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

      II. THE PRIEST SUPERSEDES THE CHOSEN GUARDIAN, AND SPONSALIA PER VERBA DE PRAESENTI ARE VALID

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      Thus it appears that between the first and twelfth centuries the religious element in the marriage ceremony runs through three phases, not sharply defined by dates, but overlapping and blending; and for the sake of clearness it may be well to summarize the history of this development before proceeding farther. (1) During about four centuries no liturgy was prescribed; the ancient popular forms of contract were accepted; the nuptials were usually celebrated in the home of the bride, less often in church; and the priestly benediction, though doubtless commended as a religious duty, was not exacted by the church as essential to a legal or a canonical marriage. (2) Between about the end of the fourth century and the middle of the tenth the custom became well established for the newly wedded pair to attend religious service in the church to partake of the sacrament and receive the priestly benediction on their future married life; and this practice soon led to the institution of the regular bride-mass, containing phrases directly applicable to the nuptials. In the bride-mass may be found the genesis of the ecclesiastical marriage liturgy; but it is a purely religious office and adds nothing to the validity of the private contract. (3) In the next phase, falling between the tenth and the twelfth centuries, the clergy makes rapid progress. An elaborate and imposing ritual is developed; the priest, inheriting the functions of the ancient orator, directs the entire celebration; the nuptial ceremony takes place before the church door, and is followed by the bridal mass in the church itself; but even now the priest is a mere helper, and the religious service adds nothing to, nor its omission takes nothing from, the validity of the nuptial contract.

      The next and final step is comparatively easy and already assured. By the beginning of the thirteenth century the western church had entered upon a fourth phase in respect to the solemnization of marriage. This was facilitated, according to Sohm,[998] by the custom, already mentioned, of choosing any third person as guardian to officiate at the nuptials, marking the transition from the ancient tradition through the natural guardian to the stage of self-gifta or tradition by the bride herself—a stage which is fairly being entered upon at the beginning of the thirteenth century. This new and more liberal form of lay tradition led directly to the gifta by the priest, or to ecclesiastical marriage properly so called.[999] In the third stage of development the priest could not venture to interfere with the prerogative of the natural guardian to give his ward in marriage. He could at most assist as orator and bestow his benediction. But from the moment that custom sanctioned the choice of any third person in place of the father or other natural protector, the clergy appropriated this function as their exclusive right. While the church "bestowed her blessing upon the tradition through the natural guardian, she directed against the lay chosen guardian her excommunication."[1000] So at this point arose the antagonism between private and ecclesiastical marriage.[1001] The motive of the church was clearly twofold. While she very naturally strove to gain control of the nuptial celebration, to give more and more a religious form to the institution already declared by her to be a sacrament, she doubtless foresaw something of the evils which would ensue from clandestine or private unions, now that the consent of the parent or natural guardian was no longer necessary, as in early days, for a valid marriage, and therefore began to legislate in the interest of publicity.

      Henceforth the rituals of the continent show plainly that marriage was usually celebrated by the priest and not merely in his presence; though the ceremony still takes place at the church door. The parties no longer simply "marry themselves," repeating after the priest the solemn words of the nuptial vow; but in addition the priest "gives the woman to the man, saying in Latin words: I join you in the name of the Father, the Son, and the Holy Ghost. Amen;" and this formula, taken from a typical French ritual of the fourteenth century,[1002] is never found, as already explained, in the liturgies of the preceding period. It is highly important to note that these words of power on the part of the priest do not appear in the English service before the period of the Reformation. In the earlier as well as in the later rituals the parties are the real actors, although the priest is leader and teacher in the whole ceremony. At most, so far as the form of tradition is concerned, evidence of a mere transition[1003] from the third phase in the rise of ecclesiastical marriage may be discerned. The priest does not step quite into the place of the father or other relative. He is not quite a "chosen guardian;" for he receives his power to "give" the bride to the bridegroom from the natural guardian or his representative, and not from the woman herself. Thus, according to the ancient liturgy of York, the priest says, "who gyues me this wyfe? Then the woman is given by her father or by a friend;"[1004] and this transitional form in substance is still preserved in the modern service of the English church.[1005] But, apparently, the function of the priest in the gifta is more pronounced in the York manual than in any of the other mediæval rituals which have been preserved. In some of them, as a matter of fact, it receives no mention at all.[1006]

      It appears, then, as regards the form of celebration, that previous to the Reformation the church had not made so great progress in England as in many places on the continent. The gifta is still essentially the ancient private tradition, in which the priest has at most a subordinate place; and the words of power following, and as it were sealing, the nuptial vow do not appear. Still there is a decided gain; for the whole procedure is given a religious character through the solemn prayers and benedictions, the authoritative definitions of the nature of marriage, and the stately ceremonial of the bridal mass, in all of which the priest is the central figure.

      If now, turning from the evidence afforded by the content of the prescribed rituals, we examine the legislation of the church for enforcing the acceptance of these rituals, we shall reach a similar result. Stated broadly in advance, the English canons created a sharp distinction between legality and validity. Lay marriages—that is, marriages solemnized without the intervention of the church, including clandestine unions as well as those privately contracted before witnesses with parental consent—were opposed to canonical marriages: and lay marriages were declared illegal under severe penalties, even excommunication; while at the same time, if once contracted in words of the present tense, they were maintained as equally valid and equally sacramental in their nature with those celebrated according to the authorized liturgy before the priest.[1007]

      During the Anglo-Saxon period various orders and regulations commanding the benediction were passed. Theodore thus requires the priest, in the case of a first marriage, to celebrate the mass, doubtless the ordinary service, and to ask a benediction upon both parties;[1008] while by the ritual of the tenth century, already quoted, the nuptials are to be celebrated before a mass-priest "who shall with God's blessing bind their union to all prosperity."[1009] But after the Conquest more stringent measures were taken to secure publicity and enforce the observance of religious rites. Especially important is the celebrated constitution of Archbishop Lanfranc, alleged to have been enacted at the Council of Winchester in 1076, ordaining "that no man give his daughter or kinswoman in marriage without the priest's benediction," and declaring that otherwise "the marriage shall not be deemed legitimate but as fornication."[1010] Twenty-six years later, at the Council of London, an attempt was made by Anselm to put a check upon clandestine contracts, in a provision which really defines the principle governing the decisions of the ecclesiastical courts throughout the west. "Promises of marriage made between man and woman without witnesses" are declared to be "null if either party deny them."[1011]