Chapter VI: Old English Wife-Purchase Yields to Free Marriage (2)

[888] The nuptials of widows, according to Salic law, were an
exception. These were, nominally, solemnized in the _mallum_,
or open court; but in practice this requirement may not always
have been observed. The exception seems to be an outgrowth of
the original restriction on second marriage: TACITUS,
_Germania_, c. 19; _Lex salica_, 44, _de reipus_:
BEHREND, 57, 58. _Cf._ SOHM, _Eheschliessung_,
62-64 nn. 16, 17, 18; SCHROEDER, _Güterrecht_, I,
56. FRIEDBERG, _op. cit._, 21; "Zur Geschichte,"
_ZKR._, I, 366, led astray by the statement of GRIMM,
_Rechtsalt._, 433, that _Gemahl_, "husband," is derived from
_mallum_, thinks the nuptials were usually celebrated in open
court. On the derivation see SOHM, _op. cit._, 62. In
general on the marriage of widows see also HABICHT,
_Altd. Verlobung_, 16-23; WEINHOLD, _Deutsche Frauen_,
II, 40 ff.; SCHROEDER, _Rechtsgeschichte_, 293, 296;
RIVE, _Vormundschaft_, I, 241; ZOEPFL,
_Deutsche Rechtsgeschichte_, III, 3, 10, 11; WEINHOLD,
"Reipus und Achasius," in HAUPT'S _Zeitschrift_, VII,
539 ff.; MÜLLENHOFF, "Glossary," in WAITZ, _Das
alte Recht_.

[889] SOHM, _op. cit._, 59-74.

[890] GRIMM, _op. cit._, 142, 155, 156;
WEINHOLD, _Deutsche Frauen_, I, 372. On the _gifta_
_cf._ SCHMID, _Gesetze_, 630; FRIEDBERG,
_Eheschliessung_, 21; WEINHOLD, _Altnordisches Leben_,
243 ff.

A point which requires special notice is the relative legal importance of the _beweddung_ and the _gifta_. "Whether the marriage begins with the betrothal, or with the delivery of the bride to the bridegroom, or with their physical union, is one of the many doubtful questions."[891] According to the view of Sohm, which is defended with his usual acuteness, the betrothal of the early laws is not, as commonly held, a _pactum de contrahendo_, a contract for the future giving in marriage,[892] but the essential part of the marriage itself. It is the only declaration of will, the only ground of legitimate marriage, which is not created, but merely consummated at the _gifta_.[893] Those who are bound by contract are in respect to third parties practically husband and wife.[894] The ground of the husband's title is the betrothal and not the nuptials. Either party can bring action in the courts for breach of the contract. The bridegroom cannot compel the delivery of the bride, but he may sue for the recovery of the _weotuma_ and an additional fine.[895] On the other hand, a breach of the contract by the bridegroom is punished by forfeiture of the _weotuma_, and possibly also by a fine.[896] The betrothal created the negative effects of marriage--the obligation of connubial fidelity. The bridegroom could maintain his title as a husband against all third parties. The _gifta_ conveyed the positive rights, such as the power of the husband over the person and property of the wife. It is the completion of that which has gained its legal significance from the betrothal.[897]

[891] POLLOCK AND MAITLAND, _Hist. of Eng._ Law, II,
363. Thus FRIEDBERG, _op. cit._, 21, 22, regards
"Verlobung, Trauung, und Beilager" as acts each of which is an
element in the "joining in marriage"--all three "eheschliessende
Vorgänge." _Cf._ SOHM, _Eheschliessung_, 88,
89; ZOEPFL, _Deutsche Rechtsgeschichte_, III,
5; SIEGEL, _Deutsche Rechtsgeschichte_, 455-57;
KLEIN, Das _Eheverlöbniss_, 130 ff., who reviews
the whole subject, citing authorities; and HANAUER,
_Coutumes matrimoniales_, 255 ff.

