THE PROTESTANT CONCEPTION OF MARRIAGE
[BIBLIOGRAPHICAL NOTE IX.--The ideas of the German Reformation,
and therefore ultimately of Protestantism, relative to the
form and the nature of marriage were molded by the thought
of Martin Luther. Among his numerous writings on the subject
most important are the "Vom heiligen Ehestandt und Oeconomia
oder Haushaltung," being the thirty-sixth chapter of the
_Tischreden_ (folio, Frankfort, 1571); and the following
articles in his _Bücher und Schriften_ (folio, Jena, 1555-80):
"Sermon vom ehelichen Stande" (1519, in Vol. I); "Predigten
über das erste Buch Mose" (1527, in Vol. IV); and especially
the "Von Ehesachen" (1530, in Vol. V). The principal passages
from all of Luther's writings on the subject of matrimony
and divorce, classified in seven groups, with critical and
historical notes and marginal explanation of archaic words, are
conveniently given in von Strampff's _Dr. Martin Luther: Ueber
die Ehe_ (Berlin, 1857). This is an important _Quellenbuch_
for the student. A very useful book also, containing twelve
of his most important papers, is the second volume of the
_Kleinere Schriften Dr. Martin Luthers_, entitled "Von Ehe- und
Klostersachen" (Bielefeld and Leipzig, 1877). Older works which
afford some assistance are Niess's _Ehestands-Buch_ (Eisleben
and Leipzig, 1858), comprising, with other matter, some of the
utterances of Luther; and Froböse's _Dr. Martin Luther's ernste,
kräftige Worte über Ehe und eheliche Verhältnisse_ (Hanover,
1825).
The first philosophical treatise on marriage, anticipating in
various ways the modern conception, is Erasmus's _Christiani
matrimonii institutio_ (Basel, 1526). The dedicatory epistle,
dated July, 1526, is addressed to Queen Catherine of England.
The edition cited in the text bears the general title _De
matrimonio christiano_ (Lugd. Bat., 1650); and to it is appended
Vivus's _Conjugii origine et utilitate discursus_. Erasmus's
treatise may also be found in Vol. V of his _Opera omnia_ (Lugd.
Bat., 1704). The work was prohibited mainly because of its
critical tone regarding the excessive ardor of the primitive
Christians for celibacy and perpetual virginity. Of first-rate
importance for obtaining a general view of the doctrines of
the German Reformation is Sarcerius, _Vom heiligen Ehestande_
(1553); or the same work enlarged under title _Corpus juris
matrimonialis_ (Frankfort, 1569). It has been found convenient
to relegate the description of many writings available as
sources for this chapter to Bibliographical Note XI. See
particularly the works of Brenz, Kling, Beust, Schneidewin,
Melanchthon, Zwingli, Bullinger, Bucer, Monner, Bidembach,
Mentzer, Brouwer, and Forster, there referred to. Besides
Melanchthon's "De conjugio" (1551), in _Opera_, I (Erlangen,
1828), see also his "De arbore consanguinitatis et affinitatis"
(1541), in Sarcerius, _Vom heiligen Ehestande_, lvs. xii-xxvii;
or the "Corpus juris matrimonialis," lvs. xi-xxvii, where
may also be found much additional matter from Luther, Kling,
and others relating to forbidden degrees. In this connection
may also be consulted Niemeier, _De conjugiis prohibitis
dissertationes_ (Helmstadt, 1705), comprising ten distinct
essays, with a critical and bibliographical supplement, produced
during the years 1699-1705.
The most important collection of church regulations regarding
marriage is Richter's _Die evangelische Kirchordnungen des
sechszehnten Jahrhunderts_ (Weimar, 1846). These have been
partly analyzed by Meier, _Jus, quod de forma matrimonii
ineundi valet_ (Berlin, 1856); and thoroughly by Goeschen,
_Doctrina de matrimonio_ (Halle, 1848). The rejection of
priestly celibacy by the Reformers has called forth numerous
writings, among which the earliest are Luther, _Bedenken und
Unterricht von den Klöstern und allen geistlichen Gelübden_
(1522); _idem_, _An die herrn deutschs Ordens_ (original edition
in the author's possession, Wittenberg, 1523); Bugenhagen,
_De conjugio episcoporum et diaconorum_ (1525); the anonymous
_Underricht auss Göttlichen und Gaystlichen Rechten, Auch auss
den flayschlichen Bepstlischen unrechten, ob ain Priester
ain Eeweyb, oder Concubin ... haben möge_ (1526). See also
the elaborate treatise of Calixtus, _De conjugio clericorum_
(Frankfort, 1653); and the dissertation of Roldanus, _De mente
Pauli, volentis episcopum esse unius uxoris maritum_ (Lugd.
