indeed a private transaction but it took the form of a sale of the bride by the father, or other legal guardian, to the bridegroom. The _beweddung_ was a real contract of sale.[321] "Sale-marriage" was the most usual form of marriage. The ring, indeed, probably was not in origin, as some have supposed, a mark of servitude, but rather a form of bride-price, or _arrha_, that is to say, earnest money on the contract of marriage and so the symbol of it.[322] At first a sign of the bride's purchase, it was not till later that the ring acquired the significance of subjection to the bridegroom, and that significance, later in the Middle Ages, was further emphasized by other ceremonies. Thus in England the York and Sarum manuals in some of their forms direct the bride, after the delivery of the ring, to fall at her husband's feet, and sometimes to kiss his right foot. In Russia, also, the bride kissed her husband's feet. At a later period, in France, this custom was attenuated, and it became customary for the bride to let the ring fall in front of the altar and then stoop at her husband's feet to pick it up.[323] Feudalism carried on, and by its military character exaggerated, these Teutonic influences. A fief was land held on condition of military service, and the nature of its influence on marriage is implied in that fact. The woman was given with the fief and her own will counted for nothing.[324] The Christian Church in the beginning accepted the forms of marriage already existing in those countries in which it found itself, the Roman forms in the lands of Latin tradition and the German forms in Teutonic lands. It merely demanded (as it also demanded for other civil contracts, such as an ordinary sale) that they should be hallowed by priestly benediction. But the marriage was recognized by the Church even in the absence of such benediction. There was no special religious marriage service, either in the East or the West, earlier than the sixth century. It was simply the custom for the married couple, after the secular ceremonies were completed, to attend the church, listen to the ordinary service and take the sacrament. A special marriage service was developed slowly, and it was no part of the real marriage. During the tenth century (at all events in Italy and France) it was beginning to become customary to celebrate the first part of the real nuptials, still a purely temporal act, outside the church door. Soon this was followed by the regular bride-mass, directly applicable to the occasion, inside the church. By the twelfth century the priest directed the ceremony, now involving an imposing ritual, which began outside the church and ended with the bridal mass inside. By the thirteenth century, the priest, superseding the guardians of the young couple, himself officiated through the whole ceremony. Up to that time marriage had been a purely private business transaction. Thus, after more than a millennium of Christianity, not by law but by the slow growth of custom, ecclesiastical marriage was established.[325] It was undoubtedly an event of very great importance not merely for the Church but for the whole history of European marriage even down to to-day. The whole of our public method of celebrating marriage to-day is based on that of the Catholic Church as established in the twelfth century and formulated in the Canon law. Even the publication of banns has its origin here, and the fact that in our modern civil marriage the public ceremony takes place in an office and not in a Church may disguise but cannot alter the fact that it is the direct and unquestionable descendant of the public ecclesiastical ceremony which embodied the slow and subtle triumph--so slow and subtle that its history is difficult to trace--of Christian priests over the private affairs of men and women. Before they set themselves to this task marriage everywhere was the private business of the persons concerned; when they had completed their task,--and it was not absolutely complete until the Council of Trent,--a private marriage had become a sin and almost a crime.[326] It may seem a matter for surprise that the Church which, as we know, had shown an ever greater tendency to reverence virginity and to cast contumely on the sexual relationship, should yet, parallel with that movement and with the growing influence of asceticism, have shown so great an anxiety to capture marriage and to confer on it a public, dignified, and religious character. There was, however, no contradiction. The factors that were constituting European marriage, taken as a whole, were indeed of very diverse characters and often involved unreconciled contradictions. But so far as the central efforts of the ecclesiastical legislators were concerned, there was a definite and intelligible point of view. The very depreciation of the sexual instinct involved the necessity, since the instinct could not be uprooted, of constituting for it a legitimate channel, so that ecclesiastical matrimony was, it has been said, "analogous to a license to sell intoxicating liquors."[327] Moreover, matrimony exhibited the power of the Church to confer on the license a dignity and distinction which would clearly separate it from the general stream of lust. Sexual enjoyment is impure, the faithful cannot partake of it until it has been purified by the ministrations of the Church. The solemnization of marriage was the necessary result of the sanctification of virginity. It became necessary to sanctify marriage also, and hence was developed the indissoluble sacrament of matrimony. The conception of marriage as a religious sacrament, a conception of far-reaching influence, is the great contribution of the Catholic Church to the history of marriage.
