Читать книгу A History of Matrimonial Institutions (Vol. 1-3) - George Elliott Howard - Страница 36

Table of Contents

Thus it appears that between the first and twelfth centuries the religious element in the marriage ceremony runs through three phases, not sharply defined by dates, but overlapping and blending; and for the sake of clearness it may be well to summarize the history of this development before proceeding farther. (1) During about four centuries no liturgy was prescribed; the ancient popular forms of contract were accepted; the nuptials were usually celebrated in the home of the bride, less often in church; and the priestly benediction, though doubtless commended as a religious duty, was not exacted by the church as essential to a legal or a canonical marriage. (2) Between about the end of the fourth century and the middle of the tenth the custom became well established for the newly wedded pair to attend religious service in the church to partake of the sacrament and receive the priestly benediction on their future married life; and this practice soon led to the institution of the regular bride-mass, containing phrases directly applicable to the nuptials. In the bride-mass may be found the genesis of the ecclesiastical marriage liturgy; but it is a purely religious office and adds nothing to the validity of the private contract. (3) In the next phase, falling between the tenth and the twelfth centuries, the clergy makes rapid progress. An elaborate and imposing ritual is developed; the priest, inheriting the functions of the ancient orator, directs the entire celebration; the nuptial ceremony takes place before the church door, and is followed by the bridal mass in the church itself; but even now the priest is a mere helper, and the religious service adds nothing to, nor its omission takes nothing from, the validity of the nuptial contract.

The next and final step is comparatively easy and already assured. By the beginning of the thirteenth century the western church had entered upon a fourth phase in respect to the solemnization of marriage. This was facilitated, according to Sohm,[998] by the custom, already mentioned, of choosing any third person as guardian to officiate at the nuptials, marking the transition from the ancient tradition through the natural guardian to the stage of self-gifta or tradition by the bride herself—a stage which is fairly being entered upon at the beginning of the thirteenth century. This new and more liberal form of lay tradition led directly to the gifta by the priest, or to ecclesiastical marriage properly so called.[999] In the third stage of development the priest could not venture to interfere with the prerogative of the natural guardian to give his ward in marriage. He could at most assist as orator and bestow his benediction. But from the moment that custom sanctioned the choice of any third person in place of the father or other natural protector, the clergy appropriated this function as their exclusive right. While the church "bestowed her blessing upon the tradition through the natural guardian, she directed against the lay chosen guardian her excommunication."[1000] So at this point arose the antagonism between private and ecclesiastical marriage.[1001] The motive of the church was clearly twofold. While she very naturally strove to gain control of the nuptial celebration, to give more and more a religious form to the institution already declared by her to be a sacrament, she doubtless foresaw something of the evils which would ensue from clandestine or private unions, now that the consent of the parent or natural guardian was no longer necessary, as in early days, for a valid marriage, and therefore began to legislate in the interest of publicity.

Henceforth the rituals of the continent show plainly that marriage was usually celebrated by the priest and not merely in his presence; though the ceremony still takes place at the church door. The parties no longer simply "marry themselves," repeating after the priest the solemn words of the nuptial vow; but in addition the priest "gives the woman to the man, saying in Latin words: I join you in the name of the Father, the Son, and the Holy Ghost. Amen;" and this formula, taken from a typical French ritual of the fourteenth century,[1002] is never found, as already explained, in the liturgies of the preceding period. It is highly important to note that these words of power on the part of the priest do not appear in the English service before the period of the Reformation. In the earlier as well as in the later rituals the parties are the real actors, although the priest is leader and teacher in the whole ceremony. At most, so far as the form of tradition is concerned, evidence of a mere transition[1003] from the third phase in the rise of ecclesiastical marriage may be discerned. The priest does not step quite into the place of the father or other relative. He is not quite a "chosen guardian;" for he receives his power to "give" the bride to the bridegroom from the natural guardian or his representative, and not from the woman herself. Thus, according to the ancient liturgy of York, the priest says, "who gyues me this wyfe? Then the woman is given by her father or by a friend;"[1004] and this transitional form in substance is still preserved in the modern service of the English church.[1005] But, apparently, the function of the priest in the gifta is more pronounced in the York manual than in any of the other mediæval rituals which have been preserved. In some of them, as a matter of fact, it receives no mention at all.[1006]

It appears, then, as regards the form of celebration, that previous to the Reformation the church had not made so great progress in England as in many places on the continent. The gifta is still essentially the ancient private tradition, in which the priest has at most a subordinate place; and the words of power following, and as it were sealing, the nuptial vow do not appear. Still there is a decided gain; for the whole procedure is given a religious character through the solemn prayers and benedictions, the authoritative definitions of the nature of marriage, and the stately ceremonial of the bridal mass, in all of which the priest is the central figure.