[892] The views as to the legal "content" of the betrothal are
summarized by HABICHT, _Altdeutsche Verlobung_, 30.
RIVE, _Vormundschaft_, I, 243, holds that betrothal was
not essential to a legal marriage; while PARDESSUS, _Loi
salique_ (Paris, 1843), regards it as legally requisite for a
marriage, which, however, actually began only with the tradition
of the bride.

[893] SOHM, _Trauung und Verlobung_, 139-47, _passim_;
_idem_, _Eheschliessung_, 75-106.

[894] This is illustrated by the survival of names originally
connected with the betrothal, but now with marriage itself:
the English _wed_, _wedding_, _wedded wife_, etc.; the German
_Gemahl_ and _Gemählin_; the French _époux_ and _épouse_, etc.
SOHM, _Eheschliessung_, 78 n. 6, 56 nn. 74 and 75;
_idem_, _Trauung und Verlobung_, 82, 83. But HABICHT,
_Altdeutsche Verlobung_, 65-67, believes this argument not
conclusive.

[895] _Poen. Theod._, XVI: THORPE, II, 11: "reddatur
ei pecunia quam pro ipsa dedit, et tertia pars addatur;" also
in HADDAN AND STUBBS, _Councils_, III, 201; and
WASSERSCHLEBEN, _Bussordnungen_, 216. The reading in
_Conf. Ecgb._ is, "reddatur ei pecunia, quam pro illa dederat,
et praeteria tertia pars hereditatis."--THORPE, II,
149; WASSERSCHLEBEN, 309. _Cf._ ÆLF., 18:
THORPE, I, 73; YOUNG, in _Essays_, 169.

[896] INE, 31: THORPE, I, 123. Compare
YOUNG, _loc. cit._, 168, 169.

[897] SOHM, _Eheschliessung_, 75-106; _idem_, _Trauung
und Verlobung_, 1-37, _passim_; YOUNG, _loc. cit._,
167-69.

The theory of Sohm has elicited much controversy.[898] It is clear that the ancient betrothal was of greater legal significance than the modern; but "on the other hand," to quote the judgment of Pollock and Maitland, "it seems too much to say that the betrothal was the marriage;" for the fulfilment of the contract could not be enforced. Moreover, they justly urge, we cannot be certain that betrothal by the "woman's father or other protector was essential to a valid marriage; we have to reckon with the possibility--and it is somewhat more than a possibility--of marriage by capture. If the woman consented to the abduction, then, according to the theory which the Christian church was gradually formulating, there would be all the essentials of a valid marriage, the consent to be husband and wife and the sexual union."[899]

[898] His _Eheschliessung_ (1875) called forth the _Verlobung
und Trauung_ (1876) of FRIEDBERG; also a critique
by MEYER, in the _Jenaer Lit. Ztg._, Jan., 1876,
501 ff. SOHM defends his position in _Trauung und
Verlobung_ (1876), 15 ff.; in his _Zur Trauungsfrage_, 11 ff.;
and in the _Strassburger Festgabe für Thöl_, 84, 98 n. 27. The
views of Sohm and others are examined by HABICHT,
_Altdeutsche Verlobung_ (1879), who concludes (75) that "Die
Verlobung ist nicht Beginn der Ehe, aber die rechtliche
Grundlage und nothwendige Voraussetzung derselben." The
_Trauung_ is "fulfilment of the betrothal" and "constitutes
the beginning of the marriage." LEHMANN, _Verlobung
und Hochzeit_ (1882), examines the problem from the standpoint
of northern law, and reaches the analogous result (124, 125)
that the "betrothal is a primary and independent, the nuptials
(_Hochzeit_) a secondary and dependent, act for joining in
marriage (_Eheschliessungsact_); the betrothal is the real
_Eheschliessungsact_, the nuptials an _Ehevollziehungsact_."
Sohm's view is adopted by SPIRGATIS, _Verlobung
und Vermählung_, 4 f.; it is attacked by SCHEURL,
_Kirchliches Eheschliessungsrecht_, 35 ff.; it is regarded
as extreme (_übertrieben_), though in spirit right, by
SCHUBERT, _Die evangelische Trauung_, 15 n. 2;
LOENING, _Gesch. d. deut. Kirchenrechts_, II, 581,
600 n. 1; both betrothal and tradition are essential to a
German marriage according to SEHLING, _Unterscheidung
der Verlöbnisse_, 30; while HEUSLER holds that
neither betrothal nor tradition, but the _copula carnalis_,
is the essential point: _Institutionen_, II, 284. _Cf._
KLEIN, _Das Eheverlöbniss_, 130-34; SCHROEDER,
_Rechtsgeschichte_, 296, 297, and authorities there cited; and
DIECKHOFF, _Kirchliche Trauung_, 66, 67, note, 97, who
favors and summarizes Sohm's view.

