LEGAL ANTIQUITIES
A COLLECTION OF ESSAYS UPON
ANCIENT LAWS AND
CUSTOMS
BY
EDW. J. WHITE
Editor Third Edition “Tiedeman, on Real Property,” Author
of “Mines and Mining Remedies,” “Personal Injuries On
Railroads,” “The Law in Shakespeare,” Etc.
PUBLISHED BY
THE F. H. THOMAS LAW BOOK CO.
ST. LOUIS, MO.
1913
Copyright, 1913
by
EDWARD J. WHITE
NIXON-JONES PRINTING CO.
ST. LOUIS, MO.
TO THE MEMORY OF MY
MOTHER,
WHOSE FAITH IN HUMANITY MADE HER ALWAYS CHARITABLE FOR THE FRAILTIES OF
THE PAST AND HOPEFUL FOR THE FUTURE; WHOSE TENDER DEVOTION, SACRIFICES
AND ENCOURAGEMENT ARE THE DEAREST RECOLLECTIONS OF MY LIFE, THESE PAGES
ARE AFFECTIONATELY INSCRIBED.
TABLE OF CONTENTS.
CHAPTER I.
Marriage Laws and Customs.
CHAPTER II.
Witchcraft and Sorcery.
CHAPTER III.
Recall of Judges.
CHAPTER IV.
Trial by Battle.
CHAPTER V.
Trial by Ordeal.
CHAPTER VI.
_Peine Forte et Dure._
CHAPTER VII.
Wager of Law.
CHAPTER VIII.
Benefit of Clergy.
CHAPTER IX.
Privilege of Sanctuary.
CHAPTER X.
Ancient Punishments.
CHAPTER XI.
Wills, Quaint and Curious.
INTRODUCTION.
In this age of ours, distinguished principally for the variety of the
inventions and the fast and furious pace at which we move; when the motto
of the Captains of Industry, being paraphrased, is simply, that “Motion
means Money”; when the politicians vie with each other in their attempts
to cater to every passing popular fantasy and the great mass of the
citizenship is too much engrossed in the commercial life of the day, to
study or analyze the history of our institutions, but the demand of the
times is for continuous change, in keeping with the moving spirit of the
age, it is advisable that we should occasionally stop and consider the
lessons of the past, lest we forget some of the valuable information of
antiquity.
There was perhaps never a time, in the history of our country, when the
general feeling of individual unrest has brought about such disrespect
for our existing institutions.
The development of the great body of our law, from the brutalities of
a barbarous period, with the ever changing ideas of civilization, to
meet the needs of the people, and the higher standards obtaining, has
been gradual but certain. In so far as we have actually progressed,
therefore, we should be satisfied with the progress made and should be
slow to return to the customs or remedies which a past civilization found
unavailing, lest all our progress should prove but a dim phantom of the
imagination.
A profitable lesson can oftimes be gleaned from a study of the past and
when an innovation demanded is one that experience has proven fallacious,
it is puerile to refuse to profit by this lesson, for even “a burnt
child” will avoid the fire.
Undoubtedly much of the remedial and substantive law of our period needs
revision, to the end that simplicity may be attained and the interminable
delays, resulting from the present practice, incidental to too many new
trials and other objectionable methods, obviated. But this revision
should be cautiously made, so as not to impair the efficiency of the
great body of the law that the wisdom of the past has demonstrated to be
thoroughly consistent with the individual and national welfare.
The first attempt to simplify procedure in the United States, by the
adoption of the New York Code, was only sixty-five years ago and a
majority of the States adopted such legislation since the Civil War. The
common law practice was greatly improved and simplified by this concerted
action of the States and unquestionably there are many things that can
yet be improved in the remedial procedure of the present day.
But the prevalent idea that an increased volume of statute law
will furnish a panacea for all existing evils, is radically wrong.
The beneficent rules of conduct, crystallized into law, by custom,
because consistent with the needs of the people, in the evolution of
civilization, should be jealously preserved against the unscientific
fragmentary legislation, too often reflecting the unjust and unequal
demands of an aroused public sentiment, shaped by designing politicians,
rather than by the “cool examiner of the public pulse,” prompted by
beneficent objects.
Legislation, of course, is the simplest way of modifying or repealing
law, but legislators, in our country, frequently act without adequate
information or legal training and the most salutary rule of conduct, in
such hands, might be supplanted by the most unequal and unjust law.
All that is old is not necessarily good, but just because it is old,
is not a sufficient reason for discarding it. Legislation may become
as limitless as the imagination of the legislator and unless properly
advised, it would be inimical to the interests of the State or Nation.
When legislation is advised by any considerable number of the leaders of
any political party, which history has shown in other countries to have
been productive of the most deplorable consequences, then it is time to
leave the issues of the present long enough to study the lessons of the
past.
In conning the “Marriage Laws and Customs” of past ages, we can, in
some measure, congratulate ourselves that our Marriage Laws are better
than those of the past centuries, yet when we consider the large class
of “Predestined Lost” ones, born as a result of diseased and mismated
marriages, and when we give but a cursory examination to the divorce
statistics, we can see that we have grave need for better laws on this
most important of all subjects, the regulation of the relation, through
which the standards of citizenship are controled.
The Witch-Craze, in Europe and America, which resulted in the wholesale
slaughter of innocents, through a blind faith by the Courts, in
the popular standards of the people, whereby unprovable offenses,
were permitted to be established in utter disregard of the rules of
evidence, and a vacillating, dependent judiciary helped for centuries,
to perpetrate the most intolerable outrages against civilization,
illustrates the necessity of an absolutely independent judiciary, free
from the dominating influence of the frenzy of the public and a constant
adherence to the rules of evidence and the proper legal ideals, in the
administration of the law.
The Judicial Recall, as we see it in ancient history, is another of the
present popular fantasies to be avoided. Hammurabi tried this system
2,500 years before Christ’s time, when witches were convicted according
to their ability to swim a torrent and surgeons were mutilated, by the
loss of a hand, for an unsuccessful operation. It was also tried in
ancient Athens and because of some unpopular decision, the “most just
Judge” of that city, Aristides, was recalled, and some votes were cast
against him, because the voters were simply tired of hearing him called
“The Just.” Aristotle’s evidence is to the effect that this law brought
about the most deplorable consequences, in Greece, Persia and other
antique nations, where it was in vogue. The old Anglo-Saxon practice
of preferring the charge of “False Judgment” against the judge whose
decision was challenged, who was recalled, if this charge was sustained,
was found inimical to the interest of the Government and since the
English Judges were emancipated from the narrow groove of an unskilled
public sentiment and were appointed for life, the majesty of the law has
been revered in no other country on the face of the earth, as it has
been in England. This is testimony worth considering, for, judging the
future by the past, if this practice undermined the judicial institutions
of other countries, it would also undermine our own judicial system and
ought to be avoided. The demand, by the ill-formed, for the destruction
of the independence of the Judiciary, in utter disregard of the lessons
of the past and the wisdom of our fathers, should be considered,
therefore, along with this object lesson furnished by ancient history and
by penetrating into the records of the past centuries, it will be seen
that to adopt such a law would mean to return to the “Leges Barbarorum”
of the past.
In the discharge of their impartial functions, the judges of the people’s
courts, have nothing to do with popular standards; it is with right and
wrong, according to the just and equal standards of the law that they
have to deal and it is as true to-day, as when the patriarch Moses,
admonished the judges of ancient Israel, that, in the prerogative of the
judgment-seat, “Thou shalt not follow a multitude to do evil; neither
shalt thou speak in a cause to decline after many, to wrest judgment.”[1]
The work of the judges is in private places; they have no favors to
bestow, no rewards of office to distribute. It is frequently the business
of the charlatan to misconstrue and misinterpret their ablest judgments
and as the courts are the final repositories of the people’s rights,
when the public clamor is the loudest for the sacrifice of individual
right, then the true judicial character performs its highest office, in
withstanding all assaults by the ill-informed, upon the ramparts of the
Temple of Justice.
With the wide-spread demand for the “judicial recall” we find the true
modern standard, in this regard, reflected in the recent strong language
of an upright Texas Judge, who, in the course of his opinion, observed:
“I have made it the rule of my judicial life, and shall
continue to do so, while invested with the authority pertaining
to the office I hold, to decide questions as I understand them,
after as careful an investigation as my capacity affords,
without reference to what public opinion may be. I do and
shall continue to regard the law as superior to the ebullition
of outraged feeling, when communities are shocked by crime.
