A History of Matrimonial Institutions (Vol. 1-3). George Elliott Howard
extended to the seventh degree of consanguinity, counting, as did the canonists, in the collateral line, from the common ancestor and not through the same according to the Roman method.[1124] A distinction, however, was made. Kinship in the sixth or seventh degree was held to be only "impedimentum impediens, a reason for a refusal to solemnize a marriage, not impedimentum dirimens, a cause which would render a marriage null;" and this doctrine was "received in England as well as elsewhere."[1125] At the Lateran council of 1215 Innocent III. adopted the rule that "marriages within the fourth degree of consanguinity are forbidden and null."[1126] But the doctrines of the church touching affinity and relationship did not therefore cease to perplex the courts, molest the happiness of individuals, and threaten the tranquillity of nations.[1127] In England the perennial "deceased wife's sister" bill, the stubborn resistance to which has so long attested the amazing tenacity of theological prejudice, has not even yet successfully run the gauntlet of the House of Lords.[1128]
The relation of the temporal to the spiritual courts in the administration of English matrimonial law was anomalous.[1129] Strictly speaking, there was no lay jurisdiction whatever with regard to the genuineness of marriage. Only the ecclesiastical judge could determine whether a valid marriage existed.[1130] In such a case the jury could not "declare the right." The question was referred to the spiritual court for decision. On the other hand, the law tribunal, without aid of the spiritual judge, could say whether or not there was a de facto marriage as opposed to a marriage de jure. The jury could determine, in a possessory action, whether there had been a public ceremony in face of the church. This was a decisive proof; for the mere fact of living together as husband and wife was not always conclusive.[1131] "If a man and woman have gone through the ceremony of marriage at the church door, we may say that we have here a de facto marriage, a union which stands to a valid marriage in somewhat the same relation as that in which possession stands to ownership. On the other hand, if there has been no ceremony, we cannot in the thirteenth century say that there is a de facto marriage; mere concubinage, especially among the clergy, is far too common to allow us to presume a marriage wherever there is a long-continued cohabitation. But a religious ceremony is a different thing; it is definite and public; we can trust the jurors to know all about it; we can make it the basis of our judgments whenever the validity of the union has not been put in issue in such a fashion that the decision of an ecclesiastical court must be awaited."[1132]
The practical application of this doctrine appears in the two cases of divorce and inheritance. Here the temporal courts tried indirectly to put a check upon clandestine marriages, to remedy the evils resulting from the scholastic dogma that mere consent secretly expressed in words of the present tense constitutes a valid marriage, by making the acquisition of certain property rights depend upon the publicity of the espousals.[1133] The widow could not receive her dower unless it had been publicly assigned at the nuptials before the church door.[1134] "The result is curious, for at first sight the lay tribunal seems to be rigidly requiring a religious ceremony which in the eyes of the church is unessential.... We soon see, however, that what our justices are demanding is, not a religious rite nor 'the presence of an ordained clergyman,' but publicity.... Marriages contracted elsewhere may be valid enough, but only at the church door can a bride be endowed. There is a special reason for this requirement. The common-law contrast to the church-door marriage is the death-bed marriage.[1135] At the instance of the priest and with the fear of death before him, the sinner 'makes an honest woman' of his mistress. This may do well enough for the church, and may, one hopes, profit his soul in another world, but it must give no rights in English soil."[1136] So also with regard to inheritance, in certain cases,[1137] the lay court made the rights of children depend upon public solemnization of the nuptials, thus adopting the canonical theory of "putative marriages."[1138] Although there may be no valid marriage on account of the existence of certain impediments, such as too near kinship, the children are nevertheless legitimate if the nuptials were publicly celebrated at the church door, and if at least one of the parents, at the time the children were begotten, was "ignorant of the fact which constituted the impediment." They are entitled to inheritance, though the parents are not really husband and wife. On this point in the thirteenth century church and state were at one;[1139] but later a less liberal doctrine was adopted by the secular tribunals. "The ultimate theory of the English lawyers took no heed of good or bad faith, and made the legitimacy of the children depend on the fact that their parents while living were never divorced."[1140]
The refusal of the church to prescribe a proper age condition for those entering matrimony led, as might be expected, to child marriages; and in this case the rules of the English common law only tended to magnify the evil. By the canonists the age of consent to marriage was fixed at seven years.[1141] Thereafter a marriage formed without consent of parent or guardian, and even in opposition to it, was held to be legal; but it was "voidable so long as either of the parties to it was below the age at which it could be consummated. A presumption fixed this age at fourteen years for boys and twelve years for girls. In case only one of the parties was below that age, the marriage could be avoided by that party but was binding on the other. So far as we can see, this doctrine was accepted by our temporal courts."[1142] By the teaching of the common lawyers a widow of nine years of age at her husband's death could claim dower, though the marriage would have been voidable by her at the age of puberty.[1143] The English temporal courts appear to have disregarded the canonical rule that a marriage is absolutely void when formed below the age of seven. "Coke tells us that the nine years old widow shall have her dower 'of what age soever her husband be, albeit he were but four years old,' and certain it is that the betrothal of babies was not consistently treated as a nullity. In Henry III.'s day marriage between a boy of four or five years and a girl who was no older seems capable of ratification, and as a matter of fact parents and guardians often betrothed, or attempted to betroth, children who were less than seven years old. Even the church could say no more than that babies in the cradle were not to be given in marriage, except under the pressure of some urgent need."[1144] For such infant marriages, however, there were two practical motives during the Middle Ages. In England, just as in India and often among lower races,[1145] the betrothal or espousal of very young children was a means of peaceful treaty or alliance; and the "rigour" of the feudal law was also in this way avoided.[1146] "As deaths were early in those days, and wardship frequent, a father sought by early marriage of his son or daughter to dispose of their hands in his lifetime, instead of leaving them to be dealt out to hungry courtiers who only sought to make as large a profit as they could from the marriage of the wards they had bought for that purpose;"[1147] and the lord's right of marriage might in like manner be defeated by conferring knighthood upon a son in tender years.[1148] Even as late as the age of the Tudors "much immorality resulted from the child marriages which were common in fashionable life."[1149]
IV. PUBLICITY SOUGHT THROUGH BANNS AND REGISTRATION
Without doubt the wrong and confusion arising in the ecclesiastical theory and definition of marriage were manifold,h3 and they were patent to every observer. At the Council of Trent it was asserted that some action to put a check upon clandestine marriages was demanded by all the temporal powers;[1150] and the provincial church councils, aided by state legislation, had done what they could by imposing; penalties to remedy the abuse.[1151] Nevertheless, strange as it may seem to one not acquainted with the devious logic of scholastic theology, many members of the Council of Trent, on dogmatic grounds, were stubbornly opposed to the only reform which experience showed could be effective. They affirmed that severer discipline would suffice. They apologized for clandestine marriages on the pretext that they are sometimes useful, even necessary; or they denied that to declare them null would prove an efficient remedy.[1152]
Hence we are better able to appreciate at its true value the significance for the Catholic world of the victory gained by the common-sense of the majority. It was a victory in favor of that publicity which the state demanded. Indeed, the church had already done something, in spite of dogma, to change marriage from a private to a public transaction. Her collision with the state, her anomalous position with respect to social order, was involuntary. She was caught, as it were, in the meshes of her own philosophy. Yet in the interest of morality she strove to