Folkways, by William Graham Sumner

A Study of the Sociological Importance of Usages,
Manners, Customs, Mores, and Morals

CHAPTER X

THE MARRIAGE INSTITUTION

Mores lead to institutions. — Aleatory interest in marriage and the function of religion. — Chaldean demonism and marriage. — Hebrew marriage before the exile. — Jewish marriage after the exile. — Marriage in the New Testament. — The merit of celibacy. — Marriage in early Christianity. — Marriage in the Roman law. — Roman "free marriage." — Free marriage. — Transition from Roman to Christian marriage. — Ancient German marriage. — Early mediæval usage. — The place of religious ceremony. — The mode of expressing consensus. — Marriage at the church door. — Marriage in Germany, twelfth century. — The canon law. — Mediæval marriage. — Conflict of the mores with the church programme. — Church marriage; concubines. — The church elevated the notion of marriage. — The decrees of Trent about marriage. — Puritan marriage.

413. Mores lead to institutions. We have seen in Chapter IX that the sex mores control and fashion all the relations of the sexes to each other. Marriage, under any of its forms (polygamy, polyandry, etc.), is only a crystallization of a set of these mores into an imperfect institution, because the relation of a woman, or of women, to a husband becomes more or less enduring, and so the mores which constitute the relation get a stability and uniformity of coherence which makes a definable whole, covering a great field of human interest and life policy. It is not a complete specimen of an institution (sec. 63). It lacks structure or material element of any kind, but the parties are held to make good the understandings and coöperative acts which the mores prescribe at all the proper conjunctures, and thus there arises a system of acts and behavior such as every institution requires. In civilized society this cluster of mores, constituting a relationship by which needs are satisfied and sentiments are cherished, is given a positive form by legislation, and the rights and duties which grow out of the relationship get positive definition and adequate guarantees. This case is, therefore, a very favorable one for studying the operation of the mores in the 396making of institutions, or preparing them for the final work of the lawmaker.

414. Aleatory interest in marriage and the function of religion. The positive history of marriage shows that it has been always made and developed by the mores, that is to say, by the effort of adjustment to conditions in such a way that self-realization may be better effected and that more satisfaction may be won from life. The aleatory element (sec. 6) in marriage is very large. Marriage is an interest of every human being who reaches maturity, and it affects the weal and woe of each in every detail of life. Passing by the forms of the institution in which the wife is under stern discipline and those in which the man can at once exert his will to modify the institution, it may be said of all freer forms that there is no way in which to guarantee the happiness of either party save in reliance on the character of the other. This is a most uncertain guarantee. In the unfolding of life, under ever new vicissitudes, it appears that it is a play of luck, or fate, what will come to any one out of the marital union with another. Women have been more at the sport of this element of luck, but men have cared much more for their smaller risk in it. Therefore, at all stages of civilization, devices to determine luck have been connected with weddings, and in many cases acts of divination have been employed to find out what the future had in store for the pair. Marriage is a domestic and family affair. The wedding is public and invites the coöperation of friends and neighbors. Wedlock is a mode of life which is private and exclusive. The civil authority, after it is differentiated and integrated, takes cognizance and control of the rights of children, legitimacy, inheritance, and property. Religion, in its connection with marriage, takes its function from the aleatory interest. It is not of the essence of marriage. It "blesses" it, or secures the favor of the higher powers who distribute good and bad fortune. In a very few cases amongst savage tribes religious ceremonies "make" a marriage; that is, they give to it (to the authority of the husband) a superstitious sanction which insures permanence and coercion as long as the husband wants permanence and coercion. These cases are rare. 397The notion that a religious ceremony makes a marriage, and defines it, had no currency until the sixteenth Christian century.

415. Chaldean demonism and marriage. Chaldean demonism affected wedding ceremonies. The belief was that demons found their opportunities at great crises in life, when interest and excitement ran high. Then the demons rejoiced to exert their malignity on man to produce frustration and disappointment. Cases are not rare in which the consummation of marriage was deferred, in barbarism and half-civilization, to ward off this interference of demons. The Chaldean groom's companions led him to the bride, and he repeated to her the formulas of marriage: "I am the son of a prince. Silver and gold shall fill thy bosom. Thou shalt be my wife and I thy husband. As a tree bears abundant fruit, so great shall be the abundance which I will pour out on this woman." A priest blessed them and said: "All which is bad in this man do ye [gods] put far away, and give him strength. Do thou, man, give thy virility. Let this woman be thy spouse. Do thou, woman, give thy womanhood, and let this man be thy husband." The next morning a ritual was used to drive away evil spirits.1324

