Part 2 — CHAPTER VIII RISE OF ECCLESIASTICAL MARRIAGE: THE CHURCH DEVELOPS AND ADMINISTERS MATRIMONIAL LAW

[Bibliographical Note VIII.—For the evolution of the canonical theory of marriage the Richter-Friedberg Corpus juris canonici (Leipzig, 1881 ff.), Peter Lombard's Sententiae (Incunabula, Textus sententiarum, 1488, Sutro Library), and the Ante-Nicene Fathers (Buffalo, 1885-87) are of the first importance. The collections of Haddan and Stubbs, Thorpe, Schmid, Hale, and Johnson, mentioned in Bibliographical Note VII, are available for this chapter; as are also the collections of Richter-Schulte, Theiner, and Waterworth, the works of Sarpi and Pallavicino, the monographs of Salis, Fleiner, Riedler, and Leinz, the papers of Meurer and Schulte, with the other authorities already cited for the Council of Trent. Well-known treatises on the canon law are Lyndwood, Provinciale (ed. of 1505 and Oxford, 1679); Sanchez, Disputationum de s^to matrimonii sacramento (Venice, 1625); and Godolphin, Repartorium canonicum (3d ed., London, 1687). With these may be used Smith, Elements of Ecclesiastical Law (New York, 1882); Phillimore, Ecclesiastical Law (London, 1873-76); Stephens, Laws Relating to the Clergy (London, 1848); Burn, Ecclesiastical Law (London, 1842); and the excellent summary of Geary, Marriage and Family Relations (London, 1892), chap, xvi, where the principal sources are mentioned. Dodd's History of the Canon Law (London, 1884) is too general to be of much service. A good handbook of Catholic doctrine, with full citation of authorities, is Gury's Compendium of Moral Theology; and in this connection may also be consulted Amat's convenient Treatise on Matrimony (San Francisco, 1864); the works of Cigoi, Didon, Roskovány, Perrone, and Scheicher-Binder described in Bibliographical Note XI.

The rise of the system of enforced celibacy of the clergy, with the consequent evils, is most fully treated by the brothers Theiner, Die Einführung der erzwungenen Ehelosigkeit (3d ed., Barmen, 1891-98), whose book, first published in 1828, has been fiercely attacked by Catholic critics; and Lea, Sacerdotal Celibacy (2d ed., Boston, 1884); supplemented by his History of Auricular Confession and Indulgences in the Latin Church (Philadelphia, 1896). The immorality of the mediæval clergy is also described by Bouvet, De la confession et du célibat des prêtres (Paris, 1845); Gage, Woman, Church, and State (Chicago, 1893); idem, an article under the same title in History of Woman Suffrage (New York, 1881); Lecky, History of European Morals (3d ed., New York, 1881); and Huth in the third chapter of Marriage of Near Kin (2d ed., London, 1887). For a later period the subject is dealt with by Michelet, Le prêtre, la femme, et la familie (new ed., Paris, 1889); and "A. F. R.," Betrachtungen über den Klerikal- und Mönchsgeist im neunzehnten Jahrhundert (1805). In this connection see also Bucksisch, De apostolis uxoratis (new ed., Wittenberg, 1734); Essich, De clericis maritis dissertatio historica (Augusta Vindelicorum, 1747); Feyerabend, De privilegiis mulierum (Jena, 1667); Recherches philosophiques et historiques sur le célibat (Geneva, 1781); De l'institution du célibat (Paris, 1808); Klitsche, Geschichte des Cölibats ... zum Tode Gregor's VII. (Augsburg, 1830); Lind, De coelibatu christianorum per tria priora secula (Havniae, 1839); the anonymous Letters on the Constrained Celibacy of the Clergy (London, 1816); Zimmermann, Der Priester-Cölibat (Kempten, 1899), presenting the loyal Catholic point of view; and the monograph of Schulte, Der Cölibatszwang und dessen Aufhebung (Bonn, 1876). A favorable view of the conventual life is taken by Eckenstein, Woman under Monasticism (Cambridge, 1896); and curious monuments of the contempt for woman produced by asceticism are the books of Valens Acidalius and his adversary Simon Geddicus, mentioned in a footnote below. For the controversy in France regarding the validity of the marriage of a priest under the temporal law see Nachet, Liberté du mariage des prêtres: Mémoire produit à la Cour de Cassation pour M. Dumonteil (Paris, 1833); and Horoy, Du mariage civil du prêtre en France (Paris, 1890).

The manifold evils arising from the canonical distinction between sponsalia de praesenti vel futuro are best described in the vigorous words of Martin Luther. In particular should be read the thirty-sixth chapter of the Tischreden (folio, Frankfort, 1571), and the Von Ehesachen: Werke, XXIII (Erlangen ed.) or Vol. V in Bücher und Schriften (Jena, 1555-80). The quaint and learned book of Swinburne, Of Spousals (London, 1686), contains a striking passage bearing on the subject; while for the mediæval English law should be consulted Glanville's Tractatus; Bracton's De Legibus (ed. Twiss, London, 1878-83); idem, Note Book (ed. Maitland, London, 1887); and Maitland's Select Pleas of the Crown. With Sohm's view as to the essential identity in form of the two kinds of sponsalia compare the various works of Biener, Bierling, Sehling, Scheurl, and Dieckhoff mentioned in Bibliographical Note VII. The text of Master Vacarius's Summa de matrimonio is edited by Maitland in Law Quarterly Review, XIII (London, 1897); and in the same volume he discusses Vacarius's theory of marriage, differing essentially from that of Gratian or Lombard. Assistance may also be had from Weber, De vera inter sponsalia de praesenti et nuptias differentia (Parchimi, 1825); Hoffmann, De aetate juvenili contrahendis sponsalibus (Regiomonti et Lipsiae, 1743); Lipold, Arbor consanguinitatis et affinitatis (n.p., n.d.); Niemeier, De conjugiis prohibitis dissertationes (Helmstadt, 1705); Born, De bannis nuptialibus (Leipzig, 1716); and the dissertations on parental consent and clandestine marriage mentioned in Bibliographical Note IX.