Bat., 1710).
On the famous "double marriage" of Landgrave Philip of Hesse
a source of unique interest is the _Argumenta Buceri pro et
contra_, a manuscript by Bucer written in 1539 and first
published at Cassel in 1878. The original documents in the
case are appended to the exceedingly lively work of Arcuarius,
_Kurtze, Doch unpartheyisch- und Gewissenhaffte Betrachtung
des ... Heiligen Ehestandes_ (1679), decidedly inclining to
the side of Luther and his colleagues. Beza, _Tractatio de
polygamia_ (Geneva, 1568), replies to the defense of polygamy
by Ochino, _Dialogue_ (Zurich, 1563; Eng. trans., London,
1657). The most celebrated book produced in this controversy is
Theophilus Alethaeus's (Johann Lyser's) _Discursus politicus
de polygamia_ (2d ed., Freiburg, 1676); or the same with the
prefixed general title, _Polygamia triumphatrix_ (Londini
Scanorum, 1682), this edition containing the learned and
very elaborate notes of "Athenasius Vincentius" who is none
other than Lyser himself. The first edition, in German, is
entitled _Politischer Discurs zwischen Monogamo und Polygamo_
(Freiburg, 1675). Lyser is harshly answered by Johann Frischen,
_Unvorgreiffliche Erörterung der Frage: Was von der
Polygamie oder Viel-Weiberey zu halten sey_ (Hamburg, 1677);
and more coarsely by "Simplicius Christianus," _Eilfertiges
Antwort-Schreiben.... Darin eine Summarische Widerlegung des
politischen Discurs von der Viel-Weiberey, so ein Atheistischer
Huren-Teuffel J. L. Bosshafftiglich ausgestreuet, enthalten
ist_ (Leipzig, 1677). In this connection see also Thomasius,
_De concubinatu_ (Halle, 1713); Baumgart, _De concubinatu,
a Christo et apostolis prohibito_ (Halle, 1713); N. N., _De
licito concubinatu opponenda_ (Freistadt, 1714); Michaelis,
_Paralipomena contra polygamiam_ (Göttingen, 1757); Swinderen,
_De polygamia_ (Groningae, 1795); Premontval, _La monogamie_
(La Haye, 1751); or the translation by Windheim entitled _Des
Herrn Premontvals Monogamie_ (Nuremberg, 1753); Rantzow,
_Discussion si la polygamie est contre la loi nat. ou divine_
(St. Petersburg, 1774); and the works of Madan, Cookson, and
others mentioned in the next chapter. An interesting monograph
based on the correspondence of Bucer and the landgrave is
Rady's _Die Reformatoren in ihrer Beziehung zur Doppelehe des
Landgrafen Philipp_ (Frankfort and Lucerne, 1890). Luther's
alleged sensuality and coarseness of speech are examined by
"Lutherophilus," _Das sechste Gebot und Luthers Leben_ (Halle,
1893); with which may be read Altenrath, _Zur Beurtheilung und
Würdigung Martin Luthers_ (Frankfort, 1889).
Typical of an extensive literature in the sixteenth century,
whose aim is the appreciation and elevation of marriage, is Adam
Colbius von Buchen's _Christliche Predigten über das Buch Tobie,
darinnen, als in einem lustigen Ehespiegel ... vom heyligen
Ehestandt ... erkläret wirdt_ (Frankfort, 1592). On the other
hand, in contempt of womanhood and in mockery of wedlock was
produced a mass of prose and verse coarse and unclean beyond
description. Both kinds of writing--the evangelical _Ehespiegel_
and the literature dedicated to "St. Grobian"--are treated in
an instructive way by Kawerau, _Die Reformation und die Ehe_
(Halle, 1892). To aid in obtaining a more complete conception
of post-Reformation sentiment may also be consulted Agrippa,
_De nobilitate et praecellentia foeminei sexus libellus_
(Coloniae, 1532, 1567); Saxse, _Arcana annuli pronubi, Das ist:
Geheimnis und bedeutung des Ehelichen Traw Ringes_ (Leipzig,
1594); Müller, _Ungerathene Ehe, oder vornehmste Ursachen, so
heute den Ehestand zum Wehestand machen_ (Frankfort, 1674);
Lehman, _Florilegium politicum auctum_ (Frankfort, 1662); and
Feyerabend, _De privilegiis mulierum_ (Jena, 1672). Two learned
general treatises, untouched by the Reformation doctrines, are
Johannis Nevizianus's _Sylvae nuptialis libri sex_ (Lugduni,
1556), containing a vast amount of curious matter ostensibly
designed to aid in solving the question, "_An nubendum sit,
vel non_;" and Antonius Gubertus Costanus's _De sponsalibus,
matrimoniis et dotibus commentarius_ (Marpurgi, 1597),
dealing in a clear and scholarly manner with the matrimonial
institutions of the Hebrews, Greeks, Romans, and Christians
under the canon law.
