Читать книгу A History of Matrimonial Institutions (Vol. 1-3) - George Elliott Howard - Страница 43

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The Protestant Reformation in Germany produced many ideas which were eventually fruitful for good in the history of matrimonial law; but unfortunately, owing to a number of causes, more than two centuries were to elapse before any effective remedy was provided for the evils of clandestine wedlock. Ecclesiastical rites were prescribed by the authority of the state as the best means of securing publicity; but neither Luther[1164] nor the other Protestant leaders insisted upon them as necessary to a binding marriage.[1165] Luther, indeed, perceived the absurdity of the scholastic distinction between sponsalia de praesenti and de futuro; and proposed to retain espousals de futuro or precontracts only in the sense of "conditional betrothals."[1166] On failure of the condition, or for other weighty reasons, these engagements might be dissolved. But unconditional betrothals, or his sponsalia de praesenti—that is to say, practically all betrothals, including the espousals de futuro of the canonists—if publicly made and with parental consent, were regarded by Luther as valid marriages which could not be dissolved.[1167] Parental consent[1168] he appears to think essential, though on this point his statements are by no means clear;[1169] and he urges the need of public espousals in face of the parish.[1170] Yet he admits that a secret engagement—by which he seems to mean espousals without the presence of witnesses, but with parental consent—if followed by physical union, constitutes a true marriage equally binding with the open betrothal. In effect, the doctrine of Luther did not provide a complete remedy for the evils of clandestine contract; for all marriages, save only the conditional when not consummated, and possibly those formed secretly against the parents' will, were now indissoluble at the will of the parties.[1171] Moreover, an action was allowed to enforce a promise of marriage; and for more than two centuries after the Reformation the fulfilment of a betrothal could be enforced by severe penalties.[1172] Yet in one respect there was a decided advance. The pernicious distinction of Peter Lombard between espousals de praesenti and de futuro was practically rejected, and with it much of the danger which had lurked in the vacillating discretion of the ecclesiastical judge might have been removed had the jurists accepted Luther's teaching.[1173] Thus from a historical point of view the result is instructive. The ancient wette or beweddung, handed down through the slightly weakened form of the canonical sponsalia de praesenti, was restored to even more than its original relative importance as compared with the Trauung or nuptials.[1174]

The teachings of Luther regarding espousals were largely determinative for the future history of marriage in the German states. According to the ordinances, the doctrine, and the practice of the evangelical churches, the betrothal was a true marriage, the nuptials merely its confirmation.[1175] Even his wavering as to the necessity of parental consent for a valid contract leaves its trace in the divergent provisions of law.[1176] In practice the jurists, against the protest of Luther,[1177] held close to the principles of the canon law.[1178] As a rule, the courts tended to treat all secret betrothals followed by actual connubial life as binding marriages.[1179] Until far down into the eighteenth century the engaged lovers before the nuptials were held to be legally husband and wife.[1180] It was common for them to begin living together immediately after the betrothal ceremony;[1181] and the so-called "bride children" were given rights of legitimate offspring, this custom in part surviving until our own times.[1182]

The rites observed in the celebration of marriage differed in some details from those in use before the Reformation. A model was drafted by Luther, and it was often followed with variations in the church ordinances.[1183] He does not urge the adoption of a service which must be observed by all. On the contrary, every place may use its customary form in the solemnization of wedlock. A simple ritual is, however, provided for the use of those needing assistance. When the bride and bridegroom so require, the banns are to be asked in the chancel before the wedding. As in the mediæval formularies already examined, the nuptial ceremony consists of two acts. Before the church door the wedding vows and the wedding rings are exchanged, the priest declaring to the assembled people, in the name of the Trinity, that he pronounces the man and woman joined in marriage. In the church before the altar the second act takes place. Instead of the bride-mass, this consists simply in the reading of a passage of Scripture followed by the priestly benediction.[1184]

