RISE OF ECCLESIASTICAL MARRIAGE: THE CHURCH ACCEPTS THE LAY CONTRACT
AND CEREMONIAL
[BIBLIOGRAPHICAL NOTE VII.--For the original Christian usage
the writings of the early Fathers are of primary interest, and
an English version of them is available in _The Ante-Nicene
Fathers_ (Buffalo, 1885-87), edited by Roberts and Donaldson
and revised by A. C. Coxe. An indispensable handbook and
bibliographical guide for the study of this subject, as well
as for a multitude of questions connected with the first
eight centuries of Christian history, is Smith and Cheetham's
_Dictionary of Christian Antiquities_ (London, 1875-80),
particularly Meyrick's article, "Marriage," and Ludlow's clear
and thoroughly critical discussions of the "Benediction,"
"Betrothal," and "Arrhae." Important sources for this chapter
are also the _Corpus juris civilis_ (Berlin, 1872), edited
by Krüger and Mommsen; Richter and Friedberg's _Corpus juris
canonici_ (Leipzig, 1881-); Haddan and Stubbs's _Councils
and Ecclesiastical Documents_ (Oxford, 1869-78); Wilkins's
_Concilia_ (London, 1736-37); Gee and Hardy's _Documents_
(London 1896); Glanville's _Tractatus_, in Vol. II of Phillips's
_Reichs- und Rechtsgeschichte_ (Berlin, 1827-28); and with
these may be used to advantage Johnson's _Collection of the
Laws and Canons of the Church of England_ (London, 1850). On
marriage at the church door, _The Old English Homilies_ (London,
1868); Gregory's _Pastoral Care_ (London, 1871); Hengham's
_Summa parva_ (London, 1737); Home's _Mirror of Justices_ (ed.
Whittaker, London, 1895); Fitzherbert's _New Natura Brevium_
(Dublin, 1793); as well as Fleta, Britton, and Bracton, have
furnished illustrative passages.
The evolution and character of the celebration are best seen in
the marriage rituals themselves. For the European practice in
general, including the English rites, consult the second book
of Selden, _Uxor ebraica_ (Frankfort on the Oder, 1673); or the
same in Vol. II (III, as bound) of his _Opera omnia_ (London,
1726); and the first book of Martene, _De antiquis ecclesiae
ritibus_ (Antwerp, 1763-64), in both of which works a large
number of rituals, with a mass of other useful materials, will
be found. Some portions of Martene are extracted by Michelet
in chap. ii of his _Origines du droit français_ (Paris,
1857); and many rituals, both of the East, and the West, are
epitomized in Palmer, _Origines liturgicae_ (3d ed., Oxford,
1839), the use of which is facilitated by Beal, _Analysis of
Palmer's Orig. Lit._ (Cambridge, 1856). Some of the earliest
Christian _sacramentaria_, the eleventh-century ritual of
Rennes, and various other mediæval _ordines_ are republished
by Dieckhoff, _Die kirchliche Trauung_ (Rostock, 1878). Sohm,
_Eheschliessung_, gives the Rennes service above named, as well
as those mentioned in Bibliographical Note VI; and the principal
parts of the twelfth century "Pontifical ou rituel de lire" are
quoted by Léon Gautier in his fascinating book _La chevalerie_
(Paris, 1884), where may be found the best and most detailed
account existing of the rites and social usages connected with a
mediæval French marriage. Most important of all for the present
purpose, however, are the ancient English liturgies. That of
Sarum (Salisbury) is published by Maskell, _Monumenta ritualia
ecclesiae anglicanae_ (Oxford, 1882), with the essential
clauses of the York service in the margin; while the rituals of
Salisbury, York, and Hereford, together with extracts from ten
other marriage services, ranging all the way from the eighth
to the fifteenth century, are contained in Vol. LXIII of the
Surtees Society _Publications_ (London, 1875). With these may
be compared the Catholic forms in the _Rituale romanorum Pauli
Quinti_ (Rome, 1816); and those of the Reformation in the
_Liturgies of Edward VI._ (Cambridge, 1844); and the _Liturgies
of Elizabeth_ (Cambridge, 1847), both in the publications of
the Parker Society. The earlier of these may also be found
in the "First" _Book of Common Prayer_, 1549 (exact reprint,
black letter, London, 1844); or in the "Second" _Book of Common
Prayer_, reprinted in the same style at London in the same year.
With these collections will be found useful Lathbury, _History
of the Book of Common Prayer_ (2d ed., Oxford and London, 1859);
and Daniel, _The Prayer Book_ (London, 1877). The marriage
rituals of the modern Greek, Roman, and English churches are
given in Bingham (J. F.), _The Christian Marriage Ceremony_ (New
York, 1871); and the English service, with discussion, may also
be found in Tegg, _The Knot Tied_ (London, 1877); and Moore,
_How to Be Married_ (London, 1890).
The principal sources for the study of the Council of Trent
are Richter-Schulte, _Canones et decreti concilii tridentini_
(Leipzig, 1853); Theiner, _Acta genuina concilii tridentini_
(Zagrabrae, Croatiae, 1874); Father Sarpi (Pietro Soave Polano),
_Historie of the Council of Trent_ (London, 1620), opposing the
action of the Council; and his antagonist Pallavicino, _Istoria
del Concilio di Trento_ (Rome, 1833); or the Latin version of
the same by Giattino (Antwerp, 1670). A convenient collection on
this subject is Waterworth, _Canons and Decrees of the Council
of Trent_ (New York, 1848); while valuable monographs are Salis,
_Die Publikation des tridentinischen Rechts der Eheschliessung_
(Basel, 1888); Leinz, _Die Ehevorschrift des Concils von Trient_
(Freiburg, 1888); Fleiner, _Die tridentinische Ehevorschrift_
(Leipzig, 1892); and Meurer, "Die rechtliche Natur des trid.
Matrimonial-Decrets," in _ZKR._, XXII (Freiburg, 1889). The
action of the Council is treated in Esmein, _Le mariage en
droit canonique_ (Paris, 1891); Madan, _Thelyphthora_ (London,
1781); Bohn, _Political Cyclopædia_ (London, 1860); as also by
Sohm and Friedberg. Froude's _Lectures on the Council of Trent_
(New York, 1896) are too general to be of value for the present
subject.
For the great case of Regina _v._ Millis, historically so
surprising, the _Report of the Cases of Regina v. Millis et
Regina v. Carroll in the Queen's Bench, Ireland_ (Dublin, 1842);
and 10 Clark and Finnelly, _Reports of Cases Decided in the
House of Lords_, are indispensable. In connection therewith read
Sir John Stoddart, _Observations on the Opinion_ (London, 1844);
his _Letter to Lord Brougham_ (London, 1844); and Elphinstone's
paper in the _Law Quarterly Review_, V (London, 1889). To
supplement these may be consulted the Jesuit Sanchez's treatise,
_Disputationum de matrimonii sacramento_ (Venice, 1625); the
older handbook of Lyndwood, _Provinciale_ (n. p., 1505; or
Oxford, 1779); and, in general, Bishop, _Marriage, Divorce, and
Separation_ (Chicago, 1891); Stephens, _Laws of the Clergy_
(London, 1848); Reeves, _History of the English Common Law_, IV;
Bright, _Husband and Wife_ (New York, 1850); the concise and
accurate discussion of Pollock and Maitland, _History of the
English Law_, II; and the masterly investigation of Friedberg
in his _Eheschliessung_. For the more celebrated earlier cases
with which the judgments in the Queen _v._ Millis are not
in harmony see 1 Roll, _Abridgement_, 353 (Foxcroft's case,
_ca._ 1282); Year Book 34 Edward I. (Delheith's case, 1305); 2
Haggard, _Consistory Reports_, 54-137 (Dalrymple v. Dalrymple,
1811); 2 Coke's _Reports_, 355-59 (Bunting _v._ Lepingwell);
especially the numerous decisions in Hale's unique _Precedents
and Proceedings in Criminal Causes, 1475-1640_ (London, 1847);
and compare the later case of Beamish _v._ Beamish, 1859-61,
in Clark, 9 _House of Lords Cases_ (Boston, 1871), which
follows the precedent in Queen _v._ Millis, giving a history
of matrimonial laws from Anglo-Saxon times. On this decision
there is a very instructive passage in Pollock, _First Book
of Jurisprudence_ (London, 1896). On Dalrymple _v._ Dalrymple
consult Dodson's _Report of the Judgment of Sir William Scott_
(London, 1811). See further the note at the close of this
chapter.
At the head of all scientific historical writers on the rise
of ecclesiastical marriage is Sohm whose main thesis, that
the early canon law of the marriage contract rests on the
principles of German custom, has fairly withstood the test of
criticism. His principal work on this subject, _Eheschliessung_,
elsewhere mentioned, is supplemented by the _Zur Trauungsfrage_
(Heilbronn, 1879), and the _Obligatorische Civilehe_ (Weimar,
1880); and in these he has proved beyond reasonable doubt
that the _legal_ participation of the church in the nuptial
celebration is of late origin. Agreeing with Sohm in his main
conclusion, but differing on some questions, is Schubert,
_Die evangelische Trauung_ (Berlin, 1890); and he is in part
anticipated by Biener in the much earlier "Beiträge zu der
Geschichte der Civilehe," in _Zeitschrift für deutsches Recht
und Rechtswissenschaft_, XX, 119-44 (Tübingen, 1861). He is
stoutly opposed on all the main points in Sehling's able
monograph, _Die Unterscheidung der Verlöbnisse im kanonischen
Recht_ (Leipzig, 1887); and also, especially regarding the late
origin of the legal ecclesiastical celebration, by Dieckhoff
in the work already mentioned, as also in his _Civilehe und
kirchliche Trauung_ (Rostock, 1880); Moy, _Eherecht der
Christen_ (Regensburg, 1833), had already taken the same view;
Scheurl holds a medial position in "Consensus facit nuptias,"
_ZKR._, XXII, 269-86 (Freiburg, 1889); which paper was preceded
by his _Entwicklung des kirchlichen Eheschliessungsrechts_
(Erlangen, 1877), and the "Zur Geschichte des kirch.
Eheschliessungsrechts," _ZKR._, XV (Freiburg and Tübingen,
1880). The last-named article is criticised by Bierling, "Kleine
Beiträge," _ibid._, XVI, 288-316 (1881). In this connection
read also Hasse, _Das Güterrecht der Ehegattin_ (Berlin,
1824), who anticipates Sohm on the nature of the Roman nuptial
celebration; Cremer, _Die kirchliche Trauung_ (Berlin, 1875);
_idem_, "Bürgerliche Eheschliessung und kirchliche Trauung,"
in _Evangel. Kirchenzeitung_ (1876), Nos. 32-35; Lindner, "Die
Heiligung der Ehe und die Trauung," _ibid._, Nos. 18-23; Buchka,
"Die Bedeutung der kirch. Trauung," _ZKR._, XVII (Freiburg and
Tübingen, 1882); Kahl, "Civilehe und kirch. Gewissen," _ibid._,
XVIII, 295-367 (1883); Freisen, _Geschichte des canonischen
Eherechts_ (Tübingen, 1888).