It is important to remember that, while Christianity brought the idea of marriage as a sacrament into the main stream of the institutional history of Europe, that idea was merely developed, not invented, by the Church. It is an ancient and even primitive idea. The Jews believed that marriage is a magico-religious bond, having in it something mystical resembling a sacrament, and that idea, says Durkheim (_L'Année Sociologique_, eighth year, 1905, p. 419), is perhaps very archaic, and hangs on to the generally magic character of sex relations. "The mere act of union," Crawley remarks (_The Mystic Rose_, p. 318) concerning savages, "is potentially a marriage ceremony of the sacramental kind...One may even credit the earliest animistic men with some such vague conception before any ceremony became crystallized." The essence of a marriage ceremony, the same writer continues, "is the 'joining together' of a man and a woman; in the words of our English service, 'for this cause shall a man leave his father and mother and shall be joined unto his wife; and they two shall be one flesh.' At the other side of the world, amongst the Orang Benuas, these words are pronounced by an elder, when a marriage is solemnized: 'Listen all ye that are present; those that were distant are now brought together; those that were separated are now united.' Marriage ceremonies in all stages of culture may be called religious with as much propriety as any ceremony whatever. Those who were separated are now joined together, those who were mutually taboo now break the taboo." Thus marriage ceremonies prevent sin and neutralize danger.
The Catholic conception of marriage was, it is clear, in essentials precisely the primitive conception. Christianity drew the sacramental idea from the archaic traditions in popular consciousness, and its own ecclesiastical contribution lay in slowly giving that idea a formal and rigid shape, and in declaring it indissoluble. As among savages, it was in the act of consent that the essence of the sacrament lay; the intervention of the priest was not, in principle, necessary to give marriage its religiously binding character. The essence of the sacrament was mutual acceptance of each other by the man and the woman, as husband and wife, and technically the priest who presided at the ceremony was simply a witness of the sacrament. The essential fact being thus the mental act of consent, the sacrament of matrimony had the peculiar character of being without any outward and visible sign. Perhaps it was this fact, instinctively felt as a weakness, which led to the immense emphasis on the indissolubility of the sacrament of matrimony, already established by St. Augustine. The Canonists brought forward various arguments to account for that indissolubility, and a frequent argument has always been the Scriptural application of the term "one flesh" to married couples; but the favorite argument of the Canonists was that matrimony represents the union of Christ with the Church; that is indissoluble, and therefore its image must be indissoluble (Esmein, op. cit., vol. i, p. 64). In part, also, one may well believe, the idea of the indissolubility of marriage suggested itself to the ecclesiastical mind by a natural association of ideas: the vow of virginity in monasticism was indissoluble; ought not the vow of sexual relationship in matrimony to be similarly indissoluble? It appears that it was not until 1164, in Peter Lombard's _Sentences_, that clear and formal recognition is found of matrimony as one of the seven sacraments (Howard, op. cit., vol. i, p. 333).
The Church, however, had not only made marriage a religious act; it had also made it a public act. The officiating priest, who had now become the arbiter of marriage, was bound by all the injunctions and prohibitions of the Church, and he could not allow himself to bend to the inclinations and interests of individual couples or their guardians. It was inevitable that in this matter, as in other similar matters, a code of ecclesiastical regulations should be gradually developed for his guidance. This need of the Church, due to its growing control of the world's affairs, was the origin of Canon law. With the development of Canon law the whole field of the regulation of the sexual relationships, and the control of its aberrations, became an exclusively ecclesiastical matter. The secular law could take no more direct cognizance of adultery than of fornication or masturbation; bigamy, incest, and sodomy were not temporal crimes; the Church was supreme in the whole sphere of sex.
It was during the twelfth century that Canon law developed, and Gratian was the master mind who first moulded it. He belonged to the Bolognese school of jurisprudence which had inherited the sane traditions of Roman law. The Canons which Gratian compiled were, however, no more the mere result of legal traditions than they were the outcome of cloistered theological speculation. They were the result of a response to the practical needs of the day before those needs had had time to form a foundation for fine-spun subtleties. At a somewhat later period, before the close of the century, the Italian jurists were vanquished by the Gallic theologians of Paris as represented by Peter Lombard. The result was the introduction of mischievous complexities which went far to rob Canon law alike of its certainty and its adaptation to human necessities.
