Читать книгу History of Matrimonial Institutions - George Elliott Howard - Страница 35

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It is a noteworthy fact that the early church accepted and sanctioned the existing temporal forms of marriage. Her energy was directed mainly to the task of enforcing her own rules relating to marriage disabilities, such as those arising in affinity or nearness of kin; to devising restraints upon the freedom of divorce and second marriage; and to administering matrimonial judicature.[937] But the existing legal character and the popular forms of betrothal and nuptials were not disturbed. During the period preceding the Teutonic invasion, speaking broadly, the church adhered to the Roman law and custom; thereafter those of the Germans, even when the marriage consisted in the formal sale and tradition of the bride, were accepted.[938] The betrothal of the early canon law is, therefore, the Roman betrothal. It is a consensus sponsalitius, or free agreement between the man and the woman. Legally it is a pactum de contrahendo, or promise for future joining in marriage, which may be dissolved at the pleasure of either party.[939] It creates no obligation which can give rise to action for damage or fulfilment.[940] It does not constitute even the initiation of marriage. The marriage begins with the nuptials or actual wedded life, which gives expression to the consensus nuptialis, or mutual will of the parties to be husband and wife;[941] though, doubtless, the church demands parental consent, without making it absolutely essential.[942] On the other hand, it has been demonstrated by Sohm, contrary to the view previously accepted, that the two betrothals of the mediæval canon law are based on the German betrothal.[943] If not the marriage itself, it is nevertheless, as already seen, an act for joining in marriage which is not easily dissolved.

The only innovation effected by the primitive church was of a purely religious character. Though she might content herself with the Roman or the Germanic forms of marriage, there remained an "ethical mission" peculiarly her own. "In order at the very outset to fill the wedded life with the blessing and spirit of the Christian life, the church, without reference to the matrimonial law in force, demanded of her members that the very beginning of marriage should be placed under the word of God and be hallowed by its power."[944] Hence, from the first century onward, we find evidence of a priestly benediction usually in connection with the betrothal and probably with the nuptials.[945] Thus Ignatius declares that it "becomes both men and women who marry, to form their union with the approval of the bishop," that it may be according to God.[946] Tertullian speaks of marriage being "requested" of bishops, presbyters, or deacons;[947] and he shows in another place that publicity was an important motive for encouraging unions "in presence of the church."[948] In a somewhat obscure passage of the treatise addressed to his wife, which is much relied upon by sacerdotal writers, he exclaims: "How should we be sufficient to set forth the bliss of that marriage which the church brings about, and the oblation confirms, and the benediction seals, angels proclaim, the Father ratifies?"[949] But here a legal importance is given to the benediction which it does not seem to have gained until centuries later.[950] A similar doubt attaches to the words of Ambrose, who, writing against mixed marriages, says: "For since marriage itself should be sanctified by the priestly veil and by benediction, how can that be called a marriage where there is no agreement of faith?"[951] But, "as Selden has observed, the like benedictions were often claimed in behalf of many other kinds of contract besides that of marriage—a sale, for instance."[952] In the eastern church likewise the letters of Gregory Nazienzen and the silence of Chrysostom show that the benediction was without legal significance.[953] By the Roman law no betrothal or nuptial ceremonial is prescribed. The solemnities were determined by local custom; and these the early Christians were willing to accept. For centuries a marriage liturgy was not adopted either in the East or in the West.[954] According to Tertullian, no "breath of idolatry" attaches even to the heathen ceremonies connected with espousals,[955] among which he mentions the ring, the kiss, the veil, and the joining of hands.[956] The ring came more and more under German influence to be used as an arrha.[957] Witnesses were required; and in connection with the nuptials we hear also of the "pomp" or procession to the bridegroom's home, and the "crowning" of the bride or the wedded pair, usually with flowers.[958]