Friedberg's _Eheschliessung_, supplemented by the _Zur
Geschichte der Eheschliessung_, the _Lehrbuch des katholischen
und evangelischen Kirchenrechts_ (2d ed. Leipzig, 1884), and
the _Geschichte der Civilehe_ (Berlin, 1877), is a mine of
information at every point; and his conclusions as to the
validity of clandestine contracts _de praesenti_ have been
accepted by Pollock and Maitland in their _History of English
Law_ (Cambridge, 1895). Makower's _Constitutional History and
Constitution of the Church of England_ (London, 1895) is by far
the best work on his subject, the extracts from the sources
and the full bibliographical apparatus being of the greatest
assistance to the investigator.
In spite of its notorious inaccuracy, Bingham's _Origines
ecclesiasticae_ (London, n. d.) is still of service.
Conservative discussions may also be found in Göschl,
_Darstellung der kirch.-christ. Ehegesetze_ (Aschaffenburg,
1832); Hildebrand, _De nuptiis veterum christianorum_
(Helmstadt, 1701); Moy, _Eherecht der Christen_ mentioned above;
and Phillips, _Lehrbuch des Kirchenrechts_ (3d ed., Regensburg,
1881). Zhishman's _Das Eherecht der orientalischen Kirche_
(Vienna, 1864) is the standard treatise on the subject.
In general, besides the works of Beauchet, Loening, Spirgatis,
Méril, Lingard, Schmid, Thorpe, Liebermann, and others
already mentioned in Bibliographical Note VI, some useful
matter for the present chapter may be found in Parker, _De
antiquitate britannicae ecclesiae_ (London, 1729); Klein,
_Das Eheverlöbniss_ (Strassburg, 1881); Riedler, _Bedingte
Eheschliessung_ (Kempten, 1892); Freisen, _Geschichte des
canonischen Eherechts_ (Tübingen, 1888); _idem_, in _Archiv für
katholisches Kirchenrecht_, LIII, 369 ff.]
I. THE PRIMITIVE CHRISTIAN BENEDICTION, THE BRIDE-MASS, AND THE
CELEBRATION _AD OSTIUM ECCLESIAE_
It is a noteworthy fact that the early church accepted and
sanctioned the existing temporal forms of marriage. Her energy was
directed mainly to the task of enforcing her own rules relating to
marriage disabilities, such as those arising in affinity or nearness
of kin; to devising restraints upon the freedom of divorce and
second marriage; and to administering matrimonial judicature.[937]
But the existing legal character and the popular forms of betrothal
and nuptials were not disturbed. During the period preceding the
Teutonic invasion, speaking broadly, the church adhered to the
Roman law and custom; thereafter those of the Germans, even when
the marriage consisted in the formal sale and tradition of the
bride, were accepted.[938] The betrothal of the early canon law is,
therefore, the Roman betrothal. It is a _consensus sponsalitius_,
or free agreement between the man and the woman. Legally it is a
_pactum de contrahendo_, or promise for future joining in marriage,
which may be dissolved at the pleasure of either party.[939] It
creates no obligation which can give rise to action for damage or
fulfilment.[940] It does not constitute even the initiation of
marriage. The marriage begins with the nuptials or actual wedded
life, which gives expression to the _consensus nuptialis_, or mutual
will of the parties to be husband and wife;[941] though, doubtless,
the church demands parental consent, without making it absolutely
essential.[942] On the other hand, it has been demonstrated by Sohm,
contrary to the view previously accepted, that the two betrothals
of the mediæval canon law are based on the German betrothal.[943] If
not the marriage itself, it is nevertheless, as already seen, an act
for joining in marriage which is not easily dissolved.
[937] LINGARD, _Hist. of Anglo-Saxon Church_, II,
5-7; FRIEDBERG, _Eheschliessung_, 7; SOHM,
_Eheschliessung_, 107, and chap. iv; SCHEURL, _Das
gemeine deutsche Eherecht_, 14, 15.
[938] SOHM, _op. cit._, 108 ff. That the church
adopted the Roman marriage forms is the generally accepted
view: see SEHLING, _Unterscheidung der Verlöbnisse_,
24 ff.; SCHUBERT, _Die evangel. Trauung_, 4 ff.;
SCHEURL, _Entwicklung des kirch. Eheschliessungsrechts_,
8 ff.; _idem_, "Consensus facit nuptias," _ZKR._, XXII,
269 ff.; BIENER, "Beiträge," _ibid._, XX, 119,
120; RICHTER-DOVE-KAHL, _Lehrbuch_, 1029, 1030;
LOENING, _Gesch. des deutsch. Kirchenrechts_, II,
569 ff.; DIECKHOFF, _Kirchliche Trauung_, 12 ff.;
MOY, _Eherecht der Christen_, 94 ff., 215 ff., 372 ff.
On the other hand, FREISEN, in _Archiv für kath.
Kirchenrecht_, LIII, 369 ff., holds that the early Christians
followed mainly Jewish custom. _Cf. idem_, _Geschichte des
canon. Eherechts_, 120 ff.
[939] _Dig._, xxiii, tit. i, 1: "Sponsalia sunt mentio et
repromissio nuptiarum futurarum."--_Corpus juris civ._, I, 294.
_Cf._ SOHM, _Eheschliessung_, 109, 110; KLEIN,
_Das Eheverlöbniss_, 122 ff.
[940] By the older Roman law the betrothal was in form a contract
by _stipulatio_, and there was an action for damage in case
of nonfulfilment: GELLIUS, _Noctes atticae_, iv, 4;
SMITH, _Dict. of Greek and Roman Antiquities_, II,
139, 140. The later law gave no such action: _Dig._, xxiii,
tit. i, 10: _Corpus juris civ._, I, 291; _Codex_, V, 5; though
to enter into two betrothals at once was held to constitute
_infamia_, the same as two marriages: _Dig._, iii, tit. ii, 1:
_Corpus juris civ._, I, 36. _Cf._ LUDLOW, in _Dict.
Christ. Antiq._, I, 203; KLEIN, _Das Eheverlöbniss_,
22 ff., 125, 126; RIEDLER, _Bedingte Eheschliessung_,
11, 12; SCHEURL, _Entwicklung_, 9-11; LOENING,
_Geschichte des deutsch. Kirchenrechts_, II, 569, 570, who
shows that after the third century the betrothal became more
important in Roman law; SEHLING, _Unterscheidung_, 20,
21, notes; REIN, _Das röm. Privatrecht_, 188, 189;
BRISSONIUS, _De ritu nuptiarum_ (Paris, 1654), 1 ff.;
BEAUCHET, _Étude_, 11 ff.; SCHUBERT, _Die
evangel. Trauung_, 11, notes.
[941] But SOHM, _Eheschliessung_, 110, who was preceded
by GLÜCK, _Güterrecht_, 1, 97 ff., contends, against the
common interpretation of the maxim _consensus facit nuptias_,
that a merely "formless" _consensus_ not followed by actual
wedded life is not sufficient to constitute a Roman marriage.
That would be practically a _consensus sponsalitius_ or Roman
betrothal. On the other hand, SEHLING, _Unterscheidung
der Verlöbnisse_, 7 ff., 138 ff., 157 ff., insists that by
the Roman law a formless nuptial contract, whether followed
by cohabitation or not, constitutes a binding marriage. Such
also is the view of DIECKHOFF, _Kirch. Trauung_, 15;
SCHUBERT, _Die evangel. Trauung_, 4 ff., 11; and
SCHEURL, _Entwicklung_, 11. But SCHEURL,
"Consensus facit nuptias," _ZKR._, XXII, 269 ff., agrees with
Sohm, in effect, though not avowedly. For, while he says that
marriage by _confarreatio_, for example, would be a valid
marriage, even if the parties never lived together, yet the Roman
law, he points out, does not reveal the evils of clandestine
unions, because the formless nuptial promise implied the common
wedded life. _Cf._ also BIERLING, "Kleine Beiträge,"
_ZKR._, XVI, 288 ff., who criticises Scheurl; FREISEN,
_Geschichte des can. Eherechts_, 101 ff.; and REIN, _Das
röm. Privatrecht_ (1836), 188, 189.
[942] "For even on earth children do not rightfully and lawfully
wed without their father's consent."--TERTULLIAN,
_To His Wife_, Book II, c. viii: _Ante-Nicene Fathers_, IV,
48. According to ULPIAN, in _Dig._, 1, tit. xvii,
1. 30, "Nuptias non concubitus, sed consensus facit." But
PAULUS, _ibid._, xxiii, tit. ii, 1. 2, shows that the
consensus "must be at once that of the parties themselves, and of
those in whose potestas they are." See the excellent article of
LUDLOW, in _Dict. Christ. Antiq._, I, 433-36.
[943] SOHM, _Eheschliessung_, 107-52; _idem_,
_Trauung und Verlobung_, 58-109. In opposition to Sohm's view,
SEHLING, _Unterscheidung der Verlöbnisse_, 138 ff.,
165 ff., contends that the _sponsalia_ (betrothal and nuptial
promises) of the mediæval canon law are derived from the law of
Rome. Such also is the position of ZOEPFL, _Deutsche
Rechtsgeschichte_ (4th ed.), III, §§ 81 ff.; SCHULTE,
_Handbuch des kath. Eherechts_ (1855), 37, 278; WALTER,
_Kirchenrecht_ (14th ed.), § 298; and LOENING, _Gesch.
des deutsch. Kirchenrechts_, II, 601, following Sohm in the main.
SCHUBERT, _Die evangel. Trauung_, 37, takes a medial
position: "die Kirche bildete ihr eigenes Recht in Anlehnung an
das deutsche Recht aus." SCHEURL, _Entwicklung_, 93,
94, 95 ff., _passim_; _idem_, _Das gemeine deutsche Eherecht_,
14, 15, reviews and criticises Sohm on various points.
FRIEDBERG, _Verlobung und Trauung_, 25, contrary to the
position taken in _Eheschliessung_, 6, 202, accepts Sohm's view,
but with reservations. See also his _Lehrbuch_, 339 ff.
The only innovation effected by the primitive church was of a purely
religious character. Though she might content herself with the
Roman or the Germanic forms of marriage, there remained an "ethical
mission" peculiarly her own. "In order at the very outset to fill
the wedded life with the blessing and spirit of the Christian life,
the church, without reference to the matrimonial law in force,
demanded of her members that the very beginning of marriage should
be placed under the word of God and be hallowed by its power."[944]
Hence, from the first century onward, we find evidence of a priestly
benediction usually in connection with the betrothal and probably
with the nuptials.[945] Thus Ignatius declares that it "becomes
both men and women who marry, to form their union with the approval
of the bishop," that it may be according to God.[946] Tertullian
speaks of marriage being "requested" of bishops, presbyters,
or deacons;[947] and he shows in another place that publicity
was an important motive for encouraging unions "in presence of
the church."[948] In a somewhat obscure passage of the treatise
addressed to his wife, which is much relied upon by sacerdotal
writers, he exclaims: "How should we be sufficient to set forth
the bliss of that marriage which the church brings about, and the
oblation confirms, and the benediction seals, angels proclaim,
the Father ratifies?"[949] But here a legal importance is given
to the benediction which it does not seem to have gained until
centuries later.[950] A similar doubt attaches to the words of
Ambrose, who, writing against mixed marriages, says: "For since
marriage itself should be sanctified by the priestly veil and by
benediction, how can that be called a marriage where there is no
agreement of faith?"[951] But, "as Selden has observed, the like
benedictions were often claimed in behalf of many other kinds of
contract besides that of marriage--a sale, for instance."[952] In
the eastern church likewise the letters of Gregory Nazienzen and
the silence of Chrysostom show that the benediction was without
legal significance.[953] By the Roman law no betrothal or nuptial
ceremonial is prescribed. The solemnities were determined by local
custom; and these the early Christians were willing to accept.