When cases arising under such circumstances, have reached this
court, my voice and my vote shall, in the future, as in the
past, be given for the upholding of the law, not bending it to
public sentiment. The stability of the institutions of this
government depends upon adherence to the law, as it is written,
and not on the fluctuating strenuousity of eruptive ebullitions
of popular sentiment.”[2]
This course alone is consistent with the attainment of the just idea
of government, by the judicial department, and peculiarly of this
department, because the ideals of the unskilled are not always consistent
with the standards of scientific jurisprudence. A subservient judiciary,
dependent upon the vacillating ebullitions of an unstable public
sentiment would bring about a subversion of the important functions of
this department of government, just as it did when popular sentiment
controlled the incumbents of the judgment seat, in ancient Babylon, in
Greece and in the England of old Anglo-Saxon days.
“Trial by Ordeal,” “Trial by Battle,” the dreadful “_Peine forte et
dure_,” and “Wager of Law,” are all instructive procedures of a past
civilization, from which important lessons can be drawn.
“Trial by Ordeal,” “Trial by Battle” and “Wager of Law,” as institutions
of a primitive people, struggling for right, are but expressions of a
misguided and abortive effort to attain correct judicial ideals, by
false and inaccurate standards. Before the evolution of the race had
attained to the ideals, when tribunals for the trial of questions of
right and wrong, according to the actual facts in each concrete case,
had been established, such issues were determined by the ability of
the accused, in criminal cases, or the appellee, in civil suits, of
a certain character to accomplish certain ordeals, requiring almost
superhuman strength or fortitude, or to withstand, by individual combat,
the strength of the opposite party to the issue waged. Of course, with
such ideals, might alone controled the right and by the “Wager of Law,”
the other alternative used in the quest for right, the popularity of
the principal or his ability to secure oath-helpers, to assist him in
swearing away the given crime or debt, resolved the conclusion upon a
given issue, into a simple question of the elasticity of the consciences
of the principal and his friends, who were always able to win their
cause, after issue waged, by a sufficiently strong and an adequate number
of oaths.
On the abolition of the “Ordeal,” in the thirteenth century, when the
accused, in a criminal charge, refused to submit to a “Trial by Battle,”
the courts were unable to force a plea, without some amendment of the
procedure and adroit criminal lawyers, for some years, availed themselves
of this subterfuge, of having their clients stand mute and refuse to
plead, when their conviction of felony would be certain to result and the
courts found themselves helpless to avoid a condition, which resulted
in the crowding of the jails and prisons, with prisoners, afraid to
submit to the “Trial by Battle” and refusing to plead to the indictments
filed against them. This, in time, brought about the greatest judicial
severity in the case of prisoners standing mute and finally the practice,
in all such cases, came to be to apply a heavy weight upon the chest of
the accused and to literally “press him to death,” if he persisted in
his obstinacy. For centuries, in England, this custom continued, and
thousands were “pressed to death,” for standing mute, when arraigned
upon a criminal charge. The same practice was followed in the witch
persecutions in this country, in the seventeenth century and when we
consider that these abominable customs obtained, until the past century,
we are, indeed, to be congratulated that our present procedure, with
all of its imperfections, has risen to the standard where it is able to
reject such inhuman and barbarous practices.
The “Benefit of Clergy” and “Privilege of Sanctuary,” illustrate the
attempt of the Church to mollify, as it were, the cruelties resulting
from the harsh administration of the criminal laws of mediaeval times, in
England, by the secular courts and had it not been for these beneficent
institutions—which were frequently utilized to protect criminals of the
worst sort—there would have been no alleviation for the sufferings of
the accused, and the large number of innocents who embraced the plea
of Clergy, or sought the sacred precincts of the protected Sanctuary,
would, along with the guilty, have paid the penalty for living in a dark
and benighted age, unable to protect the innocent from the power of the
mighty, when accused of wrong-doing.
When we read of the “Ancient Punishments” of the past centuries, we can
but feel a satisfaction that the struggle of our English forefathers
of mediaeval times, by herculean efforts against those in authority,
adopted such fixed principles of constitutional law, as we find reflected
in _Magna Charta_, and the various constitutions of our own country,
preventing “cruel and unusual punishment.”
Those so fortunate as to avoid the punishments of the past centuries,
when death lurked in every charge filed against the poor and oppressed,
must have felt a sort of consolation in being able to run the gauntlet of
such barbarities and delusions, and to die a natural death, and this is
no doubt why we find such evidence of jocularity, mixed with a strain of
pathos running through the “Quaint and Curious Wills” and testaments of
antiquity.
Some of the great painters of modern times, such as the late Sir Lawrence
Alma-Tadema, have depicted scenes upon the canvas, in such manner as to
make antiquity to live again before modern eyes—to resurrect, as it were,
the men and women of the past centuries and to infuse new life into their
bodies—so that they seem to again assume real form and being.
This comes from a close study of the subjects and a genius, almost akin
to a divine gift. No such gift can aid the lawyer, or did in this
instance, who seeks to reproduce pen pictures of the antique proceedings
of the past, but study of the subject is of course essential to give any
tolerable idea of the obsolete laws and customs of other days.
A keen interest in these old proceedings prompted a somewhat painstaking
study of many antique volumes, as a basis for the presentation of the
following pages, but the duties of a quite busy professional life have
prevented the exhaustive investigation that would otherwise have been
given the subjects treated.
The sources of the information used in the different essays appear in
notes and references throughout the work and it is to be hoped, if the
usual modicum of instruction may be lacking, that some of the interest
felt by the author, in tracing the old laws and customs of previous ages,
may, in a measure, be shared, by the reader, who is kind enough to peruse
the work.
Not nearly all the learning or the law upon any one of the subjects
presented, will be found set forth in the different paragraphs pertaining
to the various subjects introduced, but a general outline of each topic,
with frequent illustrations from concrete cases, will appear.
None of the many legal antiquities of the Grecian States or the Roman
Empire, which could be so profitably discussed, have been attempted, but
only a few of the antique English laws and customs that have particularly
attracted the attention of the author. These several subjects were all
given cursory examinations in the preparation of the data for “Law in
Shakespeare” and the superficial investigation in connection with that
work, led to the more minute treatment herein. This is the apology for
the undertaking and the engrossment of professional duties is the excuse
for the limited scope of the treatment accorded each subject.
With the era now existing, these old issues and customs are dead and
buried out of sight and we would not be mad enough to revive them, if we
could. They played no unimportant part, however, in the pathetic drama
of the evolution of the race and we ought to erect monuments to their
memory, as it were, and occasionally wander back to scatter flowers upon
the monumental shaft, without deserting the live issues and duties at
present confronting us.
When we contemplate the lessons of the past, as presented in these “Legal
Antiquities,” we can but realize the plain truth, expressed by William
Knox, that “We are the same our fathers have been,” for if we had lived
and moved and had our being in the dark days when these customs obtained,
we would have considered them in the same light that our fore-fathers
viewed them and this should make us charitable toward these frailties
and mistakes of the past; we should be comforted with the reflection
that such institutions are but mile-stones of the centuries, marking the
rapid progress of the race, but when we read of these customs of the men
and women of antiquity, we can but realize the truth of the words of
Longfellow, that
“... the world is very old,
And generations pass as they have passed,
A troop of shadows, moving with the sun.”
FOOTNOTES:
[1] Exodus, XXIII., 2.
[2] Judge Davidson, of Texas, in Ex parte Martinez, 145 S. W. Rep. 959,
1023.
CHAPTER I.
MARRIAGE LAWS AND CUSTOMS.
