THE MARRIAGE INSTITUTION
Mores lead to institutions.--Aleatory interest in marriage and
the function of religion.--Chaldean demonism and marriage.--
Hebrew marriage before the exile.--Jewish marriage after the
exile.--Marriage in the New Testament.--The merit of
celibacy.--Marriage in early Christianity.--Marriage in the
Roman law.--Roman "free marriage."--Free marriage.--Transition
from Roman to Christian marriage.--Ancient German marriage.--
Early mediæval usage.--The place of religious ceremony.--The
mode of expressing consensus.--Marriage at the church door.--
Marriage in Germany, twelfth century.--The canon law.--Mediæval
marriage.--Conflict of the mores with the church programme.--
Church marriage; concubines.--The church elevated the notion of
marriage.--The decrees of Trent about marriage.--Puritan
marriage.
+413. Mores lead to institutions.+ We have seen in Chapter IX that the
sex mores control and fashion all the relations of the sexes to each
other. Marriage, under any of its forms (polygamy, polyandry, etc.), is
only a crystallization of a set of these mores into an imperfect
institution, because the relation of a woman, or of women, to a husband
becomes more or less enduring, and so the mores which constitute the
relation get a stability and uniformity of coherence which makes a
definable whole, covering a great field of human interest and life
policy. It is not a complete specimen of an institution (sec. 63). It
lacks structure or material element of any kind, but the parties are
held to make good the understandings and coöperative acts which the
mores prescribe at all the proper conjunctures, and thus there arises a
system of acts and behavior such as every institution requires. In
civilized society this cluster of mores, constituting a relationship by
which needs are satisfied and sentiments are cherished, is given a
positive form by legislation, and the rights and duties which grow out
of the relationship get positive definition and adequate guarantees.
This case is, therefore, a very favorable one for studying the operation
of the mores in the making of institutions, or preparing them for the
final work of the lawmaker.
+414. Aleatory interest in marriage and the function of religion.+ The
positive history of marriage shows that it has been always made and
developed by the mores, that is to say, by the effort of adjustment to
conditions in such a way that self-realization may be better effected
and that more satisfaction may be won from life. The aleatory element
(sec. 6) in marriage is very large. Marriage is an interest of every
human being who reaches maturity, and it affects the weal and woe of
each in every detail of life. Passing by the forms of the institution in
which the wife is under stern discipline and those in which the man can
at once exert his will to modify the institution, it may be said of all
freer forms that there is no way in which to guarantee the happiness of
either party save in reliance on the character of the other. This is a
most uncertain guarantee. In the unfolding of life, under ever new
vicissitudes, it appears that it is a play of luck, or fate, what will
come to any one out of the marital union with another. Women have been
more at the sport of this element of luck, but men have cared much more
for their smaller risk in it. Therefore, at all stages of civilization,
devices to determine luck have been connected with weddings, and in many
cases acts of divination have been employed to find out what the future
had in store for the pair. Marriage is a domestic and family affair. The
wedding is public and invites the coöperation of friends and neighbors.
Wedlock is a mode of life which is private and exclusive. The civil
authority, after it is differentiated and integrated, takes cognizance
and control of the rights of children, legitimacy, inheritance, and
property. Religion, in its connection with marriage, takes its function
from the aleatory interest. It is not of the essence of marriage. It
"blesses" it, or secures the favor of the higher powers who distribute
good and bad fortune. In a very few cases amongst savage tribes
religious ceremonies "make" a marriage; that is, they give to it (to
the authority of the husband) a superstitious sanction which insures
permanence and coercion as long as the husband wants permanence and
coercion. These cases are rare. The notion that a religious ceremony
makes a marriage, and defines it, had no currency until the sixteenth
Christian century.
+415. Chaldean demonism and marriage.+ Chaldean demonism affected
wedding ceremonies. The belief was that demons found their opportunities
at great crises in life, when interest and excitement ran high. Then the
demons rejoiced to exert their malignity on man to produce frustration
and disappointment. Cases are not rare in which the consummation of
marriage was deferred, in barbarism and half-civilization, to ward off
this interference of demons. The Chaldean groom's companions led him to
the bride, and he repeated to her the formulas of marriage: "I am the
son of a prince. Silver and gold shall fill thy bosom. Thou shalt be my
wife and I thy husband. As a tree bears abundant fruit, so great shall
be the abundance which I will pour out on this woman." A priest blessed
them and said: "All which is bad in this man do ye [gods] put far away,
and give him strength. Do thou, man, give thy virility. Let this woman
be thy spouse. Do thou, woman, give thy womanhood, and let this man be
thy husband." The next morning a ritual was used to drive away evil
spirits.[1324]
+416. Hebrew marriage before the exile.+ In the canon of the Old
Testament we get no information at all about wedding ceremonies, or the
marriage institution. The reason for this must be that marriage was
altogether a family and domestic affair. It was controlled by very
ancient mores, under which marriage and the family were conducted, as
beyond question correct. It is in the nature of the case, in all forms
of the father family, that a girl until marriage was under the care and
authority of her father or nearest male relative. The suitor must ask
him to give her, and must induce him to give her by gifts. The transfer
was made publicly that it might be known that she was the wife of such
an one. The old Hebrew marriage seems to have consisted in this form of
giving a daughter, in all its simplicity. We find a taboo on the union
of persons related by consanguinity or affinity. Later there was a taboo
on exogamic marriage. In the prophets there are metaphors and
symbolical acts relating to marriage, which show a development of the
mores in regard to it. The formulas which are attached to the
prohibitions in Levit. xviii are in the form of explanations of the
prohibitions or reasons for them, but they furnish no real explanations.