416. Hebrew marriage before the exile. In the canon of the Old Testament we get no information at all about wedding ceremonies, or the marriage institution. The reason for this must be that marriage was altogether a family and domestic affair. It was controlled by very ancient mores, under which marriage and the family were conducted, as beyond question correct. It is in the nature of the case, in all forms of the father family, that a girl until marriage was under the care and authority of her father or nearest male relative. The suitor must ask him to give her, and must induce him to give her by gifts. The transfer was made publicly that it might be known that she was the wife of such an one. The old Hebrew marriage seems to have consisted in this form of giving a daughter, in all its simplicity. We find a taboo on the union of persons related by consanguinity or affinity. Later there was a taboo on exogamic marriage. In the prophets there are metaphors and symbolical acts relating 398to marriage, which show a development of the mores in regard to it. The formulas which are attached to the prohibitions in Levit. xviii are in the form of explanations of the prohibitions or reasons for them, but they furnish no real explanations. Their sense is simply: For such is the usage in Israel, or in the Jahveh religion. That was the only and sufficient reason for any prescription. "After the consent of the parents of the bride had been obtained, which was probably attended by a family feast, the bridegroom led the bride to his dwelling and the wedding was at an end. No mention is made anywhere of any function of a priest in connection with it. It is not until after the Babylonian exile, after the Jews had become more fully acquainted with the mores and usages of other civilized peoples of that age, that weddings amongst them were made more solemn and ceremonial. After a betrothal a full year (if the bride was a widow, one month) was allowed the pair, after the captivity, to prepare their outfit, in imitation of the Persian custom (Esther ii. 12)." "At the end of the delay, the bride was led or carried to the house of the groom, in a procession, with dancing and noisy rejoicing, as is now the custom in Arabia and Persia. Ten guests must be present in the groom's house, as witnesses, where prayer formulas were recited and a feast was enjoyed." There were also prayers by all present at a betrothal "in order to give the affair a religious color." The pair retired then to a room where they first made each other's acquaintance. Then two bridesmen led them to the nuptial chamber where they watched over them until after the first conjugal union. This last usage was not universal, and after some experience of its ambiguous character it was abolished. The purpose was that there might be witnesses to the consummation of the marriage, not merely to the wedding ceremony. The whole proceeding was a domestic and family affair, in which no priest or other outsider had any part, except as witness, and there was no religious element in it.1325 The prayer formulas were uttered by the participants and their friends, and they were formulas of invoking blessing, prosperity, and good fortune.

399417. Jewish marriage after the exile. The Jewish idea of marriage was naïve and primitive. The purpose was procreation. Every man was bound to marry, after the exile, and could be compelled to do so, and to beget at least one son and one daughter. By direct inference sterility made marriage void. It had failed of its purpose. It was the naïveté of this notion of marriage which led to the provision of witnesses for the consummation of the marriage. Marriage meant carnal union under prescribed conditions, and nothing else. In Deut. xxii. 28 f. the rule is laid down that a man who violated a maid must remain her husband. This is another direct inference from the view of marriage. The ketubah was the document of a "gift on account of nuptials to be celebrated." It made the bride a wife and not a concubine or maid servant, for the distinction depended on the intention of the bridegroom. In the rabbinical period the betrothal and wedding were united. The wedding was made by a gift (a coin or ring), by a document (ketubah), or by the fact of concubitus.1326 The man took the woman to wife by the formula: "Be thou consecrated to me," or later, "Be thou consecrated to me by the law of Moses and Israel." These formalities took place in the presence of at least ten witnesses, who pronounced blessings and wishes for good fortune. The third mode of wedding was forbidden in the third century A.D. In the Jewish notions of marriage we see already the beginning of the later casuistry. Procreation being the sense and purpose of marriage, the carnal act was the matter of chief importance. At the same time the Jews thought that copulation and childbirth rendered unclean. They must be rectified by purification and penance. Thus the act had a double character; it was both right and wrong. It was a conjugal duty not to be sensual.1327 All this contributed to the modern notion of pair marriage, for at last no sex indulgence was allowed outside of legal marriage. When the custom of the presence of witnesses in the bride chamber produced dissatisfaction a tent was substituted for the chamber. Later a scarf, ceremoniously spread over the heads of the pair, took the place of the tent. The custom arose that the pair retired to a special room and 400took a meal together there. "The ceremony had no ecclesiastical character.... The blessings only gave publicity to the ceremony. They were not priestly blessings and were not essential to the validity of the marriage."1328 So we see that, even amongst a people so attached to tradition as the Jews, when one of the folkways did not satisfy an interest, or outraged taste, the mores modified it into a form which could give satisfaction.

418. Marriage in the New Testament. According to the New Testament marriage is a compromise between indulgence and renunciation of sex passion. A compromise is always irrational when it bears upon concepts of right and truth, and not on mere expediency of action. The concept of right and truth on either hand may be correct; it is certain that the compromise between them is not correct. The compromise can be maintained only by disregarding its antagonism to the concepts on each side of it. For fifteen hundred years the Christian church fluttered, as in a moral net, in the inconsistencies of the current view of marriage. The procreation of children was recognized as the holiest function and the greatest responsibility of human beings, but it was considered to involve descent into sensuality and degradation. It was the highest right and the deepest wrong to satisfy the sex passion, and the two aspects were reconciled partially in marriage, by a network of intricate moral dogmas which must be inculcated by long and painful education. In the sixteenth century the problem was solved by repudiating the doctrine of celibacy as a meritorious and superior state, and making marriage a rational and institutional regulation of the sex relation, in which the aim is to repress what is harmful, and develop what is beneficial, to human welfare. This change was produced by and out of the mores. The Protestants denounced the falsehood and vice under the pretended respect for celibacy. The new view of marriage could not be at once fully invented and introduced. Therefore the Romanists pointed with scorn to the careless marriage and loose divorce amongst the Protestants (sec. 380).