For centuries a marriage liturgy was not adopted either in the
East or in the West.[954] According to Tertullian, no "breath of
idolatry" attaches even to the heathen ceremonies connected with
espousals,[955] among which he mentions the ring, the kiss, the
veil, and the joining of hands.[956] The ring came more and more
under German influence to be used as an _arrha_.[957] Witnesses were
required; and in connection with the nuptials we hear also of the
"pomp" or procession to the bridegroom's home, and the "crowning" of
the bride or the wedded pair, usually with flowers.[958]
[944] SOHM, _Eheschliessung_, 107, 108. _Cf. idem_, _Ob.
Civilehe_, 25; and SCHUBERT, _Die evangel. Trauung_,
5 ff., who agrees with Sohm. The conservative view of the
religious character of early Christian marriage is represented by
KLEIN, _Eheverlöbniss_, 95 ff.; DIECKHOFF, _Die
kirch. Trauung_, 20 ff., _passim_.
[945] The custom of benediction may have been influenced
by Jewish practice. The Hebrew benediction was given "not
necessarily by a priest, but by the eldest friend or relative
present": MEYRICK, in _Dict. Christ. Antiq._, II,
1107, who gives the benediction in abridged form. _Cf._
SELDEN, _Uxor ebraica_, II, 12.
On the teachings of the Christian fathers as to the form of
marriage see MARTENE, _De ritibus_, II, lib. I, c.
ix, 120-44; SELDEN, _Uxor ebraica_, 179-84, 665-69,
_passim_; SCHUBERT, _Die evangel. Trauung_, 4 ff.;
LOENING, _Gesch. des deutsch. Kirchenrechts_, II,
573 ff.; DIECKHOFF, _Die kirch. Trauung_, 20 ff.;
FRIEDBERG, _Lehrbuch_, 337 ff.; PHILLIPS,
_Lehrbuch_, 612 ff.; BIENER, "Beiträge," _ZKR._, XX,
119-27.
[946] IGNATIUS, _Epistle to Polycarp_, IV: _Ante-Nicene
Fathers_, I, 95.
[947] TERTULLIAN, _On Monogamy_, xi: _Ante-Nicene
Fathers_, IV, 67.
[948] TERTULLIAN, _On Modesty_, v: _Ante-Nicene
Fathers_, IV, 77. _Cf._ MEYRICK, art. "Marriage," in
_Dict. Christ. Antiq._, II, 1106, who thinks, aside from the
religious motive, members might thus avoid the violation of laws
of the state with which they were unacquainted.
[949] LUDLOW, on "Benediction," in _Dict. Christ.
Antiq._, I, 193; _cf._ the reading in _Ante-Nicene Fathers_, IV,
48.
[950] LUDLOW, _loc. cit._
[951] AMBROSE, Book IX, ep. 70; LUDLOW, _loc.
cit._
[952] LUDLOW, _ibid._; SELDEN, _Uxor ebraica_,
Lib. II, cc. xxiv, xxv.
[953] LUDLOW, _op. cit._, I, 194.
[954] In both East and West, between the sixth and seventh
centuries: LUDLOW, _ibid._
[955] TERTULLIAN, _On Idolatry_, xvi: _Ante-Nicene
Fathers_, III, 71. _Cf._ LUDLOW, on "Betrothal," _op.
cit._, I, 203.
[956] TERTULLIAN, _loc. cit._; _idem_, _On the Veiling
of Virgins_, xi: _Ante-Nicene Fathers_, III, 71; IV, 34. On
the ring see _Dict. Christ. Antiq._, I, 248, 249, 202; II,
1105, 1807, 1808; for the kiss see _ibid._, II, 905, 906. By
the Theodosian Code, lib. v, tit. 3, leg. 16, one-half of
the bridegroom's gifts, after his death, were delivered to
his betrothed in case the betrothal were sealed by a kiss;
otherwise all was given to his relatives: _ibid._, II, 1110. In
England, and elsewhere, the kiss was a characteristic of public
spousals; and when these were recognized by the church the kiss
was sanctified by the priest: JEAFFRESON, _Brides and
Bridals_, I, 65-67; BRAND, _Pop. Antiq._, II, 139-41.
_Cf._ also MÉRIL, _Des formes et des usages_, 37, 38;
SPIRGATIS, _Verlobung und Vermählung_, 16, 17. The veil
was originally used at the betrothal, from the time of which
ceremony onward in early days it was worn habitually by the
betrothed as well as by the married woman: MEYRICK, in
_Dict. Christ. Antiq._, II, 1108, 1109.
[957] LUDLOW, on "Arrhae," in _Dict. Christ. Antiq._, I,
142-44: MEYRICK, _ibid._, II, 1105.
[958] For the crowning in the eastern church see
ZHISHMAN, _Das Eherecht der orient. Kirche_, 135, 156,
692 ff.; _cf._ MARTENE, _De ritibus_, I, 125. The crown
was made of flowers, often of olive or myrtle, and sometimes of
silver or gold. The custom appears in the West, but it became
at length so important in the East that the "whole marriage was
called the crowning, as in the West it was called the veiling":
MEYRICK, in _Dict. Christ. Antiq._, II, 1108, 1109;
_cf. ibid._, I, 511. The pomp is, of course, the Greek _pompa_:
FUSTEL DE COULANGES, _Ancient City_ (Boston, 1896),
55 ff., corresponding to the Roman _traductio_ and the German
_Brautlauf_.
It seems probable, then, that during the first three or four
centuries Christian marriages were not as a rule celebrated in
church.[959] The betrothal or nuptial benediction was not essential
to a valid marriage, however important it may have been regarded
from a religious point of view.[960] Gradually it became an
established custom for the newly wedded pair, after solemnization
of the nuptials, to attend religious services in the church and
partake of the sacrament, at the close of which the priest invoked
a blessing upon the future married life. But at first the church
service was the ordinary service; only after a considerable interval
were phrases introduced into the prayers especially applicable to
the wedded pair.[961]
[959] Pope Nicholas (A. D. 860), in his replies to the
Bulgarians, who had asked his counsel concerning marriage rites,
says concerning the nuptials: "First of all they are placed in
the church with oblations, which they have to make to God by the
hands of the priest, and so at last they receive the benediction
and the heavenly veil." On this letter see SELDEN,
_Uxor ebraica_, Lib. II, c. xxv, 179; MARTENE, _De
ritibus_, I, 124, 125; DIECKHOFF, _Die kirch. Trauung_,
47 ff.; BEAUCHET, _Étude_, 34. From this letter and the
statements of the Fathers concerning the benediction, already
mentioned, MEYRICK, in _Dict. Christ. Antiq._, II,
1106, 1107, concludes, "There is no reasonable doubt that the
place in which Christians were ordinarily married was a church,
so soon as it became safe and customary for them to meet in
churches for religious purposes, and that the way in which they
were ordinarily married was by a religious ceremony," though
especially in the East (CHRYSOSTOM, _Hom. xlviii, in
Gen._, c. 24) the religious ceremony often took place in houses.
But so far as western Christendom is concerned, the sources show
that marriage in church was of slow growth. JEAFFRESON,
_Brides and Bridals_, I, 48, 49, doubts whether the Anglo-Saxons
always celebrated marriage in their homes.
[960] SOHM, _Eheschliessung_, 153 ff., insists that the
priestly benediction, unless here and there by local custom,
was connected with the nuptials (_Trauung_) and not with the
betrothal, which he regards as the essential element in marriage.
But DIECKHOFF, _Die kirch. Trauung_, 20 ff., 30 ff.,
47 ff., 65 ff., claims that from the earliest period among
the Christians it was customary for the priest to bless the
betrothal; and that at least from the fourth century the same
is true of the nuptials. In his _Zur Trauungsfrage_, 17, note,
SOHM seems to accept Dieckhoff's view, while denying
anything but religious meaning to the benediction in either case.
SIRICIUS, _Epist. ad Himer._, § 4, mentions a
"benediction of the priest at betrothal, of so solemn a nature
as to make it sacrilege in the betrothed woman to marry another
man;" but this epistle may be spurious: MEYRICK, in
_Dict. Christ. Antiq._, II, 1106. _Cf._ SCHEURL,
_Entwicklung_, 24, 25; SEHLING, _Unterscheidung_, 25,
notes, 110; LOENING, _op. cit._, II, 573; and, for the
eastern church, ZHISHMAN, _Das Eherecht der orient.
Kirche_, 126, 135, 156, 672, 289 ff., _passim_.
[961] SOHM, _Eheschliessung_, 157. This stage of the
bride-mass is disclosed by the oldest _sacramentaria_, of about
the fifth century; and the same ritual was in use in the Frankish
church in the ninth century.
Thus stood the custom in the period immediately following the
conversion of the Teutonic nations. The nuptials consisted of two
distinct acts. The first was the _gifta_, or traditional ceremony in
the usual form. Thereafter, often on the day following the bridal
night,[962] the newly wedded couple celebrated the bride-mass
(_Brautmesse_) and received the benediction of the priest. But this
religious act had no legal significance. No doubt it was performed
by all good Christians as a religious duty. The benediction was
invoked on the married life, a fact of such immense ethical
importance, just as it was invoked on all important undertakings. It
was observed as a fitting solemnity for a believer and not as a part
of the marriage. Therefore in the case of second marriages it was
omitted.[963] Broadly stated, the canon law maintained the validity
of all proper marriages solemnized without the priestly benediction,
though spiritual punishment might be imposed for neglect of
religious duty. Such is the view of Sohm, and it has been generally
accepted.[964] Dieckhoff,[965] however, contests it at every point.
He holds that from early days the priestly benediction, whether of
betrothal or of nuptials, was an essential part of the Christian
marriage celebration. In support of the theory, that originally the
church really undertook to join persons in wedlock, he presents
three services from Roman _sacramentaria_ of the age of Charles the
Great.[966] But it is by no means certain that the words of the text
relied upon for proof are not of too recent origin to be convincing
as to early usage; and if they really belong to the time assigned,
they cannot, in face of other evidence, be accepted as showing
the general custom of the West, but rather, like the often-cited
Capitulary,[967] of 802, as merely revealing the aim and desire of
the church.
[962] FRIEDBERG, _Eheschliessung_, 78-93, where numerous
proofs from the mediæval poets and other sources are given; but
sometimes marriage in church appears. _Cf._ SOHM, _op.
cit._, 159 n. 16.
[963] In all the early rituals the benediction is not allowed
in case of a second marriage, at any rate unless the first
marriage of one or both of the parties had not been blessed by
the priest; and long paragraphs of the service are devoted to
explaining the alleged reasons for this, and to the still harder
task of showing how a second marriage can be a sacrament and yet
less holy than a first marriage. This dilemma led to curious
compromises, as in the service used at the marriage of King
Ethelwulf with Judith, his father's widow, in the year 856; see
the service in PERTZ, _Monumenta, leg._, I, 420; and
DIECKHOFF, _Die kirch. Trauung_, 73, 74. On this topic
compare the York, Sarum, and Hereford rituals in Surtees Society
_Publications_, LXIII, 35-37, Appendix, 23, 24, 117, 118; and
the Sarum (Salisbury) ritual in MASKELL, _Monumenta
ritualia_, I, 71-74; also _Rituale romanum Pauli Quinti_,
198; MARTENE, _De ritibus_, II, 121, 122; _Excerp.