Remarkable testimony as to the existence of clandestine marriage in England during the first half of the sixteenth century is given by Richard Whitforde, A Werke for householders (1530; 2d ed., 1537); and in Miles Coverdale's translation of Bullinger's Christen State of Matrimonye (1st ed., 1541, in British Museum).

Indispensable guides for the study of the entire subject are still the works of Sohm, Friedberg, and Pollock and Maitland; but by far the best systematic histories of canon-law marriage are Freisen's Geschichte des canonischen Eherechts (Tübingen, 1888; Paderborn, 1893); and Esmein's masterly Le mariage en droit canonique (Paris, 1891). A similar work for the eastern church is Zhishman's Das Eherecht der orientalischen Kirche (Vienna, 1864). Illustrative decisions are communicated by Frensdorff, "Ein Urtheilsbuch des geistlichen Gerichts zu Augsburg aus dem 14. Jahrhundert," in ZKR., X (Tübingen, 1871); and Loersch, "Ein eherechtliches Urtheil von 1448," ibid., XV (Freiburg and Tübingen, 1880). There is an article on the beginnings of ecclesiastical jurisdiction by Sohm, "Die geistliche Gerichtsbarkeit im frankischen Reich," ibid., IX (Tübingen, 1870). Wunderlich has a serviceable edition of Tancred's Summa de matrimonio (Göttingen, 1841); and among the works relating to special questions are Sehling, Die Wirkungen der Geschlechtsgemeinschaft auf die Ehe (Leipzig, 1885); Heinlein, Die bedingte Eheschliessung (Vienna, 1892); Andreae, Einfluss des Irrthums auf die Gültigkeit der Ehe (Göttingen, 1893); Eichborn, Ehehinderniss der Blutsverwandtschaft (Breslau, 1872); Gerigk, Irrtum und Betrug als Ehehinderniss (Breslau, 1898); Benemann, De natura matrimonii (Halle, 1708); Baier, Die Naturehe in ihrem Verhältniss zur ... christlich-sakramentalen Ehe (Regensburg, 1886); Hahn, Die Lehre von den Sakramenten (Berlin, 1864); and the standard Catholic treatise of Oswald, Die dogmatische Lehre von den heiligen Sakramenten (5th ed., Münster, 1894).

In general, besides the works of Gide, Loening, Combier, Tissot, Burn, Thwing, Blackstone, Jeaffreson, Lingard, Makower, Madan, and Morgan, elsewhere described, the following have been drawn upon in various connections: Wasserschleben, Bussordnungen (Halle, 1851); Schmitz, Bussbücher (Mainz, 1883); Lobethan, Einleitung zur theoretischen Ehe-Rechts-Gelahrtheit (Halle, 1785); Schott, Einleitung in das Eherecht (new ed., Nuremberg, 1802); Goeschl, Ehegesetze (Aschaffenburg, 1832); Stäudlin, Geschichte der Vorstellungen und Lehren von der Ehe (Göttingen, 1826); Palgrave, English Commonwealth (London, 1832); Kemble, Saxons in England (London, 1876); Ellis, Introduction to Domesday Book (Record Commission, 1833); Bigelow, Placita anglo-normannica (Boston, 1881); Stubbs, Select Charters (Oxford, 1881); idem, Constitutional History (Oxford, 1875-78); idem, Seventeen Lectures (Oxford, 1886); Denton, England in the Fifteenth Century (London, 1888); Traill, Social England (New York, 1898); Nisbet, Marriage and Heredity (London, 1888); Smith, The Parish (London, 1857); Kent, Commentaries (Boston, 1873); Gibbon, Decline and Fall (London, 1830); and some of the Reformation writers referred to in Bibliographical Notes IX and XI.]

I. THE EARLY CHRISTIAN DOCTRINE AND THE RISE OF THE CANONICAL THEORY

It was most unfortunate for civilization that the Christian conception of the nature of marriage should have sprung from asceticism, and that the verbal subtlety of the schoolmen should have produced the cardinal definitions upon which the validity of marriage contracts, and therefore the practical administration of matrimonial law, were made to depend. The mediæval teaching regarding forbidden degrees, the sacramental nature of matrimony, and the difference between contracts de futuro and de praesenti are mainly responsible for the shameful abuses which disgrace the record of ecclesiastical judicature previous to the Council of Trent. With regard to an institution upon which in so high a degree the welfare of society depends, anarchy was practically sanctioned by the canon law. Where the utmost clearness and simplicity were needed, obscurity and complexity prevailed; and where publicity was urgently required by the plainest rule of common-sense, there secrecy was in effect invited and rewarded.

The early church was only too ready to take in hand the supervision of marriage and the development of matrimonial law. With regard to the form, as already shown, her progress was cautious and slow. Not until the thirteenth century, as a general rule, does the priest appear with authority as one especially qualified by his religious office to solemnize the nuptials. But long before this, in nearly every other respect save only the betrothal, the church was taking sole possession of the field of matrimonial law and jurisdiction.[1029] Yet the institution of marriage was accepted, as it were, under protest. Here and there, of course, the early Fathers admit the purity of the marriage state,[1030] but usually with a tone of apology or depreciation which is itself very suggestive of the pervading trend of the ascetic mind. If wedlock be holy, celibacy is much more holy. "It is better to marry than to burn," is a dictum which sounds the keynote of ecclesiastical dogma. "Few texts," declare Pollock and Maitland, "have done more harm than this. In the eyes of the mediæval church marriage was a sacrament; still it was but a remedy for fornication. The generality of men and women must marry or they will do worse; therefore marriage must be made easy; but the very pure hold aloof from it as from a defilement. The law that springs from this source is not pleasant to read."[1031]