419. Merit of celibacy. No reasons are ascertainable why Paul should maintain that celibacy is to be preferred to wedlock as a 401more worthy mode of life. In 1 Cor. vii. 32-34 he argues that the unmarried, being free from domestic cares, can care for the things of God. He speaks often of the degree of certainty he feels that he has with him the Spirit of God. This shows that he often lacked self-confidence in regard to his teachings. He does not seem to hold the ascetic view. In Ephes. v. 22 the marriage institution is accepted and regulated, with some mystical notions, which it is impossible to understand. Marriage and Christ's headship of the church are said to explain each other or to be parallel, but it is not possible to understand which of them is represented as simple and obvious, so that it explains the other. The apostle sometimes seems to lay stress on the vexations and cares of wedlock. If that is his motive, he announces no principle or religious rule, but only a consideration of expediency which is not on a high plane. Tertullian and Jerome (in anticipation of the end of the world) regarded virginity as an end in itself; that is to say, that they thought it noble and pious to renounce the function on which the perpetuation of the species depends. The race (having left out of account the end of the world) cannot commit suicide, and men and women cannot willfully antagonize the mores of existence — economic, social, intellectual, and moral, as well as physical — which are imposed on them by the fact that the human race consists of two complementary sexes. Jerome, in his tracts against Jovinianus, wanders around and around the absurdities of this contradiction. The ascetic side of it became the cardinal idea of religious virtue in the Middle Ages. "Monkish asceticism saw woman only in the distorting mirror of desire suppressed by torture."1329 "Woman" became a phantasm. She was imaginary. She appeared base, sensual, and infinitely enchanting, drawing men down to hell; yet worth it. In truth, there never has been any such creature. In the replies of Gregory to Augustine (601 A.D.)1330 arbitrary rules about marriage and sex are laid down with great elaboration. They are prurient and obscene. The mediæval sophistry about the birth of Christ is the utmost product of human folly in its way. Joseph and Mary were married, but the marriage was never consummated. Yet it was a 402true marriage and Mary became a mother, but Joseph was not the father. Mary was a virgin, nevertheless. This might all pass, as it does in modern times, as an old tradition which is not worth discussing, but the mediæval people turned it in every possible direction, and were never tired of drawing new deductions from it. At last, it consists in simply affirming two contradictory definitions of the same word at the same time. There are, in the mythologies, many cases of virgin birth. The Scandinavian valkyre was the messenger of the god to the hero and the life attendant of the latter. He loved her, but she, to keep her calling, must remain a virgin. Otherwise she gave up her divine position and deathlessness in order to live and die with him.1331 The notion of merit and power in renunciation is heathen, not Christian, in origin. The most revolting application of it was when two married people renounced conjugal intimacy in order to be holy.

420. Marriage in early Christianity. In the earliest centuries of Christianity very little attention seems to have been paid to marriage by the Christians. It was left to the mores of each national group, omitting the sacrifices to the heathen gods. It is not possible to trace the descent of Christian marriage from Jewish, Greek, or Roman marriage, but the best authorities think that its fundamental idea is Jewish (carnal union), not Roman (jural relations).1332 "The church found the solemn ceremonies for concluding marriage existing [in each nation]. No divine command in regard to this matter is to be found" [in the New Testament].1333 The church, in time, added new ceremonies to suit its own views. Hence there was the same variety at first inside the church as there had been before Christianity. There can, therefore, be no doubt that, throughout the Latin branch of the church, the usages and theories of Roman marriage passed over into the Christian church. Lecky says that at Rome monogamy was from the earliest times strictly enjoined; and it was one of the greatest benefits that have resulted from the expansion of Roman power, that it made this type dominant in Europe.1334 Although 403the Romans had strict monogamy in their early history, they had abandoned it before their expansion began to have effect, and monogamy was the rule, in the civilized world, for those who were not rich and great, quite independently of Roman influence, at the time of Christ. The Roman marriage of the time of the empire, especially in the social class which chiefly became Christians, was "free marriage," consisting in consensus and delivery of the bride. Richer people added instrumenta dotalia as documents to regulate property rights, and as proofs of the marital affection of the groom by virtue of which he meant to make the bride his wife, not his concubine. The marriage of richer people, therefore, had a guarantee which had no place between those who had no occasion for such documents. Life with a woman of good reputation and honorable life created a presumption of marriage. The church enforced this as a conscience marriage, which it was the man's duty to observe and keep.