Their sense is simply: For such is the usage in Israel, or in the Jahveh
religion. That was the only and sufficient reason for any prescription.
"After the consent of the parents of the bride had been obtained, which
was probably attended by a family feast, the bridegroom led the bride to
his dwelling and the wedding was at an end. No mention is made anywhere
of any function of a priest in connection with it. It is not until after
the Babylonian exile, after the Jews had become more fully acquainted
with the mores and usages of other civilized peoples of that age, that
weddings amongst them were made more solemn and ceremonial. After a
betrothal a full year (if the bride was a widow, one month) was allowed
the pair, after the captivity, to prepare their outfit, in imitation of
the Persian custom (Esther ii. 12)." "At the end of the delay, the bride
was led or carried to the house of the groom, in a procession, with
dancing and noisy rejoicing, as is now the custom in Arabia and Persia.
Ten guests must be present in the groom's house, as witnesses, where
prayer formulas were recited and a feast was enjoyed." There were also
prayers by all present at a betrothal "in order to give the affair a
religious color." The pair retired then to a room where they first made
each other's acquaintance. Then two bridesmen led them to the nuptial
chamber where they watched over them until after the first conjugal
union. This last usage was not universal, and after some experience of
its ambiguous character it was abolished. The purpose was that there
might be witnesses to the consummation of the marriage, not merely to
the wedding ceremony. The whole proceeding was a domestic and family
affair, in which no priest or other outsider had any part, except as
witness, and there was no religious element in it.[1325] The prayer
formulas were uttered by the participants and their friends, and they
were formulas of invoking blessing, prosperity, and good fortune.
+417. Jewish marriage after the exile.+ The Jewish idea of marriage was
naïve and primitive. The purpose was procreation. Every man was bound to
marry, after the exile, and could be compelled to do so, and to beget at
least one son and one daughter. By direct inference sterility made
marriage void. It had failed of its purpose. It was the naïveté of this
notion of marriage which led to the provision of witnesses for the
consummation of the marriage. Marriage meant carnal union under
prescribed conditions, and nothing else. In Deut. xxii. 28 f. the rule
is laid down that a man who violated a maid must remain her husband.
This is another direct inference from the view of marriage. The
_ketubah_ was the document of a "gift on account of nuptials to be
celebrated." It made the bride a wife and not a concubine or maid
servant, for the distinction depended on the intention of the
bridegroom. In the rabbinical period the betrothal and wedding were
united. The wedding was made by a gift (a coin or ring), by a document
(_ketubah_), or by the fact of _concubitus_.[1326] The man took the
woman to wife by the formula: "Be thou consecrated to me," or later, "Be
thou consecrated to me by the law of Moses and Israel." These
formalities took place in the presence of at least ten witnesses, who
pronounced blessings and wishes for good fortune. The third mode of
wedding was forbidden in the third century A.D. In the Jewish notions of
marriage we see already the beginning of the later casuistry.
Procreation being the sense and purpose of marriage, the carnal act was
the matter of chief importance. At the same time the Jews thought that
copulation and childbirth rendered unclean. They must be rectified by
purification and penance. Thus the act had a double character; it was
both right and wrong. It was a conjugal duty not to be sensual.[1327]
All this contributed to the modern notion of pair marriage, for at last
no sex indulgence was allowed outside of legal marriage. When the custom
of the presence of witnesses in the bride chamber produced
dissatisfaction a tent was substituted for the chamber. Later a scarf,
ceremoniously spread over the heads of the pair, took the place of the
tent. The custom arose that the pair retired to a special room and took
a meal together there. "The ceremony had no ecclesiastical character....
The blessings only gave publicity to the ceremony. They were not
priestly blessings and were not essential to the validity of the
marriage."[1328] So we see that, even amongst a people so attached to
tradition as the Jews, when one of the folkways did not satisfy an
interest, or outraged taste, the mores modified it into a form which
could give satisfaction.
+418. Marriage in the New Testament.+ According to the New Testament
marriage is a compromise between indulgence and renunciation of sex
passion. A compromise is always irrational when it bears upon concepts
of right and truth, and not on mere expediency of action. The concept of
right and truth on either hand may be correct; it is certain that the
compromise between them is not correct. The compromise can be maintained
only by disregarding its antagonism to the concepts on each side of it.
For fifteen hundred years the Christian church fluttered, as in a moral
net, in the inconsistencies of the current view of marriage. The
procreation of children was recognized as the holiest function and the
greatest responsibility of human beings, but it was considered to
involve descent into sensuality and degradation. It was the highest
right and the deepest wrong to satisfy the sex passion, and the two
aspects were reconciled partially in marriage, by a network of intricate
moral dogmas which must be inculcated by long and painful education. In
the sixteenth century the problem was solved by repudiating the doctrine
of celibacy as a meritorious and superior state, and making marriage a
rational and institutional regulation of the sex relation, in which the
aim is to repress what is harmful, and develop what is beneficial, to
human welfare. This change was produced by and out of the mores. The
Protestants denounced the falsehood and vice under the pretended respect
for celibacy. The new view of marriage could not be at once fully
invented and introduced. Therefore the Romanists pointed with scorn to
the careless marriage and loose divorce amongst the Protestants (sec.