Several doctrines of Luther and the early Reformers have each
produced a literature. Whether under various conditions parental
consent is necessary to a legal or valid marriage is discussed
by Lohen, _De parentum ad nuptias a liberis contrahendas
consensu_ (Regiomonti, 1685); Lauginger, _De consensu parentum
ad nuptias liberorum_ (Regiomonti, 1699); Schmalian, _De ambitu
connubiali: Vom Frey-Werben_ (Wittenberg, 1745); especially by
the two great leaders of the "naturalistic" movement, Thomasius,
_De validitate conjugii invitis parentibus contracti et per
benedictionem sacerdotis depositi consummati_ (Leipzig, 1689);
(Halle and Leipzig, 1722), and J. H. Boehmer, _De matrimonio
coacto_ (Halle, 1735). With the last-named dissertation may be
read G. L. Boehmer's _De copulae sacerdotalis a deposito clerico
furtim impetratae injusto favore_ (Göttingen, 1745); Delbrück's
_De matrimonio ad benedictionem sacerdotis incompetentis
contracto_ (Halle, 1759); and in general on the doctrine of
espousals, Greiff, _De pactis futurorum sponsaliorum: von
Ja-Wort_ (Halle, 1712); Schelhas, _De clandestinis sponsalibus
juratis: Vulgo von heimlichen Verlöbnüssen_ (Jena, 1716);
Bendeleben, _De diverso sponsalium et matrimonii jure_ (Halle,
1718); Sahme, _De matrimonii legitimo absque benedictione
sacerdotali_ (Halle, 1722); Berger, _De praescriptione
sponsaliorum_ (Wittenberg, 1724); Richardus, _De conditionalibus
sponsaliorum impossibilibus_ (Halle, 1741; presented, 1701);
Wachsmuth, _De exceptione sponsaliorum clandestinorum, ab
ipso contrahente opposita_ (Jena, 1754). See further, on
special questions, Mentzer, _Num sponsis, ante solennem in
ecclesiae copulationem et benedictionem, concubentibus, publica
poenitentia juste imponatur?_ (6th reprint, Wittenberg, 1728);
Willenberg, _De matrimonio imparum_ (Halle, 1727); Bennemann,
_De natura matrimonii_ (Halle, 1708); Krull, _De nuptiis_
(Wittenberg, 1632); Schnetter, _De matrimonio cum damnato ad
mortem contrahendo_ (Halle, 1727; presented, 1679).
In the modern scientific literature of the subject the first
place belongs to the general treatise of Richter, _Lehrbuch_
(8th ed., Leipzig, 1886); the _Lehrbuch_ of Friedberg (3d
ed., Leipzig, 1889); and Scheurl's _Das gemeine deutsche
Eherecht_ (Erlangen, 1882). An older work, very thorough and
very careful in the citation of the literature, is Hofmann's
_Handbuch des teutschen Eherechts_ (Jena, 1789); while,
besides the books of Göschl, Lobethan, Schott, and Stäudlin
elsewhere described, Loy's _Das protestantische Eherecht_
(Nuremberg and Altdorf, 1793) is of service. Much valuable
biographical and bibliographical material may be found in
the great work of Schulte, _Die Geschichte der Quellen und
Litteratur des canonischen Rechts_ (Stuttgart, 1875-80).