Here we have a double paradox, two irreconcilable contradictions, which in due time produced their natural evil fruit. On the one hand, marriage is a sacrament, a holy mystery, yet it rests upon a mere human contract.[1032] On the other hand, though possessing a sacramental character, it is but a compromise with lust, from which the saint may well abstain. Hence a premium is placed upon sacerdotal celibacy, though for centuries priests are not absolutely forbidden to marry. Thus in England, at any rate until the days of Dunstan, celibacy had not been strictly enforced in the monastic bodies;[1033] and until a still later day marriage was practiced by the secular clergy,[1034] the priestly office in some instances practically becoming hereditary, passing on from father to son.[1035] But in the western church asceticism at last gained a complete victory; and the priest taking orders after marriage was obliged to put away his wife; while in both East and West marriage after the taking of orders was forbidden.[1036] The causes of the low esteem in which marriage was held by the early Christian theologians have been well described by Meyrick. "For some time before the Christian era a change of sentiment as to the relative excellence of the married and single life had been growing up among a section of the Jews. The national feeling was strongly in favour of marriage, and a man who was unmarried or without children was looked upon as disgraced. But the spirit of asceticism, cherished by the Essenes, led to an admiration of celibacy, of which no traces are to be found in the Old Testament; so that, instead of a shame, it became an honour to be unmarried and childless. In the early church this spirit, at first exhibiting itself only to be condemned in the Encratites," and some other sects, "struggled with a healthier feeling, till at length it stifled the latter. But another cause was working in the same direction. The days of chivalry were not yet; and we cannot but notice, even in the greatest of the Christian fathers, a lamentably low estimate of woman, and consequently of the marriage relationship. Even St. Augustine can see no justification for marriage, except in a grave desire deliberately adopted of having children."[1037] If "marriage is sought after for the sake of children, it is justifiable; if entered into as a remedium to avoid worse evils, it is pardonable; the idea of 'the mutual society, help, and comfort, that the one ought to have of the other, both in prosperity and adversity,' hardly existed and could hardly yet exist.[1038] In the decline of the Roman empire, woman was not a helpmeet for man, and few traces are to be found of those graceful conceptions which western imagination has grouped round wedded love and home affections. The result was that the gross, coarse, material, carnal side of marriage being alone apprehended, those who sought to lead a spiritual life, that is, above all, the clergy, instead of 'adorning and beautifying that holy estate' and lifting it up with themselves into a higher sphere and purer atmosphere, regarded it rather as a necessary evil to be shunned by those who aimed at a holier life than that of the majority."[1039]

But, in spite of theology and priestly asceticism, there is little doubt that the loftier ideals and the gentler affections which we now associate with wedded life were beginning to make themselves felt in the early Christian family; just as despite the licentiousness found in the imperial and noble circles of the capital, most observed and doubtless exaggerated by historian and satirist, and notwithstanding the surviving coldness[1040] of the patriarchal age, the same ideas and sentiments, independently of Christian influences, must already have been springing up among the common people of the provinces, and presently in the Stoic families of the Antonine era were to reach a splendid development worthy of the days in which we live.[1041] It is doubtless true, as so often urged, that there is a bright side to the history of celibacy. Incidentally the monk organized schools, taught the barbarous tribes the dignity of labor, demonstrated the power of industry,[1042] and handed down to the men of the Renaissance some of the materials of classic learning. So, likewise, the convent afforded an outlet for the energy and the ambition of woman. Here in a large measure she enjoyed independence and could assert her individuality. "For the convent accepted the dislike women felt to domestic subjection and countenanced them in their refusal to undertake the duties of married life." The "outward conditions of life were such that the woman who joined the convent made her decision once for all. But provided she agreed to forego the claims of family and sex, an honorable independence was secured to her, and she was brought into contact with the highest aims of her age. At a period when monasteries, placed in the remote and uncultivated districts, radiated peace and civilization throughout the neighborhood, many women devoted themselves to managing settlements which, in the standard they attained, vied in excellence with the settlements managed by men." "The career open to the inmates of convents both in England and on the continent," continues Eckenstein, in summarizing the results of her valuable researches, "was greater than any other ever thrown open to women in the course of modern European history."[1043] Still, granting all that can be said for the conventual life, the motives which sustained it only throw into bolder relief the social evils of the age and the low ideal of marriage fostered by asceticism itself. History all too plainly shows that the benefits conferred by monasticism and the enforced celibacy of the secular clergy come far short of balancing the evils flowing from the conception of wedlock as a "remedy for concupiscence." The influence of the church did, indeed, tend to condemn the breach of conjugal fidelity by the husband as equally sinful with that of the wife; although this righteous principle has by no means always been observed in Christian legislation. On the other hand, celibacy bred a contempt for womanhood and assailed the integrity of the family.[1044] The gross immorality of the mediaeval clergy, regular and secular, and the shocking abuses of the confessional have often been recorded and fortunately need not here be dwelt upon.[1045]

We may next consider the second member of the paradox, the dogma which constitutes the very basis of the canon law of marriage and the source of manifold hardships and confusion. By the second half of the twelfth century the doctrine that marriage is a sacrament was thoroughly established in the western church.[1046] The early Christian teachers had, indeed, regarded it as one of the many holy "mysteries" to which the name "sacrament" was given.[1047] But it was long before any of these were differentiated as distinct rites superior to the rest in religious efficacy. Not until 1164, in the fourth book of Peter Lombard's Sentences, do we find the first clear recognition of the "seven sacraments," among which that of marriage appears;[1048] and these were approved by The Council of Florence in 1439 and later by the Council of Trent.[1049] The theory of the sacramental character of wedlock had two consequences of vast importance for the history of matrimonial law. First is the dogma of the indissolubility of the marriage bond, involving the whole problem of separation and divorce, which must be reserved for discussion in another chapter;[1050] and, second, the exclusive jurisdiction of the church in matrimonial causes.[1051] This ecclesiastical function, like so many others, is of slow growth. "We are here confronted by a conception which certainly does not belong to the primitive sources. It is not by a revindication of principles that the church conquers jurisdiction in marriage. After having shared it with the state for centuries, she obtained it in the Middle Ages without partition;" and "when her competence was well established and a theory for it was required, it was justified by saying that the church alone could take cognizance of sacraments;" and "at the Council of Trent when this jurisdiction was solemnly affirmed in a canon sanctioned by anathema, the majority of the orators brought it expressly into connection with the sacrament."[1052] In England between the seventh and the twelfth centuries the ecclesiastical authority in matrimonial questions was slowly established. Gregory writes to Augustine concerning forbidden degrees.[1053] Later Theodore regulates marriage and divorce.[1054] "When the conqueror had paid the debt that he owed to Rome by a definite separation of the spiritual from the lay tribunals,[1055] it cannot have remained long in doubt that the former would claim the whole province of marriage law as their own. In all probability this claim was not suddenly pressed; the leges Henrici[1056] endeavor to state the old law about adultery; the man's fine goes to the king, the woman's to the bishop; but everywhere the church was beginning to urge that claim, and the canonists were constructing an elaborate jurisprudence of marriage. By the middle of the twelfth century, by the time when Gratian was compiling his concordance of discordant canons, it was law in England that marriage appertained to the spiritual forum."[1057] From the time of Glanville the "marriage law of England was the canon law."[1058]