380).
+419. Merit of celibacy.+ No reasons are ascertainable why Paul should
maintain that celibacy is to be preferred to wedlock as a more worthy
mode of life. In 1 Cor. vii. 32-34 he argues that the unmarried, being
free from domestic cares, can care for the things of God. He speaks
often of the degree of certainty he feels that he has with him the
Spirit of God. This shows that he often lacked self-confidence in regard
to his teachings. He does not seem to hold the ascetic view. In Ephes.
v. 22 the marriage institution is accepted and regulated, with some
mystical notions, which it is impossible to understand. Marriage and
Christ's headship of the church are said to explain each other or to be
parallel, but it is not possible to understand which of them is
represented as simple and obvious, so that it explains the other. The
apostle sometimes seems to lay stress on the vexations and cares of
wedlock. If that is his motive, he announces no principle or religious
rule, but only a consideration of expediency which is not on a high
plane. Tertullian and Jerome (in anticipation of the end of the world)
regarded virginity as an end in itself; that is to say, that they
thought it noble and pious to renounce the function on which the
perpetuation of the species depends. The race (having left out of
account the end of the world) cannot commit suicide, and men and women
cannot willfully antagonize the mores of existence--economic, social,
intellectual, and moral, as well as physical--which are imposed on them
by the fact that the human race consists of two complementary sexes.
Jerome, in his tracts against Jovinianus, wanders around and around the
absurdities of this contradiction. The ascetic side of it became the
cardinal idea of religious virtue in the Middle Ages. "Monkish
asceticism saw woman only in the distorting mirror of desire suppressed
by torture."[1329] "Woman" became a phantasm. She was imaginary. She
appeared base, sensual, and infinitely enchanting, drawing men down to
hell; yet worth it. In truth, there never has been any such creature. In
the replies of Gregory to Augustine (601 A.D.)[1330] arbitrary rules
about marriage and sex are laid down with great elaboration. They are
prurient and obscene. The mediæval sophistry about the birth of Christ
is the utmost product of human folly in its way. Joseph and Mary were
married, but the marriage was never consummated. Yet it was a true
marriage and Mary became a mother, but Joseph was not the father. Mary
was a virgin, nevertheless. This might all pass, as it does in modern
times, as an old tradition which is not worth discussing, but the
mediæval people turned it in every possible direction, and were never
tired of drawing new deductions from it. At last, it consists in simply
affirming two contradictory definitions of the same word at the same
time. There are, in the mythologies, many cases of virgin birth. The
Scandinavian valkyre was the messenger of the god to the hero and the
life attendant of the latter. He loved her, but she, to keep her
calling, must remain a virgin. Otherwise she gave up her divine position
and deathlessness in order to live and die with him.[1331] The notion of
merit and power in renunciation is heathen, not Christian, in origin.
The most revolting application of it was when two married people
renounced conjugal intimacy in order to be holy.
+420. Marriage in early Christianity.+ In the earliest centuries of
Christianity very little attention seems to have been paid to marriage
by the Christians. It was left to the mores of each national group,
omitting the sacrifices to the heathen gods. It is not possible to trace
the descent of Christian marriage from Jewish, Greek, or Roman marriage,
but the best authorities think that its fundamental idea is Jewish
(carnal union), not Roman (jural relations).[1332] "The church found the
solemn ceremonies for concluding marriage existing [in each nation]. No
divine command in regard to this matter is to be found" [in the New
Testament].[1333] The church, in time, added new ceremonies to suit its
own views. Hence there was the same variety at first inside the church
as there had been before Christianity. There can, therefore, be no doubt
that, throughout the Latin branch of the church, the usages and theories
of Roman marriage passed over into the Christian church. Lecky says that
at Rome monogamy was from the earliest times strictly enjoined; and it
was one of the greatest benefits that have resulted from the expansion
of Roman power, that it made this type dominant in Europe.[1334]
Although the Romans had strict monogamy in their early history, they
had abandoned it before their expansion began to have effect, and
monogamy was the rule, in the civilized world, for those who were not
rich and great, quite independently of Roman influence, at the time of
Christ. The Roman marriage of the time of the empire, especially in the
social class which chiefly became Christians, was "free marriage,"
consisting in _consensus_ and delivery of the bride. Richer people added
_instrumenta dotalia_ as documents to regulate property rights, and as
proofs of the marital affection of the groom by virtue of which he meant
to make the bride his wife, not his concubine. The marriage of richer
people, therefore, had a guarantee which had no place between those who
had no occasion for such documents. Life with a woman of good reputation
and honorable life created a presumption of marriage. The church
enforced this as a conscience marriage, which it was the man's duty to
observe and keep.
+421. Marriage in Roman law.+ In the _corpus juris civilis_ there are
two passages which deserve especial attention. In Dig., I, xxiii, 2, it
is said: "Nuptials are a conjunction of a male and a female and a
correlation (_consortium_) of their entire lives; a mutual interchange
(_communicatio_) of rights under both human and divine law." In the
_Institutes_ (sec. I, i, 9) it is said: "Nuptials, or matrimony, is a
conjunction of a man and a woman which constitutes a single course of
life (_individuam vitae consuetudinem_)." These are formulas for very
high conceptions of marriage. They would enter easily into the notion of
pair marriage at its best. The former formula never was, amongst the
Romans, anything but an enthusiastic outburst. Roman man and wife had no
common property; they could make no gifts to each other lest they should
despoil each other; their union, in the time of the empire, was
dissoluble almost at pleasure; the father and mother had not the same
relation to their children; the woman, if detected in adultery, was
severely punished; the man, in the same case, was not punished at all.