421. Marriage in Roman law. In the corpus juris civilis there are two passages which deserve especial attention. In Dig., I, xxiii, 2, it is said: "Nuptials are a conjunction of a male and a female and a correlation (consortium) of their entire lives; a mutual interchange (communicatio) of rights under both human and divine law." In the Institutes (sec. I, i, 9) it is said: "Nuptials, or matrimony, is a conjunction of a man and a woman which constitutes a single course of life (individuam vitae consuetudinem)." These are formulas for very high conceptions of marriage. They would enter easily into the notion of pair marriage at its best. The former formula never was, amongst the Romans, anything but an enthusiastic outburst. Roman man and wife had no common property; they could make no gifts to each other lest they should despoil each other; their union, in the time of the empire, was dissoluble almost at pleasure; the father and mother had not the same relation to their children; the woman, if detected in adultery, was severely punished; the man, in the same case, was not punished at all. The "correlation of their entire lives" was, therefore, very imperfect. The sense of individuam vitae consuetudinem is very uncertain. It could not have meant merely the exclusive conjugal relation of each to the other, 404although such was the sense given to the words in the church. The law contained no specification of the mutual rights and duties of the spouses. These were set by the mores and varied very greatly in Roman history. Affectus maritalis (the disposition of a husband to a wife) and honore pleno deligere (to distinguish with complete honor) are alone emphasized as features of marriage which distinguished it from concubinage.1335 Roman jurists took marriage as a fact, for at Rome from the earliest times, it had been a family matter, developed in the folkways. The civil law defined the rights which the state regarded as its business in that connection, and which it would, therefore, enforce.1336

422. Roman "free marriage." The passages quoted in the last paragraph refer to "free marriage" after the manus idea had been lost. They could be applied also to the German notion of marriage after the Germans abandoned the mund idea. They also correspond to the Greek view of marriage, for in Greece the authority of the father early became obsolete in its despotic form. From the time of Diocletian the woman who was sui juris was a subject of the state without intermediary, just as her brother or husband was, and she enjoyed free disposition of herself. The same view of marriage passed into the Decretals of Gratian and into our modern legislation.1337

423. Free marriage. At the end of the fourth century A.D. the church set aside the Roman notions of the importance of the dos and donatio propter nuptias, and made the consensus the essential element in marriage. This was an adoption of that form of "free marriage" of the time of the empire which the class from which Christians came had practiced. That is to say, that the church took up the form of marriage which had been in the class mores of the class from which the church was recruited. This is really all that can be said about the origin of "Christian marriage." It is a perpetuation of the mores of the lowest free classes in the Roman world. Justinian reintroduced the dos and donatio for persons of the higher classes who were, in his time, included in the church. People of the lower class were to utter the consensus in a church before three or four clergymen, and a 405certificate was to be prepared.1338 The lowest classes might still neglect all ceremony. This law aimed to secure publicity, a distinct expression of consent, and a record. There is no reference to any religious blessing or other function of the clergy. They appear as civil functionaries charged to witness and record an act of the parties.1339 In another novel1340 all this was done away with except the written contract about the dower, if there was one.1341

424. Transition from Roman to Christian marriage. The ideal of marriage which has just been described came into the Christian church out of the Roman world. Roman wedding sacrifices were intended to obtain signs of the approval of the gods on the wedding. They were domestic sacrifices only, since the sacred things of the spouses were at home only. The auspices ceased to be taken at marriages from the time of Cicero. It became customary to declare that nothing unfavorable to the marriage had occurred. There are many relief representations of late Roman marriages on which Juno appears as pronuba, a figure of her standing behind the spouses as protectress or patroness. Rossbach1342 thus interprets such a relief: "The bethrothed, with the assistance of Juno, goddess of marriage, solemnly make the covenant of their love, to which Venus and the Graces are favorable, by prayer and sacrifices before the gods. By the aid of Juno love becomes a legitimate marriage." Rossbach mentions exactly similar reliefs in which Christ is the pronuba, and the transition to Christianity is distinctly presented. In a similar manner ideas and customs about marriage were brought under Christian symbol or ceremony, and handed down to us as "Christian marriage." The origin of them is in the mores of the classes who accepted Christianity, which were subjected to a grand syncretism in the first centuries of Christianity.

425. Ancient German marriage. No documents were necessary until the time of Justinian (550 A.D.), an oral agreement being sufficient, if probable. There were essential parts of the Roman wedding usages which were independent of paganism and which 406were necessarily performed at home. In the Eastern empire concubinage was abolished at the end of the ninth century. The heathen Germans had two kinds of marriage, one with, the other without, jural consequences. Both were marriage. The difference was that one consisted in betrothal, endowment, and a solemn wedding ceremony; the other lacked these details. Here, again, it is worth while to notice that property and rank would very largely control the question which of these two forms was more suitable. Consequences as to property followed from the former form which were wanting in the latter. If the pair had no property, the latter form was sufficient. In mediæval Christian Germany the canon law obliterated the distinction, but then morganatic marriage was devised, by which a man of higher rank could marry a woman of lower rank without creating rights of property or rank in her or her children. In such a form of marriage the Roman law saw lack of affectus maritalis and of deligere honore pleno; hence the union was concubinage, not marriage. The German law held that the intention to marry made marriage, and that property rights were another matter.1343 The ancient mores lasted on and kept control of marriage, and the church, in its efforts to establish its own theories of marriage, property, legitimacy, rank, etc., was at war with the old mores.

