RISE OF ECCLESIASTICAL MARRIAGE: THE CHURCH DEVELOPS AND ADMINISTERS
MATRIMONIAL LAW
[BIBLIOGRAPHICAL NOTE VIII.--For the evolution of the canonical
theory of marriage the Richter-Friedberg _Corpus juris
canonici_ (Leipzig, 1881 ff.), Peter Lombard's _Sententiae_
(Incunabula, _Textus sententiarum_, 1488, Sutro Library), and
the _Ante-Nicene Fathers_ (Buffalo, 1885-87) are of the first
importance. The collections of Haddan and Stubbs, Thorpe,
Schmid, Hale, and Johnson, mentioned in Bibliographical Note
VII, are available for this chapter; as are also the collections
of Richter-Schulte, Theiner, and Waterworth, the works of Sarpi
and Pallavicino, the monographs of Salis, Fleiner, Riedler,
and Leinz, the papers of Meurer and Schulte, with the other
authorities already cited for the Council of Trent. Well-known
treatises on the canon law are Lyndwood, _Provinciale_
(ed. of 1505 and Oxford, 1679); Sanchez, _Disputationum de
s^{to} matrimonii sacramento_ (Venice, 1625); and Godolphin,
_Repartorium canonicum_ (3d ed., London, 1687). With these may
be used Smith, _Elements of Ecclesiastical Law_ (New York,
1882); Phillimore, _Ecclesiastical Law_ (London, 1873-76);
Stephens, _Laws Relating to the Clergy_ (London, 1848); Burn,
_Ecclesiastical Law_ (London, 1842); and the excellent summary
of Geary, _Marriage and Family Relations_ (London, 1892),
chap, xvi, where the principal sources are mentioned. Dodd's
_History of the Canon Law_ (London, 1884) is too general to be
of much service. A good handbook of Catholic doctrine, with
full citation of authorities, is Gury's _Compendium of Moral
Theology_; and in this connection may also be consulted Amat's
convenient _Treatise on Matrimony_ (San Francisco, 1864); the
works of Cigoi, Didon, Roskovány, Perrone, and Scheicher-Binder
described in Bibliographical Note XI.
The rise of the system of enforced celibacy of the clergy, with
the consequent evils, is most fully treated by the brothers
Theiner, _Die Einführung der erzwungenen Ehelosigkeit_ (3d ed.,
Barmen, 1891-98), whose book, first published in 1828, has been
fiercely attacked by Catholic critics; and Lea, _Sacerdotal
Celibacy_ (2d ed., Boston, 1884); supplemented by his _History
of Auricular Confession and Indulgences in the Latin Church_
(Philadelphia, 1896). The immorality of the mediæval clergy
is also described by Bouvet, _De la confession et du célibat
des prêtres_ (Paris, 1845); Gage, _Woman, Church, and State_
(Chicago, 1893); _idem_, an article under the same title in
_History of Woman Suffrage_ (New York, 1881); Lecky, _History of
European Morals_ (3d ed., New York, 1881); and Huth in the third
chapter of _Marriage of Near Kin_ (2d ed., London, 1887). For a
later period the subject is dealt with by Michelet, _Le prêtre,
la femme, et la familie_ (new ed., Paris, 1889); and "A. F. R.,"
_Betrachtungen über den Klerikal- und Mönchsgeist im neunzehnten
Jahrhundert_ (1805). In this connection see also Bucksisch, _De
apostolis uxoratis_ (new ed., Wittenberg, 1734); Essich, _De
clericis maritis dissertatio historica_ (Augusta Vindelicorum,
1747); Feyerabend, _De privilegiis mulierum_ (Jena, 1667);
_Recherches philosophiques et historiques sur le célibat_
(Geneva, 1781); _De l'institution du célibat_ (Paris, 1808);
Klitsche, _Geschichte des Cölibats ... zum Tode Gregor's VII_.
(Augsburg, 1830); Lind, _De coelibatu christianorum per tria
priora secula_ (Havniae, 1839); the anonymous _Letters on the
Constrained Celibacy of the Clergy_ (London, 1816); Zimmermann,
_Der Priester-Cölibat_ (Kempten, 1899), presenting the loyal
Catholic point of view; and the monograph of Schulte, _Der
Cölibatszwang und dessen Aufhebung_ (Bonn, 1876). A favorable
view of the conventual life is taken by Eckenstein, _Woman
under Monasticism_ (Cambridge, 1896); and curious monuments of
the contempt for woman produced by asceticism are the books of
Valens Acidalius and his adversary Simon Geddicus, mentioned in
a footnote below. For the controversy in France regarding the
validity of the marriage of a priest under the temporal law see
Nachet, _Liberté du mariage des prêtres: Mémoire produit à la
Cour de Cassation pour M. Dumonteil_ (Paris, 1833); and Horoy,
_Du mariage civil du prêtre en France_ (Paris, 1890).
The manifold evils arising from the canonical distinction
between _sponsalia de praesenti vel futuro_ are best described
in the vigorous words of Martin Luther. In particular should
be read the thirty-sixth chapter of the _Tischreden_ (folio,
Frankfort, 1571), and the _Von Ehesachen: Werke_, XXIII
(Erlangen ed.) or Vol. V in _Bücher und Schriften_ (Jena,
1555-80). The quaint and learned book of Swinburne, _Of
Spousals_ (London, 1686), contains a striking passage bearing
on the subject; while for the mediæval English law should be
consulted Glanville's _Tractatus_; Bracton's _De Legibus_ (ed.
Twiss, London, 1878-83); _idem_, _Note Book_ (ed. Maitland,
London, 1887); and Maitland's _Select Pleas of the Crown_.
With Sohm's view as to the essential identity in form of
the two kinds of _sponsalia_ compare the various works of
Biener, Bierling, Sehling, Scheurl, and Dieckhoff mentioned in
Bibliographical Note VII. The text of Master Vacarius's _Summa
de matrimonio_ is edited by Maitland in _Law Quarterly Review_,
XIII (London, 1897); and in the same volume he discusses
Vacarius's theory of marriage, differing essentially from that
of Gratian or Lombard. Assistance may also be had from Weber,
_De vera inter sponsalia de praesenti et nuptias differentia_
(Parchimi, 1825); Hoffmann, _De aetate juvenili contrahendis
sponsalibus_ (Regiomonti et Lipsiae, 1743); Lipold, _Arbor
consanguinitatis et affinitatis_ (n. p., n. d.); Niemeier, _De
conjugiis prohibitis dissertationes_ (Helmstadt, 1705); Born,
_De bannis nuptialibus_ (Leipzig, 1716); and the dissertations
on parental consent and clandestine marriage mentioned in
Bibliographical Note IX.
Remarkable testimony as to the existence of clandestine marriage
in England during the first half of the sixteenth century is
given by Richard Whitforde, _A Werke for householders_ (1530; 2d
ed., 1537); and in Miles Coverdale's translation of Bullinger's
_Christen State of Matrimonye_ (1st ed., 1541, in British
Museum).
Indispensable guides for the study of the entire subject are
still the works of Sohm, Friedberg, and Pollock and Maitland;
but by far the best systematic histories of canon-law marriage
are Freisen's _Geschichte des canonischen Eherechts_ (Tübingen,
1888; Paderborn, 1893); and Esmein's masterly _Le mariage en
droit canonique_ (Paris, 1891). A similar work for the eastern
church is Zhishman's _Das Eherecht der orientalischen Kirche_
(Vienna, 1864). Illustrative decisions are communicated by
Frensdorff, "Ein Urtheilsbuch des geistlichen Gerichts zu
Augsburg aus dem 14. Jahrhundert," in _ZKR._, X (Tübingen,
1871); and Loersch, "Ein eherechtliches Urtheil von 1448,"
_ibid._, XV (Freiburg and Tübingen, 1880). There is an article
on the beginnings of ecclesiastical jurisdiction by Sohm, "Die
geistliche Gerichtsbarkeit im frankischen Reich," _ibid._,
IX (Tübingen, 1870). Wunderlich has a serviceable edition of
Tancred's _Summa de matrimonio_ (Göttingen, 1841); and among the
works relating to special questions are Sehling, _Die Wirkungen
der Geschlechtsgemeinschaft auf die Ehe_ (Leipzig, 1885);
Heinlein, _Die bedingte Eheschliessung_ (Vienna, 1892); Andreae,
_Einfluss des Irrthums auf die Gültigkeit der Ehe_ (Göttingen,
1893); Eichborn, _Ehehinderniss der Blutsverwandtschaft_
(Breslau, 1872); Gerigk, _Irrtum und Betrug als Ehehinderniss_
(Breslau, 1898); Benemann, _De natura matrimonii_ (Halle,
1708); Baier, _Die Naturehe in ihrem Verhältniss zur ...
christlich-sakramentalen Ehe_ (Regensburg, 1886); Hahn, _Die
Lehre von den Sakramenten_ (Berlin, 1864); and the standard
Catholic treatise of Oswald, _Die dogmatische Lehre von den
heiligen Sakramenten_ (5th ed., Münster, 1894).
In general, besides the works of Gide, Loening, Combier, Tissot,
Burn, Thwing, Blackstone, Jeaffreson, Lingard, Makower, Madan,
and Morgan, elsewhere described, the following have been drawn
upon in various connections: Wasserschleben, _Bussordnungen_
(Halle, 1851); Schmitz, _Bussbücher_ (Mainz, 1883); Lobethan,
_Einleitung zur theoretischen Ehe-Rechts-Gelahrtheit_ (Halle,
1785); Schott, _Einleitung in das Eherecht_ (new ed., Nuremberg,
1802); Goeschl, _Ehegesetze_ (Aschaffenburg, 1832); Stäudlin,
_Geschichte der Vorstellungen und Lehren von der Ehe_
(Göttingen, 1826); Palgrave, _English Commonwealth_ (London,
1832); Kemble, _Saxons in England_ (London, 1876); Ellis,
_Introduction to Domesday Book_ (Record Commission, 1833);
Bigelow, _Placita anglo-normannica_ (Boston, 1881); Stubbs,
_Select Charters_ (Oxford, 1881); _idem_, _Constitutional
History_ (Oxford, 1875-78); _idem_, _Seventeen Lectures_
(Oxford, 1886); Denton, _England in the Fifteenth Century_
(London, 1888); Traill, _Social England_ (New York, 1898);
Nisbet, _Marriage and Heredity_ (London, 1888); Smith, _The
Parish_ (London, 1857); Kent, _Commentaries_ (Boston, 1873);
Gibbon, _Decline and Fall_ (London, 1830); and some of the
Reformation writers referred to in Bibliographical Notes IX and
XI.]
I. THE EARLY CHRISTIAN DOCTRINE AND THE RISE OF THE CANONICAL THEORY
It was most unfortunate for civilization that the Christian
conception of the nature of marriage should have sprung from
asceticism, and that the verbal subtlety of the schoolmen should
have produced the cardinal definitions upon which the validity of
marriage contracts, and therefore the practical administration
of matrimonial law, were made to depend. The mediæval teaching
regarding forbidden degrees, the sacramental nature of matrimony,
and the difference between contracts _de futuro_ and _de praesenti_
are mainly responsible for the shameful abuses which disgrace the
record of ecclesiastical judicature previous to the Council of
Trent. With regard to an institution upon which in so high a degree
the welfare of society depends, anarchy was practically sanctioned
by the canon law. Where the utmost clearness and simplicity were
needed, obscurity and complexity prevailed; and where publicity
was urgently required by the plainest rule of common-sense, there
secrecy was in effect invited and rewarded.
The early church was only too ready to take in hand the supervision
of marriage and the development of matrimonial law. With regard to
the _form_, as already shown, her progress was cautious and slow.
Not until the thirteenth century, as a general rule, does the
priest appear with authority as one especially qualified by his
religious office to solemnize the nuptials. But long before this,
in nearly every other respect save only the betrothal, the church
was taking sole possession of the field of matrimonial law and
jurisdiction.[1029] Yet the institution of marriage was accepted, as
it were, under protest. Here and there, of course, the early Fathers
admit the purity of the marriage state,[1030] but usually with a
tone of apology or depreciation which is itself very suggestive
of the pervading trend of the ascetic mind. If wedlock be holy,
celibacy is much more holy. "It is better to marry than to burn,"
is a dictum which sounds the keynote of ecclesiastical dogma. "Few
texts," declare Pollock and Maitland, "have done more harm than
this. In the eyes of the mediæval church marriage was a sacrament;
still it was but a remedy for fornication. The generality of men
and women must marry or they will do worse; therefore marriage
must be made easy; but the very pure hold aloof from it as from a
defilement. The law that springs from this source is not pleasant to
read."[1031]
[1029] ESMEIN, _Le mariage en droit canonique_, I, 3, 4,
distinguishes the three phases in the growth of the canon law:
"D'abord, elle s'est développée à côté du droit séculier, celuici
restant indépendant et souverain dans son domaine, et n'a exercé
qu'une action parallèle. Dans une seconde phase, elle a supplanté
et éliminé le droit séculier, elle seule régissant le mariage
dans l'Europe chrétienne. Enfin, devant un reflux puissant de la
législation civile, elle a dû, dans le temps moderne, abandonner
le terrain qu'elle avait ainsi occupé, pour garder seulement son
autorité première, et reprendre son ancienne position."
[1030] For examples see IGNATIUS, _Epis. to Philadel._,
c. iv; _Epis. to Polycarp_, c. v, in _Ante-Nicene Fathers_,
I, 81, 95; JUSTIN, _First Apol._, cxv, _ibid._, 167;
ATHENAGORAS, _Plea for Christians_, c. xxxiii, _ibid._,
II, 147; CLEMENT OF ALEX., _ibid._, 259-63, 377-79. In
this last passage Clement is less coarse than usual. "Marriage,
then, as a sacred image," he concludes, "must be kept pure from
those things which defile it." _Cf._ also TERTULLIAN,
_ibid._, III, 293-95, 443; ORIGEN, _To His Wife_,
_ibid._, IV, 40-44. Compare BUCKSISCH, _De apostolis
uxoratis_, 9 ff., who holds that, with the exception of John and
Paul, all the apostles had wives. In general, on the development
of the early Christian conception of marriage from its Roman
and Hebrew beginnings, see FREISEN, _Geschichte des
can. Eherechts_, 32 ff.; ZHISHMAN, _Das Eherecht der
orient. Kirche_, 93 ff.; SCHULTE, _Der Cölibatszwang_,
5 ff.; THEINER, _Die Einführ. der erz. Ehelosigkeit_,
I, 5 ff.; STÄUDLIN, _Geschichte der Vorstellungen
und Lehren von der Ehe_, 259 ff.; _Letters on the Const.