Notwithstanding, however, all the parasitic accretions which swiftly began to form around the Canon law and to entangle its practical activity, that legislation embodied--predominantly at the outset and more obscurely throughout its whole period of vital activity--a sound core of real value. The Canon law recognized at the outset that the essential fact of marriage is the actual sexual union, accomplished with the intention of inaugurating a permanent relationship. The _copula carnalis_, the making of two "one flesh," according to the Scriptural phrase, a mystic symbol of the union of the Church to Christ, was the essence of marriage, and the mutual consent of the couple alone sufficed to constitute marriage, even without any religious benediction, or without any ceremony at all. The formless and unblessed union was still a real and binding marriage if the two parties had willed it so to be.[328] Whatever hard things may be said about the Canon law, it must never be forgotten that it carried through the Middle Ages until the middle of the sixteenth century the great truth that the essence of marriage lies not in rites and forms, but in the mutual consent of the two persons who marry each other. When the Catholic Church, in its growing rigidity, lost that conception, it was taken up by the Protestants and Puritans in their first stage of ardent vital activity, though it was more or less dropped as they fell back into a state of subservience to forms. It continued to be maintained by moralists and poets. Thus George Chapman, the dramatist, who was both moralist and poet, in _The Gentleman Usher_ (1606), represents the riteless marriage of his hero and heroine, which the latter thus introduces:-- "May not we now Our contract make and marry before Heaven? Are not the laws of God and Nature more Than formal laws of men? Are outward rites More virtuous than the very substance is Of holy nuptials solemnized within?...The eternal acts of our pure souls Knit us with God, the soul of all the world, He shall be priest to us; and with such rites As we can here devise we will express And strongly ratify our hearts' true vows, Which no external violence shall dissolve."
And to-day, Ellen Key, the distinguished prophet of marriage reform, declares at the end of her _Liebe und Ehe_ that the true marriage law contains only the paragraph: "They who love each other are husband and wife."
The establishment of marriage on this sound and naturalistic basis had the further excellent result that it placed the man and the woman, who could thus constitute marriage by their consent in entire disregard of the wishes of their parents or families, on the same moral level. Here the Church was following alike the later Romans and the early Christians like Lactantius and Jerome who had declared that what was licit for a man was licit for a woman. The Penitentials also attempted to set up this same moral law for both sexes. The Canonists finally allowed a certain supremacy to the husband, though, on the other hand, they sometimes seemed to assign even the chief part in marriage to the wife, and the attempt was made to derive the word _matrimonium_ from _matris munium_, thereby declaring the maternal function to be the essential fact of marriage.[329] The sound elements in the Canon law conception of marriage were, however, from a very early period largely if not altogether neutralized by the verbal subtleties by which they were overlaid, and even by its own fundamental original defects. Even in the thirteenth century it began to be possible to attach a superior force to marriage verbally formed _per verba de præsenti_ than to one constituted by sexual union, while so many impediments to marriage were set up that it became difficult to know what marriages were valid, an important point since a marriage even innocently contracted within the prohibited degrees was only a putative marriage. The most serious and the most profoundly unnatural feature of this ecclesiastical conception of marriage was the flagrant contradiction between the extreme facility with which the gate of marriage was flung open to the young couple, even if they were little more than children, and the extreme rigor with which it was locked and bolted when they were inside. That is still the defect of the marriage system we have inherited from the Church, but in the hands of the Canonists it was emphasized both on the side of its facility for entrance and of its difficulty for exit.[330] Alike from the standpoint of reason and of humanity the gate that is easy of ingress must be easy of egress; or if the exit is necessarily difficult then extreme care must be taken in admission. But neither of these necessary precautions was possible to the Canonists.
Matrimony was a sacrament and all must be welcome to a sacrament, the more so since otherwise they may be thrust into the mortal sin of fornication. On the other side, since matrimony was a sacrament, when once truly formed, beyond the permissible power of verbal quibbles to invalidate, it could never be abrogated. The very institution that, in the view of the Church, had been set up as a bulwark against license became itself an instrument for artificially creating license. So that the net result of the Canon law in the long run was the production of a state of things which--in the eyes of a large part of Christendom--more than neutralized the soundness of its original conception.[331] In England, where from the ninth century, marriage was generally accepted by the ecclesiastical and temporal powers as indissoluble, Canon law was, in the main, established as in the rest of Christendom. There were, however, certain points in which Canon law was not accepted by the law of England. By English law a ceremony before a priest was necessary to the validity of a marriage, though in Scotland the Canon law doctrine was accepted that simple consent of the parties, even exchanged secretly, sufficed to constitute marriage. Again, the issue of a void marriage contracted in innocence, and the issue of persons who subsequently marry each other, are legitimate by Canon law, but not by the common law of England (Geary, _Marriage and Family Relations_, p. 3; Pollock and Maitland, loc. cit.). The Canonists regarded the disabilities attaching to bastardy as a punishment inflicted on the offending parents, and considered, therefore, that no burden should fall on the children when there had been a ceremony in good faith on the part of one at least of the parents. In this respect the English law is less reasonable and humane. It was at the Council of Merton, in 1236, that the barons of England rejected the proposal to make the laws of England harmonize with the Canon law, that is, with the ecclesiastical law of Christendom generally, in allowing children born before wedlock to be legitimated by subsequent marriage. Grosseteste poured forth his eloquence and his arguments in favor of the change, but in vain, and the law of England has ever since stood alone in this respect (Freeman, "Merton Priory," _English Towns and Districts_). The proposal was rejected in the famous formula, "Nolumus leges Angliæ mutare," a formula which merely stood for an unreasonable and inhumane obstinacy.