[899] POLLOCK AND MAITLAND, II, 368. _Cf._
DARGUN, _Mutterrecht und Raubehe_, 23 ff.

Besides the normal or full marriage of free men and women,
just described, the law-books recognize concubinage, so-called
"marriages" between the unfree, and unions between the free and
the unfree. The church, by giving them a sacramental sanction,
constantly strove to raise these irregular connections to the
rank of genuine wedlock. See especially KOEHNE, "Die
Geschlechtsverbindungen der Unfreien," in GIERKE'S
_Untersuchungen_, XXII, 1-23; and the literature on the subject
mentioned in the Bibliographical Note at the head of this chapter.

II. RISE OF FREE MARRIAGE: SELF-BEWEDDUNG AND SELF-GIFTA

Already in the eleventh century the forms of marriage were entering upon another stage. It is possible, in the historical period, as already seen, that a valid marriage could arise in abduction, through subsequent payment of a fine; and it is not impossible that side by side with wife-purchase the custom of free marriage by simple agreement of the parties may have existed, as we have found it existing among other peoples. But the practice could not have been widely extended, and it may imply merely the indulgence or silent consent of the legal protector.[900] Hitherto, so far as the positive provisions of the law-books are concerned, betrothal by the natural guardian or his representative[901] had been essential to a valid contract. Originally the father could betroth his daughter even against her will.[902] But, just as the guardianship of the husband as respects the wife's property gradually becomes transformed into a merely formal guardianship or judicial control,[903] so the power of the father is first weakened by granting the daughter a veto on the choice of a bridegroom; that is, by making her consent necessary to a binding contract; and then, presently, the relations of guardian and ward are entirely transposed: self-betrothal by the daughter constitutes a valid contract, while the father is allowed only a veto power. Naturally it was the widow, in the case of a second marriage, who first succeeded in emancipating herself from tutorial control. Among the Germans in the time of Tacitus it was against popular usage, if not illegal, for a widow to marry again.[904] But in the folk-laws she appears on practically the same footing as a girl in this regard;[905] and placed as she was "between two families," with the "possibility of recourse to her own kindred" in case her first husband's relatives as possessors of the _mund_ over her refused their assent to a second marriage, she soon succeeded in freeing herself entirely from such restraints.[906]

[900] That free marriage sometimes occurred is, of course, a
conjecture. But see DARGUN, _Mutterrecht und Raubehe_,
24 ff.; and KOHLER, in _ZVR._, VI, 321, for the alleged
survival of marriage _ohne Mundium_, which they assume to be
a survival of _Mutterrecht_. This assumption, of course, is
doubtful. _Cf._ UNGER, _Die Ehe_, 105, 106. See chap.
iv, above.