426. Early church usage. In the Decretals of Gratian1344 are collected the earliest authorities about marriage in the Christian church, some of which are regarded now as ungenuine. "Nevertheless it is impossible to say that, in the early times of Christianity, there was any church wedding. Weddings were accomplished before witnesses independently of the church, or perhaps in the presence of a priest by the professiones." Then followed the pompous home bringing of the bride. Afterwards the spouses took part in the usual church service and the sacrament and gave oblations.1345 Later special prayers for the newly wedded were introduced into the service. Later still special masses for the newly wedded were introduced. Such existed probably before 407the ninth century.1346 The declaration of consensus still took place elsewhere than in church, and not until the rituals of the eleventh and twelfth centuries does the priest ask for it, or is it asked for in his presence. In the Greek ritual there has never yet been any declaration of consensus.1347

427. The usage as to religious ceremony. The more pious people were, the more anxious they were to put all their doings under church sanction, and they sought the advice of honored ecclesiastics as to marriage. Such is the sense of Ignatius to Polycarp, chapter 5. Tertullian was a rigorist and extremist, whose utterances do not represent fact. In our own law and usage a common-law marriage is valid, but people of dignified and serious conduct, still more people of religious feeling, do not seek the minimum which the law will enforce. They seek to comply with the usages in their full extent, and to satisfy the whole law of the religious body to which they belong. In like manner, there was a great latitude from the fourth to the sixteenth century, while the Christian church was trying to mold the barbarian mores to its own standards in the usages which were current, but an ecclesiastical function was not necessary to a valid marriage until the Council of Trent. In fact a wedding in church never was an unconditional requirement for a valid marriage among German Roman Catholics until the end of the eighteenth century.1348 Somewhat parallel cases of the addition of religious ceremonies to solemn public acts which had been developed in the mores are the emancipation of a slave, and the making of a knight.1349

428. Mode of expressing consensus. If the consent of the parties is regarded as essential, then the public proceedings must bring out an expression of will. The ancient German usage was that the friends formed a circle in which the persons to be married took their place, and the woman's guardian, later her most distinguished friend, asked them (the woman first) whether it was their will to become man and wife, — these terms being 408defined in the mores. This was a convenient and rational proceeding, of primitive simplicity and adaptation to the purpose. In Scandinavia and Iceland the ancient laws contained exact prescriptions as to the person who might officiate as the conductor of this ceremony. Relatives of the bride, first on her father's side, then on her mother's, were named in a series according to rank.1350 Such a prolocutor is taken for understood in the Constitutio de Nuptiis (England).1351 To him the man promises to take the woman to wife "by the law of God and the customs of the world, and that he will keep her as a man ought to keep his wife." Evidently these statements convey no idea of wedlock unless the mores of the time and place are known. They alone could show how a man "ought to keep his wife." The man also promises to show due provision of means of support, and his friends become his sureties. Through the Middle Ages great weight was given to the provision for the woman throughout her life, especially in case of widowhood. In fact, a "wife" differed from a mistress by virtue of this provision for her life. In the Constitutio de Nuptiis it is added, "Let a priest be present at the nuptials, who is to unite them of right, with the blessing of God, in full plenitude of felicity."

429. Marriage at the church door. In a French ritual of 700 A.D. the priest goes to the church door and asks the young pair (who appear to be walking and wooing in the street) whether they want to be duly married. The proceedings all concern the marriage gifts, after which there is a benediction at the church door, and then the pair go into the church to the mass. A hundred years later the priest asked for the consensus, and statement of the gift from the groom to the bride, and for a gift for the poor. Then the woman was given by her father or friends.1352

430. Marriage in Germany in the early Middle Ages. In the Frank, Suabian, Westphalian, and Bavarian laws "the woman was entitled to her dower when she had put her foot in the bed." The German saying was, "When the coverlet is drawn over 409their heads the spouses are equally rich," that is, they have all property of either in common.1353 Hence, in German law and custom, consensus followed by concubitus made marriage. Hence also arose the custom that the witnesses accompanied the spouses to their bedchamber and saw them covered, or visited them later. Important symbolic acts were connected with this visit. The spouses ate and drank together. The guests drove them to bed with blows.1354 The witnesses were not to witness a promise, but a fact. In the Carolingian period, except in forged capitularies, there is very little testimony to the function of priests in weddings.