The decree of the Council of Trent relating to the nuptial celebration was not accepted in Protestant lands, and hence no essential change was made in the forms of marriage. In England during the whole period between the Reformation and the Commonwealth ecclesiastical celebration was the rule; and the spiritual courts, retaining their ancient jurisdiction in matrimonial causes, still recognized the principles of the canon law, though appeals to Rome were not allowed.[1185] Hence clandestine contracts de praesenti were valid and could be maintained against regular marriages subsequently solemnized in church. This fact is established by abundant evidence,[1186] and by none more ample and convincing than that afforded by the remarkable collection of documents recently edited by Furnivall, to which further reference will presently be made.[1187] But the parties were subject to clerical censure and the forfeiture of certain property rights.[1188] An attempt was, indeed, made by Henry VIII. in 1540 to restrict the validity of private marriages by providing in effect that those solemnized by the church, if consummate, should take precedence of unconsummated precontracts not thus celebrated; and the same statute confined the impediments to marriage to those comprised in the Levitical degrees.[1189] But this act had little significance save in the matrimonial transactions of Henry himself;[1190] for, so far as it related to precontracts, it was repealed by a statute of Edward VI. which restored the former law and provided that "when any cause or contract of marriage is pretended to have been made, it shall be lawful to the king's ecclesiastical judge of that place to hear and examine" it; and after having it "sufficiently and lawfully proved," to give "sentence of matrimony, commanding solemnization, cohabitation, consummation, and tractation," as in times past the king's spiritual courts had power to do.[1191] Referring to this act, Swinburne, writing in the reign of Elizabeth, bears witness to the strength with which the canonical theory of espousals had laid hold of the legal mind. "Worthily, I say, and upon good ground was this Branch of that Statute" of King Henry relating to precontracts "repealed and made void by his gracious Son King Edward the Sixth, for Spousals de praesenti, though not consummate, be in truth and substance very Matrimony, and therefore perpetually indissoluble, except for Adultery: Although by the Common Laws of this Realm (like as it is in France and other places) Spousals not only de futuro, but also de praesenti be destitute of many legal Effects wherewith Marriage solemnized doth abound, whether we respect legitimation of Issue, alteration of property in her Goods, or right of Dower in the Husbands Lands."[1192]

Indeed, for the law and custom of betrothal in England, toward the close of the sixteenth century, the quaint and recondite treatise of Swinburne is a mine of information. A vast number of questions illustrative of the principles, the snares and perplexities, of the surviving canonical theories are there taken up and "resolved" with singular brevity and clearness. "Albeit," he says, "this word Sponsalia (Englished Spousals) being properly understood, doth only signifie Promises of future Marriage, yet is it not perpetually tied to this only Sense, for sometimes it is stretched to the signification of Love Gifts and Tokens of the Parties betroathed; as Bracelets, Chains, Jewels, and namely the Ring; being often used for the very Arrabo or assured Pledge of a perfect Promise: Sometimes it is taken for the Portion of the Goods which is given for and in consideration of the Marriage to be Solemnized; and sometimes for the Feast or Banquet at the Celebration of the Marriage, and of others it is otherwise used." The canonists, however, distinguish between matrimony and betrothal, and they "do also discern betwixt one kind of Spousals and another, being the first Inventors of the several Names of Spousals de futuro, and Spousals de praesenti, and yet nevertheless oftentimes they make no difference, or very little, betwixt the Natures and Effects of Spousals de praesenti and of Matrimony solemnized and consummate."[1193] Such contracts are "as indissoluble as perfect matrimony;"[1194] and "as well the Sacred Scriptures, as the Civil and Ecclesiastical Laws, do usually give to Women betroathed only, or affianced, the Name and Title of Wife, because in truth the man and woman, thus perfectly assured, by words of present time, are Husband and Wife before God and his Church."[1195]