The "correlation of their entire lives" was, therefore, very imperfect.
The sense of _individuam vitae consuetudinem_ is very uncertain. It
could not have meant merely the exclusive conjugal relation of each to
the other, although such was the sense given to the words in the church.
The law contained no specification of the mutual rights and duties of
the spouses. These were set by the mores and varied very greatly in
Roman history. _Affectus maritalis_ (the disposition of a husband to a
wife) and _honore pleno deligere_ (to distinguish with complete honor)
are alone emphasized as features of marriage which distinguished it from
concubinage.[1335] Roman jurists took marriage as a fact, for at Rome
from the earliest times, it had been a family matter, developed in the
folkways. The civil law defined the rights which the state regarded as
its business in that connection, and which it would, therefore,
enforce.[1336]
+422. Roman "free marriage."+ The passages quoted in the last paragraph
refer to "free marriage" after the _manus_ idea had been lost. They
could be applied also to the German notion of marriage after the Germans
abandoned the _mund_ idea. They also correspond to the Greek view of
marriage, for in Greece the authority of the father early became
obsolete in its despotic form. From the time of Diocletian the woman who
was _sui juris_ was a subject of the state without intermediary, just as
her brother or husband was, and she enjoyed free disposition of herself.
The same view of marriage passed into the Decretals of Gratian and into
our modern legislation.[1337]
+423. Free marriage.+ At the end of the fourth century A.D. the church
set aside the Roman notions of the importance of the _dos_ and _donatio
propter nuptias_, and made the _consensus_ the essential element in
marriage. This was an adoption of that form of "free marriage" of the
time of the empire which the class from which Christians came had
practiced. That is to say, that the church took up the form of marriage
which had been in the class mores of the class from which the church was
recruited. This is really all that can be said about the origin of
"Christian marriage." It is a perpetuation of the mores of the lowest
free classes in the Roman world. Justinian reintroduced the _dos_ and
_donatio_ for persons of the higher classes who were, in his time,
included in the church. People of the lower class were to utter the
_consensus_ in a church before three or four clergymen, and a
certificate was to be prepared.[1338] The lowest classes might still
neglect all ceremony. This law aimed to secure publicity, a distinct
expression of consent, and a record. There is no reference to any
religious blessing or other function of the clergy. They appear as civil
functionaries charged to witness and record an act of the parties.[1339]
In another novel[1340] all this was done away with except the written
contract about the dower, if there was one.[1341]
+424. Transition from Roman to Christian marriage.+ The ideal of
marriage which has just been described came into the Christian church
out of the Roman world. Roman wedding sacrifices were intended to obtain
signs of the approval of the gods on the wedding. They were domestic
sacrifices only, since the sacred things of the spouses were at home
only. The auspices ceased to be taken at marriages from the time of
Cicero. It became customary to declare that nothing unfavorable to the
marriage had occurred. There are many relief representations of late
Roman marriages on which Juno appears as _pronuba_, a figure of her
standing behind the spouses as protectress or patroness. Rossbach[1342]
thus interprets such a relief: "The bethrothed, with the assistance of
Juno, goddess of marriage, solemnly make the covenant of their love, to
which Venus and the Graces are favorable, by prayer and sacrifices
before the gods. By the aid of Juno love becomes a legitimate marriage."
Rossbach mentions exactly similar reliefs in which Christ is the
_pronuba_, and the transition to Christianity is distinctly presented.
In a similar manner ideas and customs about marriage were brought under
Christian symbol or ceremony, and handed down to us as "Christian
marriage." The origin of them is in the mores of the classes who
accepted Christianity, which were subjected to a grand syncretism in the
first centuries of Christianity.
+425. Ancient German marriage.+ No documents were necessary until the
time of Justinian (550 A.D.), an oral agreement being sufficient, if
probable. There were essential parts of the Roman wedding usages which
were independent of paganism and which were necessarily performed at
home. In the Eastern empire concubinage was abolished at the end of the
ninth century. The heathen Germans had two kinds of marriage, one with,
the other without, jural consequences. Both were marriage. The
difference was that one consisted in betrothal, endowment, and a solemn
wedding ceremony; the other lacked these details. Here, again, it is
worth while to notice that property and rank would very largely control
the question which of these two forms was more suitable. Consequences as
to property followed from the former form which were wanting in the
latter. If the pair had no property, the latter form was sufficient. In
mediæval Christian Germany the canon law obliterated the distinction,
but then morganatic marriage was devised, by which a man of higher rank
could marry a woman of lower rank without creating rights of property or
rank in her or her children. In such a form of marriage the Roman law
saw lack of _affectus maritalis_ and of _deligere honore pleno_; hence
the union was concubinage, not marriage. The German law held that the
intention to marry made marriage, and that property rights were another
matter.[1343] The ancient mores lasted on and kept control of marriage,
and the church, in its efforts to establish its own theories of
marriage, property, legitimacy, rank, etc., was at war with the old
mores.