In the United States, while by common law subsequent marriage fails to legitimate children born before marriage, in many of the States the subsequent marriage of the parents effects by statute the legitimacy of the child, sometimes (as in Maine) automatically, more usually (as in Massachusetts) through special acknowledgment by the father.
The appearance of Luther and the Reformation involved the decay of the Canon law system so far as Europe as a whole was concerned. It was for many reasons impossible for the Protestant reformers to retain formally either the Catholic conception of matrimony or the precariously elaborate legal structure which the Church had built up on that conception. It can scarcely be said, indeed, that the Protestant attitude towards the Catholic idea of matrimony was altogether a clear, logical, or consistent attitude. It was a revolt, an emotional impulse, rather than a matter of reasoned principle. In its inevitable necessity, under the circumstances of the rise of Protestantism, lies its justification, and, on the whole, its wholesome soundness. It took the form, which may seem strange in a religious movement, of proclaiming that marriage is not a religious but a secular matter. Marriage is, said Luther, "a worldly thing," and Calvin put it on the same level as house-building, farming, or shoe-making. But while this secularization of marriage represents the general and final drift of Protestantism, the leaders of Protestantism were themselves not altogether confident and clear-sighted in the matter. Even Luther was a little confused on this point; sometimes he seems to call marriage "a sacrament," sometimes "a temporal business," to be left to the state.[332] It was the latter view which tended to prevail. But at first there was a period of confusion, if not of chaos, in the minds of the Reformers; not only were they not always convinced in their own minds; they were at variance with each other, especially on the very practical question of divorce. Luther on the whole belonged to the more rigid party, including Calvin and Beza, which would grant divorce only for adultery and malicious desertion; some, including many of the early English Protestants, were in favor of allowing the husband to divorce for adultery but not the wife. Another party, including Zwingli, were influenced by Erasmus in a more liberal direction, and--moving towards the standpoint of Roman Imperial legislation--admitted various causes of divorce. Some, like Bucer, anticipating Milton, would even allow divorce when the husband was unable to love his wife. At the beginning some of the Reformers adopted the principle of self-divorce, as it prevailed among the Jews and was accepted by some early Church Councils. In this way Luther held that the cause for the divorce itself effected the divorce without any judicial decree, though a magisterial permission was needed for remarriage. This question of remarriage, and the treatment of the adulterer, were also matters of dispute. The remarriage of the innocent party was generally accepted; in England it began in the middle of the sixteenth century, was pronounced valid by the Archbishop of Canterbury, and confirmed by Parliament. Many Reformers were opposed, however, to the remarriage of the adulterous party. Beust, Beza, and Melancthon would have him hanged and so settle the question of remarriage; Luther and Calvin would like to kill him, but since the civil rulers were slack in adopting that measure they allowed him to remarry, if possible in some other part of the country.[333] The final outcome was that Protestantism framed a conception of marriage mainly on the legal and economic factor--a factor not ignored but strictly subordinated by the Canonists--and regarded it as essentially a contract. In so doing they were on the negative side effecting a real progress, for they broke the power of an antiquated and artificial system, but on the positive side they were merely returning to a conception which prevails in barbarous societies, and is most pronounced when marriage is most assimilable to purchase. The steps taken by Protestantism involved a considerable change in the nature of marriage, but not necessarily any great changes in its form. Marriage was no longer a sacrament, but it was still a public and not a private function and was still, however inconsistently, solemnized in Church. And as Protestantism had no rival code to set up, both in Germany and England it fell back on the general principles of Canon law, modifying them to suit its own special attitude and needs.[334] It was the later Puritanic movement, first in the Netherlands (1580), then in England (1653), and afterwards in New England, which introduced a serious and coherent conception of Protestant marriage, and began to establish it on a civil base.