Important monographs are Schubert's _Die evangelische Trauung_
(Berlin, 1890); Scheurl's _Die Entwicklung des kirchlichen
Eheschliessungsrechts_ (Erlangen, 1877); Dieckhoff's _Die
kirchliche Trauung_ (Rostock, 1878); and there is an able
article by Goeschen, "Ehe," in Herzog's _Encyclopaedie_,
III (Stuttgart and Hamburg, 1855). For the present state of
German matrimonial law consult Blumstengel, _Die Trauung in
evangelischem Deutschland nach Recht und Ritus_ (Weimar, 1879);
Klein, _Das heutige Eherecht im Herzogthum Sachsen-Altenburg_
(Strassburg, 1881); Stölzel, _Deutsches Eheschliessungsrecht
nach amtlichen Ermittelungen_ (3d ed., Berlin, 1876); and
Hergenhahn's work elsewhere mentioned. Several early church
ordinances, and a number of matrimonial decisions of rare
interest from the consistory court of Wittenberg, commencing
soon after its formation, are communicated by Schleusner,
"Zu den Anfängen des protestantischen Eherechts," in _ZKG._,
VI, XII, XIII (Gotha, 1884, 1891, 1892). The "Bedencken"
or ordinance adopted at Dresden in 1556 by the three Saxon
consistories, with other matter, is also published by Muther,
"Drei Urkunden zur Reformationsgeschichte," in Niedner's
_Zeitschrift für historische Theologie_, XXX (Gotha, 1860).
These same documents and also the famous case of Caspar Beyer
(1543-44) are discussed by Mejer, "Anfänge des Wittenberger
Consistoriums," in _ZKR._, XIII (Tübingen, 1876). Mejer,
"Zur Geschichte des ältesten protestantischen Eherechts,"
_ibid._, XVI (Freiburg and Tübingen, 1881), gives an excellent
historical, biographical, and bibliographical account of the
Wittenberg consistory; and the two preceding articles, with a
discussion of the establishment of the consistory of Rostock,
are reprinted in his _Zum Kirchenrechte_ (Hanover, 1891).
Original material is communicated by Fischer, "Die älteste
evangelische Kirchenordnung ... in Hohenlohe," in _ZKR._,
XV (Freiburg and Tübingen, 1880), and by Friedberg, _Aus
der protestantischen Eherechtspflege des 16. Jahrhunderts_,
reprinted from _ZKR._, IV (Tübingen, 1864), containing,
in connection with the case of Zaschwitz, letters and
other papers of Melanchthon regarding forbidden degrees.
Another article of Friedberg, "Beiträge zur Geschichte des
brandenburgisch-preussischen Eherechts," _ibid._, VI, VII
(Tübingen, 1866-67), includes the very long petition of Dr.
Stiel (1553) for enforcement of a betrothal, with other original
documents relating to matrimonial doctrine and judicial
practice. A history of "conditional marriages" is given by
Phillips, "Das Ehehinderniss der beigefügten Bedingung,"
_ibid._, V, VI (Tübingen, 1865-66); and the rise of the
Protestant doctrine regarding the impediment of relationship
is discussed by Scheurl, "Zur Lehre von dem Ehehindernisse der
Verwandtschaft," _ibid._, XVI (Freiburg and Tübingen, 1881).
See also the monograph of Berg, _Ueber die Verbindlichkeit
der kanonischen Ehehindernisse in Betriff der Ehen der
Evangelischen_ (Breslau, 1835).
On the controversy regarding "mixed marriages" and marriages
of diverse religion, consult Gregorovius, _De mat. person.
diversae relig._ (Regiomonti, 1712); Carpzovius, _Circa nuptias
person. diversae relig._ (Wittenberg, 1735); Breitenbach,
_De mat. allophilorum_ (Giessen, 1740); Zum-Bach, _Ueber die
Ehen zwischen Katholiken und Protestanten_ (Cologne, 1820);
_Ueber die gemischten Ehen_ (Stuttgart, 1827); Wittmann,
_Katholische Grundsätze über die Ehen welche zwischen Katholiken
und Protestanten geschlossen werden_ (Stadtamhof, 1831);
Kutschker, _Die gemischten Ehen von dem katholisch-kirchlichen
Standpuncte_ (Vienna, 1838); _Nationaler und historischer
Standpunkt_ (Cologne and Vienna, 1838); Sack, _Die katholische
Kirche innerhalb des Protestantismus_ (Cologne, 1838); Bessel,
_Die gemischten Ehen_ (Frankfort, 1839); Mack, _Die Einsegnung
der gemischten Ehen_ (Tübingen, 1840); Perronne, _Ueber die
gemischten Ehen_ (Augsburg, 1840); _Eintracht gibt Macht oder
... Nothwendigkeit zu einem gleichmässigen Verfahren in Hinsicht
auf die gemischten Ehen_ (Düsseldorf, 1844); _Die gemischten
Ehen in der Erzdiöcese Freiburg_ (Regensburg, 1846); Binterim,
_An matrimonio mixto_ (Düsseldorf, 1846); _idem_, _Dissertatio
altera_ (Düsseldorf, 1847); _Der Streit über gemischte Ehen ...