+426. Early church usage.+ In the Decretals of Gratian[1344] are
collected the earliest authorities about marriage in the Christian
church, some of which are regarded now as ungenuine. "Nevertheless it is
impossible to say that, in the early times of Christianity, there was
any church wedding. Weddings were accomplished before witnesses
independently of the church, or perhaps in the presence of a priest by
the _professiones_." Then followed the pompous home bringing of the
bride. Afterwards the spouses took part in the usual church service and
the sacrament and gave oblations.[1345] Later special prayers for the
newly wedded were introduced into the service. Later still special
masses for the newly wedded were introduced. Such existed probably
before the ninth century.[1346] The declaration of _consensus_ still
took place elsewhere than in church, and not until the rituals of the
eleventh and twelfth centuries does the priest ask for it, or is it
asked for in his presence. In the Greek ritual there has never yet been
any declaration of _consensus_.[1347]
+427. The usage as to religious ceremony.+ The more pious people were,
the more anxious they were to put all their doings under church
sanction, and they sought the advice of honored ecclesiastics as to
marriage. Such is the sense of Ignatius to Polycarp, chapter 5.
Tertullian was a rigorist and extremist, whose utterances do not
represent fact. In our own law and usage a common-law marriage is valid,
but people of dignified and serious conduct, still more people of
religious feeling, do not seek the minimum which the law will enforce.
They seek to comply with the usages in their full extent, and to satisfy
the whole law of the religious body to which they belong. In like
manner, there was a great latitude from the fourth to the sixteenth
century, while the Christian church was trying to mold the barbarian
mores to its own standards in the usages which were current, but an
ecclesiastical function was not necessary to a valid marriage until the
Council of Trent. In fact a wedding in church never was an unconditional
requirement for a valid marriage among German Roman Catholics until the
end of the eighteenth century.[1348] Somewhat parallel cases of the
addition of religious ceremonies to solemn public acts which had been
developed in the mores are the emancipation of a slave, and the making
of a knight.[1349]
+428. Mode of expressing _consensus_.+ If the consent of the parties is
regarded as essential, then the public proceedings must bring out an
expression of will. The ancient German usage was that the friends formed
a circle in which the persons to be married took their place, and the
woman's guardian, later her most distinguished friend, asked them (the
woman first) whether it was their will to become man and wife,--these
terms being defined in the mores. This was a convenient and rational
proceeding, of primitive simplicity and adaptation to the purpose. In
Scandinavia and Iceland the ancient laws contained exact prescriptions
as to the person who might officiate as the conductor of this ceremony.
Relatives of the bride, first on her father's side, then on her
mother's, were named in a series according to rank.[1350] Such a
prolocutor is taken for understood in the _Constitutio de Nuptiis_
(England).[1351] To him the man promises to take the woman to wife "by
the law of God and the customs of the world, and that he will keep her
as a man ought to keep his wife." Evidently these statements convey no
idea of wedlock unless the mores of the time and place are known. They
alone could show how a man "ought to keep his wife." The man also
promises to show due provision of means of support, and his friends
become his sureties. Through the Middle Ages great weight was given to
the provision for the woman throughout her life, especially in case of
widowhood. In fact, a "wife" differed from a mistress by virtue of this
provision for her life. In the _Constitutio de Nuptiis_ it is added,
"Let a priest be present at the nuptials, who is to unite them of right,
with the blessing of God, in full plenitude of felicity."
+429. Marriage at the church door.+ In a French ritual of 700 A.D. the
priest goes to the church door and asks the young pair (who appear to be
walking and wooing in the street) whether they want to be duly married.
The proceedings all concern the marriage gifts, after which there is a
benediction at the church door, and then the pair go into the church to
the mass. A hundred years later the priest asked for the _consensus_,
and statement of the gift from the groom to the bride, and for a gift
for the poor. Then the woman was given _by her father_ or friends.[1352]
+430. Marriage in Germany in the early Middle Ages.+ In the Frank,
Suabian, Westphalian, and Bavarian laws "the woman was entitled to her
dower when she had put her foot in the bed." The German saying was,
"When the coverlet is drawn over their heads the spouses are equally
rich," that is, they have all property of either in common.[1353] Hence,
in German law and custom, _consensus_ followed by _concubitus_ made
marriage. Hence also arose the custom that the witnesses accompanied the
spouses to their bedchamber and saw them covered, or visited them later.
Important symbolic acts were connected with this visit. The spouses ate
and drank together. The guests drove them to bed with blows.[1354] The
witnesses were not to witness a promise, but a fact. In the Carolingian
period, except in forged capitularies, there is very little testimony to
the function of priests in weddings.
The custom of the Jews has been mentioned above (sec. 417).
Selected witnesses were thought necessary to testify at any time
to the consummation of the marriage. In the third century B.C.
this custom was modified to a ceremony.[1355] In ancient India
and at Rome newly wedded spouses were attended by the guests when
they retired.[1356] The Germans had this custom from the earliest
times and they kept it up through the Middle Ages. The jural
consequences of marriage began from the moment that both were
covered by the coverlet. This was what the witnesses were to
testify to. Evidently the higher classes had the most reason to
establish the jural consequences. Therefore kings kept up this
custom longest, although it degenerated more and more into a mere
ceremony.[1357] The German Emperor Frederick III met his bride, a
Portuguese princess, at Naples. The pair lay down on the bed and
were covered by the coverlet for a moment, in the presence of the
court. They were fully dressed and rose again. The Portuguese
ladies were shocked at the custom.[1358] The custom can be
traced, in Brandenburg, as late as the beginning of the
eighteenth century.[1359] English customs of the eighteenth
century to seize articles of the bride's dress were more
objectionable.
