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Consent to Marriage

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The marriage-law of all countries turns upon one or other of two principles. Either marriage is viewed as a union between persons, or as the disposal of a property. In the former case, the consent of the parties themselves is the main element in it; in the latter, that of some other person or persons. Still, in legislations founded upon the former principle, the element of consent by others comes in as a salutary check upon rash self- disposal by the young; in those founded upon the latter, the recognition of a right of self-sale in the adult may equally check the too authoritative interference of others. The Jewish law is in its inception essentially personal. Christ needed but to refer to the first history in the Jewish Scriptures in order to bring out the full spirituality of the marriage relation (Matthew 19:4; Mark 10:6). In Genesis, the woman is at once brought before us as the one "help meet" for the man. God simply brings the woman to the man, who at once recognizes her as bone of his bones, and flesh of his flesh (Genesis 2:20; Genesis 2:22-23). As the history proceeds, however, other elements develop themselves. Slavery makes its appearance, and the slave-owner is exhibited as giving the slave in. marriage (Genesis 16:3; Genesis 30:4).

Throughout the patriarchal history (Genesis 24, 29, 34; Exodus 2:21), under the law (Exodus 21:4; Exodus 21:7-8; Exodus 22:17; Deuteronomy 22:16), in the time of the judges (Joshua 15, 16, 17; Judges 1:12; Judges 15:1-2; Judges 21:1; Judges 21:7-8; Ruth 4:10), under the monarchy (1 Samuel 17:25; 1 Samuel 18:19; 1 Samuel 18:21; 1 Samuel 18:27; 2 Samuel 13:13; 1 Kings 2:17), after the captivity (Nehemiah 13:25), in our Lord's time (Matthew 24:38; Luke 17:27), and in the apostolic Church (1 Corinthians 7:38), — the right of the father to give his daughter in marriage, of the king to give one who was under his control, is either assumed or asserted. Among the Jews the power of self- disposal in marriage was singularly wide for either sex, the man being held of full age, and capable of marrying at his will, on the last day of his fifteenth year, the woman in the second half of her twelfth; while, if betrothed under that age by their fathers, girls could repudiate the engagement at ten. Yet the forms used in Jewish practice belong to the material, and not to the spiritual, view of marriage. The prominence given to the Arrha (q.v.) or earnest, and the necessity for its being presented to the woman herself either in money or money's worth, show clearly that the grand spirituality of marriage had been lost sight of, that it had come to be viewed essentially as an act of wife-buying; and yet the fact that the woman, from earliest puberty, was reckoned as having the sole right of self-sale, preserved an amount of freedom in the contract. (See BETROTHAL).

The Roman law starts from the material view to grow more and more into the spiritual one. Originally the father's "power," scarcely to be distinguished from absolute ownership, overshadows all the domestic relations, extending equally to the wife and to the children of both sexes. Eventually, so far as marriage is concerned, the "power" resolves itself simply into a right of consent. Consent is made the very essence of marriage. The validity of marriages contracted by mere consent was admitted in a constitution of Theodosius and Valentinian, A.D. 449. This consent, moreover, must be at once that of the parties themselves, and of those in whose "power" they are. The Roman law, indeed, never recognised such a thing as the marriage of slaves, and the unions between them, which might be permitted and even respected by their masters, were of no more legal value than the coupling of domestic animals, although they might be recognized by the superior morality of the Church. Where, indeed, a master gave away, or allowed another to give away, his slave girl in marriage to a freeman, or constituted a dos upon her, Justinian ruled that this should amount to an enfranchisement. But this of itself shows that marriage and slavery were held to be incompatible. (See CONTRACT).

Substantially the Church did little else than follow the municipal law on the subject of consent, eventually adopting the Roman civil law as the basis of her own. If we except a canon of doubtful authority attributed either to the fourth or fifth council of Aries (A.D. 524 or 554), and enacting that widows, before professing continence, may marry whom they will, that virgins may do the same, and that none shall be forced to accept a husband against the will of their parents, the earliest Church enactments seem to belong to the British Isles. An Irish synod of uncertain date, presided over by St. Patrick, speaks thus: "What the father wills, that let the girl do, for the head of the woman is the man; but the will of the girl is to be inquired of the father." The so-called Excerpta of Egbert, archbishop of York; in the 8th century, read: "Parents ought to give women to be united to men in marriage, unless the woman absolutely refuse, in which case she may enter a convent;" not a very wide stretch of female freedom. Further on, the husband whose wife has deserted him, and refused for five years to make peace with him, is allowed to marry another woman, "with the bishop's consent."'

The council of Friuli (A.D. 791) forbade the marriage of infants, requiring parity of age and mutual consent. The Carlovingian capitularies, which have a sort of mixed clerical and civil authority, enact among other things that none shall marry a widow "without the consent of her priest." It is, however, also enacted that women are not to be compelled to marry, under penalty of treble ban and public penance; or, in default of means, of prison or banishment. Lastly, the edict of Charlemagne, in 814, required inquiry to be made, among other things, as to men who had wives "against the will of their parents." (See MARRIAGE).