Читать книгу History of Matrimonial Institutions - George Elliott Howard - Страница 38

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It was most unfortunate for civilization that the Christian conception of the nature of marriage should have sprung from asceticism, and that the verbal subtlety of the schoolmen should have produced the cardinal definitions upon which the validity of marriage contracts, and therefore the practical administration of matrimonial law, were made to depend. The mediæval teaching regarding forbidden degrees, the sacramental nature of matrimony, and the difference between contracts de futuro and de praesenti are mainly responsible for the shameful abuses which disgrace the record of ecclesiastical judicature previous to the Council of Trent. With regard to an institution upon which in so high a degree the welfare of society depends, anarchy was practically sanctioned by the canon law. Where the utmost clearness and simplicity were needed, obscurity and complexity prevailed; and where publicity was urgently required by the plainest rule of common-sense, there secrecy was in effect invited and rewarded.

The early church was only too ready to take in hand the supervision of marriage and the development of matrimonial law. With regard to the form, as already shown, her progress was cautious and slow. Not until the thirteenth century, as a general rule, does the priest appear with authority as one especially qualified by his religious office to solemnize the nuptials. But long before this, in nearly every other respect save only the betrothal, the church was taking sole possession of the field of matrimonial law and jurisdiction.[1029] Yet the institution of marriage was accepted, as it were, under protest. Here and there, of course, the early Fathers admit the purity of the marriage state,[1030] but usually with a tone of apology or depreciation which is itself very suggestive of the pervading trend of the ascetic mind. If wedlock be holy, celibacy is much more holy. "It is better to marry than to burn," is a dictum which sounds the keynote of ecclesiastical dogma. "Few texts," declare Pollock and Maitland, "have done more harm than this. In the eyes of the mediæval church marriage was a sacrament; still it was but a remedy for fornication. The generality of men and women must marry or they will do worse; therefore marriage must be made easy; but the very pure hold aloof from it as from a defilement. The law that springs from this source is not pleasant to read."[1031]

Here we have a double paradox, two irreconcilable contradictions, which in due time produced their natural evil fruit. On the one hand, marriage is a sacrament, a holy mystery, yet it rests upon a mere human contract.[1032] On the other hand, though possessing a sacramental character, it is but a compromise with lust, from which the saint may well abstain. Hence a premium is placed upon sacerdotal celibacy, though for centuries priests are not absolutely forbidden to marry. Thus in England, at any rate until the days of Dunstan, celibacy had not been strictly enforced in the monastic bodies;[1033] and until a still later day marriage was practiced by the secular clergy,[1034] the priestly office in some instances practically becoming hereditary, passing on from father to son.[1035] But in the western church asceticism at last gained a complete victory; and the priest taking orders after marriage was obliged to put away his wife; while in both East and West marriage after the taking of orders was forbidden.[1036] The causes of the low esteem in which marriage was held by the early Christian theologians have been well described by Meyrick. "For some time before the Christian era a change of sentiment as to the relative excellence of the married and single life had been growing up among a section of the Jews. The national feeling was strongly in favour of marriage, and a man who was unmarried or without children was looked upon as disgraced. But the spirit of asceticism, cherished by the Essenes, led to an admiration of celibacy, of which no traces are to be found in the Old Testament; so that, instead of a shame, it became an honour to be unmarried and childless. In the early church this spirit, at first exhibiting itself only to be condemned in the Encratites," and some other sects, "struggled with a healthier feeling, till at length it stifled the latter. But another cause was working in the same direction. The days of chivalry were not yet; and we cannot but notice, even in the greatest of the Christian fathers, a lamentably low estimate of woman, and consequently of the marriage relationship. Even St. Augustine can see no justification for marriage, except in a grave desire deliberately adopted of having children."[1037] If "marriage is sought after for the sake of children, it is justifiable; if entered into as a remedium to avoid worse evils, it is pardonable; the idea of 'the mutual society, help, and comfort, that the one ought to have of the other, both in prosperity and adversity,' hardly existed and could hardly yet exist.[1038] In the decline of the Roman empire, woman was not a helpmeet for man, and few traces are to be found of those graceful conceptions which western imagination has grouped round wedded love and home affections. The result was that the gross, coarse, material, carnal side of marriage being alone apprehended, those who sought to lead a spiritual life, that is, above all, the clergy, instead of 'adorning and beautifying that holy estate' and lifting it up with themselves into a higher sphere and purer atmosphere, regarded it rather as a necessary evil to be shunned by those who aimed at a holier life than that of the majority."[1039]