Ecgberti_, 91: in Thorpe, II, 110; AELFRIC'S _Canons_,
9; _ibid._, II, 347; FRIEDBERG, _Eheschliessung_, 36;
SCHMID, _Gesetze_, 562; BOHN, _Pol. Cyc._, III,
319. SELDEN, _Uxor ebraica_, II, c. 30, maintains that
the practice of celebrating nuptials before a priest was not
general among primitive Christians. This is declared an error by
BINGHAM, _Origines_, VII, 328 ff., who, like Dieckhoff
and most ecclesiastical writers, holds that the custom was
general and obligatory.
[964] SOHM, _Eheschliessung_, 107 ff., 153 ff.;
_idem_, _Zur Trauungsfrage_, 10 ff.; _idem_, _Obligat.
Civilehe_, 25 ff. In substantial agreement with Sohm are
LOENING, _Gesch. des deutsch. Kirchenrechts_, II,
569-606: FRIEDBERG, "Zur Geschichte," _ZKR._, I,
374 ff.; BIENER, "Beiträge," _ibid._, XX, 119-47;
SCHEURL, _Entwicklung_, 110 ff. _Cf._ BEAUCHET,
_Étude_, 30 ff.; SPIRGATIS, _Verlobung und Trauung_,
4 ff.; SCHUBERT, _Die evangel. Trauung_, 14 ff.;
KLIEFOTH, _Liturgische Abhandlungen_ (2d ed., 1869), I,
136 ff.
[965] DIECKHOFF, _Die kirch. Trauung_, 29 ff., 45, 46
ff., 65 ff.; _idem_, _Civilehe und kirch. Trauung_, 14 ff. Much
earlier, MOY, _Eherecht der Christen_, 216, 217, had
taken the same view.
[966] DIECKHOFF, _Die kirch. Trauung_, 35 ff.:
_sacramentaria_ of Popes Leo, Gelasius, and Gregory I. These,
he thinks, show not merely a "divine benediction of the
marriage already concluded, but essentially a divine joining in
marriage." These services are also contained in DANIEL,
_Codex liturgicus_, I, 257 ff.; and that of Gelasius in
MARTENE, _De ritibus_, II, 127.
[967] Charles the Great in the Capitulary of 802, c. 35,
WALTER, _Corpus juris germ._, II, 167, prescribes the
benediction of the nuptials by a priest; but this is thought
to have had little effect. The benediction is also required by
several false capitularies: FRIEDBERG, _Eheschliessung_,
58, 59. On this decree of 802 see also SCHUBERT, _Die
evangel. Trauung_, 19; BEAUCHET, _Étude_, 30, 31.
The introduction of the bride-mass constitutes the second stage
in the history of clerical marriage. In English history it is
represented by several spousal services which have been published
by the Surtees Society.[968] They cover the period from the
eighth to the eleventh century, beginning with the Pontifical of
Egbert, archbishop of York (732-66) and ending with the _Rede
Boke_ of Darbye (_ca._ 1050), now in the library of Corpus Christi
College, Cambridge. These services consist wholly of prayers and
benedictions. There is no mention of the mass, though doubtless the
husband and wife have already partaken of the communion before the
service. Apparently the function of the priest is purely religious.
It is merely an invocation of the divine blessing upon the life of
the newly wedded pair, and has no legal significance. The nuptials
have already been solemnized, whether in the presence of the priest
or not the formularies do not explain.
[968] Surtees Society _Publications_, LXIII, Appendix, 157 ff.
In the _Ordo_ of Archbishop Egbert, for instance, a blessing is
invoked upon the parties, the bridal chamber, and the marriage
bed; and the other _Ordines_ there printed are of the same
general character.
But already in the tenth century we reach the beginning of a third
stage in the rise of the ecclesiastical ceremony.[969] The nuptials
still consist of two distinct acts. The first is the _gifta_
proper, according to the usual temporal forms. It is no longer a
strictly private transaction,[970] but it takes place before the
church door--_ante ostium ecclesiae_[971]--in the presence of
the priest, who participates in the ceremony and closes it with
his blessing. The second act consists in the entrance into the
church and the celebration of the bride-mass, followed by a second
benediction. But the _gifta_, even in this stage, is temporal and
not ecclesiastical. It occurs "before and not within the church,"
the motive usually assigned being to induce an immediate attendance
upon communion on the very day of the nuptials instead of after
an interval. In reality, however, the custom is but a recognition
of the temporal nature of wedlock, which ought therefore to be
celebrated before and not within the consecrated building.[972]
That such was the prevailing custom throughout the western church
during the Middle Ages is established by a mass of evidence of the
most convincing character. Besides the testimony of chroniclers,
historians, and literary men, we have that of the law-books and
legal writers, lay and ecclesiastical, which make frequent mention
of the assignment of the wife's dower at the church door during the
nuptial celebration.[973] Moreover, many of the ancient rituals
themselves have been preserved. All these "are unanimous," says Léon
Gautier, following Martene, "in placing the principal act of the
marriage celebration, that is to say the consent of the parties,
at the entrance or in the porch of the church;"[974] and what is
thus affirmed for the rituals of France is equally true for those
of Germany[975] and England. "In the first place," runs the opening
rubric of the Sarum _Ordo ad faciendum sponsalia_, "let the man
and the woman stand before the church door in the presence of God,
the priest, and the people, the man on the right of the woman, and
the woman on the left of the man." Here the bride and groom remain
during the nuptial celebration, the assignment of the dower, and the
closing benediction. Thereupon, as the rubric directs, "let them
enter the church as far as the steps of the altar," where, after a
psalm, they are to prostrate themselves while a prayer is said in
their behalf.[976] The usage of Sarum in this regard is typical,
differing only in words and arrangement from that of York, Hereford,
or the other churches. Indeed, marriage continues to be celebrated
at the church door until the sixteenth century, the liturgies of
Edward VI. and Elizabeth first requiring as a general observance the
ceremony to be performed in the body of the church.[977]
[969] It need not surprise us that these phases of evolution
chronologically overlap each other; for social development is
seldom uniform.
[970] _Haustrauung_: SOHM, _Eheschliessung_, 158.
[971] Also _ad valvas ecclesiae, in facie ecclesiae, in conspectu
ecclesiae, ad fores ecclesiae_, etc.
[972] "By performing the civil rite outside the walls of the
church they declared the fundamental nature of the matrimonial
contract, and asserted the doctrine of the common law of the
land respecting its meaning and purpose."--JEAFFRESON,
_Brides and Bridals_, I, 53. This view is of course rejected by
DIECKHOFF, _Die kirch. Trauung_, 76, note, 79 ff., who
regards the ecclesiastical transaction as a real ecclesiastical
celebration necessary to the marriage in the eyes of the church.
_Cf._ BIERLING, "Kleine Beiträge," _ZKR._, XVI, 288
ff., who criticises DIECKHOFF (_Civilehe und kirch.
Trauung_), and agrees with SOHM (_Zur Trauungsfrage_,
10) that the ecclesiastical transaction must not be confused with
ecclesiastical marriage.
[973] GLANVILLE, _Tractatus_, lib. vi, c. 1:
PHILLIPS, II, 381. "The term dower is used in two
senses. Dower in the sense in which it is commonly used means
that which any free man at the time of his being affianced
(tempore desponsationis) gives to his bride at the church
door": GLANVILLE, vi, c. 1, as translated by JOHN
BEAMES (London, 1812). _Cf._ also SELDEN, _Fleta_,
lib. v, c. 23, pp. 340, 341; BRACTON, _De legibus_,
lib. ii, c. 39 (fol. 92), Vol. II, 48; HORNE, _The
Mirror of Justices_ (ed. WHITTAKER, London, 1895), 11;
FITZHERBERT, _New Natura Brevium_ (Dublin, 1793), 352
(150); HENGHAM, _Summa parva_, c. ii: "Brevia de dote ad
ostium ecclesiae;" SELDEN, _Uxor ebraica_, 198, or in
_Opera_, III, 680.
That the _gifta_, or celebration as a temporal act, should take
place before the church door is thoroughly in harmony with the
early view that there purification or preparation should be made
for the rites or service within the sanctuary. The _atrium_
sometimes seems to be regarded as the medial ground between
the world on the one hand and the sacred temple of God on the
other; see, for example, _Old Eng. Homilies_, I, 72, 73: children
are to be baptized in holy church, "and their godfathers and
godmothers are to answer for them at the church-door, and enter
into pledges (covenants) at the font-stone, that they should
be believing (faithful) men." This passage is referred to in
MÄTZNER, _Altenglisch. Sprachproben_ (Berlin, 1878),
II, 578, at "chirchedure." GREGORY, in his _Pastoral
Care_, 104, 105, referring to the brazen basins before the Temple
supported by twelve oxen, says the bishops when they "descend
to wash the sins of their neighbors, when they confess, they
support, as it were, the basin before the church-door." According
to the _Capitula et fragmenta Theodori_, THORPE,
_Ancient Laws_ (folio), 313, "Si in atrio ecclesiae quislibet
injuriaverit aliquem presbyterum, vel ibidem aliquod sacrilegium
perpetraverit, altari et Domino componatur." With this
compare ÆTHELRED, _Laws_, VII, 13: THORPE,
_Ancient Laws_ (folio), 142; GRIMM, _Wörterbuch_,
_s. v._ "Kirchthor;" MURRAY, _New Eng. Dict._, Part
V, 406, at "church-door;" _Ormulum_, I, 43, ll. 1326, 1327;
CHAUCER, _Prolog._, 460: "Housbondes at chirche dore she
hadde fyve." See also WARNKÖNIG AND STEIN, _Französische
Verfassungsgeschichte_, II, 257; WEINHOLD, _Deutsche
Frauen_, I, 377, 378; WHITGIFT, _Works_, II, 461-64;
BRAND, _Pop. Ant._, II, 133-35; JEAFFRESON,
_Brides and Bridals_, I, 46-59; SPIRGATIS, _Verlobung
und Trauung_, 20, 21; SCHUBERT, _Die evangel. Trauung_,
20.
[974] LÉON GAUTIER, _La chevalerie_, 424 n. 3: _ap._
MARTENE, _De ritibus_, who says: "Nuptiae communiter
solent celebrari _ad valvas ecclesiae_;" and places before us
abundant proof in the sixteen _ordines_ which he publishes,
_ibid._, II, 127-44. Gautier cites also ÉTIENNE DE
BOURBON, ed. of LECOY DE LA MARCHE, 366: "Cum
duceretur ... ad parrochiam ... _et esset sub porticu ecclesiae
ut sponsa sua ei consentiret_ et matrimonium ratificaretur per
verba de praesenti, ut moris est, et sic in ecclesia matrimonium
solempnizaretur in misse celebratione et aliis." The same writer
makes a thorough examination of the "Pontifical ou rituel de
lire" (published by MARTENE, II, coll. 356-59, who
assigns it to the twelfth century), comparing it with other
rituals, with illustrations and proofs from many sources. In
chaps. ix to xi inclusive, entitled "Le mariage du chevalier"
(_op. cit._, 341-450), Gautier gives a learned and most
interesting discussion of mediæval marriage rites and customs.