Celibacy of the Clergy_, 22 ff., 51 ff.; _Recherches phil.
et hist. sur le célibat_, 67 ff. On the influence of Paul's
teaching see THWING, _The Family_, 47 ff.; and compare
NISBET, _Marriage and Heredity_, 33-57, who takes an
unfavorable view of the influence of the church as opposed to
that of Christianity; and GAGE, _Woman, Church, and
State_, 49 ff.; HUTH, _Marriage of Near Kin_, 108 ff.
[1031] POLLOCK AND MAITLAND, _Hist. Eng. Law_, II, 383.
Compare the excellent account of the canonical conception of
marriage in ESMEIN, _Le mariage en droit canonique_,
I, 63-92. "Enfin, le mariage étant conçu comme un remède à
la concupiscence, le droit canonique sanctionnait, avec une
énergie toute particulière, l'obligation du devoir conjugal,
non seulement dans le _forum internum_, mais encore devant
le _forum externum_. De là toute une série de règles que les
canonistes du moyen âge exposaient avec une précision minutieuse
et une innocente impudeur, et qu'il est parfois assez difficile
de rappeler, aujourd'hui que les mœurs ont changé et que l'on
n'écrit plus en latin."--_Ibid._, 84, cited also by POLLOCK
AND MAITLAND, II, 383. It is well, for instance, that the
editors of the _Ante-Nicene Fathers_ have concealed the "innocent
immodesty" of Clement of Alexandria (_The Instructor_, c. x,
_ibid._, II, 259 ff.; _Stromata_, Book III, _ibid._, II, 381
ff.) in the Latin version. The indecency of the Penitentials is
so shocking as almost to justify Gibbon's severe epigram that in
them "some sins are enumerated which innocence could not have
suspected, and others which reason cannot believe."--_Decline
and Fall_, chap. lviii, 1070. "I know of no more fatal sources
of antichristian error," says Kemble of the Penitentials, "no
more miserable records of the debasement and degradation of human
intellect, no more frightful proofs of the absence of genuine
religion."--_Saxons_, II, 403, 404. See the _Poenitentiale
Theodori_, lib. i, c. ii: HADDAN AND STUBBS, _Councils_,
III, 178, 179; and especially WASSERSCHLEBEN'S excellent
collection of _Bussordnungen_.
The monstrous indecencies of the mediæval confessional are
revealed by BOUVET, _De la confession et du célibat des
prêtres_, 195 ff. On the other hand, a word of justification may
be found in ELLIS, _Psychology of Sex_, I, pp. viii-ix.
Here we have a double paradox, two irreconcilable contradictions,
which in due time produced their natural evil fruit. On the one
hand, marriage is a sacrament, a holy mystery, yet it rests upon
a mere human contract.[1032] On the other hand, though possessing
a sacramental character, it is but a compromise with lust, from
which the saint may well abstain. Hence a premium is placed
upon sacerdotal celibacy, though for centuries priests are not
absolutely forbidden to marry. Thus in England, at any rate until
the days of Dunstan, celibacy had not been strictly enforced in
the monastic bodies;[1033] and until a still later day marriage was
practiced by the secular clergy,[1034] the priestly office in some
instances practically becoming hereditary, passing on from father
to son.[1035] But in the western church asceticism at last gained a
complete victory; and the priest taking orders after marriage was
obliged to put away his wife; while in both East and West marriage
after the taking of orders was forbidden.[1036] The causes of
the low esteem in which marriage was held by the early Christian
theologians have been well described by Meyrick. "For some time
before the Christian era a change of sentiment as to the relative
excellence of the married and single life had been growing up among
a section of the Jews. The national feeling was strongly in favour
of marriage, and a man who was unmarried or without children was
looked upon as disgraced. But the spirit of asceticism, cherished
by the Essenes, led to an admiration of celibacy, of which no
traces are to be found in the Old Testament; so that, instead of
a shame, it became an honour to be unmarried and childless. In
the early church this spirit, at first exhibiting itself only to
be condemned in the Encratites," and some other sects, "struggled
with a healthier feeling, till at length it stifled the latter.
But another cause was working in the same direction. The days
of chivalry were not yet; and we cannot but notice, even in the
greatest of the Christian fathers, a lamentably low estimate of
woman, and consequently of the marriage relationship. Even St.
Augustine can see no justification for marriage, except in a grave
desire deliberately adopted of having children."[1037] If "marriage
is sought after for the sake of children, it is justifiable; if
entered into as a _remedium_ to avoid worse evils, it is pardonable;
the idea of 'the mutual society, help, and comfort, that the one
ought to have of the other, both in prosperity and adversity,'
hardly existed and could hardly yet exist.[1038] In the decline
of the Roman empire, woman was not a helpmeet for man, and few
traces are to be found of those graceful conceptions which western
imagination has grouped round wedded love and home affections. The
result was that the gross, coarse, material, carnal side of marriage
being alone apprehended, those who sought to lead a spiritual life,
that is, above all, the clergy, instead of 'adorning and beautifying
that holy estate' and lifting it up with themselves into a higher
sphere and purer atmosphere, regarded it rather as a necessary evil
to be shunned by those who aimed at a holier life than that of the
majority."[1039]
[1032] The Council of Trent declared marriage to be a sacrament,
but did not settle the mediæval dispute as to the relation of
its different elements. A strong party held that it is necessary
to distinguish between the contract and the sacrament. The
church might regulate the former and not the latter, for it was
established by Christ himself. This doctrine would logically
have led to civil marriage, which the council was not ready to
sanction. "In every sacrament a distinction is made between
the minister, that is the agent who produces the sacrament,
and its _materia_, the objective or real content." From this
distinction arose an important controversy; one party regarding
the priest, and the other the parties, as the minister of the
sacrament. According to the former theory, which was adopted by
the French church, the bare consent of the parties constituted
the contract, and the marriage gained its sacramental character
later through the priestly benediction. The form of valid
contract as a temporal matter may therefore be determined by the
state. As a direct consequence of this doctrine in the eighteenth
century civil marriage arose in France: FRIEDBERG,
_Geschichte der Civilehe_, 26-29; _idem_, _Eheschliessung_,
546 ff., 509 ff. _Cf._ SALIS, _Publikation des trid.
Rechts_, 46 ff.; RIEDLER, _Bedingte Eheschliessung_,
12, 18 ff.; ESMEIN, _Le mariage en droit canonique_,
I, 78 ff.; II, 159 ff. The modern Catholic church rejects the
doctrine that there can be a distinction between the contract
and sacrament, the parties being the ministers of the sacrament.
Yet in effect a distinction is really made. The benediction,
we are told, is not "necessary in order to the validity of the
sacrament; but it is the presence of the parish priest, which is
a necessary condition _sine quâ non_ in order to the validity
of the contract."--HUMPHREY, _Christian Marriage_, 70
ff., 73 ff.; OSWALD, _Die dogmat. Lehre von den heil.
Sakramenten_, II, 501 ff. On this controversy see especially
RICHTER, _Lehrbuch_, 1047-49; MEURER, "Die
rechtl. Natur des trid. Matrimonialdecrets," _ZKR._, XXII; and
SCHULTE, "Die Statthaftigkeit der Civilehe nach kath.
Grundsätzen," _ibid._, XI, holding that the action of the Council
of Trent regarding the marriage contract is not dogmatic in
character, and that hence the state, without violating Catholic
doctrine, may rightly institute a compulsory civil marriage form.
Compare ROSKOVÁNY, _De matrimonio in ecc. cath._, 35-42;
PERRONE, _De matrimonio christ._, I, 46-159.
[1033] KEMBLE, _Saxons_, II, 434 ff., 454, 455;
LINGARD, _Hist. Anglo-Saxon Church_, I, 156-62; II, 235
ff., 260 ff.; STUBBS, CONST. HIST., I, 224;
THEINER, _Die Einführ. der erz. Ehelosigkeit_, I, 267-69.
[1034] In 376 "a Gallic synod excommunicated those who should
refuse the ministrations of a priest on the ground of his
marriage," though this need not imply that the church resisted
celibacy: KEMBLE, _Saxons_, II, 441. Married priests
were still allowed in the western church in 961. "The priests
were enjoyned not to marry without the leave of the Pope, on
which account a great disturbance took place in the diocese of
Teilaw, so that it was considered best to allow matrimony to the
priests."--"Brut y Twigsog.," in HADDAN AND STUBBS,
_Councils_, I, 286. For England there is abundant evidence of
the marriage of priests, sometimes of bishops, even as late as
the twelfth century: KEMBLE, _op. cit._, II, 443 ff.;
HADDAN AND STUBBS, _op. cit._, III, 19 (temp. Gregory);
II, 178 (Scotland); LEA, _Sacerdotal Celibacy_, 147, 159
ff., 197 (concubines), 271 ff.; THEINER, _op. cit._,
II, 183 ff.; LINGARD, _Hist. Anglo-Saxon Church_, I,
156-62; II, 235, who thinks at first the rule of celibacy was
enforced; STUBBS, _Const. Hist._, I, 223, 224, notes;
ELLIS, _Int. to Domesday_, I, 342 (two examples, _an._
1086); especially the excellent discussion of celibacy in England
by MAKOWER, _Const. Hist. Eng. Church_, 212-24, where
the sources are cited.
[1035] STUBBS, _Const. Hist._, I, 243, 244, notes; _Cod.
Dipl._, xxxiii, cxlvi, ccxv, lxxx, cxxvii, lxxxii, cxxiv, clxix;
HADDAN AND STUBBS, _op. cit._, II, 178 (Scotland);
THEINER, _op. cit._, I, 321-47.
[1036] After centuries of struggle and divergent practice, this
was decreed by the Roman council under Nicholas II., 1059;
and by the first Lateran council under Calixtus II., 1123:
MEYRICK, in _Dict. Christ. Ant._, II, 1100; _Hard.
Concil._, tom. vi, 1052; vii, 1111. "The eastern church has
never forbidden marriage before ordination to its presbyters,
and has never laid upon them the burden of abstinence from their
wives; and there is no doubt that the eastern discipline in this
respect was the discipline of the whole of the early church."
But eventually, in the East as well as the West, bishops were
forbidden to have wives: MEYRICK, _op. cit._, 1098,
1099, where the sources are cited on the whole subject of
the rise of celibacy. _Cf._ ZHISHMAN, _Das Eherecht
der orient. Kirche_, 165 ff., 449 ff.; LYNDWOOD,
_Provinciale_ (ed. 1505), foll. xc-xcv; LINGARD,
_Hist. Anglo-Saxon Church_, I, 156 ff.; KEMBLE,
_Saxons_, II, 439 ff.; SCHULTE, _Der Cölibatszwang_,
5 ff.; _Recherches phil. et hist. sur le célibat_, 147 ff.;
LEA, _Sacerdotal Celibacy_, 59 ff.; THWING,
_The Family_, 74 ff.; GAGE, _Woman, Church, and State_,
49 ff., 55 ff.; NISBET, _Marriage and Heredity_, 44 ff.
[1037] Citing AUGUSTINE, _Serm._ ix, li, _Op._, tom.
v, pp. 88, 345, ed. MIGNE. Augustine's view is that of
the earlier Fathers; see the references in n. 2, p. 325, above,
to which many more might be added. _Cf._ ESMEIN, _Le
mariage en droit canonique_, I, 83-87; THEINER, _Die
Einführung der erz. Ehelosigkeit_, I, 23 ff. (teachings of the
"heretical sects"), 81 (teachings of the "Fathers"); _Recherches
phil. et hist. sur le célibat_, 177 ff. (doctrines of the early
"heretics").
[1038] In the _Stromata_, c. xxiii: _Ante-Nicene Fathers_, II,
378, CLEMENT OF ALEXANDRIA approaches the loftier view
of marriage. "Philosophers" are "to take advantage of marriage
for help in the whole of life, and for the best self-restraint."
It is a "sacred image;" and "every foul and polluting practice"
must be purged away from it.
[1039] MEYRICK, in _Dict. Christ. Ant._, II, 1198. The
early theological conception of marriage is much lower than
that of the mature Roman law: "Nuptiae sunt conjunctio maris
et feminae et consortium omnis vitae, divini et humani juris
communicatio": MODESTINUS, in _Digest_, xxiii, tit. 2,
l. 1: _Corpus juris civilis_, I, 295. _Cf._ FREISEN,
_Geschichte des can. Eherechts_, 22. As if to emphasize the
paradoxical nature of the prevailing dogma, the Council of Trent
anathematizes those who say "that matrimony is not truly and
properly one of the seven sacraments;" as well as those who say
"that the marriage state is to be placed above the state of
virginity, or of celibacy, and that it is not better and more
blessed to remain in virginity, or in celibacy, than to be united
in matrimony."--WATERWORTH, _Canons and Decrees_, 194,
195. The Reformation Fathers constantly reproach their Roman
antagonists with this anomaly and with having debased the state
of marriage which is right for all according to the law of God
and nature: see the Parker Society collection of the _Works
of Fathers and Early Writers of the Reformed English Church_,
General Index, at "Marriage," 515-17. _Cf._ the curious book of
MADAN, _Thelyphthora, or a Treatise on Female Ruin_
(2d ed., London, 1781), who endeavors to show that sacerdotal
celibacy, the theory of impediments, and the invention of the
sacrament of matrimony have lowered the ideal of marriage which
is an institution divinely ordained for all men. He brings
together in convenient form for reference a mass of extracts from
the teachings of the Fathers, the papal and conciliar decrees,
the utterances of the schoolmen, and other sources.
But, in spite of theology and priestly asceticism, there is
little doubt that the loftier ideals and the gentler affections
which we now associate with wedded life were beginning to make
themselves felt in the early Christian family; just as despite
the licentiousness found in the imperial and noble circles of the
capital, most observed and doubtless exaggerated by historian and
satirist, and notwithstanding the surviving coldness[1040] of the
patriarchal age, the same ideas and sentiments, independently of
Christian influences, must already have been springing up among the
common people of the provinces, and presently in the Stoic families
of the Antonine era were to reach a splendid development worthy of
the days in which we live.[1041] It is doubtless true, as so often
urged, that there is a bright side to the history of celibacy.