It seems probable, then, that during the first three or four centuries Christian marriages were not as a rule celebrated in church.[959] The betrothal or nuptial benediction was not essential to a valid marriage, however important it may have been regarded from a religious point of view.[960] Gradually it became an established custom for the newly wedded pair, after solemnization of the nuptials, to attend religious services in the church and partake of the sacrament, at the close of which the priest invoked a blessing upon the future married life. But at first the church service was the ordinary service; only after a considerable interval were phrases introduced into the prayers especially applicable to the wedded pair.[961]

Thus stood the custom in the period immediately following the conversion of the Teutonic nations. The nuptials consisted of two distinct acts. The first was the gifta, or traditional ceremony in the usual form. Thereafter, often on the day following the bridal night,[962] the newly wedded couple celebrated the bride-mass (Brautmesse) and received the benediction of the priest. But this religious act had no legal significance. No doubt it was performed by all good Christians as a religious duty. The benediction was invoked on the married life, a fact of such immense ethical importance, just as it was invoked on all important undertakings. It was observed as a fitting solemnity for a believer and not as a part of the marriage. Therefore in the case of second marriages it was omitted.[963] Broadly stated, the canon law maintained the validity of all proper marriages solemnized without the priestly benediction, though spiritual punishment might be imposed for neglect of religious duty. Such is the view of Sohm, and it has been generally accepted.[964] Dieckhoff,[965] however, contests it at every point. He holds that from early days the priestly benediction, whether of betrothal or of nuptials, was an essential part of the Christian marriage celebration. In support of the theory, that originally the church really undertook to join persons in wedlock, he presents three services from Roman sacramentaria of the age of Charles the Great.[966] But it is by no means certain that the words of the text relied upon for proof are not of too recent origin to be convincing as to early usage; and if they really belong to the time assigned, they cannot, in face of other evidence, be accepted as showing the general custom of the West, but rather, like the often-cited Capitulary,[967] of 802, as merely revealing the aim and desire of the church.

The introduction of the bride-mass constitutes the second stage in the history of clerical marriage. In English history it is represented by several spousal services which have been published by the Surtees Society.[968] They cover the period from the eighth to the eleventh century, beginning with the Pontifical of Egbert, archbishop of York (732-66) and ending with the Rede Boke of Darbye (ca. 1050), now in the library of Corpus Christi College, Cambridge. These services consist wholly of prayers and benedictions. There is no mention of the mass, though doubtless the husband and wife have already partaken of the communion before the service. Apparently the function of the priest is purely religious. It is merely an invocation of the divine blessing upon the life of the newly wedded pair, and has no legal significance. The nuptials have already been solemnized, whether in the presence of the priest or not the formularies do not explain.

But already in the tenth century we reach the beginning of a third stage in the rise of the ecclesiastical ceremony.[969] The nuptials still consist of two distinct acts. The first is the gifta proper, according to the usual temporal forms. It is no longer a strictly private transaction,[970] but it takes place before the church door—ante ostium ecclesiae[971]—in the presence of the priest, who participates in the ceremony and closes it with his blessing. The second act consists in the entrance into the church and the celebration of the bride-mass, followed by a second benediction. But the gifta, even in this stage, is temporal and not ecclesiastical. It occurs "before and not within the church," the motive usually assigned being to induce an immediate attendance upon communion on the very day of the nuptials instead of after an interval. In reality, however, the custom is but a recognition of the temporal nature of wedlock, which ought therefore to be celebrated before and not within the consecrated building.[972] That such was the prevailing custom throughout the western church during the Middle Ages is established by a mass of evidence of the most convincing character. Besides the testimony of chroniclers, historians, and literary men, we have that of the law-books and legal writers, lay and ecclesiastical, which make frequent mention of the assignment of the wife's dower at the church door during the nuptial celebration.[973] Moreover, many of the ancient rituals themselves have been preserved. All these "are unanimous," says Léon Gautier, following Martene, "in placing the principal act of the marriage celebration, that is to say the consent of the parties, at the entrance or in the porch of the church;"[974] and what is thus affirmed for the rituals of France is equally true for those of Germany[975] and England. "In the first place," runs the opening rubric of the Sarum Ordo ad faciendum sponsalia, "let the man and the woman stand before the church door in the presence of God, the priest, and the people, the man on the right of the woman, and the woman on the left of the man." Here the bride and groom remain during the nuptial celebration, the assignment of the dower, and the closing benediction. Thereupon, as the rubric directs, "let them enter the church as far as the steps of the altar," where, after a psalm, they are to prostrate themselves while a prayer is said in their behalf.[976] The usage of Sarum in this regard is typical, differing only in words and arrangement from that of York, Hereford, or the other churches. Indeed, marriage continues to be celebrated at the church door until the sixteenth century, the liturgies of Edward VI. and Elizabeth first requiring as a general observance the ceremony to be performed in the body of the church.[977]