If now, turning from the evidence afforded by the content of the prescribed rituals, we examine the legislation of the church for enforcing the acceptance of these rituals, we shall reach a similar result. Stated broadly in advance, the English canons created a sharp distinction between legality and validity. Lay marriages—that is, marriages solemnized without the intervention of the church, including clandestine unions as well as those privately contracted before witnesses with parental consent—were opposed to canonical marriages: and lay marriages were declared illegal under severe penalties, even excommunication; while at the same time, if once contracted in words of the present tense, they were maintained as equally valid and equally sacramental in their nature with those celebrated according to the authorized liturgy before the priest.[1007]

During the Anglo-Saxon period various orders and regulations commanding the benediction were passed. Theodore thus requires the priest, in the case of a first marriage, to celebrate the mass, doubtless the ordinary service, and to ask a benediction upon both parties;[1008] while by the ritual of the tenth century, already quoted, the nuptials are to be celebrated before a mass-priest "who shall with God's blessing bind their union to all prosperity."[1009] But after the Conquest more stringent measures were taken to secure publicity and enforce the observance of religious rites. Especially important is the celebrated constitution of Archbishop Lanfranc, alleged to have been enacted at the Council of Winchester in 1076, ordaining "that no man give his daughter or kinswoman in marriage without the priest's benediction," and declaring that otherwise "the marriage shall not be deemed legitimate but as fornication."[1010] Twenty-six years later, at the Council of London, an attempt was made by Anselm to put a check upon clandestine contracts, in a provision which really defines the principle governing the decisions of the ecclesiastical courts throughout the west. "Promises of marriage made between man and woman without witnesses" are declared to be "null if either party deny them."[1011] In 1175 these acts were reinforced by a canon of Archbishop Richard, taken from the decrees of Pope Ormisdas (Hormisdas) of the year 514, ordering that "no faithful man, of what degree soever, marry in private, but in public, by receiving the priest's benediction. If any priest be discovered to have married any in private let him be suspended from his office for three years."[1012] By a constitution of Archbishop Walter, in the year 1200, it was further ordained that "no marriage be contracted without banns thrice published in church, nor between persons unknown;" and no marriage not publicly solemnized in face of the church is "to be allowed of, except by the special authority of the bishop."[1013]

These measures, and others later enacted in a similar spirit,[1014] have led to a serious misapprehension of the real doctrine of the canon law. From them it has been zealously argued that the prescribed religious celebration was essential to a valid contract; and this view was strengthened by the decree of Innocent III. at the fourth Lateran council, 1215, requiring the publication of banns as a general law of the western church, which by a similar error was understood to have ordained ecclesiastical marriage.[1015] But in the light of history it seems clear that all which was intended by this decree, or by the constitution of Lanfranc and its successors, was to declare the unblessed marriage illegal, involving certain penalties or disadvantages, without touching its validity.[1016] The lay courts, as will appear in the next chapter, might deny full rights of dower and inheritance to the issue of such unions; but after the thirteenth century, as well as before, marriages celebrated without the intervention of priest or magistrate were sustained by the church as binding. As already emphasized at the outset of this discussion, the private, even secret, agreement of the parties, without consent of parent or guardian, if expressed in words of the present tense, sponsalia per verba de praesenti,[1017] though not followed by cohabitation, was held to constitute a valid marriage; and it could be sustained against a subsequent contract publicly celebrated according to ecclesiastical forms and followed by years of wedded life. This is unquestionably the doctrine of the canon law of western Christendom, as emphatically expressed in the decretal epistle of Alexander III. to the bishop of Norwich presently to be noticed;[1018] and that it was accepted by the English courts as a part of the law of the land is established by conclusive evidence. Not until the Council of Trent, in the middle of the sixteenth century, was there any general legislation of the church to enforce ecclesiastical rites. This council, after anathematizing those who deny that clandestine marriages theretofore contracted by the sole agreement of the parties and without parental consent are "true and valid," decreed, contrary to the opinion of fifty-six prelates, that thenceforward all marriages not contracted in the presence of a priest and two or three witnesses shall be void.[1019] This decree was not accepted in England, and "clandestine" marriages continued to be valid until the middle of the eighteenth century; and until 1856, in Scotland, as is well known, the mere consent of the parties, however expressed, constituted a binding marriage.[1020]