The old perplexity growing out of the coincidence of illegality and validity in the same contract still exists;[1196] and the conscience may still be bound by secret marriage, though the court may declare it null and void. The "Law doth forbid all Persons to make Secret Contracts of Spousals, or Matrimony; and that justly, considering the manifold discommodities depending thereupon, namely, for that hereby it cometh to pass oftentimes, that the Parties secretly contracting, are otherwise formally affianced, or so near in Blood that they cannot be Married; or being free from those impediments, yet do they alter their purposes, denying and breaking their promises, whence Perjuries" and "many more intolerable mischiefs do succeed."[1197] Yet though "Secret Marriages are done indeed against the Law," it is held that once contracted they cannot be dissolved, because public "solemnities are not of the Substance of Spousals, or of Matrimony, but consent only; ... So that it may be justly inferred, that the only want of Solemnity doth not hurt the Contract." Moreover, if it be urged that "seeing secret Contracts cannot be proved, it is all one in effect, as if they were not," it may be answered that such is truly the case "Jure fori, non jure poli, Before Man, not before God; for the Church indeed doth not judge of secret and hidden things," but before Almighty God "bare Conscience alone is as a thousand Witnesses; Wherefore I do admonish thee, that hast in truth contracted secret Matrimony, that thou do not marry any other Person; for doubtless this thy pretended Marriage, how lawful soever it may seem in the eye of Man, who judgeth only according to the outward appearance, is nothing but meer Adultery in the infallible sight of God's just Judgment."[1198]

Public as opposed to private espousals,[1199] according to Swinburne, "are they which are contracted before sufficient Witnesses, and wherein are observed all other Solemnities requisite by the Ecclesiastical Law: For so careful were the ancient Law-makers to avoid those mischiefs, which commonly attend upon secret and clandestine Contracts, that they would have the same Solemnities observed in contracting Spousals, which be requisite in contracting Matrimony."[1200] In fact, according to one authority, "public espousals were, upon pain of excommunication, to be in an open place, and before diverse witnesses;" but it does not "appear to have been necessary to the validity of these contracts, that they should be made at church;"[1201] nor can we safely assume that this requirement was generally enforced. During the period following the Reformation the celebration of the betrothal and the nuptials usually took place at the same time, on the wedding day in the body of the church; and the form of each is prescribed in the marriage rituals.[1202] The public solemnization of espousals was, however, not entirely superseded. In the seventeenth[1203] and eighteenth[1204] centuries, though passing out of use, the custom was by no means extinct, especially in the case of noble or royal persons. A record of betrothals contracted in facie ecclesiae was not usually kept; but at least one such entry has been discovered. The register of Boughton Monchelsea, Kent, shows that on the tenth day of January, 1630, William Maddox and Elizabeth Grimestone were affianced "in due form of law;" and in this case the marriage was not celebrated until three years later.[1205] "The form of betrothing at church" in England "has not been handed to us in any of its ancient ecclesiastical service books;" but it "has been preserved in a few of the French and Italian rituals."[1206] "The ceremony, generally speaking, was performed by the priest demanding of the parties if they had entered into a contract with any other person, or made a vow of chastity or religion; whether they had acted for each other, or for any child they might have had, in the capacity of godfather or godmother." Then, if the contract were in the form of sponsalia jurata or sworn espousals, the "oath was administered. 'You swear by God and his holy Saints herein and by all the Saints of Paradise, that you will take this woman whose name is N., to wife within forty days, if holy church will permit.' The priest then joined their hands, and said—'And thus you affiance yourselves;' to which the parties answered,—'Yes, Sir.' They then received a suitable exhortation on the nature and design of marriage, and an injunction to live piously and chastily until that event should take place. They were not permitted, at least by the church, to reside in the same house, but were nevertheless regarded as man and wife independently of the usual privileges."[1207] Later in France espousals in church were often prohibited, "because instances frequently occurred when the parties, relying on the testimony of the priest, scrupled not to live together as man and wife.... Excesses were likewise often committed by the celebration of Espousals in taverns and ale-houses, and some of the synodal decrees expressly injoin that the parties shall not get drunk on these occasions."[1208]