Incidentally the monk organized schools, taught the barbarous tribes
the dignity of labor, demonstrated the power of industry,[1042] and
handed down to the men of the Renaissance some of the materials
of classic learning. So, likewise, the convent afforded an outlet
for the energy and the ambition of woman. Here in a large measure
she enjoyed independence and could assert her individuality. "For
the convent accepted the dislike women felt to domestic subjection
and countenanced them in their refusal to undertake the duties
of married life." The "outward conditions of life were such that
the woman who joined the convent made her decision once for all.
But provided she agreed to forego the claims of family and sex,
an honorable independence was secured to her, and she was brought
into contact with the highest aims of her age. At a period when
monasteries, placed in the remote and uncultivated districts,
radiated peace and civilization throughout the neighborhood, many
women devoted themselves to managing settlements which, in the
standard they attained, vied in excellence with the settlements
managed by men." "The career open to the inmates of convents
both in England and on the continent," continues Eckenstein, in
summarizing the results of her valuable researches, "was greater
than any other ever thrown open to women in the course of modern
European history."[1043] Still, granting all that can be said for
the conventual life, the motives which sustained it only throw
into bolder relief the social evils of the age and the low ideal
of marriage fostered by asceticism itself. History all too plainly
shows that the benefits conferred by monasticism and the enforced
celibacy of the secular clergy come far short of balancing the
evils flowing from the conception of wedlock as a "remedy for
concupiscence." The influence of the church did, indeed, tend to
condemn the breach of conjugal fidelity by the husband as equally
sinful with that of the wife; although this righteous principle has
by no means always been observed in Christian legislation. On the
other hand, celibacy bred a contempt for womanhood and assailed
the integrity of the family.[1044] The gross immorality of the
mediaeval clergy, regular and secular, and the shocking abuses of
the confessional have often been recorded and fortunately need not
here be dwelt upon.[1045]
[1040] FARRAR, _Seekers after God_, 10 ff.
[1041] CAPES, _Early Empire_, 223 ff., discusses the
exaggeration of the satirists; and in his _Age of the Antonines_,
85, 86, 89, 90, 117 ff., he describes the family life of Marcus
Aurelius and analyzes his meditations.
[1042] TAINE, _Ancient Régime_, 1-5.
[1043] ECKENSTEIN, _Woman under Monasticism_, 5,
478. This important and very interesting book throws much new
light on the position of woman in the Middle Ages. The convent
was a refuge from the "tyranny" of the family; and the author
believes that the desire for independence was a survival of the
"mother-age." The woman saint is thus a successor of the "tribal
goddess" and the "heathen prophetess."
[1044] The doctrine that woman was the cause of the "original
sin" arose among the early fathers of the church, and it was well
established by the time of Augustine. At the Council of Macon
(585) the question, "Does woman possess a soul?" was seriously
discussed. "Upon one side it was argued that woman should not be
called 'homo;' upon the opposite side that she should, because,
_first_, the Scriptures declared that God created man, male and
female; _second_, that Jesus Christ, son of a woman, is called
the son of man. Christian women were therefore allowed to remain
human beings in the eyes of the clergy, even though considered
very weak and bad ones."--GAGE, _Woman, Church, and
State_, 56.
Nevertheless for many this problem remained for centuries a topic
for theological debate. In 1595 appeared ACIDALIUS'S
_Disputatio nova contra mulieres, qua probatur eas homines
non esse_. In the same year it was republished, with an
answer, by SIMON GEDDICUS under the common title,
_Disputatio perjucunda, qua anonymus probare nititur mulieres
homines non esse: cui opposita est Simonis Geddici sacros.
theologiae doctoris defensio sexus muliebris_ (editio novissima,
Hagae-Comitis, 1644). At the end Simon writes: "Scriptum Halae
Saxonum, 10. Februarii, Anno Filii Dei nati, Hominis veri, ex
Maria Virgine, homine vera, 1595."
Still later (1667) FEYERABEND, _De privilegiis mulierum_
(3d ed., Jena, 1672), 2-5, starts with the inquiry, "an mulieres
sint homines?"
[1045] For details consult THEINER, _Die Einführung
der erz. Ehelosigkeit_, I, 44 ff., 54-60, 167 ff., 239, 296,
_passim_; II, 183-209; III, 96-148 (contemporary evidence for
the period 1448 to the Reformation), 305 ff. (influence of the
Jesuits on morals); LEA, _Sacerdotal Celibacy_, 78
ff., 109 ff., 115 ff., 129, 135 ff., 161-77, 330-61, 566-80
(abuse of the confessional, especially since the Council of
Trent), 631 ff.; _idem_, _Hist. of Auricular Confession_,
I, 378-400 (solicitations), 240 ff., 261, 272, 426 ff.;
LECKY, _Hist. of European Morals_, II, 120 ff., 148
ff., 316-72; HUTH, _Marriage of Near Kin_, 108 ff.; the
vigorous arraignment of the church and the canon law for their
alleged degrading influence on woman by GAGE, _Woman,
Church, and State_, 49 ff., 113 ff., 152 ff.; and _idem_, in
_Hist. of Woman Suffrage_, I, 753-99. For the opposite view
read _Christian Marriage_, by REV. WILLIAM HUMPHREY, S.
J.; ZIMMERMANN, _Der Priester-Cölibat_, 11 ff.;
GIDE, _La femme_, 169-82; and compare THWING,
_The Family_, 45 ff.; _Letters on the Const. Celibacy of the
Clergy_, 266 ff., 294 ff.; and BOUVET, _De la confession
et du célibat des prêtres_, 195-238, containing extracts from
BURCHARD'S _Decretorum_, showing the abominable
questions put to women. For the literature relating to celibacy
(to 1887) see especially ROSKOVÁNY'S _Coelibatus et
breviarium_ (13 vols., 1861-88), enumerating 6,785 books,
essays, and articles on the subject, of which (according to
THEINER, _op. cit._, III, 379) 3,285 are antagonistic.
We may next consider the second member of the paradox, the dogma
which constitutes the very basis of the canon law of marriage and
the source of manifold hardships and confusion. By the second half
of the twelfth century the doctrine that marriage is a sacrament
was thoroughly established in the western church.[1046] The early
Christian teachers had, indeed, regarded it as one of the many holy
"mysteries" to which the name "sacrament" was given.[1047] But it
was long before any of these were differentiated as distinct rites
superior to the rest in religious efficacy. Not until 1164, in the
fourth book of Peter Lombard's _Sentences_, do we find the first
clear recognition of the "seven sacraments," among which that of
marriage appears;[1048] and these were approved by The Council of
Florence in 1439 and later by the Council of Trent.[1049] The theory
of the sacramental character of wedlock had two consequences of
vast importance for the history of matrimonial law. First is the
dogma of the indissolubility of the marriage bond, involving the
whole problem of separation and divorce, which must be reserved for
discussion in another chapter;[1050] and, second, the exclusive
jurisdiction of the church in matrimonial causes.[1051] This
ecclesiastical function, like so many others, is of slow growth.
"We are here confronted by a conception which certainly does not
belong to the primitive sources. It is not by a revindication of
principles that the church conquers jurisdiction in marriage. After
having shared it with the state for centuries, she obtained it
in the Middle Ages without partition;" and "when her competence
was well established and a theory for it was required, it was
justified by saying that the church alone could take cognizance of
sacraments;" and "at the Council of Trent when this jurisdiction was
solemnly affirmed in a canon sanctioned by anathema, the majority
of the orators brought it expressly into connection with the
sacrament."[1052] In England between the seventh and the twelfth
centuries the ecclesiastical authority in matrimonial questions was
slowly established. Gregory writes to Augustine concerning forbidden
degrees.[1053] Later Theodore regulates marriage and divorce.[1054]
"When the conqueror had paid the debt that he owed to Rome by a
definite separation of the spiritual from the lay tribunals,[1055]
it cannot have remained long in doubt that the former would claim
the whole province of marriage law as their own. In all probability
this claim was not suddenly pressed; the _leges Henrici_[1056]
endeavor to state the old law about adultery; the man's fine goes to
the king, the woman's to the bishop; but everywhere the church was
beginning to urge that claim, and the canonists were constructing an
elaborate jurisprudence of marriage. By the middle of the twelfth
century, by the time when Gratian was compiling his concordance of
discordant canons, it was law in England that marriage appertained
to the spiritual forum."[1057] From the time of Glanville the
"marriage law of England was the canon law."[1058]
[1046] Thoroughly to appreciate the nature of the controversy
over the sacramental nature of marriage the writings of the
Reformation Fathers should be studied. See General Index to
the Parker Society publications; and _cf._ MADAN'S
_Thelyphthora_, already mentioned.
[1047] The early Fathers render the Greek μυστήριον by
_sacramentum_, which is defined by St. Augustine as "the visible
form of invisible grace," or "a sign of a sacred thing";
_Encyc. Brit._, XXI, 131. _Cf._ also FRIEDBERG,
_Eheschliessung_, 153, 154; FREISEN, _Geschichte des
can. Eherechts_, 29 ff.; ZHISHMAN, _Das Eherecht der
orient. Kirche_, 124 ff.; OSWALD, _Die dogmat. Lehre
von den heil. Sakramenten_, I, 25 ff.; PERRONE, _De
mat. christ._, I, 1-21; SCHULTE, _Lehrbuch_, 349;
RICHTER, _Lehrbuch_, 1044, 1045; THWING,
_The Family_, 81; and the monograph of BAIER, _Die
Naturehe in ihrem Verhältniss zur christlich-sakramentalen Ehe_;
AMAT, _Treatise on Matrimony_, 3 ff.
[1048] See the incunabula edition of PETRUS LOMBARDUS,
_Textus sententiarum_ (1488). _Cf._ MADAN,
_Thelyphthora_, III, 262; NISBET, _Marriage and
Heredity_, 46; FREISEN, _Geschichte des can.
Eherechts_, 34 ff.; OSWALD, _Die dogmat. Lehre von
den heil. Sakramenten_, I, 29; II, 458 ff.; CIGOI,
_Unauflösbarkeit_, 107 ff.; PERRONE, _De mat. christ._,
I, 22 ff.
[1049] _Encyc. Brit._, XXI, 132; WATERWORTH, _Canons and
Decrees_, 193-96.
[1050] See chap. xi, below.
[1051] For the growth of ecclesiastical jurisdiction in the West
see ESMEIN, _Le mariage en droit canonique_, I, chap. i.
[1052] _Ibid._, 73, 74, where the sources are cited;
WATERWORTH, _Canons and Decrees_, 196.
[1053] HADDAN AND STUBBS, _Councils_, III, 20.
[1054] _Ibid._, 199-202.
The theories adopted and developed by the canonists favor the
forming of marriages. "All those are urged to marry who are unable
to bear the superior state of virginity or continence and who
are not restrained by solemn vows." Consequently the canon law
"renders the formation of marriage as easy as it had rendered its
dissolution difficult."[1059] At first, as already explained, it
adopted the Roman betrothal, which possessed no legal significance,
the marriage beginning with the nuptials or actual living together.
Later it accepted the principles of Germanic custom, according to
which the legal effects of betrothal became far more stringent, and
the marriage was perfected at the nuptials or tradition, and not
through the _Beilager_, or physical union. Hence by the mediæval
canon law, if the nuptials were solemnized by priestly benediction,
though not followed by _copula_ or physical union, a marriage was
formed which could not be annulled by means of subsequent espousals
thus consummated.[1060] Gradually, however, as the betrothal gained,
the nuptials lost, in importance. Before the middle of the twelfth
century the doctrine prevailed that the _copula carnalis_ is the
supreme legal moment in marriage.[1061] This theory, which had
arisen with Hincmar of Rheims,[1062] is especially associated with
the name of Gratian, in whose _Decretum_ the arguments for and
against it are weighed, with the result of its practical acceptance,
though he tries to reconcile it with the Roman view, that the
nuptial _consensus_ constitutes the marriage.[1063] According to
him, there are two degrees in marriage: one is the _conjugium
initiatum_, arising in the simple consent of the espoused; second,
the _conjugium ratum_, created by the _copula carnalis_ and
perfecting the former. The _conjugium initiatum_ may be dissolved at
pleasure; but the _conjugium ratum_ is indissoluble. Thus the former
is merely the Roman betrothal under another name. But the Bolognese
jurists made it more stringent, assigning eight reasons for which
alone such a marriage could be dissolved.[1064]
[1055] On the separation of the lay and spiritual jurisdictions
see STUBBS, _Const. Hist._, I, 300, 307; _idem_,
_Select Charters_, 85; _idem_, _Lectures_, 300. SCHMID,
_Gesetze_, 357, and THORPE, _Anc. Laws_, II, 213,
give William's law, the date of which is unknown. See also
MAKOWER, _Const. Hist. of English Church_, 465, 466, 392
ff.
[1056] _Leges Henrici Primi_, 11, § 5.
[1057] POLLOCK AND MAITLAND, _Hist. of Eng. Law_, II,
365. The _Concordia discordantium canonum_, or Decree of Gratian,
comprises the first volume of RICHTER AND FRIEDBERG'S
fine edition of the _Corpus juris canonici_ (Leipzig, 1879). The
bringing together of the scattered rules of the ecclesiastical
authorities by Ivo of Chartres in the reign of Henry I., and
especially by Gratian (1151), was of vast importance in building
up the ecclesiastical jurisdiction. On the history of the
canon law see STUBBS, _Lectures_, 292-333; _idem_,
_Const. Hist._, I, 308 ff.; DODD, _Hist. Canon Law_,
150 ff., 161 ff.; BLACKSTONE, _Commentaries_, I, 14,
15, 19; ESMEIN, _Le mariage en droit canonique_,
I, 3 ff., 56 ff., 108 ff. The best account of the rise and
jurisdiction of ecclesiastical courts in England will be found in
MAKOWER, _Const. Hist. of Eng. Church_, 384-464.
[1058] POLLOCK AND MAITLAND, _op. cit._, II, 365, 366;
GEARY, _Marriage and Family Relations_, 1 ff.
[1059] ESMEIN, _op. cit._, I, 85.