in Baden_ (Karlsruhe, 1847); _Beleuchtung_ [of the foregoing]
_Karlsruher Schrift_ (Schaffhausen, 1847); Hilse, _Civil- und
Misch-Ehe_ (Berlin, 1869); and Hübler, _Eheschliessung und
gemischte Ehen in Preussen_ (Berlin, 1883).
For England the principal source is the _Works of the Fathers
and Early Writers of the Reformed English Church_, published
by the Parker Society (Cambridge, 1841-55). Among the large
number of books comprised in this series, those of Latimer,
Cranmer, Tyndale, Jewell, Hooper, Bullinger, Parker, Coverdale,
and particularly Whitgift's _Defence of the Answer_ (containing
also Cartwright's _Reply to the Answer_) have been of most
service. Three important treatises of the English Reformation
period bearing on marriage and the family are Coverdale's
translation of _The Christen State of Matrimonye_ (1541);
Whitforde's _A Werke for housholders_ (1530, 1537); and
Vives's (Vivus's) _A very frvteful and pleasant booke called
the Instruction of a Christen Woman ... tourned out of latyne
into Englische by Rycharde Hyrde_ (London, 1557). The original
may be found in Vol. II, 650-755, of Vives's _Opera_ (Basel,
1555); and Rudolph Heine has a German translation in Vol.
XVI of Richter's _Pädagogische Bibliothek_ (Leipzig, n. d.).
Much valuable material may also be found in Gee and Hardy's
_Documents_ (London, 1896); Prothero's _Select Statutes and
Other Constitutional Documents_ (Oxford, 1894); while the
_Statutes at Large_ (Raithby, London, 1811) are of course
in constant requisition. The more important acts relating
to marriage are contained in Vol. I of Evans's convenient
_Collection of Statutes_ (London, 1823). Swinburne's fascinating
_Treatise of Spousals_ (London, 1686), written in the last
days of Elizabeth's reign, but published a century later, is
indispensable for understanding the law and theory of the
matrimonial contract during the Tudor period. Some assistance
has also been gained from the collections of Hale, Johnson, and
Wilkins mentioned in preceding notes.
The exhaustive treatment of the Protestant conception of
marriage for Germany contained in Friedberg's great work
on _Eheschliessung_ (Leipzig, 1865), supplemented by his
suggestive monograph _Geschichte der Civilehe_ (Berlin, 1877),
leaves little for others to do. Sohm's _Eheschliessung_ is
also important. For England Makower has a brief but excellent
discussion; and much illustrative material may be found in
Burn's _Parish Registers_ (London, 1862); Wood's _Wedding
Day_ (New York, 1869); Douce's _Illustrations of Shakespeare_
(London, 1807); Brand's _Popular Antiquities_ (new ed., London,
1873-77); Burnet's gossipy _History of the Reformation_ (London,
1850); and Jeaffreson's _Brides and Bridals_ (London, 1872).
Nichols, _Progresses ... of King James the First_ (London,
1828), gives an interesting example of the former practice of
public betrothals; and the same may also be found in Leland's
_Collectanea_, V (2d ed., London, 1770). Queen Mary's Articles
(1553) regarding married priests and some other important papers
are given in Cardwell's _Documentary Annals_ (Oxford, 1839,
1844). Palmer's _Origines liturgicae_ (3d ed., Oxford, 1839;
4th ed., London, 1845) has also been of service; while new
light is thrown on social conditions in Elizabeth's reign by
the unique collection of documents edited for the Early English
Text Society by Furnivall, _Child-Marriages, Divorces, and
Ratifications_ (London, 1897).]