The church ceremony, however, won its way in popular usage. It consisted in blessing the ring and the gifts, and the interest of ecclesiastics began to be centered on the question whether the persons to be married were within the forbidden degrees of relationship.1360 In the Petri Exceptiones (between 1050 and 1075)1361 410it is expressly stated, amongst other statements of what does not make a marriage, that it is not the benediction of the priest, but the mental purpose of the man and woman. Other things only establish testimony and record. Weinhold1362 cites a poem of the eleventh century in which a wedding is described. After the betrothal is agreed upon by the relatives, and property agreements have been made, the groom gives to the bride a ring on a sword hilt, saying, "As the ring firmly incloses thy finger, so do I promise thee firm and constant fidelity. Thou shalt maintain the same to me, or thy life shall be the penalty." She takes the ring, they kiss, and the bystanders sing a wedding song. In a Suabian document of the twelfth century, the bridegroom is the chief actor.1363 He lays down successively seven gloves, the glove being the symbol of the man himself in his individual responsibility and authority. Each glove is a pledge of what he promises according to the prescriptions of the Suabian mores, for which his formula is, "As by right a free Suabian man should do to a free Suabian woman." He enumerates the chief kinds of Suabian property and promises to write out his pledges in a libellus dotis, if the bride will provide the scribe. Then the woman's guardian, having received these pledges, delivers her, with a sword (on the hilt of which is a finger ring), a penny, a mantle, and a hat on the sword, and says: "Herewith I transfer my ward to your faithfulness, and to your grace, and I pray you, by the faith with which I yield her to you, that you be her true guardian, and her gracious guardian, and that you do not become her direful guardian." "Then," it is added, "let him take her and have her as his." This must be a very ancient form, of German origin. There is no consensus expressed in it and the symbolism is elaborate. The libellus dotis is evidently an innovation. It has a Latin name and is a contingent, not a substantive part of the man's acts. The old German form shows that the Latin church usage had not yet overturned the German tradition.

431. The canon law. In the Decretals of Gratian1364 the doctrine of nuptials is that they begin with the public ceremony 411and are completed by concubitus. Agreement to cohabit, followed by cohabitation, constituted marriage by the canon law. This is the common sense of the case. It was the doctrine of the canon law and is the widest modern civilized view.

432. Mediæval marriage. In the thirteenth century began the astonishing movement by which the church remodeled all the ideas and institutions of the age, and integrated all social interests into a system of which it made itself the center and controlling authority. The controlling tendency in the mores of the age was religiosity, — a desire to construe all social relations from the church standpoint and to set all interests in a religious light. Marriage fell under this influence. The priests displaced the earlier prolocutors, and strove to make marriage an ecclesiastical function and their own share in it essential, although they did not make the validity of marriage depend on their share in it.1365 In different places and amongst different classes the custom of church marriage was introduced at earlier or later times, and the doctrine of priestly function in connection with marriage became established with greater or less precision. Friedberg1366 considers the ordinance of the Synod of Westminster1367 (1175) the first ordinance which distinctly prescribed church marriage in England, but from that to the establishment of a custom was a long way. Pollock and Maitland1368 think that marriage, in England, belonged to the ecclesiastical forum by the middle of the twelfth century. Rituals of Salisbury and York of the thirteenth century show the early church customs, only rendered more elaborate and more precise in detail.1369 There is also ritual provision for an ecclesiastic to bless the bed of the spouses after they are in it, in order to drive away the evil spirits. In 1240, in the constitutions of Walter de Cantelupe, marriage is called a sacrament, because it prefigures the sacrament between Christ and the church. Marriage was to precede concubitus. There was to be no divination or use of devices for luck. By synodal statutes of 1246 it was ordered that priests should teach that betrothal and 412consummation would constitute irrevocable marriage.1370 If people treated church ordinances and forms with neglect they were punished by church discipline, but the marriage was not declared invalid. Hence the system was elastic and could not be abruptly changed.

433. Conflict of mores and church programme. Betrothal and wedding. In Germany the popular resistance to a change of the mores about marriage was more stubborn than elsewhere. Although ecclesiastics were present at marriages, until the thirteenth century, they sometimes took no part.1371 In the poems, from the beginning of the twelfth century, mention is made of priestly benediction; still it remains uncertain whether this took place before or after concubitus. In the great epics of the thirteenth century the old custom of the circle of friends and the interrogatories by a distinguished relative appears. The couple spend the night together and on the following morning go to church where they are blessed.1372 This is the proceeding in Lohengrin. In the thirteenth century the prolocutor was going out of fashion and the ecclesiastic got a chance to take his place.1373 Evidently there was here an ambiguity between the betrothal and the wedding. It took two or three centuries to eliminate it. When the man said, "I will take," did he mean, "It is my will to take now," or did he mean, "I will take at a future time"? Sohm1374 says that betrothal was the real conclusion of a marriage, and that the wedding was only the confirmation (Vollzug) of a marriage already consummated. Friedberg1375 says that the wedding was the conclusion of a projected marriage and not the consummation of one already concluded. When there was a solemn public betrothal and then a wedding after an interval of time, the latter was plainly a repetition which had no significance. What happened finally was that the betrothal fell into insignificance, or was united with the wedding as in the modern Anglican service, and concubitus was allowed only after the wedding. The wedding then had importance, and was not merely a blessing on a completed fact. It was then a 413custom in all classes to try life together before marriage (Probenächte). In the fifteenth century, if kings were married by proxy, the proxy slept with the bride, with a sword between, before the church ceremony.1376 The custom to celebrate marriages without a priest lasted, amongst the peasants of Germany, until the sixteenth century.1377 "It was, therefore, customary [in the thirteenth century] to have the church blessing, but generally only after consummated marriage. The blessing was not essential, but was considered appropriate and proper, especially in the higher classes. In the fourteenth century the ecclesiastical form won more and more sway over the popular sentiment."1378