Compare DANIEL, _Codex liturgicus_; and the summaries in
PALMER, _Origines liturgicae_, I, 106 ff.
[975] See SOHM, _Eheschliessung_, 153-63; and
FRIEDBERG, _Eheschliessung_, 37, 38, who reach
this conclusion from an examination of the various English
and continental rituals; especially the ritual of Rennes,
_ca._ eleventh century, in MARTENE, II, 127; also
SOHM, _op. cit._, 159, 160; DIECKHOFF, _Die
kirch. Trauung_, 77, 78.
[976] "Manual ad usum Sarum," in Surtees Society _Publications_,
LXIII, Appendix, 17-20; also in MASKELL, _Monumenta
ritualia_, I, 50-77. Compare the rituals of York, Hereford, and
the others contained in Surtees Society _Publications_, LXIII,
24 ff., 115 ff., 160 ff.; also the "Rituel de lire" in LÉON
GAUTIER, _La chevalerie_, 424-31, as summarized in capitals
in the margin; and the ritual of Rennes in MARTENE, _De
ritibus_, II, 127; or in SOHM, _Eheschliessung_, 159,
160: "In primis veniat sacerdos ante ostium ecclesiae indutus
alba atque stola cum benedicta aqua; qua aspersa, interroget eos
sapienter, utrum legaliter copulari velint, et quaerat quomodo
parentes non sint, et doceat quomodo simul in lege Domini vivere
debeant. Deinde _faciat parentes secuti mos est dare eam_, atque
sponsum dotalitium dividere, cunctisque audientibus legere,
ipsumque suae sponsae libenter dare.... Qua finita, _intrando in
ecclesiam, missam incipiat_," etc.
[977] _Liturgy of Edward VI._ (Parker Society), 127; _Liturgy
of Elizabeth_ (Parker Society), 217. Compare WHITGIFT,
_Defence of the Answer_, II, 462, where he defends the
requirement of the "book," that "persons to be married shall come
into the body of the church, with their friends and neighbours,
there to be married," against THOMAS CARTWRIGHT in his
_Reply to the Answer_, 105, sec. 2, who ridicules the prescribed
ceremonial. "Likewise for marriage," says Cartwright, "he (the
priest) cometh back again into the body of the church, and for
baptism unto the church-door: what comeliness, what decency, what
edifying in this? Decency (I say) in running and trudging from
place to place: edifying in standing in that place, and after
that sort, where he can worst be heard and understanded."
One of the very earliest references to the presence of the priest
at the nuptials is contained in the last two sections of the old
English ritual of the tenth century already quoted in part,[978] and
this ritual may be regarded as marking the transition to the period
under consideration.
[978] This is next to the oldest mention, after the Germanic
conquest, of the priestly benediction; the first is the marriage
of Judith to the Saxon king Æthelwulf, 856, elsewhere mentioned.
"8. At the nuptials there shall be a mass-priest by law; who shall
with God's blessing bind their union to all prosperity.
"9. Well is it also to be looked to, that it be known, that they,
through kinship, be not too nearly allied; lest that be afterwards
divided, which before was wrongly joined."[979]
[979] SCHMID, Anhang VI, 392, 393: THORPE, I,
255, 257.
It is evident, as Friedberg has remarked, that the office of
mass-priest in this ritual is of no legal significance. The
invocation of a divine blessing is merely a religious act after the
marriage is complete.[980] It is no more a part of the _gifta_ than
is the caution, in the last section, against marriage within the
degrees of relationship forbidden by the canons. It is plain that in
this formulary the betrothal and not the nuptials absorbs well-nigh
the whole attention of the lawgiver. It is manifestly the thing of
deepest concern; and in this the priest has no part.[981]
[980] FRIEDBERG, _Eheschliessung_, 35; compare
LINGARD, _History and Antiquities of the Anglo-Saxon
Church_, II, 7-11, who gives the form of benediction.
[981] SOHM, _Eheschliessung_, 100 n. 60. This view is of
course opposed by DIECKHOFF, _Die kirch. Trauung_, 69 ff.
According to Lingard, "there is no trace of any form of marriage
contract in ancient English sacramentaries previously to the close
of the twelfth century; and the earliest mention of it appears in
the constitutions of two English prelates, Richard Poere, bishop of
Sarum, and Richard de Marisco, bishop of Durham, who ordered the
parish priests to teach the bridegroom this form, 'I take thee N.
for my wife,' and the bride a similar form, 'I take thee N. for
my husband.'"[982] This statement, however, may now require some
modification. Judging from its brevity and its condensed, almost
crude, diction, the ritual published by the Surtees Society from
a pontifical in the library of Magdalen College, Oxford, may have
originated at an earlier date in the twelfth century;[983] and
this seems all the more probable, for French rituals, in which the
priest takes a leading part in directing the spousal contract, are
preserved from a still earlier period.[984] However this may be, the
rituals of Sarum, York, and Hereford are among the most ancient, the
most elaborate, and the most instructive which have anywhere been
preserved, those of Sarum and York having been in force from about
the end of the twelfth century until 1549. They contain a rich store
of material for the student of the marriage contract, carrying him
back to the cradle of the English race in the Saxon forests. Beneath
the ecclesiastical covering, the adventitious mass of prayers,
psalms, and benedictions, is a kernel of primitive Teutonic custom
which he will at once recognize.
[982] LINGARD, _op. cit._, II, 10, note; _ap._
WILKINS, _Conc._, I, 582.
[983] Surtees Society _Publications_, LXIII, Appendix, 160, 161.
See also the "Benedictio annuli, sponsi et sponsae" from the Ely
Pontifical, Cambridge University library, of the twelfth century,
_ibid._, 161, 162, in which the priest leads in blessing the
ring, assigning the dower, and directing the "giving" of the
woman. It is probably a part of a very early ritual.
[984] See the rituals of Rennes, _ca._ eleventh century, and _de
lire_, twelfth century, already referred to.
The York service may be taken as a type, for it does not differ in
any important particular from the other two. In it the advance of
the clergy is very marked. The priest directs or participates in the
whole procedure. The ceremony takes place before the church door,
as the rubric directs, the man standing "on the right of the woman
and the woman on the left of the man."[985] Then the priest is to
ask the banns in the mother-tongue, following the Latin formula
prescribed in the ritual, first addressing the people:
"Lo, bretheren, we are comen here before God and his angels and all
his halowes, in the face and presence of our moder holy Chyrche, for
to couple and to knyt these two bodyes togyder, that is to saye,
of this man and of this woman, that they be from this tyme forthe,
but one body and two soules in the fayth and lawe of God and holy
Chyrche, for to deserue everlastynge lyfe what someuer that they
have done here before."
[985] "Statuantur vir et mulier ante ostium ecclesiae coram
Deo et sacerdote et populo, vir a dextris mulieris et mulier a
sinistris viri": York manual, in Surtees Society _Publications_,
LXIII, 24. _Cf._ the Sarum, Hereford, and Welsh rituals,
_ibid._, Appendix, 17, 115, 167; also the Sarum ritual in
MASKELL, I, 50. All these place the man on the right
of the woman; but in "one MS. Manual of Sarum Use (early XVth
century)," the woman "stands on the _right_ hand of the man":
HENDERSON, in preface to Surtees Society _Publications_,
LXIII, xviii, xix.
"I charge you on Goddes behalfe and holy Chirche, that if there be
any of you that can say any thynge why these two may not lawfully be
wedded togyder at this tyme, say it nowe outher pryuely or appertly,
in helpynge of your soules and theirs bothe."
Secondly, addressing the man and the woman:
"Also I charge you both and eyther be your selfe, as ye wyll answer
before God at the day of dome, that yf there be thynge done pryuely
or openly, betwene yourselfe, or that ye knowe any lawfull lettyng
why that ye may nat be wedded togyder at thys tyme, say it nowe or
we do any more to this mater."[986]
[986] Compare the similar provisions, in more archaic words, in
the Salisbury manual in the British Museum: MASKELL,
_Monumenta ritualia_, I, 52-54, margin; and the Latin form there
given in the text.
If no objection to the marriage is made, the priest, in several
long paragraphs of the service, explains the canons relating to
publication of banns, the times when the ecclesiastical celebration
is forbidden, and the evils growing out of clandestine unions, with
the penalty of three years' suspension from office for the priest
who fails to prohibit such marriages in his parish. Then follows
the essential act, the celebration of the _sponsalia_. This, as
already mentioned, is in two distinct parts. The first part is
the repetition of the betrothal _per verba de futuro_, the priest
putting the vows in the form of a question to each party. He says to
the man:
"_N._, wylt thou haue this woman to thy wyfe and loue her [and
wirschipe hir[987]] and keep her, in sykenes and in helthe, and in
all other degrese be to her as a husbande sholde be to his wyfe, and
all other forsake for her, and holde the only to her to thy lyues
ende."
[987] The words in the brackets in the formulæ for both parties
are added in the Cambridge MS. of the York ritual.
The man is to answer: "I wyll." The priest then says to the woman:
"_N._, wylt thou haue this man to thy husbande, and to be buxum to
hym [luf hym, obeye to him, and wirschipe[988] hym], serue hym and
kepe hym in sykenes and in helthe: and in all other degrese be unto
him as a wyfe shulde be to her husbande, and all other to forsake
for hym, and holde the only to hym to thy lyues ende."
[988] It will be noted that in the Cambridge MS. both the
man and the woman promise to "worship." The same is true
of the manuscript Salisbury ritual in the British Museum:
MASKELL, _op. cit._, I, 53.
The woman is to say: "I wyll."
This closes the first part. The second part is the _gifta_, or
marriage properly so called, _per verba de praesenti_. The priest
says: "Who gyues me this wyfe?" "Then," runs the Latin rubric,
"shall the woman be given away by her father or by a friend; if a
maid, she shall have her hand bare; if a widow, she shall have it
covered."[989] The man shall receive her to keep in God's faith and
his own, as he has vowed before the priest; and holding her by the
right hand with his right hand, he shall plight the woman his troth
in words of the present tense, saying after the priest:
"Here I take thee _N._ to my wedded wyfe, to haue and to holde, at
bedde and at borde, for fayrer for fouler, for better for warse, in
sekeness and in hele, tyl dethe us departe, and thereto I plyght the
my trouthe;" and the woman makes the same vow in the same words.
[989] This provision is found in all these early rituals. _Cf._
LÉON GAUTIER, _La chevalerie_, 427, note.
"Then shall the man place gold, silver, and a ring upon a shield or
a book. And the priest shall enquire whether the ring has already
been blessed." If not, the priest is to bless it in prescribed form,
and sprinkle it with holy water. Then follows a curious ceremony.
The bridegroom "takes the ring with his three principal fingers, and
says after the priest, beginning with the thumb of the bride, '_In
nomine Patris_;' at the second finger, '_et Filii_;' at the third
finger, '_et Spiritus Sancti_;' at the fourth or middle finger,
'_Amen_;'[990] and there he leaves the ring, because according
to the Decree ... 'in the middle finger there is a certain vein
extending to the heart.'"[991]
[990] This formula is common to the early rituals. It is omitted
in the modern service of the English church, but retained in the
present Roman ritual: BINGHAM _The Christian Marriage
Ceremony_, 180.
