at the church door, and then the pair go into the church to the mass. A hundred years later the priest asked for the consensus, and statement of the gift from the groom to the bride, and for a gift for the poor. Then the woman was given by her father or friends.[1352]
430. Marriage in Germany in the early Middle Ages. In the Frank, Suabian, Westphalian, and Bavarian laws "the woman was entitled to her dower when she had put her foot in the bed." The German saying was, "When the coverlet is drawn over their heads the spouses are equally rich," that is, they have all property of either in common.[1353] Hence, in German law and custom, consensus followed by concubitus made marriage. Hence also arose the custom that the witnesses accompanied the spouses to their bedchamber and saw them covered, or visited them later. Important symbolic acts were connected with this visit. The spouses ate and drank together. The guests drove them to bed with blows.[1354] The witnesses were not to witness a promise, but a fact. In the Carolingian period, except in forged capitularies, there is very little testimony to the function of priests in weddings.
The custom of the Jews has been mentioned above (sec. 417). Selected witnesses were thought necessary to testify at any time to the consummation of the marriage. In the third century B.C. this custom was modified to a ceremony.[1355] In ancient India and at Rome newly wedded spouses were attended by the guests when they retired.[1356] The Germans had this custom from the earliest times and they kept it up through the Middle Ages. The jural consequences of marriage began from the moment that both were covered by the coverlet. This was what the witnesses were to testify to. Evidently the higher classes had the most reason to establish the jural consequences. Therefore kings kept up this custom longest, although it degenerated more and more into a mere ceremony.[1357] The German Emperor Frederick III met his bride, a Portuguese princess, at Naples. The pair lay down on the bed and were covered by the coverlet for a moment, in the presence of the court. They were fully dressed and rose again. The Portuguese ladies were shocked at the custom.[1358] The custom can be traced, in Brandenburg, as late as the beginning of the eighteenth century.[1359] English customs of the eighteenth century to seize articles of the bride's dress were more objectionable.