A History of Matrimonial Institutions (Vol. 1-3). George Elliott Howard
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.
CHAPTER VII
RISE OF ECCLESIASTICAL MARRIAGE: THE CHURCH ACCEPTS THE LAY CONTRACT AND CEREMONIAL
[Bibliographical Note VII.—For the original Christian usage the writings of the early Fathers are of primary interest, and an English version of them is available in The Ante-Nicene Fathers (Buffalo, 1885-87), edited by Roberts and Donaldson and revised by A. C. Coxe. An indispensable handbook and bibliographical guide for the study of this subject, as well as for a multitude of questions connected with the first eight centuries of Christian history, is Smith and Cheetham's Dictionary of Christian Antiquities (London, 1875-80), particularly Meyrick's article, "Marriage," and Ludlow's clear and thoroughly critical discussions of the "Benediction," "Betrothal," and "Arrhae." Important sources for this chapter are also the Corpus juris civilis (Berlin, 1872), edited by Krüger and Mommsen; Richter and Friedberg's Corpus juris canonici (Leipzig, 1881-); Haddan and Stubbs's Councils and Ecclesiastical Documents (Oxford, 1869-78); Wilkins's Concilia (London, 1736-37); Gee and Hardy's Documents (London 1896); Glanville's Tractatus, in Vol. II of Phillips's Reichs- und Rechtsgeschichte (Berlin, 1827-28); and with these may be used to advantage Johnson's Collection of the Laws and Canons of the Church of England (London, 1850). On marriage at the church door, The Old English Homilies (London, 1868); Gregory's Pastoral Care (London, 1871); Hengham's Summa parva (London, 1737); Home's Mirror of Justices (ed. Whittaker, London, 1895); Fitzherbert's New Natura Brevium (Dublin, 1793); as well as Fleta, Britton, and Bracton, have furnished illustrative passages.
The evolution and character of the celebration are best seen in the marriage rituals themselves. For the European practice in general, including the English rites, consult the second book of Selden, Uxor ebraica (Frankfort on the Oder, 1673); or the same in Vol. II (III, as bound) of his Opera omnia (London, 1726); and the first book of Martene, De antiquis ecclesiae ritibus (Antwerp, 1763-64), in both of which works a large number of rituals, with a mass of other useful materials, will be found. Some portions of Martene are extracted by Michelet in chap. ii of his Origines du droit français (Paris, 1857); and many rituals, both of the East, and the West, are epitomized in Palmer, Origines liturgicae (3d ed., Oxford, 1839), the use of which is facilitated by Beal, Analysis of Palmer's Orig. Lit. (Cambridge, 1856). Some of the earliest Christian sacramentaria, the eleventh-century ritual of Rennes, and various other mediæval ordines are republished by Dieckhoff, Die kirchliche Trauung (Rostock, 1878). Sohm, Eheschliessung, gives the Rennes service above named, as well as those mentioned in Bibliographical Note VI; and the principal parts of the twelfth century "Pontifical ou rituel de lire" are quoted by Léon Gautier in his fascinating book La chevalerie