Chapter 14

THE MARRIAGE INSTITUTION

Mores lead to institutions.--Aleatory interest in marriage and the function of religion.--Chaldean demonism and marriage.-- Hebrew marriage before the exile.--Jewish marriage after the exile.--Marriage in the New Testament.--The merit of celibacy.--Marriage in early Christianity.--Marriage in the Roman law.--Roman "free marriage."--Free marriage.--Transition from Roman to Christian marriage.--Ancient German marriage.-- Early mediæval usage.--The place of religious ceremony.--The mode of expressing consensus.--Marriage at the church door.-- Marriage in Germany, twelfth century.--The canon law.--Mediæval marriage.--Conflict of the mores with the church programme.-- Church marriage; concubines.--The church elevated the notion of marriage.--The decrees of Trent about marriage.--Puritan marriage.

+413. Mores lead to institutions.+ We have seen in Chapter IX that the sex mores control and fashion all the relations of the sexes to each other. Marriage, under any of its forms (polygamy, polyandry, etc.), is only a crystallization of a set of these mores into an imperfect institution, because the relation of a woman, or of women, to a husband becomes more or less enduring, and so the mores which constitute the relation get a stability and uniformity of coherence which makes a definable whole, covering a great field of human interest and life policy. It is not a complete specimen of an institution (sec. 63). It lacks structure or material element of any kind, but the parties are held to make good the understandings and coöperative acts which the mores prescribe at all the proper conjunctures, and thus there arises a system of acts and behavior such as every institution requires. In civilized society this cluster of mores, constituting a relationship by which needs are satisfied and sentiments are cherished, is given a positive form by legislation, and the rights and duties which grow out of the relationship get positive definition and adequate guarantees. This case is, therefore, a very favorable one for studying the operation of the mores in the making of institutions, or preparing them for the final work of the lawmaker.

+414. Aleatory interest in marriage and the function of religion.+ The positive history of marriage shows that it has been always made and developed by the mores, that is to say, by the effort of adjustment to conditions in such a way that self-realization may be better effected and that more satisfaction may be won from life. The aleatory element (sec. 6) in marriage is very large. Marriage is an interest of every human being who reaches maturity, and it affects the weal and woe of each in every detail of life. Passing by the forms of the institution in which the wife is under stern discipline and those in which the man can at once exert his will to modify the institution, it may be said of all freer forms that there is no way in which to guarantee the happiness of either party save in reliance on the character of the other. This is a most uncertain guarantee. In the unfolding of life, under ever new vicissitudes, it appears that it is a play of luck, or fate, what will come to any one out of the marital union with another. Women have been more at the sport of this element of luck, but men have cared much more for their smaller risk in it. Therefore, at all stages of civilization, devices to determine luck have been connected with weddings, and in many cases acts of divination have been employed to find out what the future had in store for the pair. Marriage is a domestic and family affair. The wedding is public and invites the coöperation of friends and neighbors. Wedlock is a mode of life which is private and exclusive. The civil authority, after it is differentiated and integrated, takes cognizance and control of the rights of children, legitimacy, inheritance, and property. Religion, in its connection with marriage, takes its function from the aleatory interest. It is not of the essence of marriage. It "blesses" it, or secures the favor of the higher powers who distribute good and bad fortune. In a very few cases amongst savage tribes religious ceremonies "make" a marriage; that is, they give to it (to the authority of the husband) a superstitious sanction which insures permanence and coercion as long as the husband wants permanence and coercion. These cases are rare. The notion that a religious ceremony makes a marriage, and defines it, had no currency until the sixteenth Christian century.

+415. Chaldean demonism and marriage.+ Chaldean demonism affected wedding ceremonies. The belief was that demons found their opportunities at great crises in life, when interest and excitement ran high. Then the demons rejoiced to exert their malignity on man to produce frustration and disappointment. Cases are not rare in which the consummation of marriage was deferred, in barbarism and half-civilization, to ward off this interference of demons. The Chaldean groom's companions led him to the bride, and he repeated to her the formulas of marriage: "I am the son of a prince. Silver and gold shall fill thy bosom. Thou shalt be my wife and I thy husband. As a tree bears abundant fruit, so great shall be the abundance which I will pour out on this woman." A priest blessed them and said: "All which is bad in this man do ye [gods] put far away, and give him strength. Do thou, man, give thy virility. Let this woman be thy spouse. Do thou, woman, give thy womanhood, and let this man be thy husband." The next morning a ritual was used to drive away evil spirits.[1324]