[1060] This is the view established by SOHM,
_Eheschliessung_, particularly 120 n. 22, 151 n. 89. Compare
SEHLING, _Unterscheidung der Verlöbnisse_, 1 ff., 14
ff., 34 ff.; SCHEURL, _Kirch. Eheschliessungsrecht_, 35
ff.
[1061] SOHM, _op. cit._, 150-52; _idem_, _Trauung und
Verlobung_, 61 ff.; FRIEDBERG, _Eheschliessung_, 209;
ESMEIN, _op. cit._, I, 83. RIEDLER, _Bedingte
Eheschliessung_, 15 ff., discusses the different views as to
the relation of _consensus_ and the _copula carnalis_, in
connection with the sacramental nature of marriage. See also
FREISEN, _Geschichte des can. Eherechts_, 151 ff., 164
ff., on the whole subject.
[1062] SEHLING, _Unterscheidung der Verlöbnisse_, 33-59.
[1063] GRATIAN, _Decreti sec. pars. causa_ xxvii,
quest. ii, c. 16 ff.: RICHTER AND FRIEDBERG, _Corpus
juris canonici_, I, 1069 ff. _Cf._ ESMEIN, _op.
cit._, I, 97-119; SOHM, _Eheschliessung_, 111 ff.;
FREISEN, _op. cit._, 164 ff.; SCHEURL,
_op. cit._, 58-75; SEHLING, _op. cit._, 81 ff.;
HEUSLER, _Institutionen_, II, 290; DIECKHOFF,
_Die kirch. Trauung_, 115 ff.
[1064] On the whole subject see ESMEIN, _op. cit._, I,
97-119.
The theory of the classic canon law, formulated by Gratian,
that there is no marriage "until man and woman have been one
flesh,"[1065] does not receive so much emphasis in any other legal
system.[1066] It had far-reaching consequences in matrimonial
jurisprudence.[1067] Marriage became a simple consensual compact.
"In strictness of law all that was essential was this physical
union accompanied by the intent to be thenceforth husband and
wife. All that preceded this could be no more than an espousal
(_desponsatio_) and the relationship between the spouses was one
which was dissoluble; in particular it was dissolved if either of
them contracted a perfected marriage with a third person."[1068]
[1065] POLLOCK AND MAITLAND, _op. cit._, II, 366.
[1066] ESMEIN, _op. cit._, I, 83. Esmein traces the
origin of this doctrine of the canonists in part to the influence
of the "popular" or "naturalistic" view of marriage; in part
to certain texts of the Old and New Testament (particularly
Gen. 2:23, 24; 1 Cor. 16:16): and in part to the conception of
marriage as a remedy for concupiscence: _op. cit._, 83, 84, 97
ff. _Cf._ POLLOCK AND MAITLAND, _op. cit._, II, 367 n.
1; FREISEN, _op. cit._, 173.
[1067] It affected the "théorie de la formation et de la
dissolution du mariage, théorie de la nullité pour cause
d'impuissance, théorie de l'affinité, théorie des droits et des
devoirs des époux."--ESMEIN, _op. cit._, I, 83.
[1068] POLLOCK AND MAITLAND, _op. cit._, II, 366.
But before the close of the twelfth century theological subtlety had
conceived and gained the acceptance of a distinction in the forms
of contract which was fatal to the security of the marriage bond.
The famous classification of contracts as _sponsalia per verba de
praesenti_ and _sponsalia per verba de futuro_, though its principle
was earlier asserted, is due mainly to Peter Lombard;[1069] and
through the influence of Alexander III. ("Magister Rolandus") it
was accepted generally by the western church.[1070] The theory of
Lombard represents the triumph of Gallic theology over the doctrine
of Gratian, as maintained by the Italian jurists; and, in effect,
it is an attempt to combine the principles of the Roman with those
of the German--that is to say, the canonical--betrothal.[1071] In
_sponsalia de praesenti_, in words of the present tense, the man
and woman declare that they take each other now, from this moment
onward, as husband and wife. Such a contract is a valid marriage,
though not followed by actual wedded union; and since in theory it
is a real marriage, it is necessarily sacramental in character.
It creates a bond which can be dissolved only with the greatest
difficulty. It constitutes "at all events an initiate marriage; the
spouses are _coniuges_; the relationship between them is almost as
indisseverable as if it had already become a consummate marriage.
Not quite so indisseverable however; a spouse may free himself or
herself from the unconsummated marriage by entering religion, and
such a marriage is within the papal power of dispensation."[1072]
But even the unconsummate marriage _de praesenti_ cannot be
dissolved by a subsequent marriage which either party may contract,
though followed by wedded union.[1073] Espousals _de futuro_, on the
other hand, are a promise for future joining in marriage. Physical
union when preceded by such a contract is held to constitute a
binding marriage. The canonists went farther than this, as Esmein
declares, and "in a way set a snare for human nature to beguile
the imprudent into the matrimonial state" through the theory of
"presumptive marriage." The _copula carnalis_ was made a legal
ground for assuming the foregoing promise to wed. "The rule was
laid down that it is always necessary to judge in favor of marriage
unless the contrary be clearly understood."[1074] Moreover, the
church steadily refused to make the validity of marriage depend upon
forms and conditions such as the civil law prescribes. There was
no absolute requirement of parental consent[1075] or of a certain
age. All persons on reaching the years of puberty were declared
capable of wedlock solely on their own authority. No religious
ceremony, no record, or witness was essential. The private, even
secret, agreement of the betrothed, however expressed, was declared
sufficient for a valid contract.[1076] All these things might be
enjoined under sanction of severe discipline for their neglect; but
the marriage, if formed without them, was not the less binding. A
puzzling and disastrous antagonism between _legality_ and _validity_
was thus created. Even the Council of Trent, while making the
validity of the marriage depend upon its conclusion in the presence
of a priest and two or three witnesses, declined to go farther and
give an equal sanction to banns, registration, or the benediction,
though these were enjoined in its decree. After the council as
well as before children barely arrived at the age of puberty might
contract a valid marriage without the consent, or even against
the will, of their parents.[1077] In short, as Esmein has so well
shown, lest without a safety-valve the temptations of the flesh
should become too strong for weak human nature, and lest access to
a sacrament should be hindered, it was deemed necessary to discard
all restraints originating in mere "human convention."[1078] It is
a noteworthy fact that the dogma of marriage as a sacrament came
near being a fatal obstacle in the way of the action of the Council
of Trent against secret marriages.[1079] For how could the church
legislate concerning a holy mystery which Christ himself had given
her, without suggesting the human nature of the matrimonial contract
and by implication admitting the right of the state to exercise a
similar control? But even in this domain her exclusive jurisdiction
was affirmed.
[1069] Peter Lombard (d. 1164) was a professor in the University
of Paris, and later was ordained a bishop: _cf._ SOHM,
_Eheschliessung_, 121 ff.; ESMEIN, _op. cit._, I,
119 ff. His theory is set forth in the _Sententiae_, lib. iv,
dist. 27, 28: "Efficiens autem causa matrimonii est consensus,
non quilibet, sed per verba expressus: nec de futuro sed de
praesenti. Si enim consentiunt in futurum, dicentes, Accipiam te
in virum, et ego te in uxorem, non est iste consensus efficax
causa matrimonii": dist. 27, § 3. "Consensus, id est pactio
conjugalis, matrimonium facit, et extunc est conjugium etiamsi
non praecessit, vel secuta est copula carnalis": dist. 27,
§ 4. The _consensus_, if expressed by a verb of the present
tense, _accipio te_, constitutes a valid marriage without
_copula_. Opposed to this is a promise, expressed by a verb in
the future tense, _accipiam te_, which is binding only when
followed by _copula_. Compare TANCRED, _Summa de
mat._, 3 ff.; and see the masterly discussion of the history of
the distinction, in SOHM, _op. cit._, chap, iv, and
his _Trauung und Verlobung_, 73-109. _Cf._ SCHEURL,
_Kirch. Eheschliessungsrecht_, 76 ff.; DIECKHOFF, _Die
kirchl. Trauung_, 115 ff.; SEHLING, _Unterscheidung der
Verlöbnisse_, 72 ff., 115 ff.; FREISEN, _Geschichte des
can. Eherechts_, 179 ff., 205 ff.; KENT, _Commentaries_,
II, 87; BISHOP, _Marriage, Divorce, and Separation_,
I, §§ 313 ff., 353 ff.; FRIEDBERG, _Eheschliessung_,
203, 206; STEPHENS, _Laws of the Clergy_, I, 672
ff.; especially POLLOCK AND MAITLAND, _Hist. of Eng.
Law_, II, 366 ff.; ESMEIN, _op. cit._, I, 119-37;
SALIS, _Die Publikation des trid. Rechts_, 2, 3.
[1070] SOHM, _Eheschliessung_, 124 ff.
[1071] This is proved by SOHM, _op. cit._, chap,
iv; _idem_, _Trauung und Verlobung_, chap, iii; and by
ESMEIN, _op. cit._, I, 119-37.
Magister Vacarius, who lived in England _ca._ 1148-98 and
probably taught law at Oxford, has a theory differing from
that of Gratian or Lombard. According to him, the "true act of
marriage, the act which marks the moment at which the marriage
takes place, is the mutual delivery (_traditio_) of man and woman
each to each. Of course as a condition there must exist a pact
of the appropriate kind.... Again, as a condition there must be
the natural power of effecting a carnal union; but the _carnalis
copula_ is unessential." The marriage is _made_ by the tradition:
MAITLAND, "Magistri Vacarii summa de matrimonio,"
_Law Quart. Rev._, XIII, 136-38. In the same volume, 270-87,
MAITLAND publishes the text of the Summa.
On the two kinds of canonical _sponsalia_ see the dissertations
described in Bibliographical Note VIII.
[1072] POLLOCK AND MAITLAND, _op. cit._, II, 366.
[1073] This doctrine was already sanctioned by Innocent III.
(1130-43): ESMEIN, _op. cit._, I, 126.
[1074] ESMEIN, _op. cit._, I, 85. _Cf._ POLLOCK AND
MAITLAND, _op. cit._, II, 366.
[1075] The effect of this neglect on clandestine marriage is
forcibly described by LUTHER, _Tischreden_, foll. 355,
356. "Dass aber die Juristen fürgeben und anziehen den Canon,
und sagen: Dass der Eltern Autoritet, Rath, und Will wol Ehren
halben möge dabey sein, aber nicht auss not, dass es also sein
müsste, denn die Bewilligung derer, die mit einander wollen
Ehelich werden, ist die Substantz, die nötig ist. Der Eltern will
aber ist ein _accidens_, ein zufellig ding, das nur Erbarkeit und
Ehrenhalben geschieht, macht aber noch hindert nicht die Ehe.
"Es ist ein Gottloser Canon, und der Canonisten wahn wider Gott,
gleich als ein Buler, der in der ersten Brunst und unsinnigkeit
daher gehet, nicht viel nach Erbarkeit fragt. Also gehet der
Eltern autoritet, ansehen, gewalt, und gehorsam zu Boden."
On the marriage of minors see SELDEN, _Uxor ebraica_,
99-104; _Opera_, III, 605-8; MORGAN, _Marriage,
Adultery, and Divorce_, I, 283 ff.; LAUGINGER, _De
consensu parentum_, quaest. viii ff.; LOHEN, _De
parentum ad nuptias a liberis contrahendas consensu_ (Regiomonti,
1685).
[1076] On the lack of prescribed conditions see ESMEIN,
_op. cit._, I, 149 ff.; FREISEN, _Geschichte des can.
Eherechts_, 307-29.
[1077] SALIS, _Die Publikation des trid. Rechts_,
14, 15, 31 ff.; FRIEDBERG, _Eheschliessung_, 103,
122, 123; FLEINER, _Die trid. Ehevorschrift_, 3;
WATERWORTH, _Canons and Decrees_, 196 ff., ccxxvi ff.
[1078] ESMEIN, _op. cit._, I, 85, 86; POLLOCK AND
MAITLAND, _op. cit._, II, 367-72; SALIS, _op.
cit._, 3, 4.
[1079] _Ibid._, 44-47, notes, where the evidence is collected
from the sources. _Cf._ also RIEDLER, _Bedingte
Eheschliessung_, 12, 18 ff.; ESMEIN, _op. cit._, I,
78 ff.; II, 159 ff.; FRIEDBERG, _op. cit._, 109;
WATERWORTH, _op. cit._, pp. ccxxv ff., 193-96.
II. CLANDESTINE MARRIAGES THE FRUIT OF THE CANONICAL THEORY
The way was thus cleared for clandestine marriages. All efficient
restraints upon hasty unions were rejected; and often it became
impossible for the courts or even the parties themselves to know
whether a man and a woman were legally husband and wife or their
children legitimate. Seldom have mere theory and subtle quibbling
had more disastrous consequences in practical life than in the
case of the distinction between _sponsalia de praesenti_ and _de
futuro_. The difference was not essential, but purely verbal.[1080]
The canonist had before his mind the tense inflections of a Latin
verb. He insisted on a distinction which found no place in popular
ideas and which the usages of popular speech refused to observe. In
the English as well as the German idiom the contrast between the
present and the future tense is not always sharply defined.[1081]
This anomaly is described by Martin Luther in his usual trenchant
style. "They have played a regular fool's game," he says, "with
their _verbis de praesenti vel futuro_. With it they have torn apart
many marriages which were valid according to their own law, and
those which were not valid they have bound up.... Indeed I should
not myself know how a churl ... would or could betroth himself _de
futuro_ in the German tongue; for the way one betroths himself means
_per verba de praesenti_, and surely a clown knows nothing of such
nimble grammar as the difference between _accipio_ and _accipiam_;
therefore he proceeds according to our way of speech and says: 'I
will have thee,' 'I will take thee,' 'thou shalt be mine.' Thereupon
'yes' is said at once without more ado."[1082]
[1080] SOHM, _Eheschliessung_, 133 ff.; _idem_,
_Trauung und Verlobung_, 1 ff., has demonstrated that in
their "content" the two kinds of _sponsalia_ are identical;
the one is no more nor less a betrothal than the other, each
looking to a subsequent perfected marriage. The distinction
is not "eine Unterscheidung verschiedener Thatbestände,
sondern nur eine verschiedene rechtliche Behandlung desselben
Thatbeständes."--_Eheschliessung_, 137. The differences in tense
were arbitrarily made to have different legal consequences.
On the controversy as to the legal significance of the two kinds
of _sponsalia_ with Sohm compare SCHEURL, _Kirch.