The church ceremony, however, won its way in popular usage. It consisted
in blessing the ring and the gifts, and the interest of ecclesiastics
began to be centered on the question whether the persons to be married
were within the forbidden degrees of relationship.[1360] In the _Petri
Exceptiones_ (between 1050 and 1075)[1361] it is expressly stated,
amongst other statements of what does _not_ make a marriage, that it is
not the benediction of the priest, but the mental purpose of the man and
woman. Other things only establish testimony and record. Weinhold[1362]
cites a poem of the eleventh century in which a wedding is described.
After the betrothal is agreed upon by the relatives, and property
agreements have been made, the groom gives to the bride a ring on a
sword hilt, saying, "As the ring firmly incloses thy finger, so do I
promise thee firm and constant fidelity. Thou shalt maintain the same to
me, or thy life shall be the penalty." She takes the ring, they kiss,
and the bystanders sing a wedding song. In a Suabian document of the
twelfth century, the bridegroom is the chief actor.[1363] He lays down
successively seven gloves, the glove being the symbol of the man himself
in his individual responsibility and authority. Each glove is a pledge
of what he promises according to the prescriptions of the Suabian mores,
for which his formula is, "As by right a free Suabian man should do to a
free Suabian woman." He enumerates the chief kinds of Suabian property
and promises to write out his pledges in a _libellus dotis_, if the
bride will provide the scribe. Then the woman's guardian, having
received these pledges, delivers her, with a sword (on the hilt of which
is a finger ring), a penny, a mantle, and a hat on the sword, and says:
"Herewith I transfer my ward to your faithfulness, and to your grace,
and I pray you, by the faith with which I yield her to you, that you be
her true guardian, and her gracious guardian, and that you do not become
her direful guardian." "Then," it is added, "let him take her and have
her as his." This must be a very ancient form, of German origin. There
is no _consensus_ expressed in it and the symbolism is elaborate. The
_libellus dotis_ is evidently an innovation. It has a Latin name and is
a contingent, not a substantive part of the man's acts. The old German
form shows that the Latin church usage had not yet overturned the German
tradition.
+431. The canon law.+ In the Decretals of Gratian[1364] the doctrine of
nuptials is that they begin with the public ceremony and are completed
by _concubitus_. Agreement to cohabit, followed by cohabitation,
constituted marriage by the canon law. This is the common sense of the
case. It was the doctrine of the canon law and is the widest modern
civilized view.
+432. Mediæval marriage.+ In the thirteenth century began the
astonishing movement by which the church remodeled all the ideas and
institutions of the age, and integrated all social interests into a
system of which it made itself the center and controlling authority. The
controlling tendency in the mores of the age was religiosity,--a desire
to construe all social relations from the church standpoint and to set
all interests in a religious light. Marriage fell under this influence.
The priests displaced the earlier prolocutors, and strove to make
marriage an ecclesiastical function and their own share in it essential,
although they did not make the validity of marriage depend on their
share in it.[1365] In different places and amongst different classes the
custom of church marriage was introduced at earlier or later times, and
the doctrine of priestly function in connection with marriage became
established with greater or less precision. Friedberg[1366] considers
the ordinance of the Synod of Westminster[1367] (1175) the first
ordinance which distinctly prescribed church marriage in England, but
from that to the establishment of a custom was a long way. Pollock and
Maitland[1368] think that marriage, in England, belonged to the
ecclesiastical forum by the middle of the twelfth century. Rituals of
Salisbury and York of the thirteenth century show the early church
customs, only rendered more elaborate and more precise in detail.[1369]
There is also ritual provision for an ecclesiastic to bless the bed of
the spouses after they are in it, in order to drive away the evil
spirits. In 1240, in the constitutions of Walter de Cantelupe, marriage
is called a sacrament, because it prefigures the sacrament between
Christ and the church. Marriage was to precede _concubitus_. There was
to be no divination or use of devices for luck. By synodal statutes of
1246 it was ordered that priests should teach that betrothal and
consummation would constitute irrevocable marriage.[1370] If people
treated church ordinances and forms with neglect they were punished by
church discipline, but the marriage was not declared invalid. Hence the
system was elastic and could not be abruptly changed.
+433. Conflict of mores and church programme. Betrothal and wedding.+ In
Germany the popular resistance to a change of the mores about marriage
was more stubborn than elsewhere. Although ecclesiastics were present at
marriages, until the thirteenth century, they sometimes took no
part.[1371] In the poems, from the beginning of the twelfth century,
mention is made of priestly benediction; still it remains uncertain
whether this took place before or after _concubitus_. In the great epics
of the thirteenth century the old custom of the circle of friends and
the interrogatories by a distinguished relative appears. The couple
spend the night together and on the following morning go to church where
they are blessed.[1372] This is the proceeding in Lohengrin. In the
thirteenth century the prolocutor was going out of fashion and the
ecclesiastic got a chance to take his place.[1373] Evidently there was
here an ambiguity between the betrothal and the wedding. It took two or
three centuries to eliminate it. When the man said, "I will take," did
he mean, "It is my will to take now," or did he mean, "I will take at a
future time"? Sohm[1374] says that betrothal was the real conclusion of
a marriage, and that the wedding was only the confirmation (_Vollzug_)
of a marriage already consummated. Friedberg[1375] says that the wedding
was the conclusion of a projected marriage and not the consummation of
one already concluded. When there was a solemn public betrothal and then
a wedding after an interval of time, the latter was plainly a repetition
which had no significance. What happened finally was that the betrothal
fell into insignificance, or was united with the wedding as in the
modern Anglican service, and _concubitus_ was allowed only after the
wedding. The wedding then had importance, and was not merely a blessing
on a completed fact. It was then a custom in all classes to try life
together before marriage (_Probenächte_). In the fifteenth century, if
kings were married by proxy, the proxy slept with the bride, with a
sword between, _before_ the church ceremony.[1376] The custom to
celebrate marriages without a priest lasted, amongst the peasants of
Germany, until the sixteenth century.[1377] "It was, therefore,
customary [in the thirteenth century] to have the church blessing, but
generally only after consummated marriage. The blessing was not
essential, but was considered appropriate and proper, especially in the
higher classes. In the fourteenth century the ecclesiastical form won
more and more sway over the popular sentiment."[1378]
+434. Church marriage. Concubines.+ It is necessary to notice that there
is never any question of the status of men. They satisfy their interests
as well as they can and the result is the stage of civilization. The
status of women is their position with respect to men in a society in
which men hold the deciding voice. Men bear power and responsibility.
