Читать книгу History of Matrimonial Institutions - George Elliott Howard - Страница 33

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Already in the eleventh century the forms of marriage were entering upon another stage. It is possible, in the historical period, as already seen, that a valid marriage could arise in abduction, through subsequent payment of a fine; and it is not impossible that side by side with wife-purchase the custom of free marriage by simple agreement of the parties may have existed, as we have found it existing among other peoples. But the practice could not have been widely extended, and it may imply merely the indulgence or silent consent of the legal protector.[900] Hitherto, so far as the positive provisions of the law-books are concerned, betrothal by the natural guardian or his representative[901] had been essential to a valid contract. Originally the father could betroth his daughter even against her will.[902] But, just as the guardianship of the husband as respects the wife's property gradually becomes transformed into a merely formal guardianship or judicial control,[903] so the power of the father is first weakened by granting the daughter a veto on the choice of a bridegroom; that is, by making her consent necessary to a binding contract; and then, presently, the relations of guardian and ward are entirely transposed: self-betrothal by the daughter constitutes a valid contract, while the father is allowed only a veto power. Naturally it was the widow, in the case of a second marriage, who first succeeded in emancipating herself from tutorial control. Among the Germans in the time of Tacitus it was against popular usage, if not illegal, for a widow to marry again.[904] But in the folk-laws she appears on practically the same footing as a girl in this regard;[905] and placed as she was "between two families," with the "possibility of recourse to her own kindred" in case her first husband's relatives as possessors of the mund over her refused their assent to a second marriage, she soon succeeded in freeing herself entirely from such restraints.[906]

Canute forbids the marriage of a maiden against her will.[907] If consent of father or guardian be not obtained, the betrothal is still binding, but the daughter may be punished by loss of inheritance. Thus early do we find the beginning of the private marriages, which subsequently, under the names of "irregular" or "clandestine," played so great a rôle in the history of matrimonial law.

The form of contract observed in self-betrothal is usually the wed, sealed by the Handschlag or hand-fasting. The "real contract" through payment of the arrha is, however, also retained; but the arrha is paid, not to the guardian, but to the bride, and appears most frequently in the form of the ring, so well known to us as the betrothal or "engagement" ring.[908] The ring had been used by the Romans as arrha; and, like the bridal wreath and the bridal veil, it seems to have been borrowed from them by the Germans.[909] On the other hand, though there can be little doubt of the historical connection of the betrothal ring and its duplicate, the wedding ring, with the arrha,[910] whether or not it may be regarded as a surviving symbol of the former servitude of the wife must depend upon the acceptance or rejection of the view that the actual sale-marriage, as opposed to the transfer of the mund, ever existed among the Teutonic peoples. "A favorite theory," says Henry Adams, "has insisted upon regarding the wedding ring as a badge of servitude or a symbol of purchase. This idea cannot be maintained. The wedding ring appears in its origin to have been merely the earnest money which bound the contract of marriage between the father and the husband, and was not the only symbol of the kind in early custom, although no other survives in modern use. The ring proved, not that marriage was a sale, but that marriage was a civil contract executed according to the strict formalities of contracts in the primitive law; it proved, not that women were deprived of rights, but that their rights were secured to them in marriage by the most careful provisions known to early society."[911] This is, of course, a very emphatic statement of one side of the case; and it should not be overlooked that the ring may stand as a symbol of equitable contract; and yet the arrha, which the ring is, may mark but the intermediate stage in the evolution of the betrothal from the ancient process of actual sale. Nor does the connection of the betrothal ring with the Roman and German arrha necessarily exclude other historical associations. Kulischer,[912] for instance, traces its origin to wife-capture. Like the betrothal band or thread, which sometimes appears with it or in its place, he believes that the ring symbolizes the fetters with which the captive maid was bound. But the evidence to support this theory is not conclusive.[913] The practice of exchanging rings, of giving a ring to the bridegroom as well as to the bride, did not arise until the later Middle Ages.[914] In England the drinking of a cup of wine and the breaking of a gold piece between the bride and bridegroom appear as forms of the arrha.[915] Naturally after the arrha is paid to the bride it becomes confused with the wed, and soon all distinction between the two forms of contract is lost. "Indeed at an early day the arrha was called a wed, and it was legally indifferent whether the oath, hand-fasting or other wed, or the ring or penny[916] were used. Therefore the ring and penny are found in conjunction with the glove; that is, with a real wed. And it is especially of interest that the English language still calls marriage a wedding, and that in England the ring (that is the arrha) is still used to wed the bride."[917]