[901] "So long as marriage was a strictly civil [lay] ceremony,
as well as a purely civil engagement, the bride's father or
guardian performed the rite. It was he who took her by the neck
and shoulders, and gave her to the bridegroom. He gave the
symbolic shoe. In the Danish matrimonial rite of a subsequent
period the father's part was even more impressive. In language,
never in later times permitted to our English clergy, he declared
himself the actual maker of the marriage, when, on hand-fasting
the bride and groom, he said to the latter, 'I join this woman
to you in honour to be your wife, with a right to half of your
bed and keys, and to a third of your goods acquired or to
be acquired, according to the law of the land and St. Eric.
In the name of the Father, and of the Son, and of the Holy
Ghost.'"--JEAFFRESON, _Brides and Bridals_, I, 53.
_Cf._ on the Danish "hand-fasting" BRAND, _Popular
Antiquities_, II, 87, 88; BULLINGER, _Christen State of
Matrimonye_, 43.

[902] SOHM, _Eheschliessung_, 50; _cf._
LEHMANN, 13.

[903] "Processvormundschaft": SOHM, _op. cit._, 52.

[904] TACITUS, _Germania_, cc. 18, 19.

[905] These codes sometimes fixed a term within which a widow
may not marry, but a second marriage is treated as entirely
legal: _Lex salica_, c. 44: BEHREND, 57-59; _Lex
saxonum_, tit. vii, 3, 6: WALTER, _Corp. juris
germ._, I, 387; _Lex wisigothorum_, lib. iii, tit. 2, c. 1,
tit. 4, c. 2, 7: WALTER, I, 470, 471, 477, 478; _Lex
burgund._, tit. 24, c. 1, tit. 52: WALTER, I, 316,
330; _Edictum Rotharis_, cc. 178, 182, 188: WALTER,
I, 710, 711, 714; ÆTHELBERHT, 76; ÆTHELRED,
V, 21; CANUTE, 73, 74: SCHMID, _Gesetze_,
8, 224, 310, 312. _Cf._ HABICHT, _Altd. Verlobung_,
16 ff.; SOHM, _Eheschliessung_, 63, who differ as to
the interpretation of the much-disputed c. 44, _lex sal. de
reipus_; GRIMM, _Rechtsalt._, 452; SCHROEDER,
_Güterrecht_, I, 56, 57.

[906] HABICHT, _Altdeutsche Verlobung_, 26, 27. The
Saxon and Lombard laws allow the widow to appeal to her own
family in case her legal tutor--that is, her deceased husband's
family--will not consent: HABICHT, 17, 18. On the
freedom of the English widow see ROEDER, _Die Familie
bei den Angelsachsen_, 26 ff.

Canute forbids the marriage of a maiden against her will.[907] If consent of father or guardian be not obtained, the betrothal is still binding, but the daughter may be punished by loss of inheritance. Thus early do we find the beginning of the private marriages, which subsequently, under the names of "irregular" or "clandestine," played so great a rôle in the history of matrimonial law.

[907] CANUTE, II, 75: "and let no one compel either
woman or maiden to him whom she herself mislikes, nor for
money sell her; unless he is willing to give anything
voluntarily."--THORPE, I, 417. For the similar
provisions of Gothic and Lombard law see HABICHT, 23 ff.