The term marriage was defined, in the Institutes of Justinian, as the
lawful union of a man and a woman, including an inseparable association
of their lives.[1]
Written almost fourteen centuries ago, few, if any, of the many
definitions of marriage, improve upon that given in the Institutes of
this old philosopher-lawyer-Emperor of the Romans.[2]
As the basis of the marriage contract is the necessity of society for
some rule for the appropriation of the opposite sexes to one another and
the protection of that relation, when once established, it is in one form
or another, the oldest institution of man and the source of our most
antique laws and customs.[3]
The Chinese inform us that in the beginning, human beings, like other
animals, without morality or community laws, wandered through the
plains and forests, using their women in common; that the offspring
of such unions knew their mothers, but rarely knew who their fathers
were and that this custom continued among men, until the Emperor Fou-hi
established the marriage custom.[4]
While the ancient “Heathen Chinese” were thus holding their women in
common, there is evidence that among the old Teutons and Hindus, the
“marriage by capture” and “rape marriages” were still recognized by law,
long before the “bride-sale” or “sale marriages,” so generally obtaining
in ancient Assyria and Babylon, were established in Germany.[5]
Some historians claim that, in the early days of heathenry, capture was
the only method used by young men for securing their brides and the
supply of consorts depended upon the strength of the male, rather than
the existence of “the tender passion.”[6]
But the pictures of violence obtaining in these ancient days of heathenry
are so obscured by the mists of the past and such a large field is left
for the construction of ingenious theories, surrounded by romances of
connubial bliss, resulting from this early custom of primitive society,
that notwithstanding the general popularity of the theory of “marriage by
capture,” some of the most eminent authorities are inclined to deny that
such a custom ever existed at all.[7]
Some writers maintain that the rights of the individual were never more
clearly defined in marriage, than by primitive man, and that this is in
accord with the common tendency of the male, to attribute a religious
meaning to the ordinary intercourse with woman.[8]
The Biblical theory of the custom, dates from the command to our first
parents, in Genesis: “Be fruitful, and multiply and replenish the
earth.”[9]
In the beginning, we find that from the rib, which the Lord had taken
from Adam, he made a woman “_and he brought her unto the man_.”[10]
From Christian testimony, we have the evidence of the first book of
Moses, upon the antiquity of this institution, for when Shechem, the son
of Hamor, after defiling Dinah, the daughter of Leah, longed for her, in
marriage, his father went to Jacob and his sons and communed with them,
saying: “The soul of my son Shechem longeth for your daughter; I pray
you give her him to wife. And make ye marriages with us, and give your
daughters unto us and take our daughters unto you.”[11]
So according to the Bible story, we find that the institution of marriage
obtained seventeen centuries before Christ and these old patriarchs were
plighting the troth of their son and daughter and talking of dowries and
marriage portions, much as the parents of the twentieth century youth now
arrange such matters.
There has always been three principal forms of marriage, from the
earliest historical times, monogamy, or the marriage of one man to one
woman at a time, polygamy, or the marriage of one man to several women at
the same time, and polyandry, or the marriage of one woman to two or more
husbands at the same time.[12]
Since the days of our first parents, according to the Bible story,
monogamy has been the institution best suited to the progress of society
and the proper evolution of the human race, for the most progressive
nations of the world’s history have embraced monogamy as a rule of social
conduct.
The old Hebrews, however, made wonderful strides while practicing
polygamy, an institution established by Lamech, in the sixth generation
after Adam, which grew apace with the progress of the race, until in
Solomon’s time, the king had acquired a round thousand women, from the
different nationalities of the world, seven hundred princesses as wives
and three hundred concubines.[13]
Polygamy was also practiced in Persia and is to-day, in Turkey and other
Oriental countries, but under Roman rule it slowly died out in the east.
It was prohibited by Diocletian and other preceding Emperors and except
in the single instance of the Mormons, in Utah, it has never reappeared
in any countries subject to either the Roman or Teutonic laws.[14]
Polyandry no doubt had its origin in unfertile regions, in the endeavor
to limit the population to the resources of the district; it is almost
an obsolete custom, but is still practiced in parts of India, Thibet and
Ceylon.[15]
The marriage customs of the Romans furnish the basis for the marriage
laws of the civilized world, and even the Hebrew and Teutonic influence
is small compared to that exerted upon this institution, by the Roman
law. The general conception of the marriage relation, by the Romans, was
an exalted one, as it was regarded as an equal partnership in the whole
of life, effecting an equal distribution in both the secular and sacred
rights of the individuals.[16]
The three forms of marriage, by the early Roman law, were (1)
_Confarreatio_, consisting of a religious ceremony, ending in the
sacrifice of an ox, and the distribution of a broken wheaten cake,
by a priest; (2) _Coemptio in manum_, a conveyance or formal sale of
the woman, to the man, and (3) _Usus_, or the right of a wife, by
prescription, arising from the cohabitation of the wife with the husband,
for one year, without an absence for over three consecutive nights.[17]
If the woman lived with the man without either the religious ceremony
or the formal sale, she did not become his wife, unless she had lived
with him for a year, without absenting herself for three consecutive
nights.[18]
This latter form was called “passing into the hand” of her husband and
until this Hand power had been created, the property rights of the wife
remained unaffected by the marriage. Marriages with Hand in an early day
were almost universal, however, for the women did not prefer the free
marriage, which would place them, in law, outside the legal family of the
husband.[19] Marriages within the Levitical degrees were prohibited by
the early Roman Emperors, and while first cousins might lawfully marry,
until the end of the Republic,[20] the Emperor Theodosius prohibited
their marriage under pain of death by burning.[21]
Uncles and nieces and aunts and nephews were prohibited from marrying,
until the period of the Emperor Claudius, who desired to marry his
brother’s daughter, Agrippina, and so passed a decree of the Senate
allowing such a marriage.[22]
Concubinage was a “permitted connection,” under the Roman law, from the
earliest times, down to the period of the philosopher Emperor, Leo, A.
D. 887 when it was prohibited by law.[23] The Justinian Code recognized
the legality of the relation and fixed the legal and property status of
the concubine and her progeny and various Christian Emperors, in the
early days of the Empire passed laws regulating the relation known as
_Concubinatus_.[24]
The woman was left in the same relation as the law found her; she was not
raised to the level of the husband and while her children were entitled
to support from the father, they were not legitimate, but could inherit
from the mother.[25] Under the Roman law, however, children born in
concubinage, could be legitimated by the subsequent marriage of their
parents,[26] and this early Roman law was the foundation for the custom
obtaining in England, France, Germany, Normandy and Scotland, prior to
the Norman Conquest, of legitimating the children born out of lawful
wedlock, by the subsequent marriage of their parents. At the wedding of
a couple having children prior to their marriage, it was the general
custom, in the countries named, to place the children under a cloak,
or mantle, which was also spread over the parents, and the children of
such a union were thereafter known in the law, as “mantle children,” to
distinguish them from children regularly born in lawful wedlock.[27]
According to Selden, this ceremony was observed, in England, when the
children of John of Gaunt and Catherine Swinford were legitimated by
Parliament,[28] and in Normandy, Duke Richard espoused Gunnora, “in
Christian fashion,” and “the children were covered with the mantle.”[29]
Neither the ancient Hebrews, Greeks, Mohammedans or Romans, regarded
marriage as a religious ordinance, but the relation could be established,
according to the laws and customs of all these ancient people, by the
interchange of consent.[30]
In Cnut’s time, in England, we find that he made laws to prevent the sale
of a woman to a man whom she disliked,[31] but even at this stage of
English society, the church approved these sale marriages and condoned
the old betrothals of the Anglo-Saxons, and preserved the forms of
ceremonies which still constitute the curious cabinet of antiquities of
the English church.[32]
The early Christian church, however, did not treat marriage as a
sacrament; the doctrine that marriage was a sacrament was evolved from
the Fifth Chapter of the Epistle of St. Paul, to the Ephesians and it was
not until the Council of Trent, in the year 1563 that the Roman Catholic
Church required the celebration of marriage to be accompanied by a
religious ceremony.[33]
In England, as early as the seventh century, the concern of the church
about all sins pertaining to the flesh, caused it to raise its voice upon
questions concerning marriage and divorce.[34]
By the middle of the twelfth century according to the laws of England,
marriage was held to appertain to the spiritual forum.[35]
In the memorable law suit of Richard de Anesty, in 1143, a marriage
solemnly celebrated by the church, and from which a child had been born,
was declared to be void in favor of a prior marriage, constituted by a
mere exchange of consenting words, without the formality of a religious
ceremony at all.[36]
Soon after this decision, Glanville acknowledged the jurisdiction of the
ecclesiastical courts upon all issues touching the validity of marriage
and because of the acknowledged inability of the king’s court to solve
the issue, where the legitimacy of a litigant had been raised, the canon
law was subsequently looked to in all such cases.[37]
In 1215, at the Council of Lateran, Pope Innocent III. extended to the
whole western portion of Christendom the custom of publishing “banns of
marriage,” calling upon all men to declare any just cause of impediment,
if any could be urged to the union and from this time on, marriages with
banns, had certain legal advantages over a marriage without banns, but
still the unblessed, formless marriage was a marriage, before the law.[38]
During the reign of Henry II., Alexander III. decreed that a marriage by
mere consent, in terms of a present, existing contract, would be given
precedence over a later marriage by another man with the same woman,
duly solemnized in religious form, and followed by physical union.[39]
It seems a strong case, to give effect to the bare consent, in present
form, “unhallowed and unconsummated” as against a solemn formal contract,
followed by a consummated union, yet this decree was consistent with the
ecclesiastical law, as interpreted from the middle of the twelfth century
until the Council of Trent, and no religious ceremony or the presence
of a priest was essential to constitute a valid marriage, before the
catholic church.[40]
In 1254 the interesting case of William de Cardunville, a tenant in chief
of the Crown, came before the court, upon an _inquisitio post-mortem_, to
determine which of two conflicting claimants was his rightful heir. He
had solemnly espoused one Alice, with whom he had lived for sixteen years
and had several children, the youngest being a son, four years old, named
Richard. Long before his espousel of Alice, he had lived with and had a
son by one Joan, and this son was also named Richard and was twenty-four
years old at the death of his father. Joan established a common-law
marriage, without the religious ceremony, and she was adjudged the
rightful wife of the deceased and her son, the first begotten Richard,
was awarded the livery.[41]
From an early date, the interpretation of the English Courts, as to
the validity of a marriage based upon a present mutual consent of the
parties, was followed in the United States, with the exception of
Massachusetts, Maryland, West Virginia and Kentucky.