434. Church marriage. Concubines. It is necessary to notice that there is never any question of the status of men. They satisfy their interests as well as they can and the result is the stage of civilization. The status of women is their position with respect to men in a society in which men hold the deciding voice. Men bear power and responsibility. Women are the coadjutors, with more or less esteem, honor, coöperative function, and joint authority. There has never until modern times been a law of the state which forbade a man to take a second wife with the first. A man could not commit adultery because he was not bound, by law or mores, to his wife as she was to him. A man and woman marry themselves and lead conjugal life in a world of their own. Church and state would be equally powerless to marry them. The church may "bless" their union. The state may define and enforce the civil and property rights of themselves or their children. It cannot enforce conjugal rights. Therefore it cannot divorce two spouses. They divorce themselves. The state can say what civil and property right shall be affected by the divorce, and how the force of the state shall enforce the consequences. The marriage relation is domestic and private, where the wills of the individuals prevail and where the police cannot act. The Christian church, about the thirteenth century, introduced a marriage ritual in which the spouses promised exclusive fidelity, the man as much as the woman. As fast and as far 414as church marriage was introduced, the promise set the idea of marriage. If either broke the promise, he or she was liable to church censure and penance. In England the first civil law against bigamy was I James I, chapter 11. Never until 1563 (Council of Trent) was any ecclesiastical act necessary to the validity of a marriage even in the forum of the church. Marriage was in the mores. The blessing of the church was edifying and contributory. It was not essential. Marriage was popular and belonged to the family. In the ancient nations sacrifices were made for good fortune in wedlock. In the Middle Ages Christian priests blessed marriages which had been concluded by laymen and had already been consummated. The relation of husband and wife varied, at that time, in the villages of Germany or northern France of the same nationality. Until modern times concubinage has existed as a recognized institution. It was an inferior form of marriage, in which the woman did not take the rank of her husband, and her children did not inherit his rank or property, but her status was permanent and defined. Sometimes it was exclusive. Then again slaves have been at the mercy of a master and in ancient times they were always proud to "find favor in his eyes." Thus wives, concubines, and slave women form three recognized ranks of female companions.

435. The church elevated the notion of marriage. In all the ancient civilized states marriage was an affair of property interests and rank. The public ceremony was needed in order to establish rights of property and inheritance, legitimacy, and civil rights. The Christian church of the Middle Ages had to find a ground for its own intervention. This it did by emphasizing the mystic element in marriage, and developing all the symbolism of the Bible which could be applied to this subject and all the biographical details which touched upon it, — Adam and Eve, Tobias, Joseph and Mary, the one-flesh idea, the symbolism of Christ and the church, etc. Thus a sentimental-poetical-mystical conception of marriage was superimposed on the materialistic-sensual conception of it. The church affirmed that marriage was a "sacrament." A half-dozen different explanations of "sacrament" in this connection could be quoted. It is impossible 415to tell what it means. The church, however, by its policy, contributed greatly to the development of the nobler conception of marriage in modern mores. The materialistic view of it has been left decently covered, and the conception of wedlock as a fusion of two lives and interests into affectionate coöperation, by the sympathy of character and tastes, has become the ideal. The church did much to bring about this change. For an age which attributed a vague and awful efficacy to a "sacrament," and was familiar, in church matters, with such parallelisms as that alleged between marriage and the union of Christ with his church, it is very probable that the church "fostered a feeling that a lifelong union of one man and one woman is, under all circumstances, the single form of intercourse between the sexes which is not illegitimate; and this conviction has acquired the force of a primal moral intuition."1379 What has chiefly aided this effect has been the rise to wealth and civil power of the middle class of the later Middle Ages, in whose mores such views had become fixed without much direct church influence.

436. The decrees of Trent about marriage. It was not until the decrees of Trent (1563) that the church established in its law the sacerdotal theory of marriage in place of the theory of the canon law. The motive at Trent was to prevent clandestine marriages, that is, marriages which were not made by a priest or in church. These marriages were common and they were mischievous because not to be proved. They made descent and inheritance uncertain when the parties belonged to families of property and rank. In form, the decrees of Trent provided for publicity. Marriage was to be celebrated in church, by the parish priest, and before two witnesses. This action was not in pursuance of a change in the mores. It was a specific device of leading churchmen to accomplish an object. In view of the course of the mores, it may be doubted if any effect ought to be attributed to the decrees of Trent for their immediate purpose, but two effects have been produced which the churchmen probably did not foresee. First, it became the law of the church that the consent of a man and a woman, expressed in a church before 416the parish priest, constituted a marriage without any voluntary participation of the priest. The Huguenots in France, for more than a century, married themselves in this way, a notary being employed to make a record and certificate. Secondly, this law became the great engine of the church to hold its children to their allegiance and prevent mixed marriages. To win the consent of the parish priest to perform the ceremony the parties must conform to church requirements, — confession and communion. The seventeenth and eighteenth centuries were occupied by struggles of living men to regulate their interests in independence of these restraints.