It follows that the unanimous opinion of the English judges in the great case of the Queen v. Millis, 1844, against the validity of a marriage not celebrated before an ordained priest of the established church, is not supported by the evidence of history as revealed in the doctrines of the canon law and in the action of the ecclesiastical courts during six centuries.[1021] The following are the main facts in the history of this famous suit: In January, 1829, at Banbridge, county of Down, Ireland, George Millis and Hester Graham "entered into a contract of present marriage" in the presence of John Johnstone, the "placed and regular minister of the congregation of Protestant dissenters commonly called Presbyterians, at Tullylish, near Banbridge," who performed a solemn religious ceremony according to the usual rites of his sect. Thus there was a perfect and binding contract de praesenti according to ecclesiastical law. Later, while Hester was still living, Millis married Jane Kenedy in England, using the forms of the established church, of which he was a member. At the spring assizes of 1842, for the county of Antrim, Ireland, Millis was indicted for bigamy. The case was removed by certiorari into the Irish court of Queen's Bench, where the four judges were evenly divided; but Justice Perrin, who favored the validity of the first marriage, withdrew his opinion pro forma, that the case might go to the House of Lords for definite settlement.[1022] The Lords submitted the case to the English judges for advice; and they unanimously decided against the validity of the first marriage on the ground that it had not been celebrated before a regular clergyman of the English church. That the decision was hasty and in direct opposition to history, as revealed in all the great cases, there can now be small doubt. "We have here," says Bishop, "a question of almost pure ecclesiastical law, submitted to a tribunal composed of common-law and equity lawyers, who necessarily possessed little or no knowledge of the subject. So they ask advice, not from the ecclesiastical judges, whose functions had qualified them to give it, but from the uninstructed common-law judges. The latter were competent to learn, but they were not allowed the necessary time. Lord Chief-Justice Tindal, who delivered their opinion, complained of the want of time for investigation; and the opinion throughout shows the complaint to have been well founded."[1023]

This view is strongly supported by the action of the Lords. In spite of the united opinion of the judges, the final deliberation of the six law peers resulted in a tie: Lords Cottenham, Abinger, and Chancellor Lyndhurst holding the first marriage to be void; and Lords Brougham, Denman, and Campbell maintaining its validity. But since the case was on appeal from the decision of another court, the result of the tie was to declare the invalidity of unblessed wedlock.[1024]

Thus by a remarkable sequence of circumstances and accidents was established the judicial interpretation of the English law governing the marriage celebration.[1025] The decision was therefore followed in another celebrated case, that of Beamish v. Beamish, which came before the House of Lords in 1861. This was a case of "clandestine" marriage, the bridegroom himself performing the ceremony in a private house according to the ritual of the established church. In the record we are told that the "Rev. S. S. Beamish, in the year 1831, became attached to a young lady named Isabella Frazer (both being members of the United Church of England and Ireland), and as he did not obtain his father's consent to his marriage with her, he persuaded her into a clandestine marriage, which, according to the special verdict found in the case, was performed in the following manner: 'On the 27th November, 1831, the Rev. Samuel Swayne Beamish, being then a clergyman in holy orders, went to the house of one Anne Lewis, in the city of Cork, and there performed a ceremony of marriage between himself and Izabella Frazer, by reading between them ... the form of solemnization of matrimony used in said United Church of England and Ireland, as set forth in the Book of Common Prayer, ... by declaring' in words of the present tense that he took the bride 'to his wedded wife,' she making a similar avowal; by placing a ring on her finger; and by pronouncing the blessing in the appointed form." The court held the contract void, declaring that, since it was "settled by the decision in the Queen v. Millis, that to constitute a valid marriage by the common law of England, it must have been celebrated in the presence of a clergyman in holy orders, the fact that the bridegroom is himself a clergyman in holy orders, there being no other clergyman present, will not make the marriage valid." For "as to the manner in which a marriage is to be celebrated, the law does not admit of any difference between the marriage of a clergyman and of a layman."[1026]

The singular motives underlying this decision have been recently discussed in an instructive way by Sir Frederick Pollock. It appears that a former judgment of the Lords must be maintained, however absurd or however inconsistent with history or justice it is felt to be. Already in 1852 and again in 1860 Lord Chancellor Campbell had committed himself to the dogma that the House of Lords is bound by its own decisions. At the former date, answering Lord St. Leonards, who holds the opposite view, he says: "I consider it the constitutional mode in which the law is declared, and that after such a judgment has been pronounced it can only be altered by an Act of the Legislature."[1027] When the case of Beamish v. Beamish came "before the House of Lords, the late Mr. Justice Willes virtually, though not professedly, demonstrated, in a full and most learned opinion, that the supposed difference between the law of England and that of the rest of western Christendom was imaginary. His reasons convinced Lord Campbell and Lord Wensleydale, but Lord Campbell declared himself not at liberty to act on his conviction;" though, for sound reasons which he admits, he confessed that if competent for him he would ask their Lordships to reconsider their judgment in the Queen v. Millis. "But it is my duty," he adds, "to say that your Lordships are bound by this decision as much as if it had been pronounced nemine dissentiente." A "rule of law thus judicially expressed must be taken as for law till altered by an act of Parliament." The "law laid down as your ratio decidendi, being clearly binding on all inferior tribunals, and all the rest of the Queen's subjects, if it were not considered as equally binding upon your Lordships, this house would be arrogating to itself the right of altering the law, and legislating by its own separate authority." It "may seem startling," comments Pollock, "that questions of legitimacy and property should be treated as irrevocably settled by the result of an equal division of the House of Lords, on argument and information admittedly imperfect with regard to the history of the law; that result, moreover depending on the accident of the form in which the appeal was presented: but so they were." Thus in Beamish v. Beamish an opinion of seventeen years earlier was accepted as binding, "which in 1861 was believed by a majority of the House of Lords and the judges who advised them, and is now believed by most competent scholars, to be without any real historical foundation."[1028]