The theories adopted and developed by the canonists favor the forming of marriages. "All those are urged to marry who are unable to bear the superior state of virginity or continence and who are not restrained by solemn vows." Consequently the canon law "renders the formation of marriage as easy as it had rendered its dissolution difficult."[1059] At first, as already explained, it adopted the Roman betrothal, which possessed no legal significance, the marriage beginning with the nuptials or actual living together. Later it accepted the principles of Germanic custom, according to which the legal effects of betrothal became far more stringent, and the marriage was perfected at the nuptials or tradition, and not through the Beilager, or physical union. Hence by the mediæval canon law, if the nuptials were solemnized by priestly benediction, though not followed by copula or physical union, a marriage was formed which could not be annulled by means of subsequent espousals thus consummated.[1060] Gradually, however, as the betrothal gained, the nuptials lost, in importance. Before the middle of the twelfth century the doctrine prevailed that the copula carnalis is the supreme legal moment in marriage.[1061] This theory, which had arisen with Hincmar of Rheims,[1062] is especially associated with the name of Gratian, in whose Decretum the arguments for and against it are weighed, with the result of its practical acceptance, though he tries to reconcile it with the Roman view, that the nuptial consensus constitutes the marriage.[1063] According to him, there are two degrees in marriage: one is the conjugium initiatum, arising in the simple consent of the espoused; second, the conjugium ratum, created by the copula carnalis and perfecting the former. The conjugium initiatum may be dissolved at pleasure; but the conjugium ratum is indissoluble. Thus the former is merely the Roman betrothal under another name. But the Bolognese jurists made it more stringent, assigning eight reasons for which alone such a marriage could be dissolved.[1064]

The theory of the classic canon law, formulated by Gratian, that there is no marriage "until man and woman have been one flesh,"[1065] does not receive so much emphasis in any other legal system.[1066] It had far-reaching consequences in matrimonial jurisprudence.[1067] Marriage became a simple consensual compact. "In strictness of law all that was essential was this physical union accompanied by the intent to be thenceforth husband and wife. All that preceded this could be no more than an espousal (desponsatio) and the relationship between the spouses was one which was dissoluble; in particular it was dissolved if either of them contracted a perfected marriage with a third person."[1068]

But before the close of the twelfth century theological subtlety had conceived and gained the acceptance of a distinction in the forms of contract which was fatal to the security of the marriage bond. The famous classification of contracts as sponsalia per verba de praesenti and sponsalia per verba de futuro, though its principle was earlier asserted, is due mainly to Peter Lombard;[1069] and through the influence of Alexander III. ("Magister Rolandus") it was accepted generally by the western church.[1070] The theory of Lombard represents the triumph of Gallic theology over the doctrine of Gratian, as maintained by the Italian jurists; and, in effect, it is an attempt to combine the principles of the Roman with those of the German—that is to say, the canonical—betrothal.[1071] In sponsalia de praesenti, in words of the present tense, the man and woman declare that they take each other now, from this moment onward, as husband and wife. Such a contract is a valid marriage, though not followed by actual wedded union; and since in theory it is a real marriage, it is necessarily sacramental in character. It creates a bond which can be dissolved only with the greatest difficulty. It constitutes "at all events an initiate marriage; the spouses are coniuges; the relationship between them is almost as indisseverable as if it had already become a consummate marriage. Not quite so indisseverable however; a spouse may free himself or herself from the unconsummated marriage by entering religion, and such a marriage is within the papal power of dispensation."[1072] But even the unconsummate marriage de praesenti cannot be dissolved by a subsequent marriage which either party may contract, though followed by wedded union.[1073] Espousals de futuro, on the other hand, are a promise for future joining in marriage. Physical union when preceded by such a contract is held to constitute a binding marriage. The canonists went farther than this, as Esmein declares, and "in a way set a snare for human nature to beguile the imprudent into the matrimonial state" through the theory of "presumptive marriage." The copula carnalis was made a legal ground for assuming the foregoing promise to wed. "The rule was laid down that it is always necessary to judge in favor of marriage unless the contrary be clearly understood."[1074] Moreover, the church steadily refused to make the validity of marriage depend upon forms and conditions such as the civil law prescribes. There was no absolute requirement of parental consent[1075] or of a certain age. All persons on reaching the years of puberty were declared capable of wedlock solely on their own authority. No religious ceremony, no record, or witness was essential. The private, even secret, agreement of the betrothed, however expressed, was declared sufficient for a valid contract.[1076] All these things might be enjoined under sanction of severe discipline for their neglect; but the marriage, if formed without them, was not the less binding. A puzzling and disastrous antagonism between legality and validity was thus created. Even the Council of Trent, while making the validity of the marriage depend upon its conclusion in the presence of a priest and two or three witnesses, declined to go farther and give an equal sanction to banns, registration, or the benediction, though these were enjoined in its decree. After the council as well as before children barely arrived at the age of puberty might contract a valid marriage without the consent, or even against the will, of their parents.[1077] In short, as Esmein has so well shown, lest without a safety-valve the temptations of the flesh should become too strong for weak human nature, and lest access to a sacrament should be hindered, it was deemed necessary to discard all restraints originating in mere "human convention."[1078] It is a noteworthy fact that the dogma of marriage as a sacrament came near being a fatal obstacle in the way of the action of the Council of Trent against secret marriages.[1079] For how could the church legislate concerning a holy mystery which Christ himself had given her, without suggesting the human nature of the matrimonial contract and by implication admitting the right of the state to exercise a similar control? But even in this domain her exclusive jurisdiction was affirmed.