In the year 1810, Chief Justice Parsons, then on the bench of the Supreme
Court of Massachusetts, rendered a decision, in which he denied that
according to the common law a valid marriage could be made, by the mutual
agreement of the parties alone.[42]
Chancellor Kent, however, in 1809, as Chief Justice of the Supreme Court
of New York, held that:
“No formal solemnization of marriage was requisite. A
contract of marriage, made _per verba de praesenti_, amounts
to an actual marriage and is as valid as if made _in facie
ecclesiae_.”[43]
This latter exposition of the common law of England has been generally
followed in the United States, and may be said to obtain, generally, in
all the states, other than those mentioned above, except where the local
statutes provide otherwise.[44]
Clearly, by the law of nature, marriage may be constituted by the mutual
present consent of two competent persons, of the opposite sex, without
other formality than the performed inclination of the individuals
concerned and so the common, or unwritten law, recognized the legality
of such a contract. The law of nature was adopted as the surest guide to
the law of man, in this relation.
Considerable uncertainty and some confusion resulted in England as to the
essentials of a valid marriage and the acts necessary to constitute a
marriage, prior to the eighteenth century, but during the reign of George
II., in 1753, a statute was passed,[45] requiring all marriages to be
celebrated by a clergyman and in a church, unless by special dispensation
by the Archbishop of Canterbury. This statute was repealed in 1836 when a
purely civil marriage before only a Registrar, was permitted by the law
of England, in lieu of the ecclesiastical ceremony.[46]
Touching the issue as to the validity of a marriage not solemnized by
religious ceremony, is the interesting and famous case of The Queen vs.
Millis,[47] wherein the House of Lords, erroneously decided that such a
marriage was void, according to the English law, in the year 1843.
The Irish Court of King’s Bench was equally divided upon the issue and
in the House of Lords, after the decision of the English judges had been
given against the validity of the marriage at which no clergyman had
been present, Lords Lyndhurst, Cottenham and Abinger were for holding
the marriage void, while Lords Brougham, Denman and Campbell, were in
favor of its validity, but on account of the precise form in which the
question was put to the House, the effect of the division was to hold the
marriage void, and thus a mere accident gave the decision in favor of the
erroneous view that from the earliest time in English law, the presence
of an ordained clergyman was essential to the celebration of a valid
marriage, when, as we have seen, from the decisions and history of the
law, this was not the case, either in England or according to the Roman
law, until the Council of Trent.[48]
But while both the temporal and spiritual courts recognized the validity
of marriages based alone upon mutual consent, followed by a physical
union, the religious ceremony in an early day, was held essential to
endow the wife with the right to the husband’s land. Bracton tells us
that the endowment can only be made at the church door, for while the
marriage may be contracted elsewhere, the bride can only be endowed at
the door of the church.[49]
This rule, however, was of course inconsistent with the recognition
of the validity of the marriage and both the ecclesiastic and temporal
courts went to the extreme limit to legitimize the offspring of
marriages, not the result of a wilful criminal relation. Retroactive
and putative marriages were recognized, both in the temporal and
ecclesiastical courts, when the legitimacy of children depended upon
such a construction and in cases where the parents had married within
the prohibited degrees of consanguinity, or if a woman, in good faith,
married a man already married and believed that he was single and had
children by him, the children would be held legitimate and capable of
inheriting, under the law.[50]
The courts, in order to legitimize the offspring of doubtful marriages,
went the full limit, in upholding the marriage relation from a very
early day, but the consort who abandoned her husband to dwell with her
adulterer, was written beyond the pale of the law. By an old statute, of
the reign of Edward I., a woman who eloped and abode with her adulterer
was punished by a loss of dower[51] and this statute was enforced, in the
case of William and Margaret Paynel, which originated in 1302.[52]
These parties petitioned the king for dower that was due the woman, as
the widow of her first husband, John de Camoys. It was charged that
Margaret had eloped with William and committed adultery with him. In
answer, William and Margaret produced a solemn charter, whereby her
first husband had “given, granted, released and quit-claimed” the said
Margaret to William. They also introduced evidence to the effect that
after they went to live together they had been charged with adultery in
the court Christian, and that by the oath of compurgators, among whom
were married and unmarried ladies and a prioress, they had successfully
met this charge and they offered to leave to the decision of a jury the
issue whether or not they were guilty of adultery in living together. The
court, however, in a lengthy decree, held that the facts on their face
constituted adultery and since no reconciliation of the first husband was
shown, the woman was not entitled to dower, under this statute.[53]
This illustrates the easy morality of the olden times, so contrary to
our present standards, touching the marital relation, yet this case
is not a parallel to many which could be cited in the golden days of
Greece and Rome. So little sanctity was attached to the marital relation
in Greece, even in the days of Pericles, that men were accustomed to
loan their wives to their friends and the literature of the period made
poetry of marital infidelity and fornication and adultery seemed about
the commonest employment of both individuals and gods and goddesses.
The Romans had more of the religious tendencies than the Greeks, but it
is said that the Younger Cato loaned his wife, Marcia, to the orator
Hortensius and took her back again, after his death.[54]
Such conduct seems almost unbelievable, because so contrary to the
natural moral instincts, yet the natural selection between two adults
of the opposite sexes, although in derogation of the rights of the
life-partner of either, seems hardly so depraved as the consent by the
natural parents, to the marriage of infants of tender years, which custom
was so prevalent in England and France in the past centuries.
During the middle ages, in England, the marriages of little children
were frequently arranged by their parents, for the purpose of avoiding
wardship and to prevent the children from forming improper attachments,
or to effect advantageous family connections for the parents.
History records that Thomas, Lord Berkeley, was contracted to Margaret,
daughter of Gerald Warren, Lord Lisle, in the forty-first year of Edward
III., when the girl was only seven years old, and because of her tender
years, it was stipulated that she should remain with her father for four
years, but on account of sickness in the family, they were married when
she was eight years old.[55]
Maurice, fourth Lord Berkeley, was knighted at seven years of age,
to prevent his wardship, and he was married at the age of eight, to
Elizabeth, daughter of Lord Spencer, when the bride was also but eight
years old.[56]
Hundreds of similar cases could be mentioned in France and England, and
in tropical countries, where the women develop at an earlier age, the
marriages occur at a corresponding earlier age. In Brazil, in the past
century parents married their children when still in years of infancy
and the case of a Brazilian traveler, enroute to England, who demanded
a half-fare ticket for his wife, who was under twelve years of age,
occurred in the year 1853.[57]
We are also told that the Hungarians of the seventeenth century often
betrothed their children while still in their cradles, and the marriages
were celebrated at the earliest possible age.[58]
The law, which can never rise superior to the prevalent sense of right in
a given community, recognized the validity of these child marriages, in
these several countries, just as it validated the “sale marriages” of the
old Saxon days[59] and in early feudal times recognized the validity of
exactions known as “Maiden-rent,” a sum paid to the Lord of the Manor,
in the nature of a fine, in consideration of his relinquishment of his
accustomed right of spending the first night with the bride of his
tenant.[60]
As the relics of a barbarous age, such licentious customs, like the
evidences of genius and depravity frequently found co-existent in the
same individual, are interesting from a historical standpoint, as
existing facts connected with the given institutions of a past age and
also because many of the ancient customs, in altered form, furnish the
basis for the later customs and practices, gradually changed, with the
passing years, to meet the different conditions and institutions of later
periods.