The form of contract observed in self-betrothal is usually the _wed_, sealed by the _Handschlag_ or hand-fasting. The "real contract" through payment of the _arrha_ is, however, also retained; but the _arrha_ is paid, not to the guardian, but to the bride, and appears most frequently in the form of the ring, so well known to us as the betrothal or "engagement" ring.[908] The ring had been used by the Romans as _arrha_; and, like the bridal wreath and the bridal veil, it seems to have been borrowed from them by the Germans.[909] On the other hand, though there can be little doubt of the historical connection of the betrothal ring and its duplicate, the wedding ring, with the _arrha_,[910] whether or not it may be regarded as a surviving symbol of the former servitude of the wife must depend upon the acceptance or rejection of the view that the actual sale-marriage, as opposed to the transfer of the _mund_, ever existed among the Teutonic peoples. "A favorite theory," says Henry Adams, "has insisted upon regarding the wedding ring as a badge of servitude or a symbol of purchase. This idea cannot be maintained. The wedding ring appears in its origin to have been merely the earnest money which bound the contract of marriage between the father and the husband, and was not the only symbol of the kind in early custom, although no other survives in modern use. The ring proved, not that marriage was a sale, but that marriage was a civil contract executed according to the strict formalities of contracts in the primitive law; it proved, not that women were deprived of rights, but that their rights were secured to them in marriage by the most careful provisions known to early society."[911] This is, of course, a very emphatic statement of one side of the case; and it should not be overlooked that the ring may stand as a symbol of equitable contract; and yet the _arrha_, which the ring is, may mark but the intermediate stage in the evolution of the betrothal from the ancient process of actual sale. Nor does the connection of the betrothal ring with the Roman and German _arrha_ necessarily exclude other historical associations. Kulischer,[912] for instance, traces its origin to wife-capture. Like the betrothal band or thread, which sometimes appears with it or in its place, he believes that the ring symbolizes the fetters with which the captive maid was bound. But the evidence to support this theory is not conclusive.[913] The practice of exchanging rings, of giving a ring to the bridegroom as well as to the bride, did not arise until the later Middle Ages.[914] In England the drinking of a cup of wine and the breaking of a gold piece between the bride and bridegroom appear as forms of the _arrha_.[915] Naturally after the _arrha_ is paid to the bride it becomes confused with the _wed_, and soon all distinction between the two forms of contract is lost. "Indeed at an early day the arrha was called a wed, and it was legally indifferent whether the oath, hand-fasting or other wed, or the ring or penny[916] were used. Therefore the ring and penny are found in conjunction with the glove; that is, with a real wed. And it is especially of interest that the English language still calls marriage a wedding, and that in England the ring (that is the arrha) is still used to wed the bride."[917]

[908] SOHM, _Eheschliessung_, 54. Sohm's theory
of self-betrothal and self-_Trauung_ is criticised by
FRIEDBERG, _Verlobung und Trauung_, 9, 11 ff. In
general see SPIRGATIS, _Verlobung und Vermählung_,
6 ff.; HEUSLER, _Institutionen_, II, 286; and with
SOHM'S _Eheschliessung_, as below cited, compare his
_Zur Trauungsfrage_, 12 ff.

[909] The ring is mentioned as _arrha_ in _Dig._, xiv, tit.
iii, 5, § 15; xix, tit. i, 11, § 6: _Corpus juris civ._, I,
189, 244. _Arra_ appears in connection with _sponsalia_,
_Dig._, xxiii, tit. ii, 38: _Corpus juris civ._, I, 297.
_Cf._ SMITH, _Dict. Greek and Roman Ant._, I,
193; LUDLOW, in _Dict. Christ. Ant._, I, 142 ff.;
BABINGTON, _ibid._, II, 1807-9; MEYRICK,
_ibid._, 1105. Originally, we are told, the Roman lover presented
his betrothed a plain ring of iron, in later days of gold,
but did not receive one in exchange: FRIEDLÄNDER,
_Sittengeschichte_, I, 456; KULISCHER, in _ZFE._, X,
210. On the _annulus pronubus_ and its acceptance by the Germans
see JUNIUS, _De annulo romanorum_; MÜLLER, _De
annulo pronubo_; HOFMANN, _Verlobungs- und Trauring_,
829 ff.; SIEGEL, _Deutsche Rechtsgeschichte_, 451;
WEINHOLD, _Deutsche Frauen_, I, 343; BINGHAM,
_Orig. Ecc._, VII, 311, 313-16, 337, 339; HOWLETT,
in ANDREWS'S _Curious Church Customs_, 105, 107-9;
FRIEDBERG, _Eheschliessung_, 26 n. 3; SOHM,
_Eheschliessung_, 54, 55.

