Chapter XI: Marriage Under the Canon Law

When direct legislation by the State came to an end in Western Europe with the disappearance of the effective power of the Emperors in the fifth and sixth centuries, the control of marriage began to fall into the hands of the Church and remained there for many generations. To pass from the civil law of Rome to the ecclesiastical law of the Dark and Middle Ages is like quitting an open country, intersected by good roads, for a tract of mountain and forest where rough and tortuous paths furnish the only means of transit. It would be impossible within the limits of this Essay to describe that law, which is copious, and embarrassed by not a few controverted points. All that it seems necessary to say here is that the Canon Law, which was collected and codified in the thirteenth and fourteenth centuries, so far adhered to the established Roman doctrine as to recognize, down till the Council of Trent, the main principle that marriage requires nothing more than the free consent of the parties, expressed in any way sufficient to show that the union which they contemplate is to be a permanent and lawful union. Marriage no doubt became, in the view of the mediaeval Church, as of the Roman Church to-day, a sacrament, but it is a sacrament which the parties can enter into without the aid of a priest. Their consent ought, no doubt, in the view of the Church and of Canon law, to be declared before the priest and to receive his benediction. It is only marriages ‘in the face of the Church’ that are deemed ‘regular’ marriages[197], and the Fourth Lateran Council under Innocent the Third directed the publication of banns. But the irregular marriage is nevertheless perfectly valid. It is indissoluble (subject as hereinafter mentioned), and the children born in it are legitimate. A good ground for this indulgence may be found not only in Roman traditions, but also in the fact that the Church was anxious to keep people out of sin and to make children legitimate, so that it always presumed everything it could in favour of lawful matrimony.

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Footnote 197:

See Lord Stowell’s famous judgement in _Lindo_ v. _Belisario_
(_Consist. Cases_, p. 230), where he examines in an interesting way
the requisites of marriage under the ‘law of nature.’

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This view prevailed, and may be said to have been the common law of Christendom, as it had been of the old Roman Empire, down till the Council of Trent[198]. That assembly, against the strong protests of some of its members, passed a decree (Sessio XXIV, cap. i, _De Reformatione Matrimonii_) which, after reciting that clandestine marriages had been held valid, though blameworthy, declared that for the future all should be deemed invalid unless they took place in the presence of a priest and of two or three witnesses. Apparently it was not so much for the sake of securing the blessing of the Church upon every marriage as in order to prevent the scandals which had arisen from the breach of a tie contracted in secret that the change, a grave and memorable change, was made. This great Council, which was intended to secure the union of Christendom under the See of Rome, really contributed to intensify the separatist forces then at work: and from it onwards one can no longer speak of a general marriage law even for Western Europe. Custom and legislation took thenceforward different courses, not only as between Protestant and Roman Catholic nations, but even as between different Protestant nations, there being no common ecclesiastical authority which Protestant States recognized. Thus the era of the Reformation is an era as marked in the history of marriage law as was the era of Constantine, when Christianity began to be dominant in the Roman Empire. And we shall see, when we return to the subject of divorce, that this is even more strikingly the case as regards the dissolubility of marriage than as regards the mode of contracting it.

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Footnote 198:

Canon VII of Session XXIV anathematizes those who deny the teaching of
the Church that the adultery of one spouse does not dissolve the
_vinculum matrimonii_, and Canon X those who deny that it is better
and happier to remain in a state of virginity or celibacy.

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Before passing on to sketch the legal history of the institution in England—since it is impossible to find space here for an account of its treatment in the laws of other European States—it is well to note what had been the general tendency of the customary law of the Middle Ages upon the character of the marriage relation.

One may sum up that tendency by saying that it had virtually expunged the free and simple marriage of the Romans under the later Republic and the Empire, and had substituted for it a system more closely resembling that of the religious marriage with Hand power of early Rome. The ceremony had practically become a religious one, though till the Council of Trent a religious service was not absolutely essential to its validity. The relation had become indissoluble, except by the decree of the Pope, who in this, as in some other respects, practically filled the place of the old Roman Pontifex, though of course both confarreation and the pontiff had been long forgotten[199]. It carried with it an absorption of the personality of the English wife into that of the husband, whereby all her property passed to him and she became subject to his authority and control. These conditions were the result partly of Teutonic custom, partly of the rudeness of life and manners; and such check as was imposed on them came from the traditions of the Roman law, and from the favour which the Canon law, much to its credit, showed to the wife. Of this favour some have found a trace in the phrase that occurs in the ‘Form for the Solemnization of Matrimony’ in the liturgy of the Church of England, where the bridegroom is required to say to the bride, ‘with all my worldly goods I thee endow’; although, in point of fact, the law of England gives to the bride only a very limited (and now easily avoidable) right to one-third of the husband’s real estate after his death[200].

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Footnote 199:

The pontifices had a certain oversight over the sacred marriage by
_confarreatio_, and their action was needed to effect a _diffareatio_,
when it was desired to extinguish the _manus_ of the husband over a
divorced wife.

Footnote 200:

Others think that this expression, which would seem to refer not to
real property but to chattels, is a relic of ancient Teutonic custom.
As is observed by Messrs. Pollock and Maitland (_History of English
Law_, vol. ii. p. 401), we must not assume that, from the days of
savagery down to our own, all changes have been in favour of women.
They had apparently more power over their own property in Anglo-Saxon
times than in the thirteenth century.

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