II. CLANDESTINE MARRIAGES THE FRUIT OF THE CANONICAL THEORY

The way was thus cleared for clandestine marriages. All efficient restraints upon hasty unions were rejected; and often it became impossible for the courts or even the parties themselves to know whether a man and a woman were legally husband and wife or their children legitimate. Seldom have mere theory and subtle quibbling had more disastrous consequences in practical life than in the case of the distinction between sponsalia de praesenti and de futuro. The difference was not essential, but purely verbal.[1080] The canonist had before his mind the tense inflections of a Latin verb. He insisted on a distinction which found no place in popular ideas and which the usages of popular speech refused to observe. In the English as well as the German idiom the contrast between the present and the future tense is not always sharply defined.[1081] This anomaly is described by Martin Luther in his usual trenchant style. "They have played a regular fool's game," he says, "with their verbis de praesenti vel futuro. With it they have torn apart many marriages which were valid according to their own law, and those which were not valid they have bound up.... Indeed I should not myself know how a churl ... would or could betroth himself de futuro in the German tongue; for the way one betroths himself means per verba de praesenti, and surely a clown knows nothing of such nimble grammar as the difference between accipio and accipiam; therefore he proceeds according to our way of speech and says: 'I will have thee,' 'I will take thee,' 'thou shalt be mine.' Thereupon 'yes' is said at once without more ado."[1082]

That German rustics were not the only lovers caught in the meshes of grammatical forms appears from the following passage written toward the close of the Tudor period by Swinburne, who nevertheless defends the canonical distinction, whether the contract be made in the Latin or in the vulgar tongue.[1083] After refuting, as he believes, the reasoning of those who hold that the forms "I will take thee to my wife" ("Ego volo te accipere in uxorem") and "I do take thee to my wife" ("Ego accipio te in uxorem") are equally a contract in the present tense, he proceeds to attack the argument "drawn from the Simplicity of the Vulgar sort, who albeit they intend to tye such a Knot as can never be loosed, and make the Contract so sure as it may never be dissolved; yet such is their unskilfulness and ignorance herein, that they cannot frame their words to their minds, nor know whether it be all one to say 'I will take thee to my wife' or 'I do take thee to my wife,' much less do they know the difference betwixt these words, 'I will marry thee' and 'I will have thee to my wife,' or betwixt these words, 'I will take thee to my wife' and 'I will hold thee for my wife,' or betwixt these words, 'I will espouse thee' and 'I will intreat thee as my wife,' or betwixt these words, 'I will Contract Matrimony with thee' and 'I will provide for thee as my Wife,' or betwixt these words, 'I will make thee my wife' and 'thou shalt be my Wife,' with an hundred such differences wherein appeareth no dissimilitude. And therefore, since it is the very Consent of Mind only which maketh Matrimony, we are to regard not their Words, but their Intents, not the formality of the Phrase, but the drift of their Determination, not the outward sound of their Lips, which cannot speak more cunningly, but the inward Harmony or Agreement of their Hearts, which mean uprightly." Otherwise, especially in case of people of the "ruder sort, whose Sayings are to be expounded with all favour to the furtherance of Matrimony," if "we shall curiously descant upon every word proceeding from a simple Conceit, we cannot but miss of their meanings, and with our fine and dainty Distinctions (which never came within the compass of their gross Understandings) incumber the Consciences of them which be coupled.... Lest therefore any Man's Conscience (through ignorance of Terms) might be intangled in the Snares of this subtle and more captious Distinction of 'I will' and 'I do' with the rest of the Differences more subtle and more captious, ... are the same to be rejected, and this reasonable and conscionable Conclusion received ... where two intend to Contract Spousals de praesenti, there is Matrimony always contracted, although the words import but future Consent only."[1084] Time has approved the soundness of this plea, in spite of the remonstrance of Swinburne and the logic of the worthy doctors whom he cites.

Scholastic hairsplitting had set a veritable trap for the feet of the unwary. "Of all people in the world lovers are the least likely to distinguish precisely between the present and the future tenses. In the Middle Ages marriages, or what looked like marriages, were exceedingly insecure. The union which had existed for many years between man and woman might with fatal ease be proved adulterous, and there would be hard swearing on both sides about 'I will' and 'I do.'"[1085] Accordingly the ecclesiastical courts were given a dangerous power[1086]—a perilous discretion in matrimonial causes, which, however wisely exercised, was sure to work much hardship and injustice. Since in substance espousals de praesenti and de futuro were identical, differing only in the consequences which the law attached to the tense form, it was inevitable that decisions should be arbitrary and wavering; and, as a matter of fact, practically the same form of contract was held at one time to constitute sponsalia de praesenti; at another, a promise de futuro;[1087] and the Liber officialis of St. Andrews, Scotland, contains the record of a divorce granted from a second union because the man had already contracted a previous marriage in these words: "I promyth to yow Begis Abirnethy that I sall mary yow, and that I sall neuere haiff ane uther wiff and therto I giff yow my fayth." It is a striking illustration of the entanglements resulting from the canonical theory that this contract is styled in the record "both sponsalia de futuro and praesenti."[1088] The worst of it was that the spiritual salvation or damnation of the man and woman, the genuineness of whose union was in question, depended upon the decision. The valid marriage was no less a sacrament, though dissolved through ignorance, error, or perjury; and the invalid marriage was no more a sacrament, though in the same way declared binding. For by a rule of the spiritual courts, in a suit growing out of a secret marriage, the plaintiff who affirmed the validity of the espousals, if the fact were denied by the defendant, had to prove his allegation. If he failed to do so—and this might easily happen, since often the espousals were formless and absolutely without witness[1089]—the case was dismissed, the contract dissolved, and the parties were free to form new marriages elsewhere. But if the secret marriage were after all really valid, and therefore a sacrament, though not sustained for lack of proof, the husband and wife were still bound in their consciences; and if either should form a second union with another person, though it were publicly solemnized in face of the church, he would be guilty of the sin of bigamy.[1090] To the existence of this cruel embarrassment Luther bears witness in a characteristic passage of his Tischreden.[1091] "Now the pope and the jurists say that marriage may never be dissolved. What happens? The wedded people fall out and separate. So they come to me in the cloister or wherever an official can be found and swear themselves apart; then they marry again. Thereafter they come to me or to some confessor and say: Dear sir, I have now a wife whom I espoused secretly. What am I to do about it? Help me, dear Doctor, lest I despair. For Greta whom I first married is my proper wife. But this Barbara whom I espoused later is not my wife, and yet must I not sleep with her? The former I dare not take, though I should like to have her if I could; but I cannot for I have another wife and she likewise has another husband; yet no one knows that she is my wife except God in heaven. O, I shall be damned, I know not what to do!"[1092] Luther's testimony is fully sustained by similar evidence afforded by the proceedings and decrees of the Council of Trent.[1093]