I. AS TO THE FORM OF MARRIAGE
The Protestant Reformation in Germany produced many ideas which
were eventually fruitful for good in the history of matrimonial
law; but unfortunately, owing to a number of causes, more than
two centuries were to elapse before any effective remedy was
provided for the evils of clandestine wedlock. Ecclesiastical
rites were prescribed by the authority of the state as the best
means of securing publicity; but neither Luther[1164] nor the
other Protestant leaders insisted upon them as necessary to a
binding marriage.[1165] Luther, indeed, perceived the absurdity
of the scholastic distinction between _sponsalia de praesenti_
and _de futuro_; and proposed to retain espousals _de futuro_ or
precontracts only in the sense of "conditional betrothals."[1166]
On failure of the condition, or for other weighty reasons, these
engagements might be dissolved. But unconditional betrothals, or
his _sponsalia de praesenti_--that is to say, practically all
betrothals, including the espousals _de futuro_ of the canonists--if
publicly made and with parental consent, were regarded by Luther
as valid marriages which could not be dissolved.[1167] Parental
consent[1168] he appears to think essential, though on this point
his statements are by no means clear;[1169] and he urges the need
of public espousals in face of the parish.[1170] Yet he admits that
a secret engagement--by which he seems to mean espousals without
the presence of witnesses, but with parental consent--if followed
by physical union, constitutes a true marriage equally binding
with the open betrothal. In effect, the doctrine of Luther did not
provide a complete remedy for the evils of clandestine contract; for
all marriages, save only the conditional when not consummated, and
possibly those formed secretly against the parents' will, were now
indissoluble at the will of the parties.[1171] Moreover, an action
was allowed to enforce a promise of marriage; and for more than two
centuries after the Reformation the fulfilment of a betrothal could
be enforced by severe penalties.[1172] Yet in one respect there
was a decided advance. The pernicious distinction of Peter Lombard
between espousals _de praesenti_ and _de futuro_ was practically
rejected, and with it much of the danger which had lurked in the
vacillating discretion of the ecclesiastical judge might have been
removed had the jurists accepted Luther's teaching.[1173] Thus from
a historical point of view the result is instructive. The ancient
_wette_ or _beweddung_, handed down through the slightly weakened
form of the canonical _sponsalia de praesenti_, was restored to even
more than its original relative importance as compared with the
_Trauung_ or nuptials.[1174]
[1164] See the extracts illustrating Luther's views as to the
form of wedlock in STRAMPFF, 337-44.
[1165] Consult the elaborate investigation of FRIEDBERG,
_Eheschliessung_, 198-305; _idem_, _Die Geschichte der
Civilehe_, 7 ff.; with which should be compared SOHM,
_Eheschliessung_, chap. vii, and his _Trauung und
Verlobung_, chap, iv.; SCHEURL, _Ent. des kirch.
Eheschliessungsrechts_, 123 ff., 126 ff.; _idem_, _Das gemein.
deutsch. Eherecht_, 64-73; DIECKHOFF, _Die kirch.
Trauung_, 108 ff., 180 ff., 223 ff. (views of Melanchthon,
Chemnitz, and others); MEJER, _Zum Kirchenrechte_, 154
ff. (views of Kling, Mauser, Schneidewin, Wesenbeck, Monner,
and Beust--all connected with the consistory of Wittenberg);
SCHUBERT, _Die evang. Trauung_, 41 ff., 49 ff.;
RICHTER, _Lehrbuch_, 1136 ff.
[1166] "Das liess ich wohl verba de futuro heissen, wenn ein
conditio, Anhang oder Auszug dabei gesetzt würde, als: Ich
will dich haben, wo du mir willt zu gut, zwei oder ein Jahr
harren; item: Ich will dich haben, so du mir hundert Gulden
mitbringest; item: so deine oder meine Aeltern wollen; und
dergleichen."--LUTHER, "Von Ehesachen," _Bücher und
Schriften_ (Jena, 1561), V, 241.
As an illustration of the early judicial practice see the
interesting decision of the consistory court of Wittenberg, among
the cases published by SCHLEUSNER, _Anfänge des protest.
Eherechts_, 136, where a contract is dissolved for failure of the
condition. The case is undated, but it probably occurred before
1550.
Conditional espousals were recognized by the canon law: for
England see SWINBURNE, _Of Spousals_, 109-53, where the
many intricate questions connected with conditional contracts are
discussed with much learning; and in general the monograph of
RIEDLER, _Bedingte Eheschliessung_ (Kempten, 1892).
With Luther's views regarding conditional betrothal compare
those of Melanchthon, "De conjugio," _Opera omnia_, I, pars ii,
232; SCHNEIDEWIN, _De nuptiis_, tit. x, "De spons.,"
pars i, 32-38; BEUST, _De spons. et mat._, secs.
xviii, xix; KLING, _Tr. mat. causarum_, foll. 73 ff.;
BROUWER, _De jure con._, 188-204. For discussion see
SCHLEUSNER, "Zu den Anfängen des prot. Eherechts,"
_ZKG._, VI, 402-5; SCHEURL, "Zur Geschichte des kirch.
