legal history we have been tracing, the comparatively sudden passage
from a system of extreme strictness—under which the wife’s personality,
with her whole right of property, became absolutely merged in that of
her husband—to a system in which the two personalities remained quite
distinct, united only by the rights which each had in matrimonial
property, rights which were however not rights of joint-management, but
exerciseable (subject to limitations) by the husband alone so long as
the marriage lasted, while the reversion was secured to the wife or her
relatives. It is hardly less noteworthy that these two contrasted
systems did for a considerable time exist side by side; and for a
century, or perhaps more, must both have been in full vigour, though the
freer system was obviously gaining ground upon the older and more
stringent one.
Another fact, though more easily explicable, is also worth noting. In
its earlier stages the Roman marriage bore a religious character, for we
can hardly doubt that in primitive times Confarreation, the old
patrician form with the sacrifice and the holy cake, was practically
universal among the original citizens, before the _plebs_ came into a
separate and legally recognized existence. Hence perhaps it is that
marriage is described, even when that description had ceased to have the
old meaning, as a ‘sharing of all rights, both religious and secular.’
In its middle period, which covers some five centuries, it was a purely
civil relation, not affected, in its legal aspects, by any rules
attributable to a theological or superstitious source. But when
Christianity became the dominant faith of the Empire, the view which the
Gospel and the usages as well as the teaching of the Church had
instilled began thenceforward to influence legislation. These usages did
not indeed, down till the eighth century, transform the fundamental
conception of marriage as a tie formed solely by consent, and needing
the intervention neither of State nor of Church. But they worked
themselves into the doctrines of the Church in such wise that, in later
days, they succeeded in making matrimony so far a sacred relation as to
give it an indissoluble character, and not only restricted the circle of
persons between whom it could lawfully be contracted, but abolished the
power of terminating it by the mere will of the parties.
XI. MARRIAGE UNDER THE CANON LAW.
When direct legislation by the State came to an end in Western Europe
with the disappearance of the effective power of the Emperors in the
fifth and sixth centuries, the control of marriage began to fall into
the hands of the Church and remained there for many generations. To pass
from the civil law of Rome to the ecclesiastical law of the Dark and
Middle Ages is like quitting an open country, intersected by good roads,
for a tract of mountain and forest where rough and tortuous paths
furnish the only means of transit. It would be impossible within the
limits of this Essay to describe that law, which is copious, and
embarrassed by not a few controverted points. All that it seems
necessary to say here is that the Canon Law, which was collected and
codified in the thirteenth and fourteenth centuries, so far adhered to
the established Roman doctrine as to recognize, down till the Council of
Trent, the main principle that marriage requires nothing more than the
free consent of the parties, expressed in any way sufficient to show
that the union which they contemplate is to be a permanent and lawful
union. Marriage no doubt became, in the view of the mediaeval Church, as
of the Roman Church to-day, a sacrament, but it is a sacrament which the
parties can enter into without the aid of a priest. Their consent ought,
no doubt, in the view of the Church and of Canon law, to be declared
before the priest and to receive his benediction. It is only marriages
‘in the face of the Church’ that are deemed ‘regular’ marriages[197],
and the Fourth Lateran Council under Innocent the Third directed the
publication of banns. But the irregular marriage is nevertheless
perfectly valid. It is indissoluble (subject as hereinafter mentioned),
and the children born in it are legitimate. A good ground for this
indulgence may be found not only in Roman traditions, but also in the
fact that the Church was anxious to keep people out of sin and to make
children legitimate, so that it always presumed everything it could in
favour of lawful matrimony.
-----
Footnote 197:
See Lord Stowell’s famous judgement in _Lindo_ v. _Belisario_
(_Consist. Cases_, p. 230), where he examines in an interesting way
the requisites of marriage under the ‘law of nature.’
-----
This view prevailed, and may be said to have been the common law of
Christendom, as it had been of the old Roman Empire, down till the
Council of Trent[198]. That assembly, against the strong protests of
some of its members, passed a decree (Sessio XXIV, cap. i, _De
Reformatione Matrimonii_) which, after reciting that clandestine
marriages had been held valid, though blameworthy, declared that for the
future all should be deemed invalid unless they took place in the
presence of a priest and of two or three witnesses. Apparently it was
not so much for the sake of securing the blessing of the Church upon
every marriage as in order to prevent the scandals which had arisen from
the breach of a tie contracted in secret that the change, a grave and
memorable change, was made. This great Council, which was intended to
secure the union of Christendom under the See of Rome, really
contributed to intensify the separatist forces then at work: and from it
onwards one can no longer speak of a general marriage law even for
Western Europe. Custom and legislation took thenceforward different
courses, not only as between Protestant and Roman Catholic nations, but
even as between different Protestant nations, there being no common
ecclesiastical authority which Protestant States recognized. Thus the
era of the Reformation is an era as marked in the history of marriage
law as was the era of Constantine, when Christianity began to be
dominant in the Roman Empire. And we shall see, when we return to the
subject of divorce, that this is even more strikingly the case as
regards the dissolubility of marriage than as regards the mode of
contracting it.