The custom of giving a dowry, or marriage portion, which has obtained
from an ancient period, is no doubt the result of the old practice of
paying for the wife in money, the presents, land, or sums paid by way of
settlement being a mere modification of the old sale and purchase of the
bride by the husband.[61]
In patriarchial days, we find Shechem, the son of Hamer, negotiating with
old Jacob and his sons, for the marriage of Dinah and he said unto them:
“Ask me never so much dowry and gift and I will give according as ye
shall say unto me; but give me the damsel to wife.”[62]
The _donatio propter nuptias_,[63] of the Romans, and the old marriage
dowry, the source of so much legislation and litigation in ancient
England, France and other continental countries, is traceable, directly
or indirectly to this old practice. Indeed, the oldest known laws treat
of the marriage dowry, as we find that the code of Hammurabi, written
2250 years before Christ provided for the return of the dowry, in case of
the divorcement of a barren wife.[64]
Money was given the bride, from an early day in France, and we find
that when Clovis married the Princess Clotilde, he sent, by proxy, a
sou and a denier, which became by law, the usual marriage offering, in
that country.[65] Caesar speaks of the marriage settlement, as a custom
he found to exist amount the ancient Gauls;[66] it obtained among the
Hebrews, at an early date[67] and has come to be a part of the marriage
laws of most of the civilized countries.[68]
Under the old Angle-Saxon law, dower could be assigned only at the church
door.[69] Speaking on this subject, Littleton says:
“When he cometh to the church door to be married there, after
affiance and troth plighted, he endoweth the woman of his whole
land, or of the half, of other lesser part thereof, and there
openly doth declare the quantity and the certainty of the land
she shall have for her dower.”[70]
Accordingly, we find, when Edward I. married Marguerite of France, in
1299, he endowed her at the door of Canterbury Cathedral, in order that
the gift could be witnessed by all the persons who had assembled to see
the marriage ceremony.[71]
Selden says that the use of marriage rings, grew out of the old custom
of giving the bride a dowry, the ring being given as a symbol of the
husband’s good will, in lieu of the dowry money, of previous days.[72]
However this may be, the custom of giving wedding rings to the bride
dates from an early period. We find that Isaac propitiated the favor of
Rebekah by presenting her with a massive ear-ring and two bracelets.[73]
The betrothal ring was used in ancient Rome, and the Christian church no
doubt adopted the wedding ring, from the pagan custom of the Italians, as
a convenient sign of marriage.[74]
In the ninth century the ring was used by the Romans for betrothal
purposes and not as an insignia of marriage;[75] it was used by the
Anglo-Saxons, on the betrothal of their infant children, the ring being
placed on the right hand, until the marriage, when it was transferred to
the left,[76] and thus grew the custom, until finally, it became a part
of the English law, that a wedding ring should be used at all church
marriages.[77] This custom is still retained by the Catholics, among whom
the ring is consecrated by the priest, sprinkled with holy water, in the
form of a cross and then returned to the bridegroom.[78]
The superstitions of olden times, which attached to the marriage
ceremony, as celebrated in the early days of “little knowledge,” as
some writers refer to the antique periods of the human race, are
also responsible for the present custom of throwing rice, old shoes,
stockings, bouquets, and such like practices, at marriages.
The custom of throwing rice was no doubt borrowed from the ancient
Persians, as rice was no inconsiderable portion of the marriage ceremony
in Persia.[79] Rice was considered an emblem of fruitfulness and the
contracting parties, after their betrothal, met at midnight, on a bed,
in the presence of two sponsors. The sponsor for the man, touched the
woman’s forehead and asked her if she would have the man; the same
ceremony was gone through with by the sponsor for the woman and the hands
of the contracting parties were then joined and rice was scattered over
them and prayers for their fruitfulness were offered.[80]
Rice also constitutes an important part in the marriages of the Hindus,
the Brahmins, Javanese, the inhabitants of Elba and is quite generally
used, in other European countries.[81]
The custom of throwing a shoe after the bridal couple, so generally
followed, in England, Scotland and the United States, as a token of good
luck, is directly traceable to the old Jewish law, making the shoe a sign
of renunciation of dominion or authority, as well as a symbol of exchange.
Thus, under the Mosaic law, the brother of a childless man was bound to
marry his widow and until he renounced his right, she could not marry
another. If refused, the woman was obliged to “loose his shoe from off
his foot” and “spit before his face,” as an assertion of her complete
independence.[82] The custom was followed, according to Bible evidence,
in the espousal between Ruth and Boaz, for “as it was the custom in
Israel concerning changing, that a man plucked off his shoe and delivered
it to his neighbor,” so the kinsman of this famous woman plucked off his
shoe and gave it to Boaz, as a token of his renunciation of Ruth and of
Boaz’s right to marry her.[83]
That this custom was later used by the early Christians, would seem to
be confirmed by the story connected with the proposal of the Emperor
Vladimir to the daughter of Raguald, for when asked if she would not
marry the Emperor, she replied: “I will not take off my shoe to the son
of a slave.”[84] And as a part of the betrothal, in the early Anglo-Saxon
days, we read that when the marriage was completed, the father of the
bride took off her shoe and handed it to the bridegroom, who touched her
on the head with it, as a token of the exchange and of his power over
her.[85]
Stocking throwing, at weddings, in England, has existed from a very early
day and is said to be purely a British custom.[86]
A letter describing the marriage, at court, of Sir Philip Herbert, in
1604, says that “at night there was sewing into the sheet, casting off
the bride’s left hose, with many other pretty sorceries.”[87]
In Fletcher’s Poems, written in 1656, is a verse descriptive of
Clarinda’s wedding, referring to this old custom:
“This clutter o’er, Clarinda lay,
Half-bedded, like the peeping day
Behind Olympus’ cap;
Whiles at her head each twitt’ring girle
The fatal stocking quick did whirle
To know the lucky hap.”
It is reported that this custom, as well as that of putting the bride
to bed, was followed at the wedding of Mary, Queen of Scots, to Lord
Darnley; that the same ceremony was gone through with, at the wedding
of Mary II. and the sedate Prince of Orange and that this custom was
followed at nearly all the marriages of the crowned heads during the
middle ages, in England, until George III. set aside the joyful custom of
“posset-drinking and stocking throwing,” on his wedding night.[88]
The common law liability of the community property of the wife and her
husband for the ante-nuptial debts of his wife, gave rise to a peculiar
custom, in England, known as “Smock-marriages,” or “Marriage in a
Shift.” This custom obtained from early Saxon days into the eighteenth
century and the debtor bride often came to the wedding arrayed only in
a plain white “smock” or “shift,” as a public declaration or warning to
her creditors that she took no property to her husband, as a basis for
charging him with responsibility for her debts.[89]
This eccentric custom, known as “marriage in a smock,” in England, under
which a widow was married with nothing on but a “shift,” or “smock,” upon
the theory that her second husband would thereby escape liability for the
debts contracted by her former husband, was also followed in the Colonies.
This notion that a bride who lacked modesty, as well as money could
throw off her debts with her dress, by going to church in her smock or
under garment and thus let her creditors “shift” for themselves, finds
many examples in the English cases during the seventeenth and eighteenth
centuries.
On October 17, 1714, Anne Sellwood, of Chilters, All Saints, Wiltshire
and John Bridmore, were united in the holy bonds of matrimony and against
the record in the parish register occurs the memorandum: “The aforesaid
Anne Sellwood was married in her shift, without any clothes or head-gear
on.”[90]
In 1766 a Whitehaven bride also sought to attain the same end, by going
to church, as became any decent woman, undressing herself to her sole
under-garment for the ceremony and donning her clothes again as soon as
the knot was tied.[91] And it is recorded that somewhere between the
years 1838 and 1844, a Lincolnshire curate officiated at a wedding where
the bride stood before him, enveloped only in a sheet.[92]
While such attempts evidence a perhaps dishonest effort to evade the law
of debtor and creditor, these “smock-marriages” nevertheless evince a
most laudable inclination on the part of such bold brides to save the
purse of their intended husbands, so while modern husbands would not
appreciate the entire return to this now obsolete custom, they would not
object to the effort of brides, while decently clad, in emulation of the
spirit evinced by these ancient dames of the “shift marriage” period, of
using their best efforts to spare the pocket-books of the men of their
choice.
Alice Morse Earle, in her interesting volume, “Customs in old New
England,” refers to a “smock-marriage” at Westerly, Rhode Island.[93]
The traveler Kalm also describes such a marriage in Pennsylvania, in
1748, where the bridegroom, with the proper spirit of chivalry, in order
to save the appearance of his bride and also his credit, met the bride in
her scant drapery, half way between her house and his own, well provided
with warm garments which he dressed her in, after formally announcing,
in the presence of the assembled guests, that the wedding clothes which
he placed upon her belonged to him and were only loaned to the bride,
especially for the occasion.