The evil of clandestine marriages prevailed generally throughout Christendom.[1094] The provincial church councils as well as the temporal powers, local and national, were kept busy in devising penalties or other restraints in the vain hope of putting a stop to it. Such was the case in Holland, where, in spite of the decrees of the church and the statutes of the state, secret marriages, without the presence of witness, magistrate, or priest, were common.[1095] The same is true of Portugal;[1096] and Pope Alexander III. confesses that they were frequent in Italy, at least in the bishopric of Salerno, and they gave rise to vexatious litigation.[1097] Suits were sometimes brought to enforce an alleged secret marriage for impure purposes. So severe were the provisions of Swiss legislation to check this evil, toward the close of the Middle Ages, that even the innocent were deterred from appealing to the courts to enforce their matrimonial rights. Before bringing suit security was required; and the unsuccessful plaintiff was fined and compelled to pay damage.[1098] "Against a Zürich law of this kind an official of Konstanz remonstrates, declaring that 'without doubt there are in the bishoprick of Konstanz hundreds of persons who before the Lord God are married people, legally joined together, and yet who are so much in dread of the penalty as not to dare to enforce their legal rights against one another.'"[1099] At the Council of Trent report was made of secret marriages in Africa[1100] and the West Indies;[1101] while in Germany they gave trouble both to the temporal and spiritual law-maker long after the Reformation.[1102] The uncertainty and complexity of matrimonial law bore their natural fruit in Spain[1103] and in France.[1104] It was the king of France who through his oratores, or representatives, brought before the Council of Trent the proposal which prevailed to reform the abuse by making the validity of marriage depend upon its public solemnization;[1105] while a measure of Alfonso the Wise of Castile, in 1258, not only defines the well-known three kinds of clandestine marriages, but shows clearly, what Gratian[1106] had already pointed out, that the permanence or dissolution of such a marriage really depends upon the will of the parties themselves, or even one of them. "Three kinds of marriage are called 'secret;' the first is one concluded privately and without witnesses, so that it cannot be proved. The second is one formed before witnesses, but without the consent of the bride's father, or mother, or other relative in whose protection she is, and without payment of the arrha or observing the other forms (honors) which holy church demands. The third is one whose banns have not been published in the parish where the parties live.... The reason why the holy church forbids secret marriages is this: When a difference arises between the wedded pair, and the one will no longer live with the other, the church has no means to prevent the separation, even when in truth a marriage exists; because it cannot be proved. For the church cannot pass judgment on secrets; but only on the allegations of the parties which are proved."[1107]

Nowhere perhaps is the history of secret marriages so interesting as in Scotland[1108] and mediæval England. Many proofs and illustrations from literature, early rituals, law-books, and judicial decisions have been collected by Friedberg.[1109] Usually the nuptials were celebrated in presence of a priest at the church door according to popular forms, or, in the later period, according to more elaborate religious rites. But by custom the simple hand-fasting, with or without giving to the bride a penny or piece of gold, sufficed; and the hand-fasting is found also in connection with the ecclesiastical ceremony. Even in the case of secret marriages "it is characteristic that mention is almost always made of the presence of a priest who confers his blessing."[1110] Miles Coverdale's translation of Bullinger's Christen State of Matrimonye (ca. 1541) contains the following instructive passage:

"Yet in thys thynge also must I warne everye reasonable & honest parson to beware, that in contractyng of maryage they dyssemble not, nor set forthe any lye. Every man lykewyse must esteme the parson to whom he is hand-fasted, none otherwyse than for his owne spouse, though as yet it be not done in the church nor in the streate. After the hand fasting & makyng of the contracte, the church goyng & weddyng shulde not be deffered to long, lest the wicked sowe hys vngracious sede in the mene season. Likewise the wedding (& cohabitaciō of the parties) ought to be bego[=n]e with god, & with the ernest prayer of the whole church or congregaciō.... In to this dishe hath the devill put his foote, & myngled it with many wicked vses & customes. For in some places ther is such a maner, wel worthy to be rebuked that at the hand fastynge there is made a great feast & superfluous bancket, & even the same night are the two hād fasted persones brought & layed together, yea certayne wekes afore they go tot [sic] the church."[1111]

Eleven years earlier similar testimony is given in Richard Whitforde's Werke for housholders. "The ghostly ennemy," he says, "doth deceyue many psones by y^e pretence & colour of matrymony in pryuate & secrete contractes. For many men whan they can not obteyn theyr vnclene desyre of the woman wyl promyse marryage, & thervpon make a contracte promyse, & gyue fayth & trouth eche vnto other sayenge. Here I take the Margery vnto my wyfe, I therto plyght the my trouth. And she agayne, vnto hym in lyke maner. And after that done, they suppose they maye lawfully vse theyr vnclene behauyour, and somtyme the acte and dede doth folow, vnto the great offence of god & theyr owne soules. It is a great ieopardy therfore to make ony suche contractes, specyally amonge them selfe secretely alone, without recordes, whiche must be two at the least."[1112]

In Scudmore's A Woman's a Weathercocke the priest who is expected to solemnize the marriage of a lady with Count Frederick says:

Many similar proofs may be found in the plays and ballads of the sixteenth and seventeenth centuries.

