The church ceremony, however, won its way in popular usage. It consisted in blessing the ring and the gifts, and the interest of ecclesiastics began to be centered on the question whether the persons to be married were within the forbidden degrees of relationship.[1360] In the Petri Exceptiones (between 1050 and 1075)[1361] it is expressly stated, amongst other statements of what does not make a marriage, that it is not the benediction of the priest, but the mental purpose of the man and woman. Other things only establish testimony and record. Weinhold[1362] cites a poem of the eleventh century in which a wedding is described. After the betrothal is agreed upon by the relatives, and property agreements have been made, the groom gives to the bride a ring on a sword hilt, saying, "As the ring firmly incloses thy finger, so do I promise thee firm and constant fidelity. Thou shalt maintain the same to me, or thy life shall be the penalty." She takes the ring, they kiss, and the bystanders sing a wedding song. In a Suabian document of the twelfth century, the bridegroom is the chief actor.[1363] He lays down successively seven gloves, the glove being the symbol of the man himself in his individual responsibility and authority. Each glove is a pledge of what he promises according to the prescriptions of the Suabian mores, for which his formula is, "As by right a free Suabian man should do to a free Suabian woman." He enumerates the chief kinds of Suabian property and promises to write out his pledges in a libellus dotis, if the bride will provide the scribe. Then the woman's guardian, having received these pledges, delivers her, with a sword (on the hilt of which is a finger ring), a penny, a mantle, and a hat on the sword, and says: "Herewith I transfer my ward to your faithfulness, and to your grace, and I pray you, by the faith with which I yield her to you, that you be her true guardian, and her gracious guardian, and that you do not become her direful guardian." "Then," it is added, "let him take her and have her as his." This must be a very ancient form, of German origin. There is no consensus expressed in it and the symbolism is elaborate. The libellus dotis is evidently an innovation. It has a Latin name and is a contingent, not a substantive part of the man's acts. The old German form shows that the Latin church usage had not yet overturned the German tradition.
431. The canon law. In the Decretals of Gratian[1364] the doctrine of nuptials is that they begin with the public ceremony and are completed by concubitus. Agreement to cohabit, followed by cohabitation, constituted marriage by the canon law. This is the common sense of the case. It was the doctrine of the canon law and is the widest modern civilized view.
432. Mediæval marriage. In the thirteenth century began the astonishing movement by which the church remodeled all the ideas and institutions of the age, and integrated all social interests into a system of which it made itself the center and controlling authority. The controlling tendency in the mores of the age was religiosity,—a desire to construe all social relations from the church standpoint and to set all interests in a religious light. Marriage fell under this influence. The priests displaced the earlier prolocutors, and strove to make marriage an ecclesiastical function and their own share in it essential, although they did not make the validity of marriage depend on their share in it.[1365] In different places and amongst different classes the custom of church marriage was introduced at earlier or later times, and the doctrine of priestly function in connection with marriage became established with greater or less precision. Friedberg[1366] considers the ordinance of the Synod of Westminster[1367] (1175) the first ordinance which distinctly prescribed church marriage in England, but from that to the establishment of a custom was a long way. Pollock and Maitland[1368] think that marriage, in England, belonged to the ecclesiastical forum by the middle of the twelfth century. Rituals of Salisbury and York of the thirteenth century show the early church customs, only rendered more elaborate and more precise in detail.[1369] There is also ritual provision for an ecclesiastic to bless the bed of the spouses after they are in it, in order to drive away the evil spirits. In 1240, in the constitutions of Walter de Cantelupe, marriage is called a sacrament, because it prefigures the sacrament between Christ and the church. Marriage was to precede concubitus. There was to be no divination or use of devices for luck. By synodal statutes of 1246 it was ordered that priests should teach that betrothal and consummation would constitute irrevocable marriage.[1370] If people treated church ordinances and forms with neglect they were punished by church discipline, but the marriage was not declared invalid. Hence the system was elastic and could not be abruptly changed.