+416. Hebrew marriage before the exile.+ In the canon of the Old Testament we get no information at all about wedding ceremonies, or the marriage institution. The reason for this must be that marriage was altogether a family and domestic affair. It was controlled by very ancient mores, under which marriage and the family were conducted, as beyond question correct. It is in the nature of the case, in all forms of the father family, that a girl until marriage was under the care and authority of her father or nearest male relative. The suitor must ask him to give her, and must induce him to give her by gifts. The transfer was made publicly that it might be known that she was the wife of such an one. The old Hebrew marriage seems to have consisted in this form of giving a daughter, in all its simplicity. We find a taboo on the union of persons related by consanguinity or affinity. Later there was a taboo on exogamic marriage. In the prophets there are metaphors and symbolical acts relating to marriage, which show a development of the mores in regard to it. The formulas which are attached to the prohibitions in Levit. xviii are in the form of explanations of the prohibitions or reasons for them, but they furnish no real explanations. Their sense is simply: For such is the usage in Israel, or in the Jahveh religion. That was the only and sufficient reason for any prescription. "After the consent of the parents of the bride had been obtained, which was probably attended by a family feast, the bridegroom led the bride to his dwelling and the wedding was at an end. No mention is made anywhere of any function of a priest in connection with it. It is not until after the Babylonian exile, after the Jews had become more fully acquainted with the mores and usages of other civilized peoples of that age, that weddings amongst them were made more solemn and ceremonial. After a betrothal a full year (if the bride was a widow, one month) was allowed the pair, after the captivity, to prepare their outfit, in imitation of the Persian custom (Esther ii. 12)." "At the end of the delay, the bride was led or carried to the house of the groom, in a procession, with dancing and noisy rejoicing, as is now the custom in Arabia and Persia. Ten guests must be present in the groom's house, as witnesses, where prayer formulas were recited and a feast was enjoyed." There were also prayers by all present at a betrothal "in order to give the affair a religious color." The pair retired then to a room where they first made each other's acquaintance. Then two bridesmen led them to the nuptial chamber where they watched over them until after the first conjugal union. This last usage was not universal, and after some experience of its ambiguous character it was abolished. The purpose was that there might be witnesses to the consummation of the marriage, not merely to the wedding ceremony. The whole proceeding was a domestic and family affair, in which no priest or other outsider had any part, except as witness, and there was no religious element in it.[1325] The prayer formulas were uttered by the participants and their friends, and they were formulas of invoking blessing, prosperity, and good fortune.

+417. Jewish marriage after the exile.+ The Jewish idea of marriage was naïve and primitive. The purpose was procreation. Every man was bound to marry, after the exile, and could be compelled to do so, and to beget at least one son and one daughter. By direct inference sterility made marriage void. It had failed of its purpose. It was the naïveté of this notion of marriage which led to the provision of witnesses for the consummation of the marriage. Marriage meant carnal union under prescribed conditions, and nothing else. In Deut. xxii. 28 f. the rule is laid down that a man who violated a maid must remain her husband. This is another direct inference from the view of marriage. The _ketubah_ was the document of a "gift on account of nuptials to be celebrated." It made the bride a wife and not a concubine or maid servant, for the distinction depended on the intention of the bridegroom. In the rabbinical period the betrothal and wedding were united. The wedding was made by a gift (a coin or ring), by a document (_ketubah_), or by the fact of _concubitus_.[1326] The man took the woman to wife by the formula: "Be thou consecrated to me," or later, "Be thou consecrated to me by the law of Moses and Israel." These formalities took place in the presence of at least ten witnesses, who pronounced blessings and wishes for good fortune. The third mode of wedding was forbidden in the third century A.D. In the Jewish notions of marriage we see already the beginning of the later casuistry. Procreation being the sense and purpose of marriage, the carnal act was the matter of chief importance. At the same time the Jews thought that copulation and childbirth rendered unclean. They must be rectified by purification and penance. Thus the act had a double character; it was both right and wrong. It was a conjugal duty not to be sensual.[1327] All this contributed to the modern notion of pair marriage, for at last no sex indulgence was allowed outside of legal marriage. When the custom of the presence of witnesses in the bride chamber produced dissatisfaction a tent was substituted for the chamber. Later a scarf, ceremoniously spread over the heads of the pair, took the place of the tent. The custom arose that the pair retired to a special room and took a meal together there. "The ceremony had no ecclesiastical character.... The blessings only gave publicity to the ceremony. They were not priestly blessings and were not essential to the validity of the marriage."[1328] So we see that, even amongst a people so attached to tradition as the Jews, when one of the folkways did not satisfy an interest, or outraged taste, the mores modified it into a form which could give satisfaction.

+418. Marriage in the New Testament.+ According to the New Testament marriage is a compromise between indulgence and renunciation of sex passion. A compromise is always irrational when it bears upon concepts of right and truth, and not on mere expediency of action. The concept of right and truth on either hand may be correct; it is certain that the compromise between them is not correct. The compromise can be maintained only by disregarding its antagonism to the concepts on each side of it. For fifteen hundred years the Christian church fluttered, as in a moral net, in the inconsistencies of the current view of marriage. The procreation of children was recognized as the holiest function and the greatest responsibility of human beings, but it was considered to involve descent into sensuality and degradation. It was the highest right and the deepest wrong to satisfy the sex passion, and the two aspects were reconciled partially in marriage, by a network of intricate moral dogmas which must be inculcated by long and painful education. In the sixteenth century the problem was solved by repudiating the doctrine of celibacy as a meritorious and superior state, and making marriage a rational and institutional regulation of the sex relation, in which the aim is to repress what is harmful, and develop what is beneficial, to human welfare. This change was produced by and out of the mores. The Protestants denounced the falsehood and vice under the pretended respect for celibacy. The new view of marriage could not be at once fully invented and introduced. Therefore the Romanists pointed with scorn to the careless marriage and loose divorce amongst the Protestants (sec. 380).

+419. Merit of celibacy.+ No reasons are ascertainable why Paul should maintain that celibacy is to be preferred to wedlock as a more worthy mode of life. In 1 Cor. vii. 32-34 he argues that the unmarried, being free from domestic cares, can care for the things of God. He speaks often of the degree of certainty he feels that he has with him the Spirit of God. This shows that he often lacked self-confidence in regard to his teachings. He does not seem to hold the ascetic view. In Ephes.