III. THE EVILS OF THE SPIRITUAL JURISDICTION

The separation of the temporal and spiritual courts and the tenacity with which early custom and theory were preserved in the common law[1114] render the history of matrimonial judicature anomalous in England. The leading case occurs in the reign of Stephen. "Richard de Anesty's memorable law-suit[1115] was the outcome of a divorce pronounced in 1143 under the authority of a papal rescript, and one that to all appearance illustrated what was to be a characteristic doctrine of the canon law: a marriage solemnly celebrated in church, a marriage of which a child had been born, was set aside as null in favour of an earlier marriage constituted by a mere exchange of consenting words."[1116] By the time of Henry II. this doctrine was completely established in England, as shown by the famous decretal epistle of Alexander III. to the bishop of Norwich: "A strong case is put. On the one hand stands the bare consent per verba de praesenti, unhallowed and unconsummated, on the other a solemn and a consummated union. The latter must yield to the former."[1117] Such remained the law of England until the passage of the Hardwicke act in 1753.[1118]

The perils arising in the canonical theory of espousals were greatly increased by the doctrine of impediments to marriage, particularly those growing out of forbidden degrees of affinity, consanguinity, and spiritual relationship.[1119] "Reckless of mundane consequences, the church while she treated marriage as a formless contract, multiplied impediments which made the formation of a valid marriage a matter of chance."[1120] The stringency of the law in this regard appears to be entirely inconsistent with the theory that marriage should be encouraged. But doubtless the apparent contradiction is due largely to the same ideas which shaped that theory. The Fathers dreaded the sins of the flesh through which the sacramental nature of marriage might be defiled;[1121] and they may have felt a reaction against the freedom of the German custom touching the marriage of blood kindred.[1122]

The development of the law of forbidden degrees, through the doctrines of the early Christian teachers and a long series of conciliar decrees, cannot here be described. In the thirteenth century the various rules were codified by the schoolmen under fifteen heads; "and their code has been accepted and acted upon by the greater part of western Christendom down to the present day."[1123] For a time prohibition was extended to the seventh degree of consanguinity, counting, as did the canonists, in the collateral line, from the common ancestor and not through the same according to the Roman method.[1124] A distinction, however, was made. Kinship in the sixth or seventh degree was held to be only "impedimentum impediens, a reason for a refusal to solemnize a marriage, not impedimentum dirimens, a cause which would render a marriage null;" and this doctrine was "received in England as well as elsewhere."[1125] At the Lateran council of 1215 Innocent III. adopted the rule that "marriages within the fourth degree of consanguinity are forbidden and null."[1126] But the doctrines of the church touching affinity and relationship did not therefore cease to perplex the courts, molest the happiness of individuals, and threaten the tranquillity of nations.[1127] In England the perennial "deceased wife's sister" bill, the stubborn resistance to which has so long attested the amazing tenacity of theological prejudice, has not even yet successfully run the gauntlet of the House of Lords.[1128]

The relation of the temporal to the spiritual courts in the administration of English matrimonial law was anomalous.[1129] Strictly speaking, there was no lay jurisdiction whatever with regard to the genuineness of marriage. Only the ecclesiastical judge could determine whether a valid marriage existed.[1130] In such a case the jury could not "declare the right." The question was referred to the spiritual court for decision. On the other hand, the law tribunal, without aid of the spiritual judge, could say whether or not there was a de facto marriage as opposed to a marriage de jure. The jury could determine, in a possessory action, whether there had been a public ceremony in face of the church. This was a decisive proof; for the mere fact of living together as husband and wife was not always conclusive.[1131] "If a man and woman have gone through the ceremony of marriage at the church door, we may say that we have here a de facto marriage, a union which stands to a valid marriage in somewhat the same relation as that in which possession stands to ownership. On the other hand, if there has been no ceremony, we cannot in the thirteenth century say that there is a de facto marriage; mere concubinage, especially among the clergy, is far too common to allow us to presume a marriage wherever there is a long-continued cohabitation. But a religious ceremony is a different thing; it is definite and public; we can trust the jurors to know all about it; we can make it the basis of our judgments whenever the validity of the union has not been put in issue in such a fashion that the decision of an ecclesiastical court must be awaited."[1132]

The practical application of this doctrine appears in the two cases of divorce and inheritance. Here the temporal courts tried indirectly to put a check upon clandestine marriages, to remedy the evils resulting from the scholastic dogma that mere consent secretly expressed in words of the present tense constitutes a valid marriage, by making the acquisition of certain property rights depend upon the publicity of the espousals.[1133] The widow could not receive her dower unless it had been publicly assigned at the nuptials before the church door.[1134] "The result is curious, for at first sight the lay tribunal seems to be rigidly requiring a religious ceremony which in the eyes of the church is unessential.... We soon see, however, that what our justices are demanding is, not a religious rite nor 'the presence of an ordained clergyman,' but publicity.... Marriages contracted elsewhere may be valid enough, but only at the church door can a bride be endowed. There is a special reason for this requirement. The common-law contrast to the church-door marriage is the death-bed marriage.[1135] At the instance of the priest and with the fear of death before him, the sinner 'makes an honest woman' of his mistress. This may do well enough for the church, and may, one hopes, profit his soul in another world, but it must give no rights in English soil."[1136] So also with regard to inheritance, in certain cases,[1137] the lay court made the rights of children depend upon public solemnization of the nuptials, thus adopting the canonical theory of "putative marriages."[1138] Although there may be no valid marriage on account of the existence of certain impediments, such as too near kinship, the children are nevertheless legitimate if the nuptials were publicly celebrated at the church door, and if at least one of the parents, at the time the children were begotten, was "ignorant of the fact which constituted the impediment." They are entitled to inheritance, though the parents are not really husband and wife. On this point in the thirteenth century church and state were at one;[1139] but later a less liberal doctrine was adopted by the secular tribunals. "The ultimate theory of the English lawyers took no heed of good or bad faith, and made the legitimacy of the children depend on the fact that their parents while living were never divorced."[1140]