Eheschliessungsrecht_, 76-107; _idem_, "Zur Geschichte des kirch.
Eheschliessungsrechts," _ZKR._, XV, 65-92, who agrees with
Sohm that both species of _sponsalia_ are forms of betrothal
(_Verlobungen_), but insists that they have different legal
consequences. This article is criticised by BIERLING,
"Kleine Beiträge," _ZKR._, XVI, 288-316; who is answered by
SCHEURL, "Consensus facit nuptias," _ibid._, XXII,
269-86. See also DIECKHOFF, _Die kirch. Trauung_, 115
ff.; SEHLING, _Unterscheidung der Verlöbnisse_, 40 ff.,
60 ff., 72 ff.; LYNDWOOD, _Provinciale_ (Oxford, 1679),
lib. quart., tit. I, 270, 271; SANCHEZ, _Disputat. de
s^{to}. mat. sac._, I, 3-220; SELDEN, _Uxor ebraica_
(ed., 1673), 92 ff., or _Opera_, III, 599 ff.
[1081] "Es kam hinzu, das der Gegensatz der Zeitform in der
deutschen Sprache regelmässig überhaupt unerkennbar war, denn
zu deutsch heisst es nicht: 'ich nehme dich,' noch: 'ich werde
dich nehmen,' sondern 'ich will dich nehmen.'"--SOHM,
_Eheschliessung_, 135.
[1082] "Ja, ich wüsste selbs nicht wol, wie ein Knecht oder Magd
sollten oder kunnten in deutscher Sprache _per verba de futuro_
sich veloben; denn wie man sich verlobet, so laut's _per verba de
praesenti_, und sonderliche weiss der Posel von solcher behender
Grammatica nichts, dass _accipio_ und _accipiam_ zweierlei
sei; er führet daher nach unserer Sprachen Art und spricht:
'Ich will Dich haben,' 'ich will Dich nehmen,' 'Du sollt mein
sein,' etc. Da ist die Stunde ja gesagt ohn weiter Aufzug oder
Bedenken."--LUTHER, "Von Ehesachen," _Werke_ (Erlangen
ed.), XXIII, 102, 103; also in _Bücher und Schriften_ (Jena,
1561), V, 240, 241; and in STRAMPFF, 318, 319. This
whole interesting passage, of which a portion is translated in
the text, is given by SOHM, _Eheschliessung_, 139; and
by FRIEDBERG, _Eheschliessung_, 206, 207. _Cf._ also
LUTHER'S _Tischreden_ (Frankfort ed., 1571), c. 36, p.
356. Luther's view is accepted by SCHEURL, _Das gemeine
deutsch. Eherecht_, 64; and SALIS, _Die Publikation des
trid. Rechts_, 3.
That German rustics were not the only lovers caught in the meshes of
grammatical forms appears from the following passage written toward
the close of the Tudor period by Swinburne, who nevertheless defends
the canonical distinction, whether the contract be made in the Latin
or in the vulgar tongue.[1083] After refuting, as he believes, the
reasoning of those who hold that the forms "I will take thee to my
wife" ("_Ego volo te accipere in uxorem_") and "I do take thee to my
wife" ("_Ego accipio te in uxorem_") are equally a contract in the
present tense, he proceeds to attack the argument "drawn from the
Simplicity of the Vulgar sort, who albeit they intend to tye such a
Knot as can never be loosed, and make the Contract so sure as it may
never be dissolved; yet such is their unskilfulness and ignorance
herein, that they cannot frame their words to their minds, nor know
whether it be all one to say 'I will take thee to my wife' or 'I do
take thee to my wife,' much less do they know the difference betwixt
these words, 'I will marry thee' and 'I will have thee to my wife,'
or betwixt these words, 'I will take thee to my wife' and 'I will
hold thee for my wife,' or betwixt these words, 'I will espouse
thee' and 'I will intreat thee as my wife,' or betwixt these words,
'I will Contract Matrimony with thee' and 'I will provide for thee
as my Wife,' or betwixt these words, 'I will make thee my wife' and
'thou shalt be my Wife,' with an hundred such differences wherein
appeareth no dissimilitude. And therefore, since it is the very
Consent of Mind only which maketh Matrimony, we are to regard not
their Words, but their Intents, not the formality of the Phrase, but
the drift of their Determination, not the outward sound of their
Lips, which cannot speak more cunningly, but the inward Harmony
or Agreement of their Hearts, which mean uprightly." Otherwise,
especially in case of people of the "ruder sort, whose Sayings are
to be expounded with all favour to the furtherance of Matrimony,"
if "we shall curiously descant upon every word proceeding from a
simple Conceit, we cannot but miss of their meanings, and with our
fine and dainty Distinctions (which never came within the compass
of their gross Understandings) incumber the Consciences of them
which be coupled.... Lest therefore any Man's Conscience (through
ignorance of Terms) might be intangled in the Snares of this subtle
and more captious Distinction of 'I will' and 'I do' with the rest
of the Differences more subtle and more captious, ... are the same
to be rejected, and this reasonable and conscionable Conclusion
received ... where two intend to Contract Spousals _de praesenti_,
there is Matrimony always contracted, although the words import but
future Consent only."[1084] Time has approved the soundness of this
plea, in spite of the remonstrance of Swinburne and the logic of the
worthy doctors whom he cites.
[1083] SWINBURNE, _Of Spousals_, 55-73, gives a most
interesting discussion of the verbal difficulties arising in
_sponsalia de praesenti vel futuro_, comparing the legal writers
for and against the distinction.
[1084] _Ibid._, 62 ff. _Cf._ JEAFFRESON, _Brides and
Bridals_, I, 114 ff., 124-37 (on "Pre-Contracts" before and after
the Reformation).
Scholastic hairsplitting had set a veritable trap for the feet of
the unwary. "Of all people in the world lovers are the least likely
to distinguish precisely between the present and the future tenses.
In the Middle Ages marriages, or what looked like marriages, were
exceedingly insecure. The union which had existed for many years
between man and woman might with fatal ease be proved adulterous,
and there would be hard swearing on both sides about 'I will' and
'I do.'"[1085] Accordingly the ecclesiastical courts were given a
dangerous power[1086]--a perilous discretion in matrimonial causes,
which, however wisely exercised, was sure to work much hardship
and injustice. Since in substance espousals _de praesenti_ and
_de futuro_ were identical, differing only in the consequences
which the law attached to the tense form, it was inevitable that
decisions should be arbitrary and wavering; and, as a matter of
fact, practically the same form of contract was held at one time
to constitute _sponsalia de praesenti_; at another, a promise
_de futuro_;[1087] and the _Liber officialis_ of St. Andrews,
Scotland, contains the record of a divorce granted from a second
union because the man had already contracted a previous marriage
in these words: "I promyth to yow Begis Abirnethy that I sall mary
yow, and that I sall neuere haiff ane uther wiff and therto I giff
yow my fayth." It is a striking illustration of the entanglements
resulting from the canonical theory that this contract is styled
in the record "_both sponsalia de futuro_ and _praesenti_."[1088]
The worst of it was that the spiritual salvation or damnation of
the man and woman, the genuineness of whose union was in question,
depended upon the decision. The valid marriage was no less a
sacrament, though dissolved through ignorance, error, or perjury;
and the invalid marriage was no more a sacrament, though in the
same way declared binding. For by a rule of the spiritual courts,
in a suit growing out of a secret marriage, the plaintiff who
affirmed the validity of the espousals, if the fact were denied
by the defendant, had to prove his allegation. If he failed to
do so--and this might easily happen, since often the espousals
were formless and absolutely without witness[1089]--the case was
dismissed, the contract dissolved, and the parties were free to
form new marriages elsewhere. But if the secret marriage were after
all really valid, and therefore a sacrament, though not sustained
for lack of proof, the husband and wife were still bound in their
consciences; and if either should form a second union with another
person, though it were publicly solemnized in face of the church,
he would be guilty of the sin of bigamy.[1090] To the existence of
this cruel embarrassment Luther bears witness in a characteristic
passage of his _Tischreden_.[1091] "Now the pope and the jurists
say that marriage may never be dissolved. What happens? The wedded
people fall out and separate. So they come to me in the cloister or
wherever an official can be found and swear themselves apart; then
they marry again. Thereafter they come to me or to some confessor
and say: Dear sir, I have now a wife whom I espoused secretly. What
am I to do about it? Help me, dear Doctor, lest I despair. For Greta
whom I first married is my proper wife. But this Barbara whom I
espoused later is not my wife, and yet must I not sleep with her?
The former I dare not take, though I should like to have her if I
could; but I cannot for I have another wife and she likewise has
another husband; yet no one knows that she is my wife except God in
heaven. O, I shall be damned, I know not what to do!"[1092] Luther's
testimony is fully sustained by similar evidence afforded by the
proceedings and decrees of the Council of Trent.[1093]
[1085] POLLOCK AND MAITLAND, _Hist. of Eng. Law_, II,
367.
The rule laid down by Anselm in 1102, already mentioned, really
invites such "hard swearing": "Promises of marriage made between
man and woman without witnesses" are to be "null if either party
deny them."--JOHNSON'S _Canons_, 11, 27. The following
is an example of what repeatedly happened in the ecclesiastical
courts: "_Omnium Sanctorum Honylane._--Thomas Potynger comparuit
coram comissario [of London] in domo officii xxii die
Augusti [1481], et prestitit juramentum, quod nunquam
contraxhit matrimonialiter cum Margareta Hudson de eadem,
ibidem presente, et confitente, quod nullum testem habuit ad
probandum contractum, et ideo commissarius remisit eos regulae
conscientiarum suarum."--HALE, _Precedents and Procds. in Crim.
Causes_, 5. For another example see _ibid._, 6.
[1086] They obtained a _Freibrief_, or license, for their
practice: SOHM, _Eheschliessung_, 138. _Cf._
FRIEDBERG, _Eheschliessung_, 16 ff., on the abuses of
matrimonial jurisdiction.
[1087] "The promise, se ducturum in conjugem, or one similar,
is conceived to be consensus de futuro in c. 5, 15, 17, 22x.
de sponsal. (4, 1); but as consensus de praesenti in c. 5x. de
sponsa duor. (4, 3)."--SOHM, _Eheschliessung_, 135 n. 51.
[1088] Ex et pro eo quia dictus David diu ante solemnizationem
dicti pretensi matrimonii ... alia sponsalia tam verba
de futuro quam de praesenti cum Margareta Abirnethy,
impressentiarum superstite, carnali copula subsecuta, contraxit,"
etc.--FRIEDBERG, _Eheschliessung_, 58; _Liber officialis
S. Andree_, 21. This book, 19, 33, 66, 73, 75, contains,
according to Friedberg, other records of marriages _de futuro_,
sometimes _copula subsecuta_, dissolved on account of later
_sponsalia de praesenti_. _Cf._ also SOHM, _op. cit._,
135.
[1089] In the spiritual courts two good witnesses were
required to establish a fact. On the "proof of marriage" see
ESMEIN, _Le mariage en droit canonique_, I, 189 ff.; II,
127 ff.; POLLOCK AND MAITLAND, _Hist. of Eng. Law_, II,
382 ff.; _Law Review_ (English), I, 378 ff.
[1090] SALIS, _Die Publikation des trid. Rechts_,
6, 7; POLLOCK AND MAITLAND, _op. cit._, II, 382,
383; ESMEIN, _op. cit._, I, 189 ff.; II, 127 ff.;
FRIEDBERG, _Eheschliessung_, 102 ff.; SOHM,
_Eheschliessung_, 187 ff.
[1091] Da spricht der Papst und die Juristen, die Ehe dürfe
nimmermehr gescheiden werden. Was geschah? Die Eheleute wurden
darnach uneins und schieden sich wieder von einander. Also ging
mirs im Kloster auch; oder wo man fur den Official kam, so schwur
sich eines vom andern, freieten wieder. Darnach kamen sie zu mir
oder einem Andern in die Beichte und sprachen: Lieber Herr, ich
habe itzt eine Frau, der hab ichs heimlich gelobt; wie thue ich
ihm immermehr? Helft mir, lieber Herr Doctor, dass ich nicht
verzweifele. Denn Greta, mit der ich mich am ersten verlob hab,
ist mein recht Eheweib. Aber diese Barbara, die mir darnach
vertrawet, ist nicht mein Weib und muss doch bei ihr schlaffen?
Jene darf ich nicht nehmen, die ich doch gerne möcht haben, da es
sein könnte; aber ich kann nu nicht, denn ich habe eine Andere,
so hat sie auch einen Andern: doch weiss es Niemand, dass sie
mein Weib ist, denn allein, Gott im Himmel, dem ist bewust. O,
ich werde verdampt, ich weiss keinen Rath."--"Tischreden," in
_Werke_ (Erlang. ed.), LXII, 229; quoted also in SALIS,
7, 8, who gives other proofs; likewise in SOHM, _op.
cit._, 189, 190; FRIEDBERG, _op. cit._, 102; and
ESMEIN, _op. cit._, II, 129.
[1092] In LUTHER'S "Von Ehesachen," _Werke_ (Erlang.,
XXIII, 98), is another interesting passage forcibly describing
the danger of bigamy through the confusion wrought by
clandestine marriages. The passage is also in STRAMPFF,
_Luther: Ueber die Ehe_, 313 ff.; and it is partly quoted by
SOHM, _op. cit._, 188, 189.
[1093] RICHTER-SCHULTE, _Canones et dec. conc. trid._,
216 ff.; PALLAVICINO, _1st. conc. Trent._, IV, lib.
XXII, 1, 16; THEINER, _Acta gen. conc. trid._, II,
314, 335. Cap. 1 of the decree of the council for the reform
of marriage contains the following: "Cum sancta synodus
animadvertat prohibitiones illas propter hominum inoboedientiam
jam non prodesse, et gravia peccata perpendat, quae ex eisdem
clandestinis conjugiis ortum habent, praesertim vero eorum qui
in statu damnationis permanent, dum priore uxore cum qua clam
contraxerant, relicta cum alia palam contrahunt et cum ea in
perpetuo adulterio vivunt, cui malo cum ab ecclesia, quae de
occultis non judicat, succurri non possit, nisi efficacius
aliquod remedeium adhibeatur;" also in WATERWORTH'S
_Canons and Decrees_, 196, 197. Compare the passage on the evil
resulting from the canon law of marriage in the address with
which Hieronymus Ragazzoni opens the last or xxv. solemn session
of the council: THEINER, _Acta gen._, II, 502. See this
and other excerpts in SALIS, _op. cit._, 1, 9, _passim_.