Simultaneously with the rise of self-betrothal, the bride gained also the right of self-gifta. The parties might conduct the ceremony themselves.[918] But in place of the natural guardian, who originally possessed the sole legal right to officiate at the tradition of the bride, appears often a "chosen guardian," selected by the bride or by the betrothed couple. The person thus selected may be the father or other relative of the bride, or any third person whatever.[919] Moreover, in the marriage rituals of the eleventh century[920] an orator or Fürsprecher appears, who acts as an "assistant" to the natural guardian, dictating the solemn phrases of the ritual and guiding the whole proceeding. Friedberg regards the orator as the predecessor of the priest, and thus, of course, of the civil magistrate as conductor of the nuptial ceremony.[921] But Sohm has shown that the functions of the priest or magistrate grew out of those of the "chosen guardian," and that the "Trauung by a Fürsprecher is in itself a contradiction." The latter is "never an actor, but always an aid to the actor. He has in truth only to speak, nothing to do."[922] While thus theoretically there is a great difference between the orator and the chosen guardian, and both could, and probably did, for a time participate in the same ceremony, still the practical result is in accordance with the view of Friedberg. For if, as Sohm has shown, the motive for the creation of the institution of orator was the fact that the elaborate phrases of the old rituals were rapidly passing from the memories of the people, and it was necessary to call in a lawyer or other person skilled therein to assist the parties,[923] it is certain that the chosen guardian, whether layman or priest, soon satisfied this necessity, and ultimately inherited the functions of the orator.[924]

From about the beginning of the thirteenth century self-gifta was the only form of nuptials; and an important result of the custom was the gradual omission of the solemn symbols, such as the giving of the sword, hat, or mantle, indicative of the transfer of the powers of guardianship. The tradition of the bride was no longer a real tradition. The gifta had become a simple oral declaration of union.[925] Besides this modification of the ceremony is another, both of which have been retained to our own times. "We often find that the chosen guardian not only gives the bride to the bridegroom, but likewise the bridegroom to the bride; because, in reality, he occupies the same position in regard to each, that is a position implying no power."[926] Thus the marriage is no longer a surrender of the power of the guardian and a transfer of the same to the bridegroom, but only the expression of a mutual gift.[927]

Self-gifta and the practice of choosing a third party to assist the bride has an important bearing, as already intimated, on the development of the functions of the clergy in the marriage celebration. But before discussing this point it is desirable to notice another fact essential for a proper understanding of the present forms of solemnization. From the eleventh century onward it became customary in Europe to repeat the ceremony of betrothal, or "spousals," at the nuptials. The rituals which have been preserved are divided into two parts. "The first part contains a formal contract of betrothal with the guardian (Vogt) of the bride in the form of a wed. The second part contains the Trauung through the solemn surrender of the bride by the guardian."[928] This remarkable dualism is the most striking feature of the present marriage service of the English church,[929] which is derived through the liturgies of Elizabeth and Edward VI.[930] from the most ancient manuals, particularly those of Hereford, Durham, Sarum, and York. The betrothal comes first, and it is always a contract in words of the future tense, corresponding to the sponsalia per verba de futuro of the canonists, which will again be referred to. In the York service, for example, the priest says to the man: "Wylt thou have this woman to thy wyfe?" and to the woman: "Wylt thou have this man to thy husbande?" Each party answers: "I wyll." Then takes place the solemn tradition, or giving of the bride to the bridegroom, who says, in words of the present tense: "Here I take thee N. to my wedded wyfe;" and the woman responds in the same formula: "Here I take thee N. to my wedded husbande."[931]

But the repetition of the betrothal is of no legal significance, save as a guaranty of the existence of a contract before the actual union. It is a "declaratory" act, a mere confession of betrothal. As a result of the repetition there soon arises an entire confusion in the symbols. In a Suabian ritual of the twelfth century the guardian delivers to the bridegroom "not only the sword, hat, and mantle, that is, symbols of the gifta, but also the wette or wed, the ring and penny, that is, symbols of the betrothal. Thus the bridegroom in the ring and penny, instead of paying, actually received the remnants of the old purchase price of the wife."[932]

In our own civil-marriage ceremonies, where the dualism does not usually appear, the responses of the parties, the "Yes," "I do," or "I will," are nothing more than the survival of the ancient private betrothal, now recognized by law as the only essential parts of the nuptial ceremony; while the wedding ring is merely a duplicate of the betrothal or engagement ring, both being the survival of the arrha and, therefore, of the ancient purchase price of the bride.[933]

The primitive and mediæval marriage whose development has thus been traced to the thirteenth century was not "civil" marriage in the strict sense of the word; that is, a marriage contracted under sanction of the civil authority, as opposed to one solemnized by authority of the church and according to ecclesiastical forms.[934] It was a civil marriage only as being a lay marriage. There is no trace of any such thing as public license or registration; no authoritative intervention of priest or other public functionary. It is purely a private business transaction. Either the guardian gives away the bride and conducts the ceremony; or else the solemn sentences of the ritual are recited independently by the betrothed couple themselves. These formalities and the presence of the friends and relatives[935] are the only means of publicity, the only substitute for the modern cognizance of the state.[936] Rights and obligations growing out of the marriage contract are enforced in the local or national courts just as other civil rights and obligations are enforced. Only gradually was the ancient usage in this regard superseded. Slowly but firmly was the exclusive jurisdiction of the church in matrimonial causes established. Spiritual courts and the canon law came into existence. In England after the Norman Conquest the removal of ecclesiastical suits from the temporal to the new church tribunals led eventually to serious evils. With the Reformation the way was open for the intervention of the civil power. Beginning in Holland and America, the state has claimed her right to control the marriage celebration and the administration of matrimonial law as being of vital interest to society. How this came to pass will be explained in the following chapters.