One of the very earliest references to the presence of the priest at the nuptials is contained in the last two sections of the old English ritual of the tenth century already quoted in part,[978] and this ritual may be regarded as marking the transition to the period under consideration.

"8. At the nuptials there shall be a mass-priest by law; who shall with God's blessing bind their union to all prosperity.

"9. Well is it also to be looked to, that it be known, that they, through kinship, be not too nearly allied; lest that be afterwards divided, which before was wrongly joined."[979]

It is evident, as Friedberg has remarked, that the office of mass-priest in this ritual is of no legal significance. The invocation of a divine blessing is merely a religious act after the marriage is complete.[980] It is no more a part of the gifta than is the caution, in the last section, against marriage within the degrees of relationship forbidden by the canons. It is plain that in this formulary the betrothal and not the nuptials absorbs well-nigh the whole attention of the lawgiver. It is manifestly the thing of deepest concern; and in this the priest has no part.[981]

According to Lingard, "there is no trace of any form of marriage contract in ancient English sacramentaries previously to the close of the twelfth century; and the earliest mention of it appears in the constitutions of two English prelates, Richard Poere, bishop of Sarum, and Richard de Marisco, bishop of Durham, who ordered the parish priests to teach the bridegroom this form, 'I take thee N. for my wife,' and the bride a similar form, 'I take thee N. for my husband.'"[982] This statement, however, may now require some modification. Judging from its brevity and its condensed, almost crude, diction, the ritual published by the Surtees Society from a pontifical in the library of Magdalen College, Oxford, may have originated at an earlier date in the twelfth century;[983] and this seems all the more probable, for French rituals, in which the priest takes a leading part in directing the spousal contract, are preserved from a still earlier period.[984] However this may be, the rituals of Sarum, York, and Hereford are among the most ancient, the most elaborate, and the most instructive which have anywhere been preserved, those of Sarum and York having been in force from about the end of the twelfth century until 1549. They contain a rich store of material for the student of the marriage contract, carrying him back to the cradle of the English race in the Saxon forests. Beneath the ecclesiastical covering, the adventitious mass of prayers, psalms, and benedictions, is a kernel of primitive Teutonic custom which he will at once recognize.

The York service may be taken as a type, for it does not differ in any important particular from the other two. In it the advance of the clergy is very marked. The priest directs or participates in the whole procedure. The ceremony takes place before the church door, as the rubric directs, the man standing "on the right of the woman and the woman on the left of the man."[985] Then the priest is to ask the banns in the mother-tongue, following the Latin formula prescribed in the ritual, first addressing the people:

"Lo, bretheren, we are comen here before God and his angels and all his halowes, in the face and presence of our moder holy Chyrche, for to couple and to knyt these two bodyes togyder, that is to saye, of this man and of this woman, that they be from this tyme forthe, but one body and two soules in the fayth and lawe of God and holy Chyrche, for to deserue everlastynge lyfe what someuer that they have done here before."

"I charge you on Goddes behalfe and holy Chirche, that if there be any of you that can say any thynge why these two may not lawfully be wedded togyder at this tyme, say it nowe outher pryuely or appertly, in helpynge of your soules and theirs bothe."