John Gatchell married Sarah Cloutman, while she was clad only in her
“shift,” or “smock,” in Lincoln County, Maine, in 1767,[94] and in
accordance with the popular opinion that the creditors of the bride’s
first husband could not follow her farther than the king’s highway, if
she was married only in her “shift,” many “smock-marriages” occurred at
York, Maine, as recorded in the early history of Wells and Kennebunkport.
The wedding of the Widow Mary Bradley occurred while she was clad only
in her “shift,” or under-garment, during the cold weather in the month
of February, 1774; she went to meet the bridegroom, thus thinly clad and
the minister found her with chattering teeth and shivering from the cold.
Her groom had not been as thoughtful as the Pennsylvania bridegroom, in
loaning her clothing for the occasion, so the gallant gentleman of the
cloth kindly threw his cloak around the freezing bride, to protect her
from the wintry blasts.[95]
In Hall’s “History of Eastern Vermont,” there is a graphic account of the
marriage of the Widow Lovejoy to Asa Averill. The widow was not even clad
in her “shift,” or under-garment, but appeared at the ceremony, in a nude
condition, hidden behind a curtain, in a recess of the chimney.
Mr. William C. Prime, in his interesting book, “Along New England Roads,”
gives an account of two such marriages that came under his observation.
He describes how the widow Hannah Ward, of Newfane, Vermont, was married
to Major Moses Joy, in 1789, while the bride, perfectly nude, stood in
a closet. She held her hand out of a diamond shaped hole in the closet
door to Joy, and the ceremony was thus performed, in the absence even
of “smock or shift.”[96] Immediately after the ceremony, however, she
appeared resplendent in her wedding garments, which the gallant Major had
provided for her, in the closet.
In the other marriage, according to this old custom, as described by Mr.
Prime, the nude bride left her room by a window, at night and standing on
the top rung of a high ladder, she donned her wedding garments and thus
abandoned the old obligations of her widowhood.[97]
One of the most curious variations of this custom, however, is the
account given, by Gustavus Vassa, of a “smock-marriage” which occurred
on the gallows, in New York, in 1784. A felon who had been sentenced to
death was about to be hanged, when he was liberated to wed a woman clad
only in her “shift.”[98]
This strange belief in gallows matches, that a condemned felon could
be thus rescued, by marriage to any woman who would take him from the
gallows, is placed by Barrington in the list of legal vulgar errors.
But, as suggested by a writer in Chambers Journal, under the subject
“Matrimonial Curiosities,” it seems doubtful if such a queer idea
could have taken possession of the popular mind, unless there was some
foundation for it, in the law.[99] It is perhaps but one of many such
customs, arising from some isolated case, wherein the Court recognized
it, which gave it currency and caused it to be followed in other
instances.
We are told that in 1725 a woman petitioned King George I., for the pardon
of a convicted felon, in order that she might wed him, under Tyburn
Tree.[100]
Manningham states that this was the custom, not the law, in olden times,
in France, and Italy, and that if any notorious strumpet would beg a
convicted felon, about to be hanged for her husband, her plea would be
granted, in order that their joint lives might be bettered by so holy an
action.[101]
Sterill reports a case that he had seen wherein a woman, clad only in her
smock, or under-garment, begged a condemned person for her husband, with
a white wand in her hand.[102]
Whatever recognition the law gave this custom, that it actually existed
in England, and France is evidenced by the many references to the
practice, in story and rhyme, published during the seventeenth and
eighteenth centuries.
Montaigne tells a story of a Picardian, who, seeing a lame dame advancing
toward him, cried out: “She limps, she limps, despatch me quickly.”[103]
The ballads of Roxburghe also tell, in rhyme, how a merchant of
Chichester, who had killed a German, after his sentence and last speech
upon the gallows, was wooed by no less than ten goodly maidens, who thus
addressed him:
“This is our law,” quoth they;
“We may your death remove,
If you, in lieu of our good-will,
Will grant to us your love.”[104]
But having left the fixed doctrines of the law governing the relation
between the opposite sexes, known as marriage, to enter into a study and
analysis of the vulgar errors in connection with this subject-matter, it
is high time to bring the chapter to a close.
Of course it was only attempted in this chapter to take a most cursory
view of the great subject selected and to present but a few of the many
laws and customs that have sprung up among the various peoples of the
earth, governing the relation whereby the opposite sexes, in accordance
with the law of natural selection, appropriate themselves to one another.
In the ultimate days, when human multiplication has done its work—when
man has become so populous that every square foot of ground upon the
known earth shall be covered by a man—the law of evolution will no doubt
have eradicated many of the present marriage laws and customs, based upon
a false public opinion, and the generation of the species will no doubt
be conducted along more advanced and scientific lines.
For the next few centuries, however, judging the future by the past,
the marriage relation will continue in the same crude and unscientific
condition that has controled it for the past five thousand years, so
we need not now concern ourselves about any “devastating torrent” of
children, but leave this vexed problem for succeeding centuries.
In the meantime, like visionary things, mere motes, the atoms known as
human beings, will continue to be brought into the world, as a result of
the unnatural laws and customs governing this natural relation,
“Still wondering how the marvel came, because two coupling mammals
chose,
To slake the thirst of fleshy love.”
Tossed into the “giant grasp of Life, like gale-borne dust, or wind-wrung
spray,” the son of man will continue to be “the toy, the sport, the waif
and stray of passions, error, wrath and fear.”
Empires have perished and nations have risen during the period covered
by the foregoing pages. Countless millions of human beings have lived
their little lives, with their tincture of lust; tasted, for a brief
space, the “joy in an armful of beautiful dust,” as a result of the
relation established by the laws and customs treated of in these pages,
and then “step by step, perforce, returned” to “couthless youth, wan,
white and cold, Lisping again the broken words, till all the tale be
fully told.” And thus, for successive ages to come, will the “moving
row of magic shadow shapes,” continue to come and go “Round with the
sun-illumined-lantern held, in Midnight, by the Master of the Show.”
FOOTNOTES:
[1] Institutiones Justinianus, written 527-529, A. D.
[2] Ringrose “Marriage Laws of the World,” p. 10.
[3] Tylor, “Early History of Mankind;” McLennan’s “Primitive Marriage.”
[4] McLennan’s “Primitive Marriage;” Ringrose, “Marriage Laws of the
World,” p. 7.
[5] Tacitus, Germania, c. 18; II. Pollock and Maitland’s History English
Law, 364; Johns’ “Babylonian and Assyrian Laws,” etc.
[6] We are told that this rude custom obtains today in “Far Cathay,”
Blackwood’s Magazine, July-Dec., 1887, vol. 42, p. 671.
E. J. Woods in his book, “The Wedding Day in All Ages and Countries,”
claims that the old Hebrew expression of “taking a wife,” arose from the
custom of capture, not common to the Israelites, but common to other
primitive peoples. (Vol. I., p. 9.) He quotes Plutarch, as authority for
the custom of the Spartans to carry off their brides by capture. (Vol.
I., pp. 40, 41.) Refers to the Rape of the Sabines (vol. I., p. 52),
the “Institutes” of Menu, as providing one of the forms of marriage
by capture, known to the four classes of India (vol. I., p. 124). He
claims that “the capture of women prevailed among the aborigines of the
Dekkan and in Afghanistan.” (Vol. I., p. 137) He maintains that “In New
Zealand and the Fejee and other islands of the Pacific, the custom of
capture of women for wives has prevailed from the earliest times of the
known history of those places.” (Vol. I., p. 191.) “The form of capture
is observed in the marriages of the Kalmucks, the Nogay Tartars, the
Mongols, of the Ortous, in Tartary, the Circassians and the people
generally of the Caucasus.” (Vol. I., p. 210.) He claims that marriage by
capture obtained in Poland, in the sixteenth and seventeenth centuries
(vol. I., p. 220), that the seizure of wives by force obtained in Ireland
(vol. II., p. 50), so if this record is true, since this custom is found
to obtain in these countries so late as recent historical dates, it is
not unbelievable that capture was the order of the early barbarous days
in our own and other countries.
[7] Fison and Howitt, _op. cit._ 259; Curr, _op. cit._ I., 108; Prof.
Tylor; McLennan.
[8] Crawley’s “Mystic Rose,” pp. 6, 147.
[9] Genesis, I., 28.
[10] Genesis, II., 22.
[11] XXXIV. Genesis, 8, 9.
[12] Ringrose, “Marriage and Divorce Laws,” p. 10.
[13] First Book of Kings.
