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consciences of the primitive Christians, and threw about this relation a sanctity, which contrasted well with the laxity and dissoluteness which reigned at that time in the Roman Empire.
The Roman marriage, as it existed in the first centuries of the city, was a religious contract celebrated with great solemnity, and which established mysterious and holy relations. It established an entire community between the husband and wife in human and divine things. The marriage ceremony was performed at the temple in presence of ten witnesses from the different tribes of the city, after sacrificial offerings and the consultation of the aruspices. The wife passed into the hands of her husband, losing her rights in the gods of her family, and acquiring a communion with him in his Gods and religion and family. At a later period these rites were changed for the plebeians, and others more simple were established in their place.
This rite too was sacramental, accompanied with religious ceremonies, and both forms were restricted to Roman citizens. In the sixth century of the city, the marriage of usucaption was introduced.
Marriage was then established by the fact of a continued cohabitation for a year, and this led to the marriage by consent, accompanied with no religious rite nor sanctified relations. Concubinage, with no intention of forming a marriage, naturally followed closely after. The community of worship, the unity of the family, which constituted the essence of the religious marriage, was destroyed in the innovations which were made
this ceremonial, and the obligations which the tie created were permanently disturbed.
It is a question among historians whether marriages could be dissolved by DIVORCE in the early days of the city. The power of the husband to repudiate the wife for certain offences is admitted, and some contend for the power of divorce as residing in both the husband and. the wife. It is generally agreed that there was no instance of a divorce for above five hundred years, and that the occurrence of the first caused a profound shock to the Roman sensibilities.
It is at this period that the alteration appears in Roman man
The constitution of separate estates, the enjoyment of independent revenues, the severance of that union which gives a second character and purpose to the institution were lost.
Tertullion writes—“The institutions of our ancestors, which directed woman in the ways of sobriety and modesty, are fallen into disuse. Where do we find in marriage that felicity so favored in former times by manners, and which, for nearly six hundred years, from the building of the city, was not submitted to a scrutiny of repudiation ? At this time repudiation is the end as well as the design of marriage.” Gibbon testifies to the laxity which lead to marriages followed by repudiations, and repudiations which preceded new connections; while Marshal stigmatises one who was married ten times in a single month.
Christianity was placed, by its very nature, in direct hostility with these customs. It undertook to reconstruct the family, according to the Divine model. It entered into the sanctuary of domestic life, and gave laws to all its arrangements. Marriage was celebrated in those primitive days before the altar, by the administration of the consecrated bread and wine, a profession of faith, and a nuptial benediction. Consultations with the minister of the faith were recommended to be had in advance of the ceremony, and the prayers of believers were invoked, that the blessings of heaven might attend the sanctified union. This was not done, as is supposed by the French civilians, to soften anxieties, and to invigorate hopes, in the ordinary meaning of those terms.
The union thus formed sprung from the heart, was approved by the conscience, and sanctioned by the understanding. There were great duties to flow from it, and great responsibilities to follow it. Divine aid was sought in a manner acceptable to him who had ordained the union.
The church attended at the cradle of the children of the marriage; it blessed their youth, and comforted them in death. “Who can express,” says Tertullian, “the happiness of such a union, of which the church is in some manner the instrument, which is confirmed by prayer, sealed by the benediction, announced by angels to the assembly of the saints, and ratified by
the heavenly Father.” “ The priest,” says Isidore of Seville, “blesses the marriage at the moment it is celebrated. It is what God did in reference to the first conjugal union at the time of its formation; for it is written, 'God created man in his own image, in the image of God created he him, male and female created he them; and God blessed them, and God said unto them, Be fruitful and multiply.' What is done now in the church, is in imitation of what was then done in paradise.”
Grave disputes have arisen as to the essentiality of the nuptial benediction, and what constitutes the sacrament of marriage, and who are the ministers of the sacrament, and the extent of the jurisdiction of the organized church over the civil contract of marriage. The better authorities seem to admit, that for civil purposes-those that concern civil capacity—the laws of legitimacy and succession, the jurisdiction of the civil authority is paramount. The sanctification of the marriage, the protection of parties forming it from error, impediments and impositions ; to guard the parties from the infatuation of passion ; to avoid the scandal, disgrace and misery of secret, unauthorized, or ill-advised unions; to compel them to consider the responsibilities they assume;—these afford sufficient public motives for the employment of the ministry of religion and the Christian Church in the celebration of marriages.