-----
Footnote 198:
Canon VII of Session XXIV anathematizes those who deny the teaching of
the Church that the adultery of one spouse does not dissolve the
_vinculum matrimonii_, and Canon X those who deny that it is better
and happier to remain in a state of virginity or celibacy.
-----
Before passing on to sketch the legal history of the institution in
England—since it is impossible to find space here for an account of its
treatment in the laws of other European States—it is well to note what
had been the general tendency of the customary law of the Middle Ages
upon the character of the marriage relation.
One may sum up that tendency by saying that it had virtually expunged
the free and simple marriage of the Romans under the later Republic and
the Empire, and had substituted for it a system more closely resembling
that of the religious marriage with Hand power of early Rome. The
ceremony had practically become a religious one, though till the Council
of Trent a religious service was not absolutely essential to its
validity. The relation had become indissoluble, except by the decree of
the Pope, who in this, as in some other respects, practically filled the
place of the old Roman Pontifex, though of course both confarreation and
the pontiff had been long forgotten[199]. It carried with it an
absorption of the personality of the English wife into that of the
husband, whereby all her property passed to him and she became subject
to his authority and control. These conditions were the result partly of
Teutonic custom, partly of the rudeness of life and manners; and such
check as was imposed on them came from the traditions of the Roman law,
and from the favour which the Canon law, much to its credit, showed to
the wife. Of this favour some have found a trace in the phrase that
occurs in the ‘Form for the Solemnization of Matrimony’ in the liturgy
of the Church of England, where the bridegroom is required to say to the
bride, ‘with all my worldly goods I thee endow’; although, in point of
fact, the law of England gives to the bride only a very limited (and now
easily avoidable) right to one-third of the husband’s real estate after
his death[200].
-----
Footnote 199:
The pontifices had a certain oversight over the sacred marriage by
_confarreatio_, and their action was needed to effect a _diffareatio_,
when it was desired to extinguish the _manus_ of the husband over a
divorced wife.
Footnote 200:
Others think that this expression, which would seem to refer not to
real property but to chattels, is a relic of ancient Teutonic custom.
As is observed by Messrs. Pollock and Maitland (_History of English
Law_, vol. ii. p. 401), we must not assume that, from the days of
savagery down to our own, all changes have been in favour of women.
They had apparently more power over their own property in Anglo-Saxon
times than in the thirteenth century.
-----
XII. THE ENGLISH LAW OF MARRIAGE.
The influence of the Roman system was, of course, less in England than
in countries where, as in France and Italy, the Roman law had maintained
itself in force, either as written law or as the basis of customary law.
But now that we come to consider the course which the English law of
marriage has taken, let us note that this law has flowed in two distinct
channels down till our own time. So much of it as pertained to the
marriage relation itself, that is to say, to the capacity for
contracting marriage (including prohibited degrees), to the mode of
contracting it, and to its dissolution, complete or partial, belonged to
the canon or ecclesiastical law and was administered in the spiritual
courts. So much of it as affected the property rights of the two parties
(and especially rights to land) belonged to the common law and was
administered in the temporal courts. This division, to which there is
nothing parallel in the classical Roman law, was of course due to the
fact that mediaeval Christianity, regarding marriage as a sacrament,
placed it under the control of the Church and her tribunals in those
aspects which were deemed to affect the spiritual well-being of the
parties to it. Nevertheless the line of demarcation between the two
sides was not always, and indeed could hardly be, sharply or
consistently drawn. The ecclesiastical courts had a certain jurisdiction
as regards property. The civil courts were obliged, for the purposes of
determining the right of a woman to dower and the rights of intestate
succession, to decide whether or no a proper and valid marriage had been
contracted. Their regular course apparently was to send the matter to
the bishop’s court, and act upon the judgement which it pronounced. But
this was not always done. They often had to settle the question for
themselves, applying, no doubt, as a rule the principles which the
bishop’s court would have followed, and (as has been explained by the
latest and best of our English legal historians[201]) they often evaded
the question of whether there had been a canonically valid marriage by
finding that, as a matter of fact, the parties had been generally taken
to have been duly wedded, and by proceeding to give effect to this
finding.
-----
Footnote 201:
Messrs. Pollock and Maitland, in their admirable _History of English
Law_, to which the reader curious in these matters may be referred.