The evil of clandestine marriages prevailed generally throughout
Christendom.[1094] The provincial church councils as well as the
temporal powers, local and national, were kept busy in devising
penalties or other restraints in the vain hope of putting a
stop to it. Such was the case in Holland, where, in spite of
the decrees of the church and the statutes of the state, secret
marriages, without the presence of witness, magistrate, or priest,
were common.[1095] The same is true of Portugal;[1096] and Pope
Alexander III. confesses that they were frequent in Italy, at
least in the bishopric of Salerno, and they gave rise to vexatious
litigation.[1097] Suits were sometimes brought to enforce an alleged
secret marriage for impure purposes. So severe were the provisions
of Swiss legislation to check this evil, toward the close of the
Middle Ages, that even the innocent were deterred from appealing
to the courts to enforce their matrimonial rights. Before bringing
suit security was required; and the unsuccessful plaintiff was
fined and compelled to pay damage.[1098] "Against a Zürich law of
this kind an official of Konstanz remonstrates, declaring that
'without doubt there are in the bishoprick of Konstanz hundreds of
persons who before the Lord God are married people, legally joined
together, and yet who are so much in dread of the penalty as not
to dare to enforce their legal rights against one another.'"[1099]
At the Council of Trent report was made of secret marriages in
Africa[1100] and the West Indies;[1101] while in Germany they gave
trouble both to the temporal and spiritual law-maker long after the
Reformation.[1102] The uncertainty and complexity of matrimonial law
bore their natural fruit in Spain[1103] and in France.[1104] It was
the king of France who through his _oratores_, or representatives,
brought before the Council of Trent the proposal which prevailed to
reform the abuse by making the validity of marriage depend upon its
public solemnization;[1105] while a measure of Alfonso the Wise of
Castile, in 1258, not only defines the well-known three kinds of
clandestine marriages, but shows clearly, what Gratian[1106] had
already pointed out, that the permanence or dissolution of such a
marriage really depends upon the will of the parties themselves,
or even one of them. "Three kinds of marriage are called 'secret;'
the first is one concluded privately and without witnesses, so that
it cannot be proved. The second is one formed before witnesses,
but without the consent of the bride's father, or mother, or other
relative in whose protection she is, and without payment of the
arrha or observing the other forms (honors) which holy church
demands. The third is one whose banns have not been published in the
parish where the parties live.... The reason why the holy church
forbids secret marriages is this: When a difference arises between
the wedded pair, and the one will no longer live with the other, the
church has no means to prevent the separation, even when in truth a
marriage exists; because it cannot be proved. For the church cannot
pass judgment on secrets; but only on the allegations of the parties
which are proved."[1107]
[1094] In general see FRIEDBERG, Index, at "Ehe,
heimliche;" SALIS, _op. cit._, 1-14; SOHM, _op.
cit._, 187 ff., 132 ff.; ESMEIN, _op. cit._, II, 121
ff.; I, 189 ff.; GEARY, _Marriage and Family Relations_,
434 ff., Index; POLLOCK AND MAITLAND, _op. cit._, II,
367 ff., 382; SCHELHAS, _De clandestinis sponsalibus
juratis_ (Jena, 1716); LYNDWOOD, _Provinciale_ (Oxford,
1679), 273 ff.; SANCHEZ, _Disputat. de s^{to}. mat.
sac._, I, 221-358. LUTHER'S "Von Ehesachen," _Bücher
und Schriften_, V, 237-57, is largely devoted to a discussion of
secret betrothals.
[1095] FRIEDBERG, _op. cit._, 66-69.
[1096] _Ibid._, 75.
[1097] SALIS, _op. cit._, 8; FRIEDBERG, _op.
cit._, 75-77.
[1098] SALIS, _op. cit._, 8, 9; _ap. Zeitschrift für
schweiz. Recht_, 1878, XX, 114 ff.
[1099] "Und ist ungezwyfelt, es sitzen im Bisthum Costanntz
hundert und aber hundert parthyen, die vor Gott dem Herrn
Eelüt sin und mit recht zusammen gewyst wurden, und doch umb
sorg des penfals einander mit gepürlichen Rechten nit thüren
fürnemmen."--SALIS, _op. cit._, 9.
[1100] See the letter of Mutio Calini to Cardinal Luigi Cornara,
July 29, 1563, in SALIS, _op. cit._, 13.
[1101] THEINER, _Acta gen._, II, 367, 513;
PALLAVICINO, _1st. conc. trid._, Vol. IV, lib. xxii, 4,
24; SALIS, _op. cit._, 12.
[1102] FRIEDBERG, _Eheschliessung_, 79, 260, 261.
[1103] _Ibid._, 71-74; SALIS, _op. cit._, 11, 12.
[1104] FRIEDBERG, _op. cit._, 62 ff., 499;
SALIS, _op. cit._, 9, 11, 12.
[1105] THEINER, _op. cit._, II, 316; SALIS,
_op. cit._, 9; FRIEDBERG, _op. cit._, 110.
[1106] "Coniugia, que (quae) clam contrahuntur, non negantur
esse coniugia, nec iubentur dissolui, si utriusque confessione
probari poterunt: uerumtamen prohibentur, quia mutata alterius
eorum uoluntate, alterius professione fides iudici fieri non
potest. Unde publice, cum alterius uota in alteram partem se
transtulerint, pro priore coniugio, quod iudici incertum est,
sentencia ferri non poterit."--GRATIAN, _Decreti sec.
pars causa_ xxx, quest. v, c. ix: RICHTER-FRIEDBERG,
_Corpus juris can._, I, 1107. The passage is also quoted from
different text by SALIS, _op. cit._, 6, who adds the
statement of the cardinal of Lothringen at the Council of Trent:
"Clandestinum matrimonium est causa disjunctionis conjugum; tales
enim cum nullos habeant testes matrimonii contracti, _pro libito_
possunt separari."--_Ap._ THEINER, _op. cit._, II, 314.
[1107] The document, of which a part is translated in the text,
will be found in FRIEDBERG, _op. cit._, 72, 73. On the
kinds of clandestine marriage see SALIS, _op. cit._,
5, 6; BOHN, _Pol. Cyc._, III, 320; ESMEIN,
_Le mariage en droit canonique_, I, 181 ff.; LYNDWOOD,
_Provinciale_, 276.
Nowhere perhaps is the history of secret marriages so interesting
as in Scotland[1108] and mediæval England. Many proofs and
illustrations from literature, early rituals, law-books, and
judicial decisions have been collected by Friedberg.[1109] Usually
the nuptials were celebrated in presence of a priest at the
church door according to popular forms, or, in the later period,
according to more elaborate religious rites. But by custom the
simple hand-fasting, with or without giving to the bride a penny
or piece of gold, sufficed; and the hand-fasting is found also in
connection with the ecclesiastical ceremony. Even in the case of
secret marriages "it is characteristic that mention is almost always
made of the presence of a priest who confers his blessing."[1110]
Miles Coverdale's translation of Bullinger's _Christen State of
Matrimonye_ (_ca._ 1541) contains the following instructive passage:
"Yet in thys thynge also must I warne everye reasonable & honest
parson to beware, that in contractyng of maryage they dyssemble not,
nor set forthe any lye. Every man lykewyse must esteme the parson
to whom he is hand-fasted, none otherwyse than for his owne spouse,
though as yet it be not done in the church nor in the streate.
After the hand fasting & makyng of the contracte, the church goyng
& weddyng shulde not be deffered to long, lest the wicked sowe
hys vngracious sede in the mene season. Likewise the wedding (&
cohabitaciō of the parties) ought to be bego[=n]e with god, & with
the ernest prayer of the whole church or congregaciō.... In to this
dishe hath the devill put his foote, & myngled it with many wicked
vses & customes. For in some places ther is such a maner, wel worthy
to be rebuked that at the hand fastynge there is made a great feast
& superfluous bancket, & even the same night are the two hād fasted
persones brought & layed together, yea certayne wekes afore they go
tot [sic] the church."[1111]
[1108] For Scotland see GEARY, _Marriage and Family
Relations_, 534 ff.; FRIEDBERG, _op. cit._, 57, 58,
_passim_; JEAFFRESON, _Brides and Bridals_, II, 259, 260.
[1109] FRIEDBERG, _op. cit._, 36-57, 317, 335, 344,
355. Secret marriages are censured by CRANMER, _Misc.
Writings_, 82, 159; HOOPER, _Later Writings_, 137,
149; LATIMER, _Sermons_, II, 243. Consent of parents
is urged by SANDYS, _Sermons_, 50, 281, 325, 326,
455; BECON, _Catechism_, 355, 358, 371, 372; _idem_,
_Prayers_, 199, 532; TYNDALE, _Early Writings_, 169,
170, 199; JEAFFRESON, _Brides and Bridals_, II, 104-14;
I, 113 ff., discusses clandestine marriages, mainly after the
Reformation.
[1110] FRIEDBERG, _op. cit._, 39, 40. This appears
plainly from the constitution of Stratford, 1343, against
clandestine marriages; as well as from that of Zouche, 1347:
JOHNSON'S _Canons_, II, 395-97, 410, 411.
[1111] MILES COVERDALE, _The Christen State of
Matrimonye_ (1st ed., 1541), xlviii, xlviiii.
This passage was transcribed for me from a copy of the first
edition (1541) in the library of the British Museum by Professor
William H. Hudson. To his kindness I am also indebted for
the extract from Whitforde's book taken from a copy in the
possession of the same library. In 1899 Sotheran offered for £4
10s. a "probably unique" copy of a 24mo edition of Coverdale's
work, 1543. This he regards as a copy of the second edition,
the title differing somewhat from that of the first edition.
An 8vo edition appeared also in 1543, with a preface by Becon.
FRIEDBERG, _op. cit._, 40, quotes the same passage; but
the different spelling indicates that he has not used the first
edition.
Eleven years earlier similar testimony is given in Richard
Whitforde's _Werke for housholders_. "The ghostly ennemy," he says,
"doth deceyue many psones by y^e pretence & colour of matrymony in
pryuate & secrete contractes. For many men whan they can not obteyn
theyr vnclene desyre of the woman wyl promyse marryage, & thervpon
make a contracte promyse, & gyue fayth & trouth eche vnto other
sayenge. Here I take the Margery vnto my wyfe, I therto plyght the
my trouth. And she agayne, vnto hym in lyke maner. And after that
done, they suppose they maye lawfully vse theyr vnclene behauyour,
and somtyme the acte and dede doth folow, vnto the great offence of
god & theyr owne soules. It is a great ieopardy therfore to make
ony suche contractes, specyally amonge them selfe secretely alone,
without recordes, whiche must be two at the least."[1112]
[1112] RICHARD WHITFORDE, _A Werke for housholders_
(2d ed., 1537), sign. E. iii and following page. There is no
pagination. For the date see BAYNE, in _Dict. Nat.
Biog._, LXI, 125-27.
In Scudmore's _A Woman's a Weathercocke_ the priest who is expected
to solemnize the marriage of a lady with Count Frederick says:
"She is contracted, sir, nay married,
Unto another man, though it want forme:
And such strange passages and mutuall vowes,
I would make your short haire start, through youre blacke
Cap, should you heare it."[1113]
[1113] FRIEDBERG, _op. cit._, 41.
Many similar proofs may be found in the plays and ballads of the
sixteenth and seventeenth centuries.
III. THE EVILS OF THE SPIRITUAL JURISDICTION
The separation of the temporal and spiritual courts and the tenacity
with which early custom and theory were preserved in the common
law[1114] render the history of matrimonial judicature anomalous in
England. The leading case occurs in the reign of Stephen. "Richard
de Anesty's memorable law-suit[1115] was the outcome of a divorce
pronounced in 1143 under the authority of a papal rescript, and one
that to all appearance illustrated what was to be a characteristic
doctrine of the canon law: a marriage solemnly celebrated in church,
a marriage of which a child had been born, was set aside as null
in favour of an earlier marriage constituted by a mere exchange of
consenting words."[1116] By the time of Henry II. this doctrine was
completely established in England, as shown by the famous decretal
epistle of Alexander III. to the bishop of Norwich: "A strong case
is put. On the one hand stands the bare consent _per verba de
praesenti_, unhallowed and unconsummated, on the other a solemn and
a consummated union. The latter must yield to the former."[1117]
Such remained the law of England until the passage of the Hardwicke
act in 1753.[1118]
[1114] _Ibid._, 47, 48.
[1115] Discussed in PALGRAVE, _Commonwealth_, II,
v-xxvii; BIGELOW, _Placita Anglo-Normannica_, 175;
POLLOCK AND MAITLAND, _Hist. of Eng. Law_, I, 137, 138.
[1116] _Ibid._, II, 365.
For further illustration see LOERSCH, "Ein
eherechtliches Urtheil," _ZKR._, XV, 407-10; and
FRENSDORFF, "Ein Urtheilsbuch des geist. Gerichts zu
Augsburg," _ibid._, X, 1-37, publishing a manuscript containing
decisions for the years 1348-52 which afford abundant proof of
the doctrine and practice regarding _sponsalia de praesenti_.
[1117] POLLOCK AND MAITLAND, _op. cit._, II, 369, where
a translation of the epistle is given. _Cf._ BOHN, _Pol.
Cyc._, III, 319; SOHM., _Eheschliessung_, 124 ff., who
discusses from the canons the influence of Alexander III. on this
doctrine.
[1118] This principle is illustrated in a suit for jactitation of
marriage before the commissary of London, 1501: HALE,
_Precedents_, 72, 73; and in a case of punishing clandestine
marriage by prescribing penance by the same court in 1502:
_ibid._, 78, 79.