433. Conflict of mores and church programme. Betrothal and wedding. In Germany the popular resistance to a change of the mores about marriage was more stubborn than elsewhere. Although ecclesiastics were present at marriages, until the thirteenth century, they sometimes took no part.[1371] In the poems, from the beginning of the twelfth century, mention is made of priestly benediction; still it remains uncertain whether this took place before or after concubitus. In the great epics of the thirteenth century the old custom of the circle of friends and the interrogatories by a distinguished relative appears. The couple spend the night together and on the following morning go to church where they are blessed.[1372] This is the proceeding in Lohengrin. In the thirteenth century the prolocutor was going out of fashion and the ecclesiastic got a chance to take his place.[1373] Evidently there was here an ambiguity between the betrothal and the wedding. It took two or three centuries to eliminate it. When the man said, "I will take," did he mean, "It is my will to take now," or did he mean, "I will take at a future time"? Sohm[1374] says that betrothal was the real conclusion of a marriage, and that the wedding was only the confirmation (Vollzug) of a marriage already consummated. Friedberg[1375] says that the wedding was the conclusion of a projected marriage and not the consummation of one already concluded. When there was a solemn public betrothal and then a wedding after an interval of time, the latter was plainly a repetition which had no significance. What happened finally was that the betrothal fell into insignificance, or was united with the wedding as in the modern Anglican service, and concubitus was allowed only after the wedding. The wedding then had importance, and was not merely a blessing on a completed fact. It was then a custom in all classes to try life together before marriage (Probenächte). In the fifteenth century, if kings were married by proxy, the proxy slept with the bride, with a sword between, before the church ceremony.[1376] The custom to celebrate marriages without a priest lasted, amongst the peasants of Germany, until the sixteenth century.[1377] "It was, therefore, customary [in the thirteenth century] to have the church blessing, but generally only after consummated marriage. The blessing was not essential, but was considered appropriate and proper, especially in the higher classes. In the fourteenth century the ecclesiastical form won more and more sway over the popular sentiment."[1378]
434. Church marriage. Concubines. It is necessary to notice that there is never any question of the status of men. They satisfy their interests as well as they can and the result is the stage of civilization. The status of women is their position with respect to men in a society in which men hold the deciding voice. Men bear power and responsibility. Women are the coadjutors, with more or less esteem, honor, coöperative function, and joint authority. There has never until modern times been a law of the state which forbade a man to take a second wife with the first. A man could not commit adultery because he was not bound, by law or mores, to his wife as she was to him. A man and woman marry themselves and lead conjugal life in a world of their own. Church and state would be equally powerless to marry them. The church may "bless" their union. The state may define and enforce the civil and property rights of themselves or their children. It cannot enforce conjugal rights. Therefore it cannot divorce two spouses. They divorce themselves. The state can say what civil and property right shall be affected by the divorce, and how the force of the state shall enforce the consequences. The marriage relation is domestic and private, where the wills of the individuals prevail and where the police cannot act. The Christian church, about the thirteenth century, introduced a marriage ritual in which the spouses promised exclusive fidelity, the man as much as the woman. As fast and as far as church marriage was introduced, the promise set the idea of marriage. If either broke the promise, he or she was liable to church censure and penance. In England the first civil law against bigamy was I James I, chapter 11. Never until 1563 (Council of Trent) was any ecclesiastical act necessary to the validity of a marriage even in the forum of the church. Marriage was in the mores. The blessing of the church was edifying and contributory. It was not essential. Marriage was popular and belonged to the family. In the ancient nations sacrifices were made for good fortune in wedlock. In the Middle Ages Christian priests blessed marriages which had been concluded by laymen and had already been consummated. The relation of husband and wife varied, at that time, in the villages of Germany or northern France of the same nationality. Until modern times concubinage has existed as a recognized institution. It was an inferior form of marriage, in which the woman did not take the rank of her husband, and her children did not inherit his rank or property, but her status was permanent and defined. Sometimes it was exclusive. Then again slaves have been at the mercy of a master and in ancient times they were always proud to "find favor in his eyes." Thus wives, concubines, and slave women form three recognized ranks of female companions.