[14] Bryce, “Marriage and Divorce,” III. Essays in Anglo-American Legal
History, 784, 785; Euripides, Androm., vv. 173, 180; Tacitus, Germania,
c. xvi. I.
[15] Ringrose “Marriage and Divorce Laws,” p. 11.
Monogamy was practiced by the Greeks and Romans as far back as our
records reach. Wood’s “Wedding Day in All Ages and Countries,” vol. I., p.
33.
Morganatic, or “left-handed” marriages, are peculiar to Germany. They
occur between men of superior and women of inferior rank and are
prohibited by the Royal Marriage Law of England.
Ringrose, “Marriage and Divorce Laws of the World;” Wood’s “Wedding Day
in All Ages,” vol. II., p. 8.
[16] Bryce, “Marriage and Divorce,” III. Essays in Anglo-American Legal
History, 797; Modestinus in Dig. xxiii, 1, 2.
[17] Ringrose, “Marriage and Divorce Laws,” p. 8. The Twelve Tables fixed
the period of three nights, to fix a previous custom, no doubt more
uncertain. Bryce, “Marriage and Divorce,” III. Essays in Anglo-American
Legal History, 788.
[18] _Ante idem._
[19] III. Essays in Anglo-American Legal History, p. 788.
[20] Tacitus, Ann. xii, 6.
[21] III. Essays in Anglo-American Legal History, 805.
Before the end of the Republic, the _confarreatio_ had practically
become obsolete and was regarded as an old world curiosity, although
formerly obtaining generally, in all patrician families. (III. Essays
in Anglo-American Legal History, p. 789.) The religious ceremony, used
at the marriage _confarreatio_, is described in Wood’s “Wedding Day
in All Ages and Countries,” where it is shown that the custom of the
“bride-cake” is directly traceable to the cake of wheat or barley, used
at this old religious ceremony. (“Wedding Day in All Ages and Countries,”
vol. 1, pp. 51, 52, 60, 61, vol. II., p. 224.)
[22] Tacitus, Ann. xii, 5, 7.
[23] III. Essays in Anglo-American Legal History, 807.
[24] Code Justinian, v. 27, 5, 6; _Nov._ xii, 4; _Nov._ lxxxix, 8.
[25] _Novella_, lxxxix.
[26] _Novella_, xii, 4; lxxxix, 8.
[27] II. Pollock and Maitland’s History English Law, p. 397; III. Essays
in Anglo-American Legal History, p. 808x.
[28] Selden, Diss. ad. Fletam, p. 538.
[29] Beaumanoir, c. 18, Sec. 24; II. Pollock and Maitland’s History
English Law, p. 398.
The law did not give the marriage any retroactive effect, by reason of
this custom of throwing a mantle over the children born prior to wedlock,
but the custom was recognized by the law, to the effect of legitimating
the children, in the sense that the act of adopting the custom was
equivalent to a legal adoption of the children, and in spreading
the cloak over the children, the law was willing to also spread its
protecting “mantle” over them and thus they became “mantle children,” by
force of both the law and this old custom of adoption. Although followed
in Germany, France and Normandy, this custom was refused judicial
recognition in the reign of Henry II. and Henry III. See Pollock and
Maitland’s History English Law, p. 398. But for illustrations of the
application of the custom in the countries above named, see Schroder’s
“Mantel-Kinder” of Germany, D. R. G. 712.
Discussing the subject of “mantle-children,” in his work “Wedding Day in
All Ages,” Wood says: “According to the Scotch law, the marriage of the
father and mother legitimatizes all children previously born, however
old they may be. An old saying is that ‘all children under the mother’s
girdle or apron-string’ at the time of the marriage, are legitimate. In
very early days children born before wedlock used to perform a part in
the marriage ceremony, by being placed under the veil or mantle of the
bride or the pallium of the altar, in which position, they received the
nuptial benediction. And instances have occurred in more modern times,
where premature offspring have been put under their mother’s apron, and
had the string tied over them during her marriage.” (Vol. II., pp. 74,
75.)
[30] Ringrose, “Marriage and Divorce Laws,” p. 8.
[31] Cnut, 74; II. Pollock and Maitland’s History English Law, 365.
[32] _Ante idem._
[33] Ringrose, “Marriage and Divorce Laws,” p. 9. We find from the
second chapter of the Gospel of St. John that Jesus, himself, attended a
marriage in Cana of Galilee, but performed no religious ceremony.
[34] II. Pollock and Maitland’s History English Law, 366.
[35] _Ante idem._ vol. I., p. 158; Letters of John of Salisbury, i, 124.
[36] _Ante idem._
Under the Twelve Tables, enacted B. C. 449, a marriage, in Rome, could be
contracted without any formality, by the consent of the parties alone.
Bryce, “Marriage and Divorce,” III. Essays in Anglo-American Legal
History, p. 786.
[37] Glanville, vii, 13, 14; Select Civil Pleas, pl. 15, 92, 109.
[38] II. Pollock and Maitland’s History English Law, p. 371.
[39] Compiliato Prima, lib. 4, tit. c. 6.
[40] II. Pollock and Maitland’s History English Law, 372.
[41] Calendarium Genealogicum, i, 57.
[42] Atlantic Monthly, for 1888, vol. 61, pp. 521, 527.
[43] _Ante idem._
[44] Atlantic Monthly, for 1888, vol. 61, p. 521.
[45] 26 George II., c. 33.
[46] Bryce, “Marriage and Divorce,” III. Essays in Anglo-American Legal
History, p. 815.
The statute of the 26’ year of George II., enacted that wedding banns
should be regularly published three successive Sundays in the church of
the parish where the parties were for the time residing. This statute
was passed to prevent the evils of the “Fleet marriages,” during the
year 1616, when the Rector of St. James was suspended and clerical men
living within the Rules of the Fleet, solicited passers-by for patronage
and celebrated marriage ceremonies in ale-houses and garrets, without
the publication of banns, or the existence of marriage licenses. Wood’s
“Wedding Day in All Ages,” vol. II., page 235.
[47] 10 Clark and Finley, 534.
[48] Pollock and Maitland, in their History of English Law, say that
this erroneous decision may have pleased the Lords, but the opposite
holding will be followed by historians of the middles ages. (Vol. II.,
p. 372.) And James Bryce, in his “Marriage and Divorce,” III. Essays
in Anglo-American Legal History, says that this “seems to have been an
erroneous” decision. (Vol. III., p. 815.)
[49] Bracton, f. 92, 304, 305; Note Book, pl. 891, 1669.
[50] Bracton, f. 63; Bliss, Calendar of Papal Registers, i, 254; Year
Book, 11-12 Edward III., p. 481.
[51] Statute West, II., c. 34; Second Inst. 433.
[52] II. Pollock and Maitland’s History English Law, p. 395.
[53] Rot. Parl. i, 140, A. D. 1302.
[54] Ringrose, “Marriage and Divorce Laws,” p. 9.
If the investigation of Edward J. Wood, in his book, “Wedding Day in All
Ages and Countries,” is accurate, the Eimauk, of Caubul, “lend their
wives to their guests”; “the Candyans, of the lower and middle classes
universally practice polygamy and also lend their wives to their guests”;
“the Keiaz, of the Paropamisan mountains of India, lend their wives, as
do also the people of Kamul”; the “Mpongmes, an African tribe, lend their
wives,” and “the Koryaks, who are polyandrous, and the Chukchi, in the
north-east of Siberia, lend out their wives, as do also the Aimaks.”
II. “The Wedding Day in All Ages and Countries,” pp. 97, 146, 151, 167,
237.
[55] Wood’s “Wedding Day in All Ages and Countries,” vol. II., p. 116.
[56] _Ante idem._, p. 116.
[57] Wood’s “Wedding Day in All Ages and Countries,” vol. I., p. 179.
[58] Wood’s “Wedding Day in All Ages and Countries,” vol. I., p. 221.
[59] II. Pollock and Maitland’s History English Law, p. 364; Tacitus
Germania c. 18. The old Babylonians and Assyrians held a regular market
day at a public place, for the sale of their daughters. (Wood’s “Wedding
Day in All Ages and Countries,” vol. I., p. 70.)
The custom of purchasing wives was known to the ancient Greeks and was
strongly opposed by Aristotle. The payment of money was frequently the
only form of marriage, in ancient Greece. (Wood’s “Wedding Day in All
Ages and Countries,” vol. I., pp. 33, 47, 51.)
In Syria every man paid a sum for his wife, proportionate to the rank of
her father. (_Ante. idem._, p. 72.)
The Arabians bought their wives as they did their slaves. (_Ante idem._,
p. 82.)
