Page:The New International Encyclopædia 1st ed. v. 13.djvu/109

MARRIAGE. 89 MARRIAGE. aiiJ by the ceiemoni;il takiiij; of tlic wife to the hiisUand's house, but none of these things was necessary: coiiheiisus, non coiicuhitus, facil iiiiptias. The consensual marriage .supplanted all other forms e.xcept the confarrcatio, which was occasionally used in some of the old families until the empire became Christian. The consensual marriage was a 'free marriage' in two senses: it gave the husband no power over the person or property of his wife, and it was dissoluble at the will of either party. See Divorce. -Marriage could be established when both par- ties had reached the age of puberty, which was fixed at the completed fourteenth year for males, at the completed twelfth for females. Jietrotlial (q.v. ), spuitsalia, could take place at any time after the completed seventh year. When the parties, or either of them, were under pater- nal autliority. no hotrotlial or marriage was valid without the paternal authorization. The remarriage of widows was regarded in the older Roman ethics as improper, but it was never legally prohibited. In the later Imperial , law it was prohibited for ten months, unless within that period a child had been born. In the later Imperial law, certain property disadvan- tages were attaelied to second marriages, both as regarded husbands and wives; but the object was not to penalize second marriages, but to secure the interests of the children of the previous marriages. Early German Law. The usual form of mar- riage among the Scandinavians, the Germans proper, and the Anglo-Saxons was wife-purchase. The girl was bought from her father or guardian, and delivered by the father or guardian to the buyer. Abduction of a girl without pavnient seems to have been regarded as a mode of mar- riage, but the husband did not obtain marital authority {iiiuiidiiiiii) until he had paid the cus- tomary compensation to the father or guardian. In the earliest written laws the price paid is beginning to be regarded as something that be- longs to the woman, not to the father or guard- ian ; it is dos or dower in the later English sense —i.e. a provision for widowhood — and instead of ])aying it over to the father or guardian, the bridegroom gives security for its payment on his death to his widow. In the earliest written laws also the purcluise marriage consists of two sepa- rate transactions: (1) the agreement between the bridegroom and the bride's father or guard- ian, in which each formally binds himself to perform his part of the contract, and (2) the delivery of the bride, together with the payment of the price or the giving of security for its pa.vmcnt to the widow. As the formal contract of the old German law consisted in the giving of symbolic pledges, wadia, the first of these trans- actions was a wadiatio (- glo-Saxon, benx-d- dung), while the second was a 'giving' (Anglo- Saxon, fiiftu). The icddiallo was more than a betrothal, it was an inchoate marriage. It pro- duced some of the legal results of marriage, while other results attached to the giving, and others again to cohabitation. In the later develop- ment of the German law- the nxidintio was de- serilied as ]'crh>hun(i or promising, and consisted in the exchange of promises between bridegroom and bride, and the giving became the Trauung or intrusting. Verlobung. however, in the Ger- man view, was always something more than a Roman betrothal, and the German view was not without influence upon the development of the canon law. RoMA. Canon Law. The Roman Catholic Church considers nuirriage as a sacrament which conveys divine grace to the recipients for the purpose of enabling them to perform well the duties of the conjugal state. This aspect has nothing to do with the validity of the marriage as a civil contract; nor docs the Church by this teaching deny that valid marriages are contracted outside its communion. But, considered as a sacrament of the Catholic Church, it cannot be received by an unbaptized person, or properly by any one who is in a state of mortal sin. By the general view of theologians, since the consent of the parties is considered the essential part of the sacrament, they are themselves held to be the 'ministers' of it: the priest simply adds the Church's benediction. Since marriage was con- sidered a sacrament, it was early asserted that as such its regulation fell within the exclusive jurisdiction of the Church. The claim was recog- nized; and in the e.xercise of its jurisdiction the Church developed a uniform law of marriage for all Western Christendom. It did not claim to regulate the property relations of husband and wife, but it regulated the establishment and de- termined the validity of marriages. The prin- cipal inference which the Church drew from the sacramental theory was that marriage was indis- soluble. The Church courts could declare that an existing luiion was not a valid marriage, i.e. they could declare a marriage null, on account of circumstances antecedent to or simultaneous with its establishment; and they could grant a .separa- tion from bed and board on account of circum- stances that had arisen since the marriage ; but they could not dissolve a marriage validly estab- lished by reason of any occurrences subsequent to its establishment. See Divorce. There were numerous grounds on which a marriage could be set aside or annulled, called dividing or destructive impediments (impedi- menta dirimentia) , such as a previous marriage, a previous vow of celibacy, a difTerence of re- ligion, impotence, etc. To the dividing impedi- ments belonged also relationship within the for- bidden degrees. The wide range of this impedi- ment was perhaps the most peculiar feature of the canon law. The Church not only forbade marriage by reason of consangiiinit.y and the legal affinit.v established b.v marriage ; it attached the same result to the si)iritual relationship estab- lished by partici])ation in the sacraments of bap- tism and of confirmation, and to the illegitimate affinity established by unlawful eoitcubitns : and it carried prohibitions based on affinity to the same degree as those based <m blood-Uinship. Before 1215 the impediments of consanguinity and affinity exten led to the seventh degree (which, by civil computation, might be the four- teenth degree, for in tracing collateral relation- ship the canonists reckoned only up to the com- mon ancestor and not down again) ; and mar- riage was forbidden not only with nffiiies. but with their nfl/iiirft tnffiiutfix Krniiidi. trrtii fira- dus) : hut at the fourth Latcrau Council In- nocent ITI. abolished the latter rule, and limited the prohibition based on consanguinity and affin- ity to the fourth degi'ee (e.g. third cousins). From all these impediments of relationship, except those between ascendants and descendants and brother and sister, dispensation might be