[991] "Et ibi dimittat annulum secundum decretum xxx. quaestione
v. Feminae, ad finem: quia in medico est quaedam vena procedens
usque ad cor": p. 27. _Cf._ GRATIAN'S _Decretum_, in
RICHTER-FRIEDBERG, _Corpus jur. can._, I. The "vein
extending to the heart" is likewise mentioned in the rituals of
Hereford and Sarum, and in the Welsh ritual of the fifteenth
century. The Sarum ritual adds: "et in sonoritate argenti
designatur interna dilectio, quae semper inter eos debet esse
recens": Surtees Society _Publications_, LXIII, Appendix, 20.
After this delicious bit of popular superstition, handed down to our
own days from remote antiquity, the bridegroom, holding his bride by
the hand, says after the priest: "With this rynge I wedde the, and
with this golde and siluer I honoure the, and with this gyft I dowe
thee."
The priest next "asks the dower of the woman." If "land is given
her in the dower," the bride "prostrates herself at the feet of
the bridegroom;" but the York ritual does not go so far as one
manuscript of the Sarum manual, in requiring that the woman shall
"kiss the right foot" of her spouse.[992]
[992] Thus a "MS. Manual of Sarum Use" provides, "whether
there is land in the doury or not": "Tunc procidat sponsa ante
pedes ejus, et deosculetur pedem ejus dextrum; tunc erigat eam
sponsus": Surtees Society _Publications_, LXIII, 20, note; and
HENDERSON, _ibid._, xix. On the York and Sarum rituals
see SELDEN, _Uxor ebraica_, 193 ff.; and the points
discussed are all illustrated in the _Ordines_ published in
MARTENE.
The ceremony ends with prayer and benediction, followed by the
entrance into the church for celebration of the bridal mass.[993]
[993] This ritual also provides a form for the priestly blessing
of the bridal chamber (_benedictio thalami_) and the nuptial
couch: "Nocte vero sequenti cum sponsus et sponsa ad lectum
pervenerint, accedat Sacerdos et benedicat thalamum;" the
blessing concluding with the direction: "Tunc secundum morem
antiquum thurificentur torus et thalamus": 39, 40. Similar
forms are given in the Hereford, Sarum, and Bangor rituals:
Surtees Society _Publications_, LXIII, Appendix, 25, 26, 120;
MASKELL, I, 76, 77 n. 47.
The historical significance of the ritual just analyzed is
readily perceived.[994] In the ring, the gold, and the silver
there is a plain recognition of the _arrha_, though it was coming
to be regarded as a kind of symbolical assignment of the wife's
dower.[995] It is noticeable that the tradition is still conducted
by the "father or a friend." It is a private lay transaction in
which the priest has no legal part. He is still a mere orator,
rather than a necessary actor, though there is a manifest effort
to gain the recognition of the priestly office as essential to a
Christian marriage. Martene has pointed out that in all the early
rituals the words _vos conjungo_[996] are unknown. It is the
"parties who marry themselves." The matrimonial contract arises
solely in their consent.[997]
[994] For a good summary of the Sarum and other rituals see
FRIEDBERG, _Eheschliessung_, 36 ff.; and see the
ceremonies of 1502 and 1554, in the "Gentlemen's Magazine
Library," _Manners and Customs_, 57.
[995] Thus a manuscript manual of Salisbury use has this "curious
addition;" the priest says: "Loo this gold and this siluer is
leyd doun in signifyinge that the woman schal haue hure dower,
thi goodes, zif heo abide aftur thy disces": fol. 17; _ap._
MASKELL, _Monumenta ritualia_, I, 58 n. 14. LÉON
GAUTIER finds in the similar French custom a "reminiscence"
of the marriage _per solidum et denarium_ of the Salic law. "When
the bridegroom pronounces these words: '_De mon bien je vous
doue_,' he delicately places in the little purse of the bride
three pretty pieces of money, three new _deniers_. Not being able
to put into her hands the fields, woods, and manors constituting
the dower, he gives her its symbol. They went so far on account
of this usage as to coin special _deniers_, 'deniers pour
espouser'": _La chevalerie_, 428.
[996] "I pronounce that they be man and wife together, in the
name of the Father," etc.: Ritual of the English church, in
BINGHAM, _Christian Marriage Ceremony_, 166. "I join
you together in marriage," etc.: Roman ritual, _ibid._, 178. The
presence of similar phrases in all our modern ceremonies, civil
or religious, is a striking proof of the essential difference
between the function of the magistrate or priest now and that of
his mediæval predecessor.
[997] LÉON GAUTIER, _La chevalerie_, 426 n. 1; _ap._
MARTENE, _De ritibus_.
II. THE PRIEST SUPERSEDES THE CHOSEN GUARDIAN, AND _SPONSALIA PER
VERBA DE PRAESENTI_ ARE VALID
Thus it appears that between the first and twelfth centuries the
religious element in the marriage ceremony runs through three
phases, not sharply defined by dates, but overlapping and blending;
and for the sake of clearness it may be well to summarize the
history of this development before proceeding farther. (1) During
about four centuries no liturgy was prescribed; the ancient
popular forms of contract were accepted; the nuptials were usually
celebrated in the home of the bride, less often in church; and the
priestly benediction, though doubtless commended as a religious
duty, was not exacted by the church as essential to a legal or a
canonical marriage. (2) Between about the end of the fourth century
and the middle of the tenth the custom became well established for
the newly wedded pair to attend religious service in the church
to partake of the sacrament and receive the priestly benediction
on their future married life; and this practice soon led to the
institution of the regular bride-mass, containing phrases directly
applicable to the nuptials. In the bride-mass may be found the
genesis of the ecclesiastical marriage liturgy; but it is a purely
religious office and adds nothing to the validity of the private
contract. (3) In the next phase, falling between the tenth and the
twelfth centuries, the clergy makes rapid progress. An elaborate and
imposing ritual is developed; the priest, inheriting the functions
of the ancient orator, directs the entire celebration; the nuptial
ceremony takes place before the church door, and is followed by the
bridal mass in the church itself; but even now the priest is a mere
helper, and the religious service adds nothing to, nor its omission
takes nothing from, the validity of the nuptial contract.
The next and final step is comparatively easy and already assured.
By the beginning of the thirteenth century the western church
had entered upon a fourth phase in respect to the solemnization
of marriage. This was facilitated, according to Sohm,[998] by
the custom, already mentioned, of choosing any third person as
guardian to officiate at the nuptials, marking the transition from
the ancient tradition through the natural guardian to the stage
of self-_gifta_ or tradition by the bride herself--a stage which
is fairly being entered upon at the beginning of the thirteenth
century. This new and more liberal form of lay tradition led
directly to the _gifta_ by the priest, or to ecclesiastical marriage
properly so called.[999] In the third stage of development the
priest could not venture to interfere with the prerogative of the
natural guardian to give his ward in marriage. He could at most
assist as orator and bestow his benediction. But from the moment
that custom sanctioned the choice of any third person in place of
the father or other natural protector, the clergy appropriated
this function as their exclusive right. While the church "bestowed
her blessing upon the tradition through the natural guardian, she
directed against the lay chosen guardian her excommunication."[1000]
So at this point arose the antagonism between private and
ecclesiastical marriage.[1001] The motive of the church was clearly
twofold. While she very naturally strove to gain control of the
nuptial celebration, to give more and more a religious form to the
institution already declared by her to be a sacrament, she doubtless
foresaw something of the evils which would ensue from clandestine
or private unions, now that the consent of the parent or natural
guardian was no longer necessary, as in early days, for a valid
marriage, and therefore began to legislate in the interest of
publicity.
[998] SOHM, _Eheschliessung_, 164 ff., 67 ff.; _cf._
FRIEDBERG, _Eheschliessung_, 94 ff.
[999] SOHM, _op. cit._, 164.
[1000] _Ibid._, 164 ff., 179 ff.
[1001] The ecclesiastical act, _Handlung_, was old; the
ecclesiastical nuptials, _geistliche Trauung_, was new. This is
SOHM'S view, _op. cit._, 179 ff., 183, as opposed to
FRIEDBERG, _Eheschliessung_, 85.
Henceforth the rituals of the continent show plainly that marriage
was usually celebrated by the priest and not merely in his presence;
though the ceremony still takes place at the church door. The
parties no longer simply "marry themselves," repeating after the
priest the solemn words of the nuptial vow; but in addition the
priest "gives the woman to the man, saying in Latin words: I
join you in the name of the Father, the Son, and the Holy Ghost.
Amen;" and this formula, taken from a typical French ritual of the
fourteenth century,[1002] is never found, as already explained, in
the liturgies of the preceding period. It is highly important to
note that these words of power on the part of the priest do not
appear in the English service before the period of the Reformation.
In the earlier as well as in the later rituals the parties are the
real actors, although the priest is leader and teacher in the whole
ceremony. At most, so far as the form of tradition is concerned,
evidence of a mere transition[1003] from the third phase in the
rise of ecclesiastical marriage may be discerned. The priest does
not step quite into the place of the father or other relative. He
is not quite a "chosen guardian;" for he receives his power to
"give" the bride to the bridegroom from the natural guardian or his
representative, and not from the woman herself. Thus, according to
the ancient liturgy of York, the priest says, "who gyues me this
wyfe? Then the woman is given by her father or by a friend;"[1004]
and this transitional form in substance is still preserved in the
modern service of the English church.[1005] But, apparently, the
function of the priest in the _gifta_ is more pronounced in the York
manual than in any of the other mediæval rituals which have been
preserved. In some of them, as a matter of fact, it receives no
mention at all.[1006]
[1002] "Tunc sacerdos det eam viro dicens verbis latinis: Et
ego conjungo vos in nomine Patris et Filii et Spiritus Sancti.
Amen": quoted in SOHM, _op. cit._, 165, 166, from a
Rouen ritual of the fourteenth century in Martene's collection.
DIECKHOFF, _Die kirch. Trauung_, 82 ff., takes a
different view. The Rouen ritual, he holds, is not a typical
service. The priest does not now gain an essentially new function
at the nuptials. His office has always been necessary to a
Christian marriage. In addition to his original power of joining
in wedlock, he merely adds the function exercised by the father
or guardian in the formal tradition. Moreover, Dieckhoff's
position is supported by some rituals, which seem to show that
development on the continent was not uniform in this regard.
_Cf._ SCHEURL, _Entwicklung_, 110 ff., who discusses the
divergent views of Sohm and Friedberg.
The last stage of evolution has not yet been reached in the
eastern church. In the presence of the priest the bride and
groom betroth and give themselves in marriage. The priest merely
prays and blesses: SOHM, _Zur Trauungsfrage_, 19 ff.;
ZHISHMAN, _Das Eherecht_, 128, 135, 692 n. 1, 694 n. 1.
For the marriage ritual of the Greek church see MARTENE,
_De ritibus_, II, 140-44.
[1003] Pointed out by SOHM, _Eheschliessung_, 164, 165.
[1004] Surtees Society _Publications_, LXIII, 26.
[1005] "Who giveth this woman to be married to this man? Then
shall they give their troth to each other in this manner. The
minister receiving the woman at her father's or friend's hands,"
etc.: BINGHAM, _The Christian Marriage Ceremony_, 164.