But, in spite of theology and priestly asceticism, there is little doubt that the loftier ideals and the gentler affections which we now associate with wedded life were beginning to make themselves felt in the early Christian family; just as despite the licentiousness found in the imperial and noble circles of the capital, most observed and doubtless exaggerated by historian and satirist, and notwithstanding the surviving coldness[1040] of the patriarchal age, the same ideas and sentiments, independently of Christian influences, must already have been springing up among the common people of the provinces, and presently in the Stoic families of the Antonine era were to reach a splendid development worthy of the days in which we live.[1041] It is doubtless true, as so often urged, that there is a bright side to the history of celibacy. Incidentally the monk organized schools, taught the barbarous tribes the dignity of labor, demonstrated the power of industry,[1042] and handed down to the men of the Renaissance some of the materials of classic learning. So, likewise, the convent afforded an outlet for the energy and the ambition of woman. Here in a large measure she enjoyed independence and could assert her individuality. "For the convent accepted the dislike women felt to domestic subjection and countenanced them in their refusal to undertake the duties of married life." The "outward conditions of life were such that the woman who joined the convent made her decision once for all. But provided she agreed to forego the claims of family and sex, an honorable independence was secured to her, and she was brought into contact with the highest aims of her age. At a period when monasteries, placed in the remote and uncultivated districts, radiated peace and civilization throughout the neighborhood, many women devoted themselves to managing settlements which, in the standard they attained, vied in excellence with the settlements managed by men." "The career open to the inmates of convents both in England and on the continent," continues Eckenstein, in summarizing the results of her valuable researches, "was greater than any other ever thrown open to women in the course of modern European history."[1043] Still, granting all that can be said for the conventual life, the motives which sustained it only throw into bolder relief the social evils of the age and the low ideal of marriage fostered by asceticism itself. History all too plainly shows that the benefits conferred by monasticism and the enforced celibacy of the secular clergy come far short of balancing the evils flowing from the conception of wedlock as a "remedy for concupiscence." The influence of the church did, indeed, tend to condemn the breach of conjugal fidelity by the husband as equally sinful with that of the wife; although this righteous principle has by no means always been observed in Christian legislation. On the other hand, celibacy bred a contempt for womanhood and assailed the integrity of the family.[1044] The gross immorality of the mediaeval clergy, regular and secular, and the shocking abuses of the confessional have often been recorded and fortunately need not here be dwelt upon.[1045]

We may next consider the second member of the paradox, the dogma which constitutes the very basis of the canon law of marriage and the source of manifold hardships and confusion. By the second half of the twelfth century the doctrine that marriage is a sacrament was thoroughly established in the western church.[1046] The early Christian teachers had, indeed, regarded it as one of the many holy "mysteries" to which the name "sacrament" was given.[1047] But it was long before any of these were differentiated as distinct rites superior to the rest in religious efficacy. Not until 1164, in the fourth book of Peter Lombard's Sentences, do we find the first clear recognition of the "seven sacraments," among which that of marriage appears;[1048] and these were approved by The Council of Florence in 1439 and later by the Council of Trent.[1049] The theory of the sacramental character of wedlock had two consequences of vast importance for the history of matrimonial law. First is the dogma of the indissolubility of the marriage bond, involving the whole problem of separation and divorce, which must be reserved for discussion in another chapter;[1050] and, second, the exclusive jurisdiction of the church in matrimonial causes.[1051] This ecclesiastical function, like so many others, is of slow growth. "We are here confronted by a conception which certainly does not belong to the primitive sources. It is not by a revindication of principles that the church conquers jurisdiction in marriage. After having shared it with the state for centuries, she obtained it in the Middle Ages without partition;" and "when her competence was well established and a theory for it was required, it was justified by saying that the church alone could take cognizance of sacraments;" and "at the Council of Trent when this jurisdiction was solemnly affirmed in a canon sanctioned by anathema, the majority of the orators brought it expressly into connection with the sacrament."[1052] In England between the seventh and the twelfth centuries the ecclesiastical authority in matrimonial questions was slowly established. Gregory writes to Augustine concerning forbidden degrees.[1053] Later Theodore regulates marriage and divorce.[1054] "When the conqueror had paid the debt that he owed to Rome by a definite separation of the spiritual from the lay tribunals,[1055] it cannot have remained long in doubt that the former would claim the whole province of marriage law as their own. In all probability this claim was not suddenly pressed; the leges Henrici[1056] endeavor to state the old law about adultery; the man's fine goes to the king, the woman's to the bishop; but everywhere the church was beginning to urge that claim, and the canonists were constructing an elaborate jurisprudence of marriage. By the middle of the twelfth century, by the time when Gratian was compiling his concordance of discordant canons, it was law in England that marriage appertained to the spiritual forum."[1057] From the time of Glanville the "marriage law of England was the canon law."[1058]