Women are the coadjutors, with more or less esteem, honor, coöperative
function, and joint authority. There has never until modern times been a
law of the state which forbade a man to take a second wife with the
first. A man could not commit adultery because he was not bound, by law
or mores, to his wife as she was to him. A man and woman marry
themselves and lead conjugal life in a world of their own. Church and
state would be equally powerless to marry them. The church may "bless"
their union. The state may define and enforce the civil and property
rights of themselves or their children. It cannot enforce conjugal
rights. Therefore it cannot divorce two spouses. They divorce
themselves. The state can say what civil and property right shall be
affected by the divorce, and how the force of the state shall enforce
the consequences. The marriage relation is domestic and private, where
the wills of the individuals prevail and where the police cannot act.
The Christian church, about the thirteenth century, introduced a
marriage ritual in which the spouses promised exclusive fidelity, the
man as much as the woman. As fast and as far as church marriage was
introduced, the promise set the idea of marriage. If either broke the
promise, he or she was liable to church censure and penance. In England
the first civil law against bigamy was I James I, chapter 11. Never
until 1563 (Council of Trent) was any ecclesiastical act necessary to
the validity of a marriage even in the forum of the church. Marriage was
in the mores. The blessing of the church was edifying and contributory.
It was not essential. Marriage was popular and belonged to the family.
In the ancient nations sacrifices were made for good fortune in wedlock.
In the Middle Ages Christian priests blessed marriages which had been
concluded by laymen and had already been consummated. The relation of
husband and wife varied, at that time, in the villages of Germany or
northern France of the same nationality. Until modern times concubinage
has existed as a recognized institution. It was an inferior form of
marriage, in which the woman did not take the rank of her husband, and
her children did not inherit his rank or property, but her status was
permanent and defined. Sometimes it was exclusive. Then again slaves
have been at the mercy of a master and in ancient times they were always
proud to "find favor in his eyes." Thus wives, concubines, and slave
women form three recognized ranks of female companions.
+435. The church elevated the notion of marriage.+ In all the ancient
civilized states marriage was an affair of property interests and rank.
The public ceremony was needed in order to establish rights of property
and inheritance, legitimacy, and civil rights. The Christian church of
the Middle Ages had to find a ground for its own intervention. This it
did by emphasizing the mystic element in marriage, and developing all
the symbolism of the Bible which could be applied to this subject and
all the biographical details which touched upon it,--Adam and Eve,
Tobias, Joseph and Mary, the one-flesh idea, the symbolism of Christ and
the church, etc. Thus a sentimental-poetical-mystical conception of
marriage was superimposed on the materialistic-sensual conception of
it. The church affirmed that marriage was a "sacrament." A half-dozen
different explanations of "sacrament" in this connection could be
quoted. It is impossible to tell what it means. The church, however, by
its policy, contributed greatly to the development of the nobler
conception of marriage in modern mores. The materialistic view of it has
been left decently covered, and the conception of wedlock as a fusion of
two lives and interests into affectionate coöperation, by the sympathy
of character and tastes, has become the ideal. The church did much to
bring about this change. For an age which attributed a vague and awful
efficacy to a "sacrament," and was familiar, in church matters, with
such parallelisms as that alleged between marriage and the union of
Christ with his church, it is very probable that the church "fostered a
feeling that a lifelong union of one man and one woman is, under all
circumstances, the single form of intercourse between the sexes which is
not illegitimate; and this conviction has acquired the force of a primal
moral intuition."[1379] What has chiefly aided this effect has been the
rise to wealth and civil power of the middle class of the later Middle
Ages, in whose mores such views had become fixed without much direct
church influence.
+436. The decrees of Trent about marriage.+ It was not until the decrees
of Trent (1563) that the church established in its law the sacerdotal
theory of marriage in place of the theory of the canon law. The motive
at Trent was to prevent clandestine marriages, that is, marriages which
were not made by a priest or in church. These marriages were common and
they were mischievous because not to be proved. They made descent and
inheritance uncertain when the parties belonged to families of property
and rank. In form, the decrees of Trent provided for publicity. Marriage
was to be celebrated in church, by the parish priest, and before two
witnesses. This action was not in pursuance of a change in the mores. It
was a specific device of leading churchmen to accomplish an object. In
view of the course of the mores, it may be doubted if any effect ought
to be attributed to the decrees of Trent for their immediate purpose,
but two effects have been produced which the churchmen probably did not
foresee. First, it became the law of the church that the consent of a
man and a woman, expressed in a church before the parish priest,
constituted a marriage without any voluntary participation of the
priest. The Huguenots in France, for more than a century, married
themselves in this way, a notary being employed to make a record and
certificate. Secondly, this law became the great engine of the church to
hold its children to their allegiance and prevent mixed marriages. To
win the consent of the parish priest to perform the ceremony the parties
must conform to church requirements,--confession and communion. The
seventeenth and eighteenth centuries were occupied by struggles of
living men to regulate their interests in independence of these
restraints.