Eheschliessungsr.," _ibid._, XV, 69, 70; _idem_, _Das gemein.
deutsche Eherecht_, 368-70; RICHARDUS, _De cond.
sponsaliorum impossibilibus_, 29 ff., _passim_; RICHTER,
_Lehrbuch_, 1061 ff., 1200; and especially the excellent
historical paper of PHILLIPS, "Das Ehehinderniss der
beigefügten Bedingung," _ZKR._, V, VI, 153 ff., reviewing the
literature of the subject from the sixteenth to the nineteenth
century; SCHOTT, _Einleit. in das Eherecht_, 199 ff.
[1167] For a collection of the writings of Luther on precontracts
or betrothals see STRAMPFF, 287-334; especially the
extract from the _Von Ehesachen_, 334, where breach of troth is
made equivalent to adultery.
[1168] The passages of Luther's works on parental consent,
with an introductory note, are collected in STRAMPFF,
299-325. Compare BEUST, _De spons. et mat._, 201-10;
MELANCHTHON, "De conjugio," _Opera omnia_, I, pars ii,
231; BULLINGER, _Der Christlich Ehestand_, lvs. 11
ff., 14, 15; KLING, _Tr. mat. causarum_, foll. 77 ff.;
SCHNEIDEWIN, _De nuptiis_, tit. x, "De nupt. licitis,"
pars ii, secs. 29 ff.; BRENZ, "Wie yn Ehesachen ...
zu Handeln," in SARCERIUS, _Vom heil. Ehestande_,
foll. 69 ff.; MENTZER, _De conjugio tr._, 136-50, 153;
BIDEMBACH, _De causis mat. tract._, 3 ff., 15 ff.;
FORSTER, _De nuptiis_, 145 ff., 149 ff. (the law of
Saxony requiring); BROUWER, _De jure connubiorum_, 71
ff., 76 ff., 80 ff.
All authorities, seemingly, are agreed that a parent may not
rightly force a child to marry; see BULLINGER, _Der
christlich Ehestand_, lvs. 15, 16; SCHNEIDEWIN, _De
nupt._, tit. x, "De nupt. licitis," pars. ii, secs. 41, 42;
SARCERIUS, _Vom heil. Ehestande_, foll. 73 ff.; 96
ff. (Luther); MENTZER, _De conjugio tr._, 253-55;
BIDEMBACH, _De causis mat._, 25-27; BOEHMER,
_De mat. coacto_; and the literature on parental consent
described in Bibliographical Note IX.
[1169] In his "Von Ehesachen" (1530), _Bücher und Schriften_,
V, 247, he says directly that a public betrothal, that is a
marriage, not followed by _copula_ should yield to an earlier
secret betrothal _cum copula_. It is argued, however, that
by "secret" he means a betrothal without witnesses, but with
consent of the parents: FRIEDBERG, _Eheschliessung_,
209 n. 2, 210 n. 1; SOHM, _Eheschliessung_, 206 n. 16.
LUTHER'S "Von Ehesachen," _Bücher und Schriften_, V,
237-57, is mainly devoted to a discussion of secret and public
betrothals.
As a matter of fact, I find the consistory court of Wittenberg
dissolving a betrothal for lack of parental consent:
SCHLEUSNER, _Anfänge des protest. Eherechts_, 137. In
another interesting case a girl was persuaded by her lover to
marry him without the consent of her mother or step-father, but
saying: "I would not, however, offend my dear mother." The two
clerical judges held the contract to be conditioned on getting
the mother's consent, and therefore void, since the condition
had not been fulfilled and the law of Saxony forbade marriages
without parental consent. The two lay judges, however, held the
contract binding, because the girl's father being dead, to whom
real authority belonged, she was free to marry whom she chose.
The case was referred to Luther and another person as arbiters.
Luther, in opposition to his associate, held the marriage void
because conditional and a violation of the fourth commandment,
and the court accepted his opinion: SCHLEUSNER, _op.
cit._, 138, 139.
[1170] The consistory court of Wittenberg declared a public
betrothal legal as opposed to an earlier secret engagement:
see the case in SCHLEUSNER, _Anfänge des protest.
Eherechts_, 140; and for other cases _cf. ibid._, 145, 146.