Burckhardt says that among the Bedouins, of Mount Sinai, marriage is a
mere matter of purchase and sale. (_Ante idem._, p. 85.)
And the same custom obtained among the Mohammedans, Javanese, Ethiopians,
Circassians, Ostiacs, a Tarter tribe, Laplanders, the ancient Germans,
Romans and French, as well as our early Saxon ancestors. (Wood’s “Wedding
Day in All Ages and Countries,” vol. I., pp. 90, 155, 174, 210, 214, and
vol. II., pp. 3, 173, 247.)
The custom of purchasing wives is perhaps derived from the old Salic law.
It was known to the ancient Jews, as well as the other nations above
mentioned and the custom of marriage portions and doweries is no doubt
the outgrowth of this old practice. (Wood’s “Wedding Day in All Ages and
Countries,” vol. II., p. 173.)
[60] Bouvier; Cowel; I. Reeves History English Law, pp. 369, 371. In
legal contemplation, a female was in the custody of the Lord paramount,
until she reached her majority, and then he was bound to find her a
proper marriage. His custody continued until her marriage, even after she
became of age and she could only marry with his consent. She was bound to
obtain the consent of the Lord, or lose her dower, but it was sufficient,
if she had the consent of the chief lord, to marry. The custom was based
upon the fealty which the husband owed the lord and since the woman lost
her inheritance, if she gave cause of forfeiture, the lord had it in
his power to exact anything of her, and hence the custom referred to in
the text, an exaction allowed by way of a punishment for the offense of
belonging to the frail sex, in an early day. Reeve’s History English Law,
vol. I., pp. 370, 371.
Shakespeare makes Cade refer to this old barbarous custom, in 2’ Henry
VI., when he says: “... There shall not a maid be married, but she shall
pay to me her maidenhead, ere they have it.” (Act IV., Scene VII.; White’s
“Law in Shakespeare,” Sec. 299, p. 326).
[61] Wood’s “Wedding Day in All Ages and Countries,” vol. II., p. 16.
[62] Genesis, XXXIV., 12.
[63] Smith’s Dict. Greek and Roman Antiquities.
[64] In the first known code of laws ever written, so far as our history
goes, in the old code of Hammurabi, King of Babylon, who reigned from
2285 to 2242, B. C., we find that doweries and marriage portions were
spoken of, just as in modern statutes, and it was provided that if a
childless woman should be returned to her father, he should return the
dowry, and if he did not the husband could deduct all the dowry from the
marriage portion and then return the marriage portion, the house of her
father.
Code Hammurabi, Secs. 163, 164; Johns’ “Oldest Code of Laws,” pp. 32, 33;
Johns’ “Babylonian and Assyrian Laws,” etc.
[65] Wood’s “Wedding Day in All Ages and Countries,” vol. II., p. 17.
[66] _Ante idem._, p. 18.
[67] Genesis, XXXIV., 12.
[68] Ringrose “Marriage and Divorce Laws of the World.”
[69] Selden.
[70] Coke, Littleton, 31.
[71] Wood’s “Wedding Day in All Ages,” vol. II., p. 16.
Shakespeare makes frequent reference to the marriage custom of giving
a dowry to the bride, in his various plays. Thus, in “Love’s Labour’s
Lost,” (Act II., Scene I), Boyet, in speaking to the Princess, refers to
Aquitaine as “a dowry for a queen;” King John tells Phillip of France,
that if his son shall love his daughter, “Her dowry shall weigh equal
with a queen.” (King John, Act II., Scene I.) Petruchio tells Katherine,
in “Taming of the Shrew”: “_Pet._ Your father hath consented that you
shall be my wife; your dowry ’greed on; and will you, nil you, I will
marry you.” (Act II., Scene I.) Gloster, in 1’ Henry VI., speaking of the
proffer of his daughter to the King, by the Earl of Armagnac, refers to
the “large and sumptuous dowry.” (Act V., Scene I.) And the poor Lear, is
made to ask the duke of Burgundy, in discarding his daughter, Cordelia:
“What, in the least, will you require in present dower with her?” (Act I.,
Scene I.)
White’s “Law in Shakespeare,” Sec. 66, pp. 95, 97.
[72] Wood’s “Wedding Day in All Ages,” vol. I., p. 25.
[73] Genesis, XXIV., 22, 53.
[74] Wood’s “Wedding Day in All Ages,” vol. II., p. 131.
[75] _Ante idem._ 130.
[76] _Ante idem._ 133.
[77] During the reign of George I. and George II., the wedding ring was
placed on the usual finger at marriage and then transferred to the thumb.
Wood’s “Wedding Day in All Ages,” vol. II., p. 134.
[78] _Ante idem._ p. 135.
[79] Wood’s “Wedding Day in All Ages,” vol. I., p. 94.
The Quakers and Mormons reject the wedding ring, because of its
heathenish origin. Wood’s “Wedding Day in All Ages,” vol. II., p. 135.
The wedding rings of St. Louis, of France; of Margaret, daughter of the
Earl of Warwick; of the wife of Duke John, of Sweden; of Martin Luther
and Catherine Von Bora, his wife; the ring given by Henry VIII. to Anne
of Cleves; that given by Phillip, to Queen Mary, and by Lord Darnley, to
Mary, Queen of Scots, are described in Wood’s “Wedding Day in All Ages,”
vol. II., pp. 145, 149.
Chaucer’s reference to the wedding ring, in his “Troilus and Cressida”;
Shakespeare’s mention of the gemmal ring, in “Midsummer’s Night’s Dream”;
and his use of the ring in “Two Gentlemen of Verona,” “Twelfth Night” and
“Merchant of Venice,” with many traditions of the wedding ring, will be
found interestingly presented in Wood’s “Wedding Day in All Ages,” vol.
II., pp. 129, 149.
The custom of placing the ring upon the fourth finger of the left hand,
according to the opinion of a writer in the British Apollo, in 1708,
dates from the discovery of the convenience of the left hand for such
ornament because less employed than the right and the fourth finger,
less than others, was needed in ordinary use. See Knowlton’s “Origin of
Wedding Superstitions;” Finck’s “Primitive Love and Love Stories.”
[80] Wood’s “Wedding Day in All Ages,” vol. I., pp. 94, 95.
[81] _Ante idem._, vol. I., pp. 128, 133, 156; vol. II., pp. 44, 224.
[82] Deuteronomy, XXV., 5, 10.
[83] Ruth, IV., 7, 8.
[84] Boston Trans. Aug. 13, 1910; Wood’s “Wedding Day in All Ages,” vol.
I., p. 16; Hutchinson’s “Marriage Customs in Many Lands.”
[85] _Ante idem._
Wood quotes Michelet, in his “Life of Luther,” to show that the great
Reformer used the shoe at a marriage ceremony. Wood’s “Wedding Day in All
Ages,” vol. I., p. 16.
[86] Wood’s “Wedding Day in All Ages,” vol. II., p. 218.
[87] _Ante idem._, p. 216.
[88] _Ante. idem._, pp. 215, 221.
Referring to the custom of stocking-throwing, Rowe, in his “Happy
Village,” in 1796 says:
“The wedding-cake now through the ring was led,
The stocking thrown across the nuptial bed.”
And in the “Collier’s Wedding,” we read:
“The stocking’s thrown, the company gone,
And Tom and Jenny both alone.”
[89] See Article on “Ancient Marriage Customs,” in Uncle Remus’ Home
Magazine, June, 1912.
[90] “Matrimonial Curiosities,” Chambers Journal, vol. 48, pt. 2, p. 813.
[91] _Ante idem._
[92] _Ante idem._
[93] “Courtship and Marriage Customs,” p. 79.
[94] Earle’s “Customs in Old New England,” p. 79.
[95] History, Wells and Kennebunkport.
[96] “Along New England Roads,” p. 25.
[97] “Customs in Old New England,” p. 78.
[98] Earle’s “Customs in Old New England,” p. 79.
[99] Chambers Journal, vol. 48, pt. 2, July-Dec., 1871, p. 812.
Discussing the subject of “gallows-matches,” Wood, in his “Wedding Day in
All Ages,” says: “Formerly was current a vulgar notion that if a woman
married a condemned man under the gallows, she would thereby save him
from execution. Certainly this exemption had a quasi-legal existence in
France in the fifteenth century, as there are instances of it in the
annals of that country.” (Vol. 2, p. 25.)
[100] Chambers Journal, vol. 48, pt. 2, 812.
[101] _Ante idem._
[102] _Ante idem._
[103] _Ante idem._
[104] Roxburghe Ballads.