+437. Puritan marriage.+ The Puritan sects made marriage more secular,
as the Romish Church made it more ecclesiastical. Although they liked to
give a religious tone to all the acts of life, the Puritans took away
from marriage all religious character. It was performed by a civil
magistrate. Such was the rule in New England until the end of the
seventeenth century. However, there was, in this matter, an
inconsistency between the ruling ideas and the partisan position, and
the latter gave way. There has been a steady movement of the mores
throughout the Protestant world in the direction of giving to marriage a
religious character and sanction. It has become the rule that marriages
shall be performed by ministers of religion, and the custom of
celebrating them in religious buildings is extending. The authority and
example of the church of Rome have had nothing to do with this tendency.
They are not even known. It has been purely a matter of taste,
sentiment, and popular judgment as to what is right and proper; also it
has been due to the ideas of women in regard to suitable pomp and glory.
The mores have once more taken full control of the matter, and the
religious ceremony is used to satisfy the interests, and fulfill the
faiths, of the population. Such is the effect of civil marriage as
established in the nineteenth century. At the present time the
ministers of religion seem disposed to use their lawful position as the
proper ones to celebrate marriage, that they may impose restrictions on
divorce, and on marriage after divorce.
[1324] Maspero, _Peuples de l'Orient_, I, 736.
[1325] Bergel, _Eheverhält. der Juden_, 19.
[1326] Deut. xxii. 29.
[1327] Freisen, _Gesch. des kanon. Eherechts_, 848.
[1328] Freisen, _Gesch. des kanon. Eherechts_, 23, 47, 92-96.
[1329] Lippert, _Kulturgesch._, II, 520.
[1330] Wilkins, _Concilia_, 20.
[1331] Wisen, _Qvinnan i Nordens Forntid_, 7.
[1332] Freisen, _Gesch. des kanon. Eherechts_, 154.
[1333] _Ibid._, 121.
[1334] _Eur. Morals_, II, 298.
[1335] Cf. Freisen, 26.
[1336] Rossbach, _Röm. Ehe._, 9.
[1337] _Ibid._, 62.
[1338] _Novel._, LXXIV, c. 4, sec. 1 (537 A.D.).
[1339] Cf. _Nov._, XXII, c. 3.
[1340] CXVII, c. 4.
[1341] Friedberg, 14-16.
[1342] _Röm. Hochzeits und Ehedenkmäler_, 49, 107.
[1343] Freisen, 48, 103; Grimm, _D. R. A._, 420.
[1344] II, c. XXX, qu. 5, c. 1.
[1345] Pullan, _Hist. Book of Common Prayer_, 217.
[1346] Friedberg, _Recht der Eheschliessung_, 8.
[1347] _Ibid._, 9.
[1348] Stammler, _Stellung der Frauen_, 27.
[1349] Jenks, _Law and Politics in the Middle Ages_, 251.
[1350] Lehmann, _Verlobung und Hochzeit nach den nordgermanischen
Rechten des früheren M. A._, 31.
[1351] Wilkins, _Concilia_, I, 216 (644 A.D.).
[1352] Friedberg, 61.
[1353] Freisen, 118.
[1354] Friedberg, 23.
[1355] Freisen, _Kanon. Eherecht_, 92, 96; Bergel, _Eheverhält.
der Juden_, 19.
[1356] Rossbach, _Röm. Ehe_, 370.
[1357] Weinhold, _D. F._, I, 399.
[1358] _Gesch. Fried. III_, by Æneas Silvius, trans. Ilgen, II,
95.
[1359] Friedberg, _Recht der Eheschliessung_, 23.
[1360] Friedberg, 58.
[1361] Savigny, _Gesch. des Röm. Rechts im M. A._, II, _Append._
[1362] _Deutsche Frauen_, I, 341.
[1363] _Rhein. Mus._, 1829, 281.
[1364] II, c. XXVII, qu. 2, and c. XXXIV.
[1365] Friedberg, 98.
[1366] _Ibid._, 39.
[1367] Wilkins, _Concilia_, I, 478.
[1368] _Hist. Eng. Law_, I, 109; II, 365.
[1369] Surtees Soc., _Man. et Pont. Ecc. Ebor._, 157, and App.
17.
[1370] Wilkins, I, 668, 690.
[1371] Friedberg, 79.
[1372] _Nibelungen_, 568-597.
[1373] Weinhold, _D. F._, I, 373.
[1374] _Trauung und Verlobung_, 37.
[1375] _Verlobung und Trauung_, 23.
[1376] Friedberg, 90.
[1377] Hagelstange, _Bauernleben im M. A._, 61.
[1378] Friedberg, 85; cf. Weinhold, _D. F._, I, 378; Grimm, _D.
R. A._, 436.
[1379] Lecky, _Eur. Morals_, II, 347.