-----
The ecclesiastical lawyers were not successful in their treatment of
such questions as fell within their sphere. The effort to base legal
rules on moral and religious principles leads naturally to casuistry,
and away from that common-sense view of human transactions and
recognition of practical convenience which ought to be the basis of law.
They multiplied canonical disabilities arising whether from
pre-contract, a matter to which they gave a far greater importance than
had previously belonged to it, or from relationship, either of
consanguinity or of affinity; and they indeed multiplied these
impediments to such an extent as to make the capacity of any two parties
to enter into matrimony matter of doubt and uncertainty, giving wide
opportunities for chicane, and an almost boundless scope for the
interposition of the Roman Curia, whose sale of dispensations became a
fertile and discreditable source of revenue. Their treatment of divorce
will be presently examined. In their zeal to keep Christian people out
of sin they recognized many clandestine unions as valid, though
irregular, marriages, while at the same time applying strict rules of
evidence which practically withdrew much of the liberty that had been
granted by the lax theory of what constituted a marriage. These tangled
subtleties regarding pre-contracts and prohibited degrees were at the
time of the Reformation swept away by a statute of 1540 (32 Henry VIII,
c. 38), which declared that all marriages should be lawful which were
‘not prohibited by Goddis lawe,’ and that ‘no reservation or
prohibition, Goddis lawe except, shall trouble or impeche any marriage
without the Levitical degrees.’
Two principles, however, remained unaffected by the legislation of this
period in England. The one was the indissolubility of marriage, a topic
to which I shall presently return. The other was the freedom of entering
into it, consent, and consent alone, being still all that was necessary
to make a marriage valid[202]. England, of course, did not recognize the
decrees of Trent, so the old law continued in force after that Council,
though motives like those which had guided the Council induced the
ecclesiastical courts to lean strongly in favour of the almost universal
practice of marrying before a clergyman, and to require in all other
cases very strict evidence that a true consent, directed to the creation
of lawful matrimony, had in fact been given. Moreover, where the
marriage had been irregular, the spiritual courts might compel its
celebration in the face of the Church. So things went on, with much
uncertainty and some confusion between the act needed to constitute
marriage and the evidence of that act, till the middle of the eighteenth
century, when a statute was passed in A.D. 1753 (26 Geo. II, c. 33)
which required all marriages to be celebrated by a clergyman and in a
church (unless by dispensation from the Archbishop of Canterbury), and
prescribed other formalities[203]. These provisions remained in force
(except as to Jews and Quakers) until 1836, when a purely civil marriage
before a Registrar was permitted as an alternative to the ecclesiastical
ceremony[204]. During the Commonwealth marriages had been contracted
before justices of the peace, but the Restoration legislation, while
validating the marriages so formed, abolished the practice. The old law
remained in Ireland, and that was how the question what kind of marriage
ceremony was required by the common law came before the House of Lords
in the famous case of _Reg._ v. _Millis_, which was an Irish appeal, and
the decision in which, declaring that by the common law the presence of
a clergyman was required to make a marriage valid, seems to have been
erroneous.
-----
Footnote 202:
The House of Lords was equally divided upon this point in the case of
_Reg._ v. _Millis_, in 1843; but historical inquiry tends to confirm
the view of Lord Stowell, that the presence of a clergyman was not
essential (see _Dalrymple_ v. _Dalrymple_, 2 Haggard, p. 54).
Footnote 203:
The English Dissenters soon began to complain of this Act, as they
were thenceforth (until 1836) obliged to be married in church. Charles
James Fox used to denounce the Act as ‘contrary to the Law of Nature.’
Footnote 204:
A civil marriage is not, however, compulsory in England as it is in
France and some other continental countries. In Scotland it has now
become fashionable for Presbyterians to be wedded in church, but the
Scottish law, as every one knows, does not prescribe either a
clergyman or a registrar.
-----
XIII. PROPERTY RELATIONS OF THE CONSORTS UNDER ENGLISH LAW.
Now let us turn to the effect of marriage in the law of England upon the
property and the personal rights of the wife.
That effect has generally been described as making the two consorts one
person in the law. Such they certainly were for some purposes under the
older Common Law of England. The husband has the sole management of all
the property which the wife had when married, or which she subsequently
received or earned by her exertions. In acquiring all her property he
becomes also liable for the debts which she owed before marriage, but
after marriage he has not to answer for any contract of hers, because
her agreements do not bind him except for necessaries. He is, moreover,
liable for wrongs done by her. He cannot grant anything to her, or
covenant with her; and if there was any contract between him and her
before marriage, it disappears by her absorption into his personality.
She can bring no action without joining him as plaintiff, nor can she be
sued without joining him as defendant. She cannot give evidence for or
against him (save where the offence is against herself); and if she
commit a crime (other than treason or murder) along with him, she goes
unpunished (though for crimes committed apart from him she may be
prosecuted), on the hypothesis that she did it under his compulsion. So
in a case, in the thirteenth century, where husband and wife had
produced a forged charter, the husband was hanged and the wife went
free, ‘because she was under the rod of her husband’ (_quia fuit sub
virga viri sui_[205]).