Valid betrothals, like valid marriages, may be celebrated by signs as well as words. This is true, says Swinburne, notwithstanding "a ready text, extant in the bowels of the law," much relied upon by diverse writers, to the effect that words expressive of consent are essential.[1209] "And forasmuch as Subarration, that is the giving and receiving of a Ring, is a Sign of all others, most usual in Spousals and Matrimonial Contracts, I think it requisite to speak of it, before all other Signs; the rather because the Writers upon this Sign have diligently described unto us, what Persons did first devise the same, and to what end; and what was the matter, and what the form thereof, on which Finger it ought to be worn, and what is the Signification of each of those Circumstances, with divers other Observations which I will briefly run over. The first Inventer of the Ring (as is reported) was one Prometheus; The Workman which made it was Tubal-Cain, of whom there is mention in the fourth of Genesis, that he wrought cunningly in every Craft of Brass and Iron: And Tubal-Cain by the Counsel of our first Parent Adam (as my Author telleth me), gave it unto his Son to this end, that therewith he should espouse a Wife, like as Abraham delivered unto his Servant Bracelets and Ear-Rings of Gold, which he gave to Rebecca, when he chose her to be Isaacks Wife.... But the first Ring was not of Gold, but of Iron, adorned with an Adamant, the Metal hard and durable, signifying the continuance and perpetuity of the Contract; the vertuous Adamant drawing the Iron unto it, signifying the perfect unity and indissoluble Conjunction of their minds, in true and faithful love; Howbeit it skilleth not at this day, what Metal the Ring be; The form of the Ring being circular, that is, round, and without end, importeth thus much, that their mutual love and hearty affection should roundly flow from the one to the other, as in a Circle, and that continually, and for ever; The Finger on which this Ring is to be worn is the fourth Finger of the left hand, next unto the little Finger; because by the received Opinion of the Learned and Experienced in Ripping up, and anatomizing Mens Bodies, there is a Vein of Blood which passeth from that fourth Finger unto the Heart, called Vena amoris, Love's Vein. And so the wearing of the Ring on that Finger signifieth, that the love should not be vain or fained, but that as they did give their Hands each to other, so likewise they should give their Hearts also, whereunto that Vein is extended. Furthermore I do observe, that in former Ages it was not tolerated to single or unmarried Persons to wear Rings, unless they were Judges, Doctors, or Senators, or such like honourable Persons: So that being destitute of such Dignity, it was a note of Vanity, Lasciviousness, and Pride for them to presume to wear a Ring, whereby we may collect how greatly they did honour and reverence the Sacred Estate of Wedlock in times past, in permitting the Parties affianced to be adorned with the honourable Ornament of the Ring: As also the Vanity, Lasciviousness, and intolerable Pride of these our days, wherein every skipping Jack and every flirting Jill, must not only be ring'd (forsooth) very daintily, but must have some special Jewel or Favour besides, as though they were descended of some noble House or Parentage, when as all their Houses and whole Patrimony is not worth the Ninth part of a Noble; or else, as if they were betrothed or assured in the holy Band of Wedlock, when as indeed, there is no manner of Contract betwixt them, unless peradventure it be such a Contract as Judah made with Thamar, ... which bargain he concluded by delivering her a Ring."[1210]

This curious passage is here quoted at length, not because it has historical value, but because the author has condensed therein the symbolism, conceits, and folklore connected with the betrothal ring as these are found in the writings of the canonists, whom he carefully and minutely cites in the margin.[1211]

Before the act of 1753 persons contracting espousals de praesenti might be compelled to celebrate matrimony in facie ecclesiae, under penalty for refusal of excommunication by the spiritual and imprisonment by the secular power;[1212] but in case of a mere contract de futuro, if either party refused to keep his engagement, he was rather to be "admonished than compelled." The "judge is not to proceed to the Significavit, but rather to absolve that cursed Party which contemneth the Censures of the Church, albeit there be no Cause of favour, but fear of further mischief, by compelling them to go together, which hate one another. Yet is not this froward Party thus to be dismissed, but is to suffer pennance" for breach of faith.[1213]