Secondly, addressing the man and the woman:

"Also I charge you both and eyther be your selfe, as ye wyll answer before God at the day of dome, that yf there be thynge done pryuely or openly, betwene yourselfe, or that ye knowe any lawfull lettyng why that ye may nat be wedded togyder at thys tyme, say it nowe or we do any more to this mater."[986]

If no objection to the marriage is made, the priest, in several long paragraphs of the service, explains the canons relating to publication of banns, the times when the ecclesiastical celebration is forbidden, and the evils growing out of clandestine unions, with the penalty of three years' suspension from office for the priest who fails to prohibit such marriages in his parish. Then follows the essential act, the celebration of the sponsalia. This, as already mentioned, is in two distinct parts. The first part is the repetition of the betrothal per verba de futuro, the priest putting the vows in the form of a question to each party. He says to the man:

"N., wylt thou haue this woman to thy wyfe and loue her [and wirschipe hir[987]] and keep her, in sykenes and in helthe, and in all other degrese be to her as a husbande sholde be to his wyfe, and all other forsake for her, and holde the only to her to thy lyues ende."

The man is to answer: "I wyll." The priest then says to the woman:

"N., wylt thou haue this man to thy husbande, and to be buxum to hym [luf hym, obeye to him, and wirschipe[988] hym], serue hym and kepe hym in sykenes and in helthe: and in all other degrese be unto him as a wyfe shulde be to her husbande, and all other to forsake for hym, and holde the only to hym to thy lyues ende."

The woman is to say: "I wyll."

This closes the first part. The second part is the gifta, or marriage properly so called, per verba de praesenti. The priest says: "Who gyues me this wyfe?" "Then," runs the Latin rubric, "shall the woman be given away by her father or by a friend; if a maid, she shall have her hand bare; if a widow, she shall have it covered."[989] The man shall receive her to keep in God's faith and his own, as he has vowed before the priest; and holding her by the right hand with his right hand, he shall plight the woman his troth in words of the present tense, saying after the priest:

"Here I take thee N. to my wedded wyfe, to haue and to holde, at bedde and at borde, for fayrer for fouler, for better for warse, in sekeness and in hele, tyl dethe us departe, and thereto I plyght the my trouthe;" and the woman makes the same vow in the same words.

"Then shall the man place gold, silver, and a ring upon a shield or a book. And the priest shall enquire whether the ring has already been blessed." If not, the priest is to bless it in prescribed form, and sprinkle it with holy water. Then follows a curious ceremony. The bridegroom "takes the ring with his three principal fingers, and says after the priest, beginning with the thumb of the bride, 'In nomine Patris;' at the second finger, 'et Filii;' at the third finger, 'et Spiritus Sancti;' at the fourth or middle finger, 'Amen;'[990] and there he leaves the ring, because according to the Decree ... 'in the middle finger there is a certain vein extending to the heart.'"[991]

After this delicious bit of popular superstition, handed down to our own days from remote antiquity, the bridegroom, holding his bride by the hand, says after the priest: "With this rynge I wedde the, and with this golde and siluer I honoure the, and with this gyft I dowe thee."

The priest next "asks the dower of the woman." If "land is given her in the dower," the bride "prostrates herself at the feet of the bridegroom;" but the York ritual does not go so far as one manuscript of the Sarum manual, in requiring that the woman shall "kiss the right foot" of her spouse.[992]

The ceremony ends with prayer and benediction, followed by the entrance into the church for celebration of the bridal mass.[993]

The historical significance of the ritual just analyzed is readily perceived.[994] In the ring, the gold, and the silver there is a plain recognition of the arrha, though it was coming to be regarded as a kind of symbolical assignment of the wife's dower.[995] It is noticeable that the tradition is still conducted by the "father or a friend." It is a private lay transaction in which the priest has no legal part. He is still a mere orator, rather than a necessary actor, though there is a manifest effort to gain the recognition of the priestly office as essential to a Christian marriage. Martene has pointed out that in all the early rituals the words vos conjungo[996] are unknown. It is the "parties who marry themselves." The matrimonial contract arises solely in their consent.[997]