[1006] Thus the Hereford ritual simply says, after declaration
of the dower, "et pater vel propinquus mulieris accipiat
eam, et tradat homini per manum dexteram" (Surtees Society
_Publications_, LXIII, Appendix, 116). Similarly the Pontifical
of Anianus, bishop of Bangor, of the thirteenth century declares,
"Primo dicatur (dos) feminae, deinde detur" (_ibid._, 162); and
this form agrees substantially with that of the Hanley Castle
Missal of the same period (_ibid._, 163). In the ritual of the
fifteenth-century Harleian MS., in the British Museum, after
asking the banns, "the woman shall be given in this manner:
Sacerdos utriusque manu dextera apprehensa, jungat eos similiter,
sicut faciunt qui fide se obligant" (_ibid._, 166); but here,
of course, the words "jungat eos" are not words of power, for
they precede the marriage vow of the parties. According to the
Welsh ritual of the fifteenth century, "the woman is given by her
father or by another friend" (_ibid._, 167); and this form is
observed in the Sarum liturgy published both by MASKELL
(_Monumenta_, I, 56), and the Surtees Society (LXIII, Appendix,
19), while in one MS. of the same service the words "deinde detur
[Ecclesiae] femina a patre suo, vel ab amicis ejus" (_ibid._,
_loc. cit._, 19) appear, thus in effect agreeing with the form
of the York manual. An interesting variation occurs in the
Pontifical of Magdalen College, Oxford, of the twelfth century,
where the priest does not _receive_ the woman from her guardian,
but _joins with him_ in giving her to the husband: "Sacerdos
et patronus sponsae dent ipsam sponso per dexteram" (_ibid._,
160). A ritual of Arles (_ca._ 1300) affords evidence of a
similar transition in the form of tradition: see the extract
in SOHM, _Eheschliessung_, 165 n. 27; and compare on
this subject FRIEDBERG, _Eheschliessung_, 38, 62. On
the English celebration _cf._ JEAFFRESON, _Brides and
Bridals_, I, 88-98.
It appears, then, as regards the form of celebration, that previous
to the Reformation the church had not made so great progress in
England as in many places on the continent. The _gifta_ is still
essentially the ancient private tradition, in which the priest has
at most a subordinate place; and the words of power following, and
as it were sealing, the nuptial vow do not appear. Still there is a
decided gain; for the whole procedure is given a religious character
through the solemn prayers and benedictions, the authoritative
definitions of the nature of marriage, and the stately ceremonial of
the bridal mass, in all of which the priest is the central figure.
If now, turning from the evidence afforded by the content of the
prescribed rituals, we examine the legislation of the church for
enforcing the acceptance of these rituals, we shall reach a similar
result. Stated broadly in advance, the English canons created a
sharp distinction between legality and validity. Lay marriages--that
is, marriages solemnized without the intervention of the church,
including clandestine unions as well as those privately contracted
before witnesses with parental consent--were opposed to canonical
marriages: and lay marriages were declared illegal under severe
penalties, even excommunication; while at the same time, if once
contracted in words of the present tense, they were maintained
as equally valid and equally sacramental in their nature with
those celebrated according to the authorized liturgy before the
priest.[1007]
[1007] In general, for the canons relating to the priestly
benediction and the ecclesiastical celebration see
JOHNSON, _Collection of the Laws and Canons of the
Church of England_, I, 202; II, 19, 27, 64, 89, 91, 340, 395,
410; PEMBERTON'S historical summary in 10 CLARK AND
FINNELLY, 616 ff.; and the summaries of MASKELL,
_Monumenta ritualia_, I, cclxiv-ix; and MAKOWER,
_Const. Hist. of Church of England_, 213, 214 n. 5. For the
early period see the collections of Thorpe, Schmid, Haddan and
Stubbs, and Wilkins. An excellent discussion of the subject is
given by POLLOCK AND MAITLAND, _Hist. Eng. Law_, II,
364 ff.; and a very detailed treatment in FRIEDBERG'S
_Eheschliessung_, 33 ff., 309 ff.
During the Anglo-Saxon period various orders and regulations
commanding the benediction were passed. Theodore thus requires the
priest, in the case of a first marriage, to celebrate the mass,
doubtless the ordinary service, and to ask a benediction upon both
parties;[1008] while by the ritual of the tenth century, already
quoted, the nuptials are to be celebrated before a mass-priest "who
shall with God's blessing bind their union to all prosperity."[1009]
But after the Conquest more stringent measures were taken to secure
publicity and enforce the observance of religious rites. Especially
important is the celebrated constitution of Archbishop Lanfranc,
alleged to have been enacted at the Council of Winchester in 1076,
ordaining "that no man give his daughter or kinswoman in marriage
without the priest's benediction," and declaring that otherwise "the
marriage shall not be deemed legitimate but as fornication."[1010]
Twenty-six years later, at the Council of London, an attempt was
made by Anselm to put a check upon clandestine contracts, in a
provision which really defines the principle governing the decisions
of the ecclesiastical courts throughout the west. "Promises of
marriage made between man and woman without witnesses" are declared
to be "null if either party deny them."[1011] In 1175 these acts
were reinforced by a canon of Archbishop Richard, taken from the
decrees of Pope Ormisdas (Hormisdas) of the year 514, ordering
that "no faithful man, of what degree soever, marry in private, but
in public, by receiving the priest's benediction. If any priest be
discovered to have married any in private let him be suspended from
his office for three years."[1012] By a constitution of Archbishop
Walter, in the year 1200, it was further ordained that "no marriage
be contracted without banns thrice published in church, nor between
persons unknown;" and no marriage not publicly solemnized in face of
the church is "to be allowed of, except by the special authority of
the bishop."[1013]
[1008] _Poenit. Theod._, Book I, c. 14, §1: HADDAN AND
STUBBS, _Councils_, III, 187; MAKOWER, _Const.
Hist. Church of Eng._, 213, 214 n. 5.
[1009] SCHMID, _Gesetze_, Anhang VI, 392, 393;
THORPE, _Ancient Laws_, I, 255-57; MAKOWER,
_loc. cit. Cf._ also the _Excerptiones Ecgberti_, c. 90 (or
88), THORPE, II, 110, reproducing a canon of the
Council of Carthage requiring that "the bridegroom and bride
be offered by the parents, and bridefolk, to receive the
priest's benediction": JOHNSON'S _Canons_, I, 202,
and the so-called _Canones Ælfrici_ (A. D. 992-1001), sec.
9, in THORPE, II, 347, declaring that "the layman
may, however, with the apostle's leave take a wife a second
time; if his wife falls away from him; but the canons forbid
blessing thereto and have ordered such men to do penance":
MAKOWER, _loc. cit._
[1010] "Praeterea statutum est, ut nullus filiam suam, vel
cognatam, det alicui, absque benedictione sacerdotali. Si aliter
feceret, non ut legitimum conjugium, sed ut fornicatorium,
judicabitur."--PARKER, _De antiquitate britannicae
ecclesiae_ (London, 1729), 173; also WILKINS,
_Concilia_, I, 367; MAKOWER, _loc. cit._; and translated
in JOHNSON'S _Canons_, II, 19. _Cf._ POLLOCK AND
MAITLAND, _Hist. Eng. Law_, II, 368 n. 2.
[1011] "Ut fides inter virum et mulierem, occulte et sine
testibus, de conjugio data, si ab alterutro negata fuerit,
irrata habeatur."--WILKINS, _Concilia_, I, 382;
JOHNSON, _Canons_, II, 27; MAKOWER, _loc. cit._
[1012] JOHNSON, _Canons_, II, 64.
[1013] _Ibid._, 91.
These measures, and others later enacted in a similar spirit,[1014]
have led to a serious misapprehension of the real doctrine of
the canon law. From them it has been zealously argued that the
prescribed religious celebration was essential to a valid contract;
and this view was strengthened by the decree of Innocent III. at the
fourth Lateran council, 1215, requiring the publication of banns
as a general law of the western church, which by a similar error
was understood to have ordained ecclesiastical marriage.[1015]
But in the light of history it seems clear that all which was
intended by this decree, or by the constitution of Lanfranc and
its successors, was to declare the unblessed marriage illegal,
involving certain penalties or disadvantages, without touching
its validity.[1016] The lay courts, as will appear in the next
chapter, might deny full rights of dower and inheritance to the
issue of such unions; but after the thirteenth century, as well as
before, marriages celebrated without the intervention of priest
or magistrate were sustained by the church as binding. As already
emphasized at the outset of this discussion, the private, even
secret, agreement of the parties, without consent of parent or
guardian, if expressed in words of the present tense, _sponsalia
per verba de praesenti_,[1017] though not followed by cohabitation,
was held to constitute a valid marriage; and it could be sustained
against a subsequent contract publicly celebrated according to
ecclesiastical forms and followed by years of wedded life. This is
unquestionably the doctrine of the canon law of western Christendom,
as emphatically expressed in the decretal epistle of Alexander III.
to the bishop of Norwich presently to be noticed;[1018] and that
it was accepted by the English courts as a part of the law of the
land is established by conclusive evidence. Not until the Council
of Trent, in the middle of the sixteenth century, was there any
general legislation of the church to enforce ecclesiastical rites.
This council, after anathematizing those who deny that clandestine
marriages theretofore contracted by the sole agreement of the
parties and without parental consent are "true and valid," decreed,
contrary to the opinion of fifty-six prelates, that thenceforward
all marriages not contracted in the presence of a priest and two or
three witnesses shall be void.[1019] This decree was not accepted in
England, and "clandestine" marriages continued to be valid until the
middle of the eighteenth century; and until 1856, in Scotland, as
is well known, the mere consent of the parties, however expressed,
constituted a binding marriage.[1020]
[1014] Especially the constitution of Reynolds, 1322; that of
Stratford, 1343; and that of Zouche, 1347: _ibid._, 340, 341,
395, 410, 411.
[1015] FRIEDBERG, _Eheschliessung_, 39, note, gives
a list of the authors making this mistake. "This belief is
stated by Blackstone, _Comment._, I, 439, and was in his time
traditional among English lawyers. Apparently it can be traced
to Dr. Goldingham, a canonist who was consulted in the case of
Bunting _v._ Lepingwell (Moore's _Reports_, 169)": POLLOCK
AND MAITLAND, _Hist. of Eng. Law_, II, 368, 369, note;
FRIEDBERG, _op. cit._, 314.
[1016] Even the words of Lanfranc, strong as they are, do not
invalidate an unblessed marriage. "He does not say that the union
will be mere fornication; he says that it will be _coniugium
fornicatorium_, an unlawful and fornicatory marriage. Lanfranc's
words recall those of the Pseudo-Isidorian Evaristus which appear
in c. 1, C. 30, q. 5"; POLLOCK AND MAITLAND, _op. cit._,
II, 368 n. 2; FREISEN, _Geschichte des can. Eherechts_,
139.
[1017] For some account of the distinction between _sponsalia de
praesenti_ and _de futuro_, with references, see the next chapter.
[1018] This epistle sustained a marriage by private consent
as against one subsequently contracted and consummated. The
opposing view is thus set forth by Pemberton in The Queen _v._
Millis: "In 1160 Pope Alexander issued edicts in which marriages
without the presence of a priest were declared good; but almost
immediately afterwards came the canons already cited [those of
1175 and 1200 mentioned in the text], to guard against the abuse
of the permission thus given by the pope. But from what follows
it is clear that the law which admitted the canon law in other
countries, as part of the law of the land, was never adopted in
England. In 1253 the attempt was made to introduce the canon law
of marriage recognized by the popes, against the ecclesiastical
law of England and the answer was the well-known answer that the
barons would not consent to have the laws of England changed": 10
CLARK AND FINNELLY, 617. This is a strange perversion of
the truth: see POLLOCK AND MAITLAND, _op. cit._, II, 370
n. 1.