The refusal of the church to prescribe a proper age condition for those entering matrimony led, as might be expected, to child marriages; and in this case the rules of the English common law only tended to magnify the evil. By the canonists the age of consent to marriage was fixed at seven years.[1141] Thereafter a marriage formed without consent of parent or guardian, and even in opposition to it, was held to be legal; but it was "voidable so long as either of the parties to it was below the age at which it could be consummated. A presumption fixed this age at fourteen years for boys and twelve years for girls. In case only one of the parties was below that age, the marriage could be avoided by that party but was binding on the other. So far as we can see, this doctrine was accepted by our temporal courts."[1142] By the teaching of the common lawyers a widow of nine years of age at her husband's death could claim dower, though the marriage would have been voidable by her at the age of puberty.[1143] The English temporal courts appear to have disregarded the canonical rule that a marriage is absolutely void when formed below the age of seven. "Coke tells us that the nine years old widow shall have her dower 'of what age soever her husband be, albeit he were but four years old,' and certain it is that the betrothal of babies was not consistently treated as a nullity. In Henry III.'s day marriage between a boy of four or five years and a girl who was no older seems capable of ratification, and as a matter of fact parents and guardians often betrothed, or attempted to betroth, children who were less than seven years old. Even the church could say no more than that babies in the cradle were not to be given in marriage, except under the pressure of some urgent need."[1144] For such infant marriages, however, there were two practical motives during the Middle Ages. In England, just as in India and often among lower races,[1145] the betrothal or espousal of very young children was a means of peaceful treaty or alliance; and the "rigour" of the feudal law was also in this way avoided.[1146] "As deaths were early in those days, and wardship frequent, a father sought by early marriage of his son or daughter to dispose of their hands in his lifetime, instead of leaving them to be dealt out to hungry courtiers who only sought to make as large a profit as they could from the marriage of the wards they had bought for that purpose;"[1147] and the lord's right of marriage might in like manner be defeated by conferring knighthood upon a son in tender years.[1148] Even as late as the age of the Tudors "much immorality resulted from the child marriages which were common in fashionable life."[1149]

IV. PUBLICITY SOUGHT THROUGH BANNS AND REGISTRATION

Without doubt the wrong and confusion arising in the ecclesiastical theory and definition of marriage were manifold,h3 and they were patent to every observer. At the Council of Trent it was asserted that some action to put a check upon clandestine marriages was demanded by all the temporal powers;[1150] and the provincial church councils, aided by state legislation, had done what they could by imposing; penalties to remedy the abuse.[1151] Nevertheless, strange as it may seem to one not acquainted with the devious logic of scholastic theology, many members of the Council of Trent, on dogmatic grounds, were stubbornly opposed to the only reform which experience showed could be effective. They affirmed that severer discipline would suffice. They apologized for clandestine marriages on the pretext that they are sometimes useful, even necessary; or they denied that to declare them null would prove an efficient remedy.[1152]

Hence we are better able to appreciate at its true value the significance for the Catholic world of the victory gained by the common-sense of the majority. It was a victory in favor of that publicity which the state demanded. Indeed, the church had already done something, in spite of dogma, to change marriage from a private to a public transaction. Her collision with the state, her anomalous position with respect to social order, was involuntary. She was caught, as it were, in the meshes of her own philosophy. Yet in the interest of morality she strove to secure publicity. The priest at the nuptials, declares Sohm, "appears first of all as a public person."[1153] In particular the church tried to gain publicity for marriage by the institution of banns. The custom of publishing banns seems first to have made its appearance in France, probably as early as the fifth century.[1154] It is enforced by the capitulary of 802, which gains its real significance from this fact, and not from the mention of the priestly benediction.[1155] From France it gradually made its way into other countries of Europe. Thus in the year 1200, as already noted, banns were enforced by Archbishop Walter; and they were first made a general requirement by Innocent III. at the fourth Lateran council in 1215.[1156] Later the English archbishops found it necessary from time to time to impose more stringent penalties for neglect of the proper publication of banns;[1157] and they were enforced, without making the publication essential to a valid marriage, by the Council of Trent. From the twelfth century onward the marriage rituals contain directions for the asking and publication of banns;[1158] while the punishment of persons guilty of violating the canons in this regard gave much employment to the spiritual courts during the Middle Ages.[1159]

The institution of banns has a special historical interest as being in some sense the mediæval substitute for the modern registration and official license to wed. The practice was to announce the marriage, usually on three successive Sundays preceding the nuptials, that any objection on the ground of relationship or other disability might be brought forward. But the decrees of the church were not carefully enforced. Dispensation from the obligation to publish banns was the right of the bishop, but his license was usually granted only in favor of the nobility and higher classes; and the right constituted an important source of revenue.[1160]

The year 1538 marks an important epoch in the administration of English matrimonial law. It was then, according to the researches of Burn, that parish registers of births, deaths, and marriages were first introduced; although before this time it had been customary in some places to inscribe such records in the missals and psalters of the church.[1161] The first article of the injunctions issued by Thomas Cromwell, vice-regent under Henry VIII., provided: "Item, That you and every parson, vicar, or curate within this Diocese, for every Church keep one Book or Register, wherein he shall write the day and year of every Wedding, Christening, and Burial, made within your parish for your time, and so every man succeeding you likewise, and also there insert every person's name, that shall be so wedded, christened, and buried. And for the safe keeping of the same Book the parish shall be bound to provide of their common charges one sure coffer, with two locks and keys, whereof the one to remain with you, and the other with the Wardens of every parish wherein the said Book shall be laid up, which Book ye shall every Sunday take forth, and in the presence of the said Wardens or one of them, write and record in the same, all the Weddings, Christenings, and Burials made the whole week afore, and that done, to lay up the Book in the said coffer as afore; and for every time that the same shall be omitted, the party that shall be in the fault thereof, shall forfeit to the said Church iij^s. iiij^d. to be employed on the reparation of the said Church."[1162]

Thus in this, the most ancient English registration act, the parson or incumbent appears as the original registrar; and that the importance of keeping such record was keenly appreciated is shown by the anxious, almost painful, minuteness with which his duties are defined. The order of Henry VIII. was enforced or supplemented under Edward VI., Elizabeth, William III., and other monarchs; but, save during the Commonwealth, no material change was made in the mode of registration until in 1836 the present system was introduced.[1163]