The perils arising in the canonical theory of espousals were greatly
increased by the doctrine of impediments to marriage, particularly
those growing out of forbidden degrees of affinity, consanguinity,
and spiritual relationship.[1119] "Reckless of mundane consequences,
the church while she treated marriage as a formless contract,
multiplied impediments which made the formation of a valid marriage
a matter of chance."[1120] The stringency of the law in this regard
appears to be entirely inconsistent with the theory that marriage
should be encouraged. But doubtless the apparent contradiction
is due largely to the same ideas which shaped that theory. The
Fathers dreaded the sins of the flesh through which the sacramental
nature of marriage might be defiled;[1121] and they may have felt
a reaction against the freedom of the German custom touching the
marriage of blood kindred.[1122]
[1119] The canonists distinguished _cognatio_ from
_affinitas_. There are three sorts of _cognatio_: (1)
_consanguinitas_; (2) _cognatio legalis_, or adoption; (3)
_cognatio spiritualis_, arising in a participation in the
same sacrament: ESMEIN, _op. cit._, 335 ff., 374 ff.
On the whole subject see NIEMEIER, _De conjugiis
prohibitis_, comprising ten separate dissertations with critical
and bibliographical "supplementa," but relating largely to
post-Reformation doctrine; SANCHEZ, _Disput. de s^{to}.
mat. sac._, II, 1-402; TANCRED, _Summa de mat._ (ed.
WUNDERLICH), 16 ff.; the monograph of EICHBORN,
_Die Ehehinderniss der Blutsverwandtschaft nach kan. Rechte_
(Breslau, 1872); SCHULTE, _Lehrbuch_, 355-57;
FRIEDBERG, _Lehrbuch_, 337, 359; SEHLING,
_Die Wirkungen der Geschlechtsgemeinschaft_ (impotence);
GEARY, _Marriage and Family Relations_, 20 ff.;
POLLOCK AND MAITLAND, _Hist. of Eng. Law_, II, 383
ff.; FREISEN, _Geschichte des can. Eherechts_, 371
ff.; JEAFFRESON, _Brides and Bridals_, I, 108 ff.; II,
306 ff.; MORGAN, _Marriage, Adultery, and Divorce_, I,
199 ff. The Catholic doctrine is set forth at great length by
SCHEICHER-BINDER, _Praktisches Handbuch_, 8-354; and in
PERRONE, _De mat. christ._, II, 31 ff.
[1120] POLLOCK AND MAITLAND, _op. cit._, II, 383 ff.
[1121] ESMEIN, _op. cit._, I, 87, 90, 335 ff., discusses
the causes which produced this irrational and intricate system.
[1122] KEMBLE, _Saxons_, II, 406-8; LINGARD,
_Hist. Anglo-Saxon Church_ (2d ed.), II, 5 ff. Gregory advises
Augustine to relax the rules of the church in England so as
to allow marriage beyond the second degree: HADDAN AND
STUBBS, _Councils_, III, 20, 21. _Cf._ also ESMEIN,
_op. cit._, I, 344 ff.; EICHBORN, _Ehehinderniss_, 11 ff.
The development of the law of forbidden degrees, through the
doctrines of the early Christian teachers and a long series of
conciliar decrees, cannot here be described. In the thirteenth
century the various rules were codified by the schoolmen under
fifteen heads; "and their code has been accepted and acted upon
by the greater part of western Christendom down to the present
day."[1123] For a time prohibition was extended to the seventh
degree of consanguinity, counting, as did the canonists, in the
collateral line, _from_ the common ancestor and not _through_ the
same according to the Roman method.[1124] A distinction, however,
was made. Kinship in the sixth or seventh degree was held to be only
"_impedimentum impediens_, a reason for a refusal to solemnize a
marriage, not _impedimentum dirimens_, a cause which would render
a marriage null;" and this doctrine was "received in England as
well as elsewhere."[1125] At the Lateran council of 1215 Innocent
III. adopted the rule that "marriages within the fourth degree of
consanguinity are forbidden and null."[1126] But the doctrines of
the church touching affinity and relationship did not therefore
cease to perplex the courts, molest the happiness of individuals,
and threaten the tranquillity of nations.[1127] In England the
perennial "deceased wife's sister" bill, the stubborn resistance
to which has so long attested the amazing tenacity of theological
prejudice, has not even yet successfully run the gauntlet of the
House of Lords.[1128]
[1123] MEYRICK, "Marriage," in _Dict. Christ. Ant._, II,
1092-1103. See also his article "Prohibited Degrees," _ibid._,
1725-30; and ESMEIN, _op. cit._, I, 205 ff.
[1124] Thus, according to the Roman law, brother and sister are
in the second degree; but by the canon law they are in the first
degree. Second cousins by the canonists are regarded as in the
third degree; by the Romans, as in the sixth (if they are equally
distant from the common ancestor): MEYRICK, _op. cit._,
II, 1725; POLLOCK AND MAITLAND, _op. cit._, II, 383-85;
ESMEIN, _op. cit._, I, 351 ff.; FREISEN,
_Geschichte des can. Eherechts_, 371-439. For the eastern church
see ZHISHMAN, _Das Eherecht der orient. Kirche_, 213-373.
[1125] POLLOCK AND MAITLAND, _op. cit._, II, 385;
ESMEIN, _op. cit._, I, 75 ff., 203-5.
[1126] POLLOCK AND MAITLAND, _op. cit._, II, 385.
[1127] Much trouble grew out of the theory of spiritual affinity.
Thus "in 1462, John Howthon, of Tonbridge, was sentenced by the
Consistory Court of Rochester to be whipt three times round
both market and church for having married Dionysia Thomas, for
whom his former wife had been godmother. The like spiritual
relation occasioned (Jan. 7, 1465) a dissolution of the marriage
between John Trevennock and Joan Peckham; Letitia, the former
wife of the said John having been godmother to a child of
the said Joan." On December 29, 1472, William Lovelasse, of
Kingsdown, was cited to appear "on a charge of having married his
spiritual sister, viz., a woman whom his mother had held at her
confirmation."--BURN, _Parish Registers_, 3, 4, notes,
citing THORPE, _Customale_. The case of Henry VIII. and
Catherine, wife of his elder brother Arthur, and the anecdote
of Andowera and Fredegonda, wife of King Chilperic of Neustria
(THIERRY, _Narratives of the Merovingian Era_, London,
n. d., 20), are in point. On the evils of the complex system see
THWING, _The Family_, 83; _Law Review_ (English), I,
353 ff.; WOOLSEY, _Divorce_, 120 ff.; and especially
HUTH, _Marriage of Near Kin_, 113 ff.
[1128] ESMEIN, _op. cit._, I, 203-402, gives an
elaborate historical account of matrimonial impediments.
The relation of the temporal to the spiritual courts in the
administration of English matrimonial law was anomalous.[1129]
Strictly speaking, there was no lay jurisdiction whatever with
regard to the genuineness of marriage. Only the ecclesiastical judge
could determine whether a valid marriage existed.[1130] In such
a case the jury could not "declare the right." The question was
referred to the spiritual court for decision. On the other hand, the
law tribunal, without aid of the spiritual judge, could say whether
or not there was a _de facto_ marriage as opposed to a marriage _de
jure_. The jury could determine, in a possessory action, whether
there had been a public ceremony in face of the church. This was a
decisive proof; for the mere fact of living together as husband and
wife was not always conclusive.[1131] "If a man and woman have gone
through the ceremony of marriage at the church door, we may say that
we have here a _de facto_ marriage, a union which stands to a valid
marriage in somewhat the same relation as that in which possession
stands to ownership. On the other hand, if there has been no
ceremony, we cannot in the thirteenth century say that there is a
_de facto_ marriage; mere concubinage, especially among the clergy,
is far too common to allow us to presume a marriage wherever there
is a long-continued cohabitation. But a religious ceremony is a
different thing; it is definite and public; we can trust the jurors
to know all about it; we can make it the basis of our judgments
whenever the validity of the union has not been put in issue in
such a fashion that the decision of an ecclesiastical court must be
awaited."[1132]
[1129] The relation of the two jurisdictions is carefully
examined by FRIEDBERG, _Eheschliessung_, 47-57,
with citation of the principal cases; also in a very clear
and interesting way by POLLOCK AND MAITLAND, _op.
cit._, II, 370 ff., to whom I am particularly indebted. _Cf._
GEARY, _Marriage and Family Relations_, 1-6.
[1130] GLANVILLE, _Tractatus_, lib. vii, c. 13:
PHILLIPS, II, 402. _Idem_, c. 14: PHILLIPS, II,
402, gives the form of writ by which a question of valid marriage
is referred to the archbishop.
[1131] See, however, FRIEDBERG, _op. cit._, 51: "Lag
aber die Frage vor, haben die Parteien wie Mann und Frau zusammen
gelebt, haben sie sich verlobt, war mithin über das Recht der
Ehe ['the right of marriage'] keine Entscheidung zu fällen,
sondern allein über den factischen Thatbestand, so urtheilte der
weltliche Richter." But this led to strange embarrassments. Thus
it was in doubt whether a compulsory marriage belonged to the
spiritual or to the temporal court: ROLLE, _Abridgment_
(1688), I, 340; and "still greater was the doubt in case of the
question, whether a second marriage were invalid if the first
still existed": FRIEDBERG, _op. cit._, 51 n. 2; _Year
Book_, 49 Ed. III., 18.
[1132] POLLOCK AND MAITLAND, _op. cit._, II, 378. _Cf._
FRIEDBERG, _op. cit._, 56. "The canonists themselves
having made marriages all too easy, and valid marriages all
too difficult, had been driven into a doctrine of possessory
marriage." In a case where a valid or canonical marriage could
not be proved by the plaintiff, he was given a possessory action,
_actio spolii_, and "in this the defendant will not be allowed
to set up pleas which dispute, not the existence of a _de facto_
marriage, but its validity," while the "plaintiff must prove
a marriage celebrated in face of the church": POLLOCK AND
MAITLAND, _op. cit._, II, 379. _Cf._ ESMEIN, _op.
cit._, II, 15 ff.
The practical application of this doctrine appears in the two
cases of divorce and inheritance. Here the temporal courts tried
indirectly to put a check upon clandestine marriages, to remedy
the evils resulting from the scholastic dogma that mere consent
secretly expressed in words of the present tense constitutes a
valid marriage, by making the acquisition of certain property
rights depend upon the publicity of the espousals.[1133] The widow
could not receive her dower unless it had been publicly assigned
at the nuptials before the church door.[1134] "The result is
curious, for at first sight the lay tribunal seems to be rigidly
requiring a religious ceremony which in the eyes of the church is
unessential.... We soon see, however, that what our justices are
demanding is, not a religious rite nor 'the presence of an ordained
clergyman,' but publicity.... Marriages contracted elsewhere
may be valid enough, but only at the church door can a bride
be endowed. There is a special reason for this requirement. The
common-law contrast to the church-door marriage is the death-bed
marriage.[1135] At the instance of the priest and with the fear
of death before him, the sinner 'makes an honest woman' of his
mistress. This may do well enough for the church, and may, one
hopes, profit his soul in another world, but it must give no rights
in English soil."[1136] So also with regard to inheritance, in
certain cases,[1137] the lay court made the rights of children
depend upon public solemnization of the nuptials, thus adopting
the canonical theory of "putative marriages."[1138] Although there
may be no valid marriage on account of the existence of certain
impediments, such as too near kinship, the children are nevertheless
legitimate if the nuptials were publicly celebrated at the church
door, and if at least one of the parents, at the time the children
were begotten, was "ignorant of the fact which constituted the
impediment." They are entitled to inheritance, though the parents
are not really husband and wife. On this point in the thirteenth
century church and state were at one;[1139] but later a less
liberal doctrine was adopted by the secular tribunals. "The ultimate
theory of the English lawyers took no heed of good or bad faith, and
made the legitimacy of the children depend on the fact that their
parents while living were never divorced."[1140]
[1133] On the divergence of the temporal and ecclesiastical laws
as to legitimacy see GLANVILLE, _Tractatus_, lib. vii,
c. 15: PHILLIPS, II, 403. Compare SWINBURNE,
_Of Spousals_, 15, 233 ff.
[1134] FRIEDBERG, _Eheschliessung_, 50; POLLOCK AND
MAITLAND, _op. cit._, II, 372; BRACTON, _De leg. et
consuetud._, foll. 302-4; _idem_, _Note Book_, placita 891, 1669,
1718, 1875, MAITLAND'S ed., II, 688; III, 517, 559, 659.
[1135] _Ap._ BRACTON, _De leg. et consuetud._, fol. 92;
_Note Book_, pl. 891, 1669, 1718, 1875, MAITLAND'S ed.,
II, 688; III, 517, 559, 659.
[1136] POLLOCK AND MAITLAND, _op. cit._, II, 372, 373.
[1137] GLANVILLE, _op. cit._, lib. vii, c. 15:
PHILLIPS, II, 403. For an interesting case, showing that
the spiritual court could determine only the question of the
validity of marriage, and not that of inheritance, which belonged
to the king's courts, see _Corpus juris can._, c. 17, x, 1, 29;
c. 4, x, 4, 17; c. 7; quoted by FRIEDBERG, _op. cit._,
50 n. 2.
[1138] On "putative" marriages see ESMEIN, _op. cit._,
II, 33-37; FREISEN, _Geschichte des can. Eherechts_,
857-62; especially POLLOCK AND MAITLAND, _op. cit._, II,
373-77.
[1139] "To this agreement between church and state there was
the one well-known exception: our temporal courts would not
allow to marriage any retroactive power; the bastard remained
incapable of inheriting land even though his parents had become
husband and wife and thereby made him capable of receiving holy
orders and, in all probability, of taking a share in the movable
goods of his parents.... But about all other matters the church
could have, and apparently had, her way.... 'You are a bastard,
for your father was a deacon': that was a good plea in the
king's court, and the king's court did nothing to narrow the
mischievous latitude of the prohibited degrees."--POLLOCK AND
MAITLAND, _op. cit._, II, 375, 376. On legitimation through
subsequent marriage by the canon law see ESMEIN, _op.
cit._, II, 37 ff.; SWINBURNE, _Of Spousals_, 233 ff.
[1140] POLLOCK AND MAITLAND, _op. cit._, II, 375 n. 3;
_ap._ PIKE, _Year Book_, 11-12 Ed. III., pp. xx-xxii.