[1019] BOHN, _Pol. Cyc._, III, 319, 320.
FRIEDBERG, _Eheschliessung_, 123, 124, gives the
text of the decree; and his second book, 101-50, contains an
interesting history of the proceedings of the council on the
subject of marriage. An English version of the text of the decree
may be found in WATERWORTH, _Canons and Decrees of the
Council of Trent_, 196-99, who also describes the proceedings
(ccxxi-xxxvi). _Cf._ SALIS, _Die Publikation des trid.
Rechts der Eheschliessung_, 2 ff.; FLEINER, _Die
trident. Ehevorschrift_, 1 ff.; ESMEIN, _Le mariage en
droit canonique_, II, 119-37; MADAN, _Thelyphthora_,
III, 238 ff. SOHM, _Eheschliessung_, 187-96, shows
that the Tridentinum still maintains the Germanic principle of
_consensus_ as the valid marriage.
For the sources see the collections of Theiner and
Richter-Schulte and the works of Sarpi and Pallavicino mentioned
in Bibliographical Note VII.
[1020] On Scotch marriages see EDGAR, _Marriages
in Olden Times_, 134-203; WALTON, _Scotch
Marriages_; GEARY, _Marriage and Family Relations_,
534 ff.; HAMMICK, _The Marriage Law_, 221 ff.;
FRIEDBERG, _Eheschliessung_, 57, 58, 426, 427, 437-59;
BOHN, _Pol. Cyc._, III, 326; STEPHENS, _Laws
of the Clergy_, I, 672, 688; ROBERTSON, _Encyc.
Britannica_, XV, 567; KENT, _Commentaries_, II, 90.
_Cf._ especially the case of Dalrymple _v._ Dalrymple, in 2
HAGGARD'S _Consistory Reports_, 54-137.
It follows that the unanimous opinion of the English judges in the
great case of the Queen _v._ Millis, 1844, against the validity
of a marriage not celebrated before an ordained priest of the
established church, is not supported by the evidence of history as
revealed in the doctrines of the canon law and in the action of the
ecclesiastical courts during six centuries.[1021] The following
are the main facts in the history of this famous suit: In January,
1829, at Banbridge, county of Down, Ireland, George Millis and
Hester Graham "entered into a contract of present marriage" in
the presence of John Johnstone, the "placed and regular minister
of the congregation of Protestant dissenters commonly called
Presbyterians, at Tullylish, near Banbridge," who performed a solemn
religious ceremony according to the usual rites of his sect. Thus
there was a perfect and binding contract _de praesenti_ according
to ecclesiastical law. Later, while Hester was still living, Millis
married Jane Kenedy in England, using the forms of the established
church, of which he was a member. At the spring assizes of 1842, for
the county of Antrim, Ireland, Millis was indicted for bigamy. The
case was removed by _certiorari_ into the Irish court of Queen's
Bench, where the four judges were evenly divided; but Justice
Perrin, who favored the validity of the first marriage, withdrew
his opinion _pro forma_, that the case might go to the House of
Lords for definite settlement.[1022] The Lords submitted the case
to the English judges for advice; and they unanimously decided
against the validity of the first marriage on the ground that it
had not been celebrated before a regular clergyman of the English
church. That the decision was hasty and in direct opposition to
history, as revealed in all the great cases, there can now be small
doubt. "We have here," says Bishop, "a question of almost pure
ecclesiastical law, submitted to a tribunal composed of common-law
and equity lawyers, who necessarily possessed little or no knowledge
of the subject. So they ask advice, not from the ecclesiastical
judges, whose functions had qualified them to give it, but from the
uninstructed common-law judges. The latter were competent to learn,
but they were not allowed the necessary time. Lord Chief-Justice
Tindal, who delivered their opinion, complained of the want of time
for investigation; and the opinion throughout shows the complaint to
have been well founded."[1023]
[1021] See the cases mentioned in the Bibliographical Note at the
head of this chapter. Of course, most of the decisions are cited
and elaborately discussed by the counsel and judges in Queen
_v._ Millis and Beamish _v._ Beamish. An important case is given
in _Harvard Law Review_, VI, 11. _Cf._ SWINBURNE, _Of
Spousals_, 13, 104, 193, _passim_; and especially HALE'S
_Precedents and Proceedings in Criminal Laws, 1475-1640_, taken
from the act-books of ecclesiastical courts in the diocese of
London, and containing a mass of most interesting and convincing
evidence relating to the subject (see the Index at "Matrimonial
Causes").
[1022] For the record of the proceedings in Ireland see _Report
of the Cases of Regina v. Millis, et Regina v. Carroll in the
Queen's Bench in Ireland_ (Dublin, 1842).
[1023] BISHOP, _Mar., Div., and Sep._, I, §§ 400, 401.
This view is strongly supported by the action of the Lords. In
spite of the united opinion of the judges, the final deliberation
of the six law peers resulted in a tie: Lords Cottenham, Abinger,
and Chancellor Lyndhurst holding the first marriage to be void; and
Lords Brougham, Denman, and Campbell maintaining its validity. But
since the case was on appeal from the decision of another court,
the result of the tie was to declare the invalidity of unblessed
wedlock.[1024]
[1024] The case is given in 10 CLARK AND FINNELLY,
_Reports of Cases Decided in the House of Lords_, 534-907. The
text of the opinion of the English judges may also be found in
STEPHENS, _Laws of the Clergy_, I, 675-94. It was ably
refuted by SIR JOHN STODDART in his _Observations on the
Opinion_ and his _Letter to Lord Brougham_ (both London, 1844).
Thus by a remarkable sequence of circumstances and accidents was
established the judicial interpretation of the English law governing
the marriage celebration.[1025] The decision was therefore followed
in another celebrated case, that of Beamish _v._ Beamish, which came
before the House of Lords in 1861. This was a case of "clandestine"
marriage, the bridegroom himself performing the ceremony in a
private house according to the ritual of the established church. In
the record we are told that the "Rev. S. S. Beamish, in the year
1831, became attached to a young lady named Isabella Frazer (both
being members of the United Church of England and Ireland), and as
he did not obtain his father's consent to his marriage with her, he
persuaded her into a clandestine marriage, which, according to the
special verdict found in the case, was performed in the following
manner: 'On the 27th November, 1831, the Rev. Samuel Swayne Beamish,
being then a clergyman in holy orders, went to the house of one
Anne Lewis, in the city of Cork, and there performed a ceremony of
marriage between himself and Izabella Frazer, by reading between
them ... the form of solemnization of matrimony used in said United
Church of England and Ireland, as set forth in the Book of Common
Prayer, ... by declaring' in words of the present tense that he took
the bride 'to his wedded wife,' she making a similar avowal; by
placing a ring on her finger; and by pronouncing the blessing in the
appointed form." The court held the contract void, declaring that,
since it was "settled by the decision in the Queen _v._ Millis,
that to constitute a valid marriage by the common law of England,
it must have been celebrated in the presence of a clergyman in holy
orders, the fact that the bridegroom is himself a clergyman in holy
orders, there being no other clergyman present, will not make the
marriage valid." For "as to the manner in which a marriage is to be
celebrated, the law does not admit of any difference between the
marriage of a clergyman and of a layman."[1026]
[1025] In 1844, by the act of 7 and 8 Victoria, c. 81, the
essential features of 6 and 7 Will. IV, c. 85, which had made the
public observance of ecclesiastical or civil forms necessary to a
valid marriage in England, were extended to Ireland; and this was
the result of the excitement caused by the case of the Queen _v._
Millis of the same year.
[1026] Case of Beamish _v._ Beamish in 9 _House of Lords Cases_,
274-358. The report in this case, like that in Queen _v._ Millis,
constitutes an extended history of English matrimonial law.
The singular motives underlying this decision have been recently
discussed in an instructive way by Sir Frederick Pollock. It
appears that a former judgment of the Lords must be maintained,
however absurd or however inconsistent with history or justice it
is felt to be. Already in 1852 and again in 1860 Lord Chancellor
Campbell had committed himself to the dogma that the House of Lords
is bound by its own decisions. At the former date, answering Lord
St. Leonards, who holds the opposite view, he says: "I consider
it the constitutional mode in which the law is declared, and that
after such a judgment has been pronounced it can only be altered
by an Act of the Legislature."[1027] When the case of Beamish _v._
Beamish came "before the House of Lords, the late Mr. Justice Willes
virtually, though not professedly, demonstrated, in a full and most
learned opinion, that the supposed difference between the law of
England and that of the rest of western Christendom was imaginary.
His reasons convinced Lord Campbell and Lord Wensleydale, but Lord
Campbell declared himself not at liberty to act on his conviction;"
though, for sound reasons which he admits, he confessed that if
competent for him he would ask their Lordships to reconsider their
judgment in the Queen _v._ Millis. "But it is my duty," he adds, "to
say that your Lordships are bound by this decision as much as if
it had been pronounced _nemine dissentiente_." A "rule of law thus
judicially expressed must be taken as for law till altered by an act
of Parliament." The "law laid down as your _ratio decidendi_, being
clearly binding on all inferior tribunals, and all the rest of the
Queen's subjects, if it were not considered as equally binding upon
your Lordships, this house would be arrogating to itself the right
of altering the law, and legislating by its own separate authority."
It "may seem startling," comments Pollock, "that questions of
legitimacy and property should be treated as irrevocably settled by
the result of an equal division of the House of Lords, on argument
and information admittedly imperfect with regard to the history of
the law; that result, moreover depending on the accident of the
form in which the appeal was presented: but so they were." Thus
in Beamish _v._ Beamish an opinion of seventeen years earlier was
accepted as binding, "which in 1861 was believed by a majority
of the House of Lords and the judges who advised them, and is
now believed by most competent scholars, to be without any real
historical foundation."[1028]
[1027] In Bright _v._ Hutton, 3 _H. L. C._, 391, 392. For his
opinion in 1860 see A.-G. _v._ Dean and Canons of Windsor, 8 _H.
L. C._, 391-93.
[1028] Following POLLOCK, _First Book of Jurisprudence_
(London, 1896), 311-17.
In general, on these decisions and those preceding see the
masterly discussion of FRIEDBERG, _Eheschliessung_,
39-57, 427, 464 ff. His conclusions are supported by
SOHM, _Eheschliessung_, 125 ff.; POLLOCK AND
MAITLAND, _Hist. of Eng. Law_, II, 367 ff.; and by the
article of ELPHINSTONE, in _Law Quarterly Review_, V,
49 ff. Compare REEVES, _Hist. of the Common Law_, IV,
52 ff.; BISHOP, _Marriage, Divorce, and Separation_,
II, 171, 172; KENT, _Commentaries_, II, 87 ff., notes;
BRIGHT, _Husband and Wife_, II, 398. These judgments are
regarded as historically just by DIECKHOFF, _Die kirch.
Trauung_, 70, note; and COOK, "The Marriage Ceremony in
Europe," _Atlantic_, LXI.