The English Reformers under Edward VI and his enlightened advisers, including Archbishop Cranmer, took liberal views of marriage, and were prepared to carry through many admirable reforms. The early death of that King exerted a profound influence on the legal history of English marriage. The Catholic reaction under Queen Mary killed off the more radical Reformers, while the subsequent accession of Queen Elizabeth, whose attitude towards marriage was grudging, illiberal, and old-fashioned, approximating to that of her father, Henry VIII (as witnessed, for instance, in her decided opposition to the marriage of the clergy), permanently affected English marriage law. It became less liberal than that of other Protestant countries, and closer to that of Catholic countries.
The reform of marriage attempted by the Puritans began in England in 1644, when an Act was passed asserting "marriage to be no sacrament, nor peculiar to the Church of God, but common to mankind and of public interest to every Commonwealth." The Act added, notwithstanding, that it was expedient marriage should be solemnized by "a lawful minister of the Word." The more radical Act of 1653 swept away this provision, and made marriage purely secular. The banns were to be published (by registrars specially appointed) in the Church, or (if the parties desired) the market-place. The marriage was to be performed by a Justice of the Peace; the age of consent to marriage for a man was made sixteen, for a woman fourteen (Scobell's _Acts and Ordinances_, pp. 86, 236). The Restoration abolished this sensible Act, and reintroduced Canon-law traditions, but the Puritan conception of marriage was carried over to America, where it took root and flourished.
It was out of Puritanism, moreover, as represented by Milton, that the first genuinely modern though as yet still imperfect conception of the marriage relationship was destined to emerge. The early Reformers in this matter acted mainly from an obscure instinct of natural revolt in an environment of plebeian materialism. The Puritans were moved by their feeling for simplicity and civil order as the conditions for religious freedom. Milton, in his _Doctrine and Discipline of Divorce_, published in 1643, when he was thirty-five years of age, proclaimed the supremacy of the substance of marriage over the form of it, and the spiritual autonomy of the individual in the regulation of that form. He had grasped the meaning of that conception of personal responsibility which is the foundation of sexual relationships as they are beginning to appear to men to-day. If Milton had left behind him only his writings on marriage and divorce they would have sufficed to stamp him with the seal of genius. Christendom had to wait a century and a half before another man of genius of the first rank, Wilhelm von Humboldt, spoke out with equal authority and clearness in favor of free marriage and free divorce.
It is to the honor of Milton, and one of his chief claims on our gratitude, that he is the first great protagonist in Christendom of the doctrine that marriage is a private matter, and that, therefore, it should be freely dissoluble by mutual consent, or even at the desire of one of the parties. We owe to him, says Howard, "the boldest defence of the liberty of divorce which had yet appeared. If taken in the abstract, and applied to both sexes alike, it is perhaps the strongest defence which can be made through an appeal to mere authority;" though his arguments, being based on reason and experience, are often ill sustained by his authority; he is really speaking the language of the modern social reformer, and Milton's writings on this subject are now sometimes ranked in importance above all his other work (Masson, _Life of Milton_, vol. iii; Howard, op. cit., vol. ii, p. 86, vol. iii, p. 251; C.B. Wheeler, "Milton's Doctrine and Discipline of Divorce," _Nineteenth Century_, Jan., 1907).
Marriage, said Milton, "is not a mere carnal coition, but a human society; where that cannot be had there can be no true marriage" (_Doctrine of Divorce_, Bk. i, Ch. XIII); it is "a covenant, the very being whereof consists not in a forced cohabitation, and counterfeit performance of duties, but in unfeigned love and peace" (Ib., Ch. VI). Any marriage that is less than this is "an idol, nothing in the world." The weak point in Milton's presentation of the matter is that he never explicitly accords to the wife the same power of initiative in marriage and divorce as to the husband. There is, however, nothing in his argument to prevent its equal application to the wife, an application which, while never asserting he never denies; and it has been pointed out that he assumes that women are the equals of men and demands from them intellectual and spiritual companionship; however ready Milton may have been to grant complete equality of divorce to the wife, it would have been impossible for a seventeenth century Puritan to have obtained any hearing for such a doctrine; his arguments would have been received with, if that were possible, even more neglect than they actually met. (Milton's scornful sonnet concerning the reception of his book is well known.)