-----
Footnote 205:
Pollock and Maitland, vol. ii. ch. vii. p. 404 (quoting Bracton, 429
b).
-----
But this theory of unity is not so consistently maintained as was the
similar theory of the Romans regarding the marriage with Hand power. For
the wife’s consent to legal acts may be effectively given where she has
been separately examined by the Court to ascertain that her consent is
free; and even the fact that she must be joined in legal proceedings
taken by or against her shows that she has a personality of her own,
whereas under the Roman _manus_ she was wholly sunk in that of her
husband. Thus it is better not to attempt to explain the wife’s position
as the result of any one principle, but rather to regard it as a
compromise between the three notions of absorption, of a sort of
guardianship, and of a kind of partnership of property in which the
husband’s voice normally prevails.
As respects her personal safety, she was better off than the Roman wife
of early days, for the husband could punish the latter apparently even
with death, after holding the domestic council, whereas the English
husband could do no more than administer chastisement, and that only to
a moderate extent. The marital right of chastisement seems to have been
an incident to marriage in many rude societies. A traveller among the
native tribes of Siberia relates that he found a leather whip usually
hung to the head of the conjugal bed, almost as a sort of sacred symbol
of matrimony; and he was told that the wife complained if her husband
did not from time to time use the implement, regarding his neglect to do
so as a sign of declining affection. And it would seem that this notion
remains among the peasantry of European Russia to this day[206].
-----
Footnote 206:
Kovalevsky, _Modern Customs and Ancient Laws of Russia_, p. 44.
-----
Everybody has heard of the odd habit of selling a wife which still
occasionally recurs among the humbler classes in England; and most
people suppose that it descends from a time when the Teutonic husband
could sell his consort, as the Roman one apparently could in the days of
Hand power. There is, however, no trace at all in our law of any such
right[207], though a case is reported to have arisen in A.D. 1302, when
a husband granted his wife by deed to another man, with whom she
thereafter lived in adultery[208].
-----
Footnote 207:
My friend Mr. F. W. Maitland, whose authority on these matters is
unsurpassed, informs me that he knows of no such trace. The practice,
however, seems to have been not uncommon. Several instances of the
sale of a wife by auction, sometimes along with a child, are reported
from Kent between 1811 and 1820.
Footnote 208:
See Pollock and Maitland, vol. ii. p. 395.
-----
The compensation given to the English wife for the loss (or suspension
during the marriage) of her control over her property is to be found in
her right of Dower, that is, of taking on her husband’s death one-third
of such lands as he was seised of, not merely at his death, but at any
time during the marriage, and which any issue of the marriage might have
inherited. As this right interfered with the husband’s power of freely
disposing of his own land, the lawyers set about to find means of
evading it, and found these partly in legal processes by which the wife,
her consent being ascertained by the courts, parted with her right,
partly by an ingenious device whereby lands could be conveyed to a
husband without the right of dower attaching to them, partly by giving
the wife a so-called jointure which barred her claim. The wife has also
a right, which of course the husband can by will exclude, of succeeding
in case of intestacy to one-third of his personal property, or, if he
leave no issue, to one-half.
This state of things hardly justifies the sleek optimism of Blackstone,
who closes his account of the wife’s position by observing, ‘even the
disabilities which the wife lies under are, for the most part, intended
for her protection and benefit. So great a favourite is the female sex
of the laws of England.’ The Romans, although they allowed to women a
fuller independence, were more candid when they said: ‘In many points of
our law the condition of the female sex is worse than that of the male.’
XIV. GRADUAL AMENDMENT OF THE ENGLISH MATRIMONIAL LAW.
However, the Courts of Equity ultimately set themselves in England to
improve the wife’s condition. They recognized some contracts and grants
between husband and wife. They allowed property to be given to trustees
for the sole and separate use of a wife; and if it was given to her with
an obvious intent that it should be for her exclusive benefit, they held
the husband, in whom by operation of the general law it would vest, to
be a trustee for the wife. When during marriage there came to a wife by
will or descent any property of which the husband could obtain
possession only by the help of a Court of Equity, they required him to
settle a reasonable part of it upon the wife for her separate use. And
in respect of her separate property, they furthermore permitted the wife
to sue her husband, or to be sued by him. While these changes were in
progress, there had grown up among the wealthier classes the habit of
making settlements on marriage which secured to the wife, through the
instrumentality of trustees, separate property for her sole use, and
wherever a woman was a ward of Court, the Court insisted, in giving its
consent to the marriage, that such a settlement should be made for her
benefit.