In the marriage ceremony of the Greek church two rings are used,
one of silver and one of gold; see ritual for espousals in the
eastern church in BURN, _Parish Registers_, 141, 142;
and in BINGHAM, _The Christian Marriage Ceremony_,
214 ff., 219; and _cf._ ZHISHMAN, _Das Eherecht der
orientalischen Kirche_, 691; and MEYRICK, in _Dict.
Christ. Ant._, II, 1105. The betrothal ring appears among the
Slavs: POST, _Familienrecht_, 236. In mediæval England
"a rush ring was supposed to possess some peculiar charm. Richard
Poore, bishop of Salisbury, in his _Constitutions_, anni 1217,
forbids the putting of _rush rings_, or any the like matter, on
women's fingers, in order to the debauching them more readily,"
and he insists that some people thought that "what was thus done
in jest was a real marriage": BURN, _op. cit._, 143.
_Cf._ DOUCE, _Illustrations of Shakespeare_, I, 315-19;
WOOD, _The Wedding Day_, 232, 233, 241. On the various
uses and symbolism of the ring among the Teutonic peoples read
the lecture of HODGETTS, _Older England_, 125-57; and
a valuable general treatise on the ring is JONES'S
_Finger Ring Lore_ (London, 1890). TEGG, _The Knot
Tied_, 309-37, has two chapters on the marriage ring; throughout
WOOD'S _The Wedding Day in all Ages and Countries_
much information on the subject will be found; and there is an
interesting passage in SWINBURNE, _Of Spousals_, 207-9,
quoted below, with other references, chap. vii, sec. 1.

The kiss at betrothal appears to have been borrowed by the
Christians from older pagan custom, and it was first given
legal importance by Constantine. If the kiss were given, he
provided that, in case one of the parties died before the
nuptials, the other party was entitled to inherit half the
espousal donations: _Cod. Theod._, lib. iii, tit. 5, leg. 5;
_Cod. Just._, lib. v, tit. 3, leg. 16: _Corpus juris civ._, II,
194. TERTULLIAN, _On the Veiling of Virgins_, chap. 11:
_Ante-Nicene Faths._, IV, 34, mentions the betrothal kiss as a
heathen custom. _Cf._ VENABLES, in _Dict. Christ. Ant._,
II, 905, 906; BINGHAM, _Orig. Ecc._, VII, 316; V, 75;
WEINHOLD, _Deutsche Frauen_, I, 343, 344. In England
the priest joined in the ceremony of kissing at the nuptials.
"In the Articles of Visitation in the diocese of London in 1554
is the following, 'Item, whether there be any that refuseth
to kysse the Prieste at the solempnization of matrimony, or
use any such lyke ceremonies heretofore used & observed in the
Churche'": BURN, _op. cit._, 143; _cf._ DOUCE,
_Illustrations of Shakespeare_, I, 112, 403; WOOD, _The
Wedding Day_, Index.

[910] See especially the careful monograph of HOFMANN,
_Ueber den Verlobungs- und Trauring_ (Vienna, 1870); and compare
FRIEDBERG, "Zur Geschichte der Eheschliessung,"
_ZKR._, I, 370 n. 34, 372 n. 41; SPIRGATIS, _Verlobung
und Vermählung_, 16, 17; THRUPP, _The Anglo-Saxon
Home_, 48 n. 50. Dogmatic writers, of course, see in the ring
an alleged Christian symbolism: _cf._ BRISSONIUS,
_De ritu nuptiarum_, 3 ff.; KLEE, _Die Ehe_, 127-29;
GÖSCHL, _Darstellung der kirchlich-christlichen
Ehegesetze_, 183 ff.; DIECKHOFF, _Die kirch. Trauung_,
28, 29.

[911] ADAMS, "Primitive Rights of Women," _Hist.
Essays_, 35.

[912] KULISCHER, "Intercommunale Ehe durch Raub und
Kauf," _ZFE._, X, 208-10.