437. Puritan marriage. The Puritan sects made marriage more secular, as the Romish Church made it more ecclesiastical. Although they liked to give a religious tone to all the acts of life, the Puritans took away from marriage all religious character. It was performed by a civil magistrate. Such was the rule in New England until the end of the seventeenth century. However, there was, in this matter, an inconsistency between the ruling ideas and the partisan position, and the latter gave way. There has been a steady movement of the mores throughout the Protestant world in the direction of giving to marriage a religious character and sanction. It has become the rule that marriages shall be performed by ministers of religion, and the custom of celebrating them in religious buildings is extending. The authority and example of the church of Rome have had nothing to do with this tendency. They are not even known. It has been purely a matter of taste, sentiment, and popular judgment as to what is right and proper; also it has been due to the ideas of women in regard to suitable pomp and glory. The mores have once more taken full control of the matter, and the religious ceremony is used to satisfy the interests, and fulfill the faiths, of the population. Such is the effect of civil marriage as established in the nineteenth century. At the present time the ministers of religion seem disposed to use their lawful position as the proper ones to celebrate marriage, that they may impose restrictions on divorce, and on marriage after divorce.

1324 Maspero, Peuples de l'Orient, I, 736.

1325 Bergel, Eheverhält. der Juden, 19.

1326 Deut. xxii. 29.

1327 Freisen, Gesch. des kanon. Eherechts, 848.

1328 Freisen, Gesch. des kanon. Eherechts, 23, 47, 92-96.

1329 Lippert, Kulturgesch., II, 520.

1330 Wilkins, Concilia, 20.

1331 Wisen, Qvinnan i Nordens Forntid, 7.

1332 Freisen, Gesch. des kanon. Eherechts, 154.

1333 Ibid., 121.

1334 Eur. Morals, II, 298.

1335 Cf. Freisen, 26.

1336 Rossbach, Röm. Ehe., 9.

1337 Ibid., 62.

1338 Novel., LXXIV, c. 4, sec. 1 (537 A.D.).

1339 Cf. Nov., XXII, c. 3.

1340 CXVII, c. 4.

1341 Friedberg, 14-16.

1342 Röm. Hochzeits und Ehedenkmäler, 49, 107.

1343 Freisen, 48, 103; Grimm, D. R. A., 420.

1344 II, c. XXX, qu. 5, c. 1.

1345 Pullan, Hist. Book of Common Prayer, 217.

1346 Friedberg, Recht der Eheschliessung, 8.

1347 Ibid., 9.

1348 Stammler, Stellung der Frauen, 27.

1349 Jenks, Law and Politics in the Middle Ages, 251.

1350 Lehmann, Verlobung und Hochzeit nach den nordgermanischen Rechten des früheren M. A., 31.

1351 Wilkins, Concilia, I, 216 (644 A.D.).

1352 Friedberg, 61.

1353 Freisen, 118.

1354 Friedberg, 23.

1355 Freisen, Kanon. Eherecht, 92, 96; Bergel, Eheverhält. der Juden, 19.

1356 Rossbach, Röm. Ehe, 370.

1357 Weinhold, D. F., I, 399.

1358 Gesch. Fried. III, by Æneas Silvius, trans. Ilgen, II, 95.

1359 Friedberg, Recht der Eheschliessung, 23.

1360 Friedberg, 58.

1361 Savigny, Gesch. des Röm. Rechts im M. A., II, Append.

1362 Deutsche Frauen, I, 341.

1363 Rhein. Mus., 1829, 281.

1364 II, c. XXVII, qu. 2, and c. XXXIV.

1365 Friedberg, 98.

1366 Ibid., 39.

1367 Wilkins, Concilia, I, 478.

1368 Hist. Eng. Law, I, 109; II, 365.

1369 Surtees Soc., Man. et Pont. Ecc. Ebor., 157, and App. 17.

1370 Wilkins, I, 668, 690.

1371 Friedberg, 79.

1372 Nibelungen, 568-597.

1373 Weinhold, D. F., I, 373.

1374 Trauung und Verlobung, 37.

1375 Verlobung und Trauung, 23.

1376 Friedberg, 90.

1377 Hagelstange, Bauernleben im M. A., 61.

1378 Friedberg, 85; cf. Weinhold, D. F., I, 378; Grimm, D. R. A., 436.

1379 Lecky, Eur. Morals, II, 347.

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