A History of Matrimonial Institutions (Vol. 1-3). George Elliott Howard
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