The refusal of the church to prescribe a proper age condition
for those entering matrimony led, as might be expected, to child
marriages; and in this case the rules of the English common law
only tended to magnify the evil. By the canonists the age of
consent to marriage was fixed at seven years.[1141] Thereafter a
marriage formed without consent of parent or guardian, and even in
opposition to it, was held to be legal; but it was "voidable so long
as either of the parties to it was below the age at which it could
be consummated. A presumption fixed this age at fourteen years for
boys and twelve years for girls. In case only one of the parties
was below that age, the marriage could be avoided by that party but
was binding on the other. So far as we can see, this doctrine was
accepted by our temporal courts."[1142] By the teaching of the
common lawyers a widow of nine years of age at her husband's death
could claim dower, though the marriage would have been voidable by
her at the age of puberty.[1143] The English temporal courts appear
to have disregarded the canonical rule that a marriage is absolutely
void when formed below the age of seven. "Coke tells us that the
nine years old widow shall have her dower 'of what age soever her
husband be, albeit he were but four years old,' and certain it is
that the betrothal of babies was not consistently treated as a
nullity. In Henry III.'s day marriage between a boy of four or five
years and a girl who was no older seems capable of ratification,
and as a matter of fact parents and guardians often betrothed, or
attempted to betroth, children who were less than seven years old.
Even the church could say no more than that babies in the cradle
were not to be given in marriage, except under the pressure of some
urgent need."[1144] For such infant marriages, however, there were
two practical motives during the Middle Ages. In England, just
as in India and often among lower races,[1145] the betrothal or
espousal of very young children was a means of peaceful treaty or
alliance; and the "rigour" of the feudal law was also in this way
avoided.[1146] "As deaths were early in those days, and wardship
frequent, a father sought by early marriage of his son or daughter
to dispose of their hands in his lifetime, instead of leaving them
to be dealt out to hungry courtiers who only sought to make as large
a profit as they could from the marriage of the wards they had
bought for that purpose;"[1147] and the lord's right of marriage
might in like manner be defeated by conferring knighthood upon a son
in tender years.[1148] Even as late as the age of the Tudors "much
immorality resulted from the child marriages which were common in
fashionable life."[1149]
[1141] For the growth of the doctrines of the canonists as to the
age of consent and the consequences of espousals before puberty
see FREISEN, _Geschichte des can. Eherechts_, 323 ff.;
ESMEIN, _op. cit._, II, 149 ff., with whom POLLOCK
AND MITLAND, _op. cit._, II, 387 ff., appear to agree. Read
also JEAFFRESON, _Brides and Bridals_, I, 70 ff., 276
ff., who gives interesting illustrations of infantile betrothals
and marriages; the learned monograph of HOFFMANN, _De
aetate juvenili_, 22 ff.; LYNDWOOD, _Provinciale_ (ed.
1505), liber quartus, fol. cxcvi; TANCRED, _Summa de
mat._, tit. 4, pp. 4, 5.
The constitution _De desponsatione impuberum_ of the primate
Edmund de Abingdon (1233-40) runs thus: "Ubi non est consensus
utriusque non est conjugium. Igitur qui pueris dant puellas
in cunabulis, nihil faciunt, nisi uterque puerorum, postquam
venerit ad tempus discretionis, consentiat. Hujus ergo Decreti
auctoritate inhibemus, ne de caetero aliqui, quorum uterque vel
alter ad aetatem legibus constitutam et canonibus determinatam
non pervenerit, conjungantur; nisi urgente necessitate pro
bono pacis talis conjunctio toleretur."--LYNDWOOD,
_Provinciale_; quoted by JEAFFRESON, _op. cit._, I, 74.
[1142] POLLOCK AND MAITLAND, _op. cit._, II, 387, 388,
who cite as proof the case of Thomas of Bayeux and Elena de
Morville. The king's court decided that Elena should remain in
ward to the king until the age of puberty, that "she may then
consent or dissent."
[1143] POLLOCK AND MAITLAND, _op. cit._, II, 388: _ap._
LITTLETON, sec. 36; COKE upon Lit., 33_a_.
[1144] POLLOCK AND MAITLAND, _op. cit._, II, 388, 389,
and the sources there cited.
[1145] See above, chap. iv.
[1146] "A treaty of peace involved an attempt to bind the
will of a very small child, and such treaties were made not
only among princes, but among men of humbler degree, who thus
patched up their quarrels or compromised their law-suits. The
rigour of our feudal law afforded another reason for such
transactions; a father took the earliest opportunity of marrying
his child in order that the right of marriage might not fall
to the lord."--POLLOCK AND MAITLAND, _op. cit._, II,
389. See the case of Grace, supposititious child of Thomas of
Saleby, married at four years of age to Adam Neville, and after
his death _sold_ in marriage twice by King John: _ibid._, 389,
390: _ap. Magna vita S. Hugonis_, 170-77; and in general on
early marriages, especially as a means of alliance, compare
ESMEIN, _op. cit._, I, 151 ff.
[1147] DENTON, _England in the Fifteenth Century_,
161. For an illustration of the lord's marriage rights see the
case of 1220 (H. III.) in _Select Pleas of the Crown_ (ed.
MAITLAND), I, 135-38.
[1148] "As knighthood prevented wardship, a father sometimes
endowed his son with land to qualify him for knighthood at an
early age, so as to bar the claims of the mesne lord or of the
crown to wardship. An instance occurs of knighthood at the age of
seven years avowedly procured for this reason."--DENTON,
_Eng. in Fifteenth Century_, 261 n. I: _ap._ SMITH,
_Lives of the Berkeleys_, 140.
[1149] TRAILL, _Social England_, III, 578.
IV. PUBLICITY SOUGHT THROUGH BANNS AND REGISTRATION
Without doubt the wrong and confusion arising in the ecclesiastical
theory and definition of marriage were manifold, and they were
patent to every observer. At the Council of Trent it was asserted
that some action to put a check upon clandestine marriages was
demanded by all the temporal powers;[1150] and the provincial church
councils, aided by state legislation, had done what they could
by imposing; penalties to remedy the abuse.[1151] Nevertheless,
strange as it may seem to one not acquainted with the devious logic
of scholastic theology, many members of the Council of Trent, on
dogmatic grounds, were stubbornly opposed to the only reform which
experience showed could be effective. They affirmed that severer
discipline would suffice. They apologized for clandestine marriages
on the pretext that they are sometimes useful, even necessary; or
they denied that to declare them null would prove an efficient
remedy.[1152]
[1150] THEINER, _Acta gen._, II, 334, 347, 351, 352,
391, 395: SALIS, _Pub. des trid. Rechts_, 10 n. 16.
_Cf._ WATERWORTH, _Canons_, ccxxiii.
[1151] So, for instance, in France: FRIEDBERG,
_Eheschliessung_, 64 n. 5; and in Spain, _ibid._, 74.
[1152] SALIS, _Pub. des trid. Rechts_, 11, 12, collates
the evidence for the various opinions from THEINER,
_Acta gen._, II. _Cf._ FRIEDBERG, _op. cit._, 108 ff.
Hence we are better able to appreciate at its true value the
significance for the Catholic world of the victory gained by the
common-sense of the majority. It was a victory in favor of that
publicity which the state demanded. Indeed, the church had already
done something, in spite of dogma, to change marriage from a private
to a public transaction. Her collision with the state, her anomalous
position with respect to social order, was involuntary. She was
caught, as it were, in the meshes of her own philosophy. Yet in the
interest of morality she strove to secure publicity. The priest
at the nuptials, declares Sohm, "appears first of all as a public
person."[1153] In particular the church tried to gain publicity for
marriage by the institution of banns. The custom of publishing banns
seems first to have made its appearance in France, probably as early
as the fifth century.[1154] It is enforced by the capitulary of 802,
which gains its real significance from this fact, and not from the
mention of the priestly benediction.[1155] From France it gradually
made its way into other countries of Europe. Thus in the year 1200,
as already noted, banns were enforced by Archbishop Walter; and
they were first made a general requirement by Innocent III. at the
fourth Lateran council in 1215.[1156] Later the English archbishops
found it necessary from time to time to impose more stringent
penalties for neglect of the proper publication of banns;[1157] and
they were enforced, without making the publication essential to a
valid marriage, by the Council of Trent. From the twelfth century
onward the marriage rituals contain directions for the asking and
publication of banns;[1158] while the punishment of persons guilty
of violating the canons in this regard gave much employment to the
spiritual courts during the Middle Ages.[1159]
[1153] SOHM, _Eheschliessung_, 175.
[1154] _Ibid._, 181.
[1155] Capit. 802, c. 35: WALTER, _Corpus juris germ._,
II, 167: "conjunctiones facere non praesumant, antequam episcopi
presbyteri cum senioribus populi consanguinitatem conjungentium
diligenter exquirant, et tune cum benedictions jungantur." _Cf._
SOHM'S interpretation, _op. cit._, 181, _vs._ that of
FRIEDBERG, _Eheschliessung_, 59.
[1156] See p. 314, above; and _cf._ POLLOCK AND
MAITLAND, _op. cit._, II, 368; FRIEDBERG, _op.
cit._, 10, 653, 654, for the present practice as to banns in
various countries.
[1157] JOHNSON's _Canons_, II, 91, 340, 352, 395, 410.
[1158] See the rituals of York, Sarum, Hereford, and others, in
Surtees Society _Publications_, LXIII, 26 ff., Appendix, 17 ff.,
115 ff., 155 ff.; and the Salisbury ritual in MASKELL'S
_Monumenta_, I, 50 ff.
[1159] For many cases see HALE'S _Precedents_, 6, 33,
38, 39, 54, 56, 65, 82, 83, 85, 92, 166, 181, 182, 199, 255.
The institution of banns has a special historical interest as being
in some sense the mediæval substitute for the modern registration
and official license to wed. The practice was to announce the
marriage, usually on three successive Sundays preceding the
nuptials, that any objection on the ground of relationship or other
disability might be brought forward. But the decrees of the church
were not carefully enforced. Dispensation from the obligation to
publish banns was the right of the bishop, but his license was
usually granted only in favor of the nobility and higher classes;
and the right constituted an important source of revenue.[1160]
[1160] FRIEDBERG, _Eheschliessung_, 10, 124;
ESMEIN, _Le mariage en droit canonique_, II, 170
ff., who shows that the rules relating to banns were too
vague to be effective. On the requirement of banns see
CRANMER, _Misc. Writings_, 159; GRINDAL,
_Remains_, 126; HOOPER, _Later Writings_, 126, 138, 149;
RIDLEY, _Works_, 531; SANDYS, _Sermons_, 434.
_Cf._ on the history of the institution JEAFFRESON,
_Brides and Bridals_, I, 99-107, 130 ff. Compare BORN,
_De bannis nuptialibus_ (Leipzig, 1716), secs. 1 ff.
The year 1538 marks an important epoch in the administration of
English matrimonial law. It was then, according to the researches of
Burn, that parish registers of births, deaths, and marriages were
first introduced; although before this time it had been customary in
some places to inscribe such records in the missals and psalters
of the church.[1161] The first article of the injunctions issued by
Thomas Cromwell, vice-regent under Henry VIII., provided: "_Item_,
That you and every parson, vicar, or curate within this Diocese, for
every Church keep one Book or Register, wherein he shall write the
day and year of every Wedding, Christening, and Burial, made within
your parish for your time, and so every man succeeding you likewise,
and also there insert every person's name, that shall be so wedded,
christened, and buried. And for the safe keeping of the same Book
the parish shall be bound to provide of their common charges one
sure coffer, with two locks and keys, whereof the one to remain with
you, and the other with the Wardens of every parish wherein the said
Book shall be laid up, which Book ye shall every Sunday take forth,
and in the presence of the said Wardens or one of them, write and
record in the same, all the Weddings, Christenings, and Burials made
the whole week afore, and that done, to lay up the Book in the said
coffer as afore; and for every time that the same shall be omitted,
the party that shall be in the fault thereof, shall forfeit to the
said Church iij^s. iiij^d. to be employed on the reparation of the
said Church."[1162]
[1161] BURN, _Hist. of Parish Registers_, 1-16.
Compare WATERS, _Parish Registers_, 5. Mention is made
of registers in France as early as 1308; and by an order of
Cardinal Ximenes, 1497, they were to be kept in every parish
of the diocese of Toledo "in order to remedy the disorders
occasioned by the frequency of divorces in Spain, on the ground
of spiritual affinity."--BURN, 3; MARSOLIER,
_Histoire du ministère du Cardinal Ximenes_, tom. 1, liv. 2, 263;
WATERS, _Parish Registers_, 4. _Cf._ PALGRAVE,
in _Quart. Rev._, LXXIII, 561, who thus goes too far in saying
that "parish registers were never kept _in any part of the world
until the sixteenth century_."
There is some evidence, held to be inconclusive by BURN,
_op. cit._, 5-15, that an order for the use of registers may
have been made earlier than 1538. The fact that at least eight
registers begin before that date points to instructions given
at the time of the suppression of the smaller monasteries:
WATERS, _op. cit._, 6. At the time of the insurrection
in Yorkshire, 1536, in order to draw the common people, it was
given out "that the king designed to get all the gold of England
into his hands, under colour of recoining it; that he would seize
all unmarked cattle, and all the ornaments of parish churches,
and they should be forced _to pay for christenings, marriages,
and burials_ (orders having been given for keeping Registers
thereof), and for licenses to eat white bread."--CARTE,
_Hist. of England_. See also the rare tract by Holmes (1537), and
the letter of Sir Piers Edgcumb to Cromwell (April 20, 1539),
both quoted by BURN, _op. cit._, 8, 9. For the date
see WATERS, _op. cit._, 7; and compare BURN'S
_Fleet Marriages_, 3.
[1162] BURN, _Parish Registers_, 17, 18. _Cf._ also
FRIEDBERG, _Eheschliessung_, 319, 320. The same
provision, with slight alteration, is contained in the injunction
of 1547, Edward VI. It is quoted by TOULMIN SMITH,
_The Parish_, 187, 188; BOHN, _Pol. Cyc._, IV, 625;
BURN, _op. cit._, 18, 19.
Thus in this, the most ancient English registration act, the parson
or incumbent appears as the original registrar; and that the
importance of keeping such record was keenly appreciated is shown by
the anxious, almost painful, minuteness with which his duties are
defined. The order of Henry VIII. was enforced or supplemented under
Edward VI., Elizabeth, William III., and other monarchs; but, save
during the Commonwealth, no material change was made in the mode of
registration until in 1836 the present system was introduced.[1163]
[1163] For a review of the various proposals, acts, and
"visitations" to enforce them see BURN, _op. cit._,
18-39; FRIEDBERG, _op. cit._, 320-22; TOULMIN
SMITH, _op. cit._, 188, 189; BOHN, _op. cit._, IV,
625, 626.