[1171] On espousals, especially clandestine contracts, compare
SCHNEIDEWIN, _De nuptiis_, tit. x, "De spons.," pars.
i, secs. 1 ff., 21 ff.; BEUST, _Tr. de spons. et mat._,
1 ff., 12 ff., 27 ff. (_sponsalia clandestina_); KLING,
_Tr. mat. causarum_, lvs. 1 ff., 6 ff., 68 ff. (_sponsalia
clandestina_); SARCERIUS, _Vom heil. Ehestande_, foll.
67 ff., 91 ff., 73 ff. (Luther); MENTZER, _De conjugio
tr._, 156 ff., 168 ff.; BIDEMBACH, _De causis mat.
tr._, 3 ff., 29-35; FORSTER, _De nuptiis_, 52 ff.;
BROUWER, _De jure connubiorum_, 9 ff., 100 ff.; and the
literature on _sponsalia_ mentioned in Bibliographical Note IX.
For discussion see SCHEURL, _Die Entwick. des kirch.
Eheschliessungsrechts_, 130 ff., 140 ff.; SCHUBERT,
_Die evang. Trauung_, 44 ff.; CREMER, _Kirch. Trauung_,
68-71; DIECKHOFF, _Die Kirch. Trauung_, 189 ff., 212
ff., 221 ff.; RICHTER, _Lehrbuch_, 1121, 1194 ff.;
FRIEDBERG, _Lehrbuch_, 295, 296, 337-59; LOY,
_Das protest. Eherecht_, 425 ff., 437 ff., 445, 447 ff.;
HOFMANN, _Handbuch des teutschen Eherechts_, 27 ff.,
143, 146 ff.; SCHOTT, _Einleitung in das Eherecht_, 174
ff., 182 ff., 193; SOHM, _Eheschliessung_, 197-249.
[1172] The most famous case of enforcement of a betrothal,
against an unwilling bride, is that of Dr. Stiel, 1553. The
plaintiff's petition (_Gesuch_) in fifty-eight articles or
specifications, setting forth in a most realistic way the whole
courtship and the betrothal proceedings, is communicated by
FRIEDBERG, "Beiträge zur Geschichte des brand.-preuss.
Eherechts," _ZKR._, VI, 72 ff. Actual force to compel the
fulfilment of a betrothal was used only when it was followed
by _copula_: _ibid._, 81. Friedberg traces the history of the
subject to the reign of Frederick the Great, citing various
cases. As a result he declares that in the sixteenth century
betrothed persons could be forced to keep their engagement even
when both were willing to dissolve it; while in the eighteenth
century action depended upon the will of the interested parties:
_ibid._, 87, 88. Compare BIDEMBACH, _De causis mat.
tr._, 35 ff.
[1173] See the argument of SOHM, _Eheschliessung_,
202 ff.; _Trauung und Verlobung_, 110 ff.; against
FRIEDBERG, _Eheschliessung_, 206, 210; _Geschichte der
Civilehe_, 8, who holds that Luther _doubled_ the evils of secret
marriage.
[1174] SOHM, _Eheschliessung_, chap. vii; _Trauung und
Verlobung_, chap. iv, has demonstrated this against the view of
Friedberg.
Nevertheless by the middle of the seventeenth century was
established a dualism in effect similar to that which had existed
under the later canon law. More and more stress was placed
upon the nuptials as compared with the betrothal, although in
theory the latter still constituted the marriage. J. H.
BOEHMER, _Jus ecclesiasticum protestantium_ (Halle, 1714),
whose teaching has mainly determined the modern law, attacked
Luther as being responsible for this dualism, holding that a
true betrothal, like the Roman _sponsalia_, is only a promise
of future wedlock, and may therefore be dissolved; while the
nuptial contract, publicly and formally made, is the true
marriage. On Boehmer's doctrines see DIECKHOFF, _Die
kirch. Trauung_, 270-95; SCHUBERT, _Die evang. Trauung_,
62-76; SCHEURL, _Kirch. Eheschliessungsrecht_, 140 ff.;
PHILLIPS, "Das Ehehinderniss der beigefügten Bedingung,"
_ZKR._, VI, 154.
The teachings of Luther regarding espousals were largely
determinative for the future history of marriage in the German
states. According to the ordinances, the doctrine, and the practice
of the evangelical churches, the betrothal was a true marriage, the
nuptials merely its confirmation.[1175] Even his wavering as to the