The theories adopted and developed by the canonists favor the forming of marriages. "All those are urged to marry who are unable to bear the superior state of virginity or continence and who are not restrained by solemn vows." Consequently the canon law "renders the formation of marriage as easy as it had rendered its dissolution difficult."[1059] At first, as already explained, it adopted the Roman betrothal, which possessed no legal significance, the marriage beginning with the nuptials or actual living together. Later it accepted the principles of Germanic custom, according to which the legal effects of betrothal became far more stringent, and the marriage was perfected at the nuptials or tradition, and not through the Beilager, or physical union. Hence by the mediæval canon law, if the nuptials were solemnized by priestly benediction, though not followed by copula or physical union, a marriage was formed which could not be annulled by means of subsequent espousals thus consummated.[1060] Gradually, however, as the betrothal gained, the nuptials lost, in importance. Before the middle of the twelfth century the doctrine prevailed that the copula carnalis is the supreme legal moment in marriage.[1061] This theory, which had arisen with Hincmar of Rheims,[1062] is especially associated with the name of Gratian, in whose Decretum the arguments for and against it are weighed, with the result of its practical acceptance, though he tries to reconcile it with the Roman view, that the nuptial consensus constitutes the marriage.[1063] According to him, there are two degrees in marriage: one is the conjugium initiatum, arising in the simple consent of the espoused; second, the conjugium ratum, created by the copula carnalis and perfecting the former. The conjugium initiatum may be dissolved at pleasure; but the conjugium ratum is indissoluble. Thus the former is merely the Roman betrothal under another name. But the Bolognese jurists made it more stringent, assigning eight reasons for which alone such a marriage could be dissolved.[1064]

The theory of the classic canon law, formulated by Gratian, that there is no marriage "until man and woman have been one flesh,"[1065] does not receive so much emphasis in any other legal system.[1066] It had far-reaching consequences in matrimonial jurisprudence.[1067] Marriage became a simple consensual compact. "In strictness of law all that was essential was this physical union accompanied by the intent to be thenceforth husband and wife. All that preceded this could be no more than an espousal (desponsatio) and the relationship between the spouses was one which was dissoluble; in particular it was dissolved if either of them contracted a perfected marriage with a third person."[1068]

But before the close of the twelfth century theological subtlety had conceived and gained the acceptance of a distinction in the forms of contract which was fatal to the security of the marriage bond. The famous classification of contracts as sponsalia per verba de praesenti and sponsalia per verba de futuro, though its principle was earlier asserted, is due mainly to Peter Lombard;[1069] and through the influence of Alexander III. ("Magister Rolandus") it was accepted generally by the western church.[1070] The theory of Lombard represents the triumph of Gallic theology over the doctrine of Gratian, as maintained by the Italian jurists; and, in effect, it is an attempt to combine the principles of the Roman with those of the German—that is to say, the canonical—betrothal.[1071] In sponsalia de praesenti, in words of the present tense, the man and woman declare that they take each other now, from this moment onward, as husband and wife. Such a contract is a valid marriage, though not followed by actual wedded union; and since in theory it is a real marriage, it is necessarily sacramental in character. It creates a bond which can be dissolved only with the greatest difficulty. It constitutes "at all events an initiate marriage; the spouses are coniuges; the relationship between them is almost as indisseverable as if it had already become a consummate marriage. Not quite so indisseverable however; a spouse may free himself or herself from the unconsummated marriage by entering religion, and such a marriage is within the papal power of dispensation."[1072] But even the unconsummate marriage de praesenti cannot be dissolved by a subsequent marriage which either party may contract, though followed by wedded union.[1073] Espousals de futuro, on the other hand, are a promise for future joining in marriage. Physical union when preceded by such a contract is held to constitute a binding marriage. The canonists went farther than this, as Esmein declares, and "in a way set a snare for human nature to beguile the imprudent into the matrimonial state" through the theory of "presumptive marriage." The copula carnalis was made a legal ground for assuming the foregoing promise to wed. "The rule was laid down that it is always necessary to judge in favor of marriage unless the contrary be clearly understood."[1074] Moreover, the church steadily refused to make the validity of marriage depend upon forms and conditions such as the civil law prescribes. There was no absolute requirement of parental consent[1075] or of a certain age. All persons on reaching the years of puberty were declared capable of wedlock solely on their own authority. No religious ceremony, no record, or witness was essential. The private, even secret, agreement of the betrothed, however expressed, was declared sufficient for a valid contract.[1076] All these things might be enjoined under sanction of severe discipline for their neglect; but the marriage, if formed without them, was not the less binding. A puzzling and disastrous antagonism between legality and validity was thus created. Even the Council of Trent, while making the validity of the marriage depend upon its conclusion in the presence of a priest and two or three witnesses, declined to go farther and give an equal sanction to banns, registration, or the benediction, though these were enjoined in its decree. After the council as well as before children barely arrived at the age of puberty might contract a valid marriage without the consent, or even against the will, of their parents.[1077] In short, as Esmein has so well shown, lest without a safety-valve the temptations of the flesh should become too strong for weak human nature, and lest access to a sacrament should be hindered, it was deemed necessary to discard all restraints originating in mere "human convention."[1078] It is a noteworthy fact that the dogma of marriage as a sacrament came near being a fatal obstacle in the way of the action of the Council of Trent against secret marriages.[1079] For how could the church legislate concerning a holy mystery which Christ himself had given her, without suggesting the human nature of the matrimonial contract and by implication admitting the right of the state to exercise a similar control? But even in this domain her exclusive jurisdiction was affirmed.