The law of Theodosius explains, and was probably intended to assist, the supremacy of the secular over the ecclesiastical authority. That law affirms, “ That it is not the ante-nuptial donation, nor the constitution of the dowry, nor all the pomp or ceremonial of the nuptials, which form a valid marriage; nor will the omission of these accessories render invalid a marriage otherwise regular, nor deprive children of their legitimacy. It is sufficient that two persons of legal capacity, under no legal impediment, shall give their mutual consent to the marriage in the presence of witnesses who can attest it.”
This decree was recognized in the codes of Justinian, and its authority was acknowledged by the churchmen for several centuries. The presence of the priest, the necessity for the nuptial benediction, were insisted on, for the ends of a Christian mar
riage. They were not deemed important to the establishment of a legal contract. One of the Gothic kings of Spain, in the 7th century, was the first who exacted the interposition of the priest to the constitution of the marriage. Leo, the Philosopher, in the tenth, and Alexis Comnenus, in the 12th century, ordained that no marriage should be valid without a nuptial benediction by an authorized member of the church. Charlemagne, in several of his capitularies, established the same necessity. About the same time it became a portion of the law of England. In a late case reported in the 10th of Clarke and Finnelly's Reports of cases decided in the House of Lords, that court determined that a marriage was invalid in Great Britain that had been celebrated by a dissenting minister, between two persons who did not belong to his congregation. The judgment was rendered against the dissent of Lords Brougham and Denman, and is founded upon the ancient ordinances and usages in force in the kingdom. It was held that no marriage was valid unless celebrated in the presence of a minister of the Church of England, save in those exceptional instances which had been provided for by statutes in reference to dissenters.
There was a time when the marriage was not held to be complete until there had been a concubinage, and a decree of Pope Alexander the Third is found, which determined that a consummation by cohabitation was necessary to its perfectness.
The beautiful Anne of Brittany was left at an early age heiress of that important duchy. Such was the lawlessness that reigned, that she feared some of her suitors would carry her off forcibly to marry her. She accepted the proposals of Maximilian, the Emperor of Germany, and grandfather of Charles the Fifth.
The marriage ceremony was performed with his ambassador, who appeared as his proxy. In order to fulfil what was supposed to be necessary, the princess was placed in bed, and the naked leg of the proxy placed beside her. This was not deemed sufficient, for, during the life of the emperor, Anne was married, first to Charles the Eighth and afterwards to Louis the Twelfth of France. Sismondi vituperates the transaction in his History of France. The probability is, that some of the ancient usages, in
reference to the vesting of the wife's claim to dower, were confused with the rules regulating the contract of marriage itself,
au coucher, femme gagne son douaire,” was a widely diffused adage; and among the customs of Bretagne, there was one to the effect that the wife acquired title to dower by concubinage.
This endowment of the wife after the marriage was called Morgengabe, and existed over a wide extent of country. It is found among the Greeks as the Theoretrum—price of virginityand there are traces of it in the Roman manners. The custom of Castile was that the title to marriage presents depended upon the fact of there having been a kiss and an embrace.
If the marriage failed after these, the donor could not receive them back.
These gross ideas did not penetrate far into the legal idea of the marriage, as understood by the church.
In one of the earlier councils, the chastity of the nuptials, in the just estimate of the clergy, is shown by the decree, “Spousas et spousa cum benediciendi sunt a sacerdote, a parentibus suis, vel a pova nymphis afferentur ; qui cum benedictionen acceperint, eaden nocte pro reverentia ipsius benedictionis in virginitate permaneant."
The law of Europe was, that marriage was formed by the consent of competent parties. The Church and the State generally concurred in throwing about the ceremony such guards as to secure publicity, and to avoid the scandal and crime of forbidden or secret connections.
The Church and the State seemed to be impressed with the sanctity of the relation, and co-operated to impress upon society just views in reference to it. The consent having been legally given, the marriage was no longer dissoluble.
The Hebrew system did not recognize divorce as we understand that term. The inquiry put to the Savior, whether it is lawful for a man to put away his wife for every cause; and the answer given, that Moses allowed a writing of divorcement, shows that the question was not settled as to the powers of the husband. A fair interpretation of the Mosaic law would be, that the husband could not act capriciously. Some of the Rabbins contended