435. The church elevated the notion of marriage. In all the ancient civilized states marriage was an affair of property interests and rank. The public ceremony was needed in order to establish rights of property and inheritance, legitimacy, and civil rights. The Christian church of the Middle Ages had to find a ground for its own intervention. This it did by emphasizing the mystic element in marriage, and developing all the symbolism of the Bible which could be applied to this subject and all the biographical details which touched upon it,—Adam and Eve, Tobias, Joseph and Mary, the one-flesh idea, the symbolism of Christ and the church, etc. Thus a sentimental-poetical-mystical conception of marriage was superimposed on the materialistic-sensual conception of it. The church affirmed that marriage was a "sacrament." A half-dozen different explanations of "sacrament" in this connection could be quoted. It is impossible to tell what it means. The church, however, by its policy, contributed greatly to the development of the nobler conception of marriage in modern mores. The materialistic view of it has been left decently covered, and the conception of wedlock as a fusion of two lives and interests into affectionate coöperation, by the sympathy of character and tastes, has become the ideal. The church did much to bring about this change. For an age which attributed a vague and awful efficacy to a "sacrament," and was familiar, in church matters, with such parallelisms as that alleged between marriage and the union of Christ with his church, it is very probable that the church "fostered a feeling that a lifelong union of one man and one woman is, under all circumstances, the single form of intercourse between the sexes which is not illegitimate; and this conviction has acquired the force of a primal moral intuition."[1379] What has chiefly aided this effect has been the rise to wealth and civil power of the middle class of the later Middle Ages, in whose mores such views had become fixed without much direct church influence.
436. The decrees of Trent about marriage. It was not until the decrees of Trent (1563) that the church established in its law the sacerdotal theory of marriage in place of the theory of the canon law. The motive at Trent was to prevent clandestine marriages, that is, marriages which were not made by a priest or in church. These marriages were common and they were mischievous because not to be proved. They made descent and inheritance uncertain when the parties belonged to families of property and rank. In form, the decrees of Trent provided for publicity. Marriage was to be celebrated in church, by the parish priest, and before two witnesses. This action was not in pursuance of a change in the mores. It was a specific device of leading churchmen to accomplish an object. In view of the course of the mores, it may be doubted if any effect ought to be attributed to the decrees of Trent for their immediate purpose, but two effects have been produced which the churchmen probably did not foresee. First, it became the law of the church that the consent of a man and a woman, expressed in a church before the parish priest, constituted a marriage without any voluntary participation of the priest. The Huguenots in France, for more than a century, married themselves in this way, a notary being employed to make a record and certificate. Secondly, this law became the great engine of the church to hold its children to their allegiance and prevent mixed marriages. To win the consent of the parish priest to perform the ceremony the parties must conform to church requirements,—confession and communion. The seventeenth and eighteenth centuries were occupied by struggles of living men to regulate their interests in independence of these restraints.
437. Puritan marriage. The Puritan sects made marriage more secular, as the Romish Church made it more ecclesiastical. Although they liked to give a religious tone to all the acts of life, the Puritans took away from marriage all religious character. It was performed by a civil magistrate. Such was the rule in New England until the end of the seventeenth century. However, there was, in this matter, an inconsistency between the ruling ideas and the partisan position, and the latter gave way. There has been a steady movement of the mores throughout the Protestant world in the direction of giving to marriage a religious character and sanction. It has become the rule that marriages shall be performed by ministers of religion, and the custom of celebrating them in religious buildings is extending. The authority and example of the church of Rome have had nothing to do with this tendency. They are not even known. It has been purely a matter of taste, sentiment, and popular judgment as to what is right and proper; also it has been due to the ideas of women in regard to suitable pomp and glory. The mores have once more taken full control of the matter, and the religious ceremony is used to satisfy the interests, and fulfill the faiths, of the population. Such is the effect of civil marriage as established in the nineteenth century. At the present time the ministers of religion seem disposed to use their lawful position as the proper ones to celebrate marriage, that they may impose restrictions on divorce, and on marriage after divorce.
[1324] Maspero, Peuples de l'Orient, I, 736.
[1325] Bergel, Eheverhält. der Juden, 19.