[913] The proof consists in the interpretation of the supposed
symbolism. Thus the German lover, in early times, placed upon the
bride's finger a ring made of a twig plucked from a tree upon his
own land, the bride thus being "symbolically bound to the new
locality": UNGER, _Die Ehe_, 106. The thread or band is
interpreted as the bond of the captive; and Kulischer gives the
following illustration from northern custom:

"Komm, komm Maria lieb, und reich mir deine Hand,
Hier hast du das Ringelein und um den Arm das Band,"

runs a Swedish rhyme. In an Upland dance, the maiden sings:

"Und willst mich schliessen an's Herz dein,
Sollst mir zuvor geben ein Ringelein."

To which the young man replies:

"Hier hast du Ring und Verlobungsband,
Du sollst mich nicht betrügen."

Sometimes these symbols are brought into connection with the
sword--also, it is assumed, a survival of violence. Thus in an
Anglo-Saxon picture of the eighth century the bridegroom reaches
to the bride the ring upon a sword or staff: KULISCHER, 209; _cf._
WEINHOLD, _Deutsche Frauen_, I, 241, 242.

[914] WEINHOLD, _op. cit._, 343; SCHROEDER,
_Rechtsgeschichte_, 700, note; SIEGEL, _Deutsche
Rechtsgeschichte_, 453, who ascribes the practice to the
imitation of the court manners. Even now in the English
ceremonial only the bride receives a ring, consistently with its
origin in the _arrha_. _Cf._ FRIEDBERG, _op. cit._, 38,
notes.

[915] FRIEDBERG, _op. cit._, 42, 43; SOHM,
_Eheschliessung_, 54; _cf._ ROEDER, _Die Familie bei den
Angelsachsen_, 30 ff.

[916] That is, forms of the _arrha_.

[917] SOHM, _Eheschliessung_, 56; _cf._ MAX
MÜLLER, _Essays_, II, 251.

Simultaneously with the rise of self-betrothal, the bride gained also the right of self-_gifta_. The parties might conduct the ceremony themselves.[918] But in place of the natural guardian, who originally possessed the sole legal right to officiate at the tradition of the bride, appears often a "chosen guardian," selected by the bride or by the betrothed couple. The person thus selected may be the father or other relative of the bride, or any third person whatever.[919] Moreover, in the marriage rituals of the eleventh century[920] an _orator_ or _Fürsprecher_ appears, who acts as an "assistant" to the natural guardian, dictating the solemn phrases of the ritual and guiding the whole proceeding. Friedberg regards the orator as the predecessor of the priest, and thus, of course, of the civil magistrate as conductor of the nuptial ceremony.[921] But Sohm has shown that the functions of the priest or magistrate grew out of those of the "chosen guardian," and that the "_Trauung_ by a _Fürsprecher_ is in itself a contradiction." The latter is "never 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]

[918] FRIEDBERG, _op. cit._, 25.

[919] SOHM, _op. cit._, 67 ff.

[920] _Ibid._, 67, and the Italian ritual of the eleventh century
in _Anhang_, II, 318, 319.

[921] FRIEDBERG, _op. cit._, 25 ff., 93 ff., 62.

[922] SOHM, _op. cit._, 71 ff., 166 n. 31. The
_Fürsprecher_ or _orator_ here mentioned, in accordance with the
view of Sohm, must not be confused with the _forespreca_ of the
old English formulary above quoted; the latter was the guardian
himself or a representative--a _Processvormund_: SOHM,
72.

[923] SOHM, _op. cit._, 67.

[924] SOHM, _ibid._, 166 n. 31, concedes this.

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]

[925] A _Zusammensprechen_: SOHM, _op. cit._, 73.

[926] _Ibid._

[927] A _Zusammengeben_: _ibid._

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]

[928] _Ibid._, 100 ff.

[929] See the ritual in BINGHAM, _The Christian Marriage
Ceremony_, 163, 164; TEGG, _The Knot Tied_, 10 ff.;
MOORE, _How to Be Married_, 27 ff.

"This first part of the office was anciently termed the
espousals, which took place some time before the actual
celebration of marriage. The espousals consisted in a mutual
promise of marriage which was made by the man and woman
before the bishop or presbyter and several witnesses; after
which articles of agreement of marriage (called _tabulae
matrimoniales_), which are mentioned by Augustine, were signed
by both persons. After this the man delivered to the woman the
ring and other gifts, an action which was called _subarrhation_.
In the later ages the espousals have always been performed
at the same time as the office of matrimony, both in the
western and eastern churches; and it has long been customary
for the ring to be delivered to the woman after the contract
has been made, which has always been in the actual office of
matrimony."--PALMER, _Origines liturgicae_ (1839);
quoted also by JEAFFRESON, _Brides and Bridals_, I, 68,
who in his chapter on "Espousals" (_op. cit._, I, 60-87) gives
much information relating to ancient betrothal customs. _Cf._
BRAND, _Popular Antiquities_, II, 87-98 (betrothal
customs).

[930] _Liturgies of Edward VI._, 128, 129; _Liturgies of
Elizabeth_, 218, 219.

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]

[931] See the "Ordo ad facienda sponsalia," in the _Manuale et
processionale ad usum insignis ecclesiae eboracensis_: Surtees
Society _Publications_, LXIII, 26, 27. The double ceremony also
appears in the Sarum or Salisbury manual: MASKELL,
_Monumenta ritualia_, I, 56, 57: Surtees Society _Publications_,
LXIII, Appendix, 18, 19; in the ritual of Hereford; that of the
twelfth century contained in a Pontifical of the library of
Magdalen College, Oxford; in that of the missal of Hanley Castle,
Worcestershire, dating from the thirteenth century; and in that
of the fifteenth century in the Harleian MS., No. 2860, British
Museum; that of a Welsh manual of the same century, in the
library of the dean and chapter of Hereford; while it is plainly
discernible in the ritual of the twelfth century contained in
the Ely Pontifical of Cambridge University library; and that
of the Pontifical of Anianus, bishop of Bangor, 1268-1304: all
printed in Surtees Society _Publications_, LXIII, Appendix,
116, 155-69. _Cf._ the rituals printed by DIECKHOFF,
_Kirchliche Trauung_, 73, 77, 89 ff.; and the Roman marriage
service in BINGHAM, 177, 178, where the dualism appears;
but in the ritual of Paul V. it is not retained, unless the
subsequent giving of the ring may be regarded as the second part.
The priest says: "M. vis accipere N. hic praesentem in tuam
legitimam uxorem?" or "tuum legitimum maritum?" and on receiving
the answer, "Volo," proceeds: "Ego conjungo vos in matrimonio":
_Rituali romanum Pauli Quinti_ (Rome, 1816), 199 f. See the
discussion of the contents of the early rituals in chap, vii,
below.

[932] SOHM, _Eheschliessung_, 101 ff. The text
of this extremely interesting marriage ritual is printed
in FRIEDBERG, _Eheschliessung_, 26, 27; and in
SOHM, _Anhang_, III, 319, 320. For a description of
these early rituals see WEINHOLD, _Deutsche Frauen_, I,
340-48.

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]

[933] SOHM, _op. cit._, 105 n. 70. On the ring in
English rituals see FRIEDBERG, _op. cit._, 38, note, 46,
47.

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.

[934] _Ibid._, 30.

[935] TACITUS, _Germania_, 18: "intersunt parentes
ac propinque." It was customary in the Middle Ages for the
assembled friends to form a circle--_Ring_--about the betrothed
couple during the ceremony. Publicity was made a legal
requirement by Pippin: WALTER, _Corpus juris_, II, 42.
FRIEDBERG, _op. cit._, 24 n. 4, gives also references
to mediæval poems. He regards the practice of inviting a large
number of friends as originating in the desire to secure
publicity. Particular cities passed laws requiring the presence
of witnesses; for example, Prague.

[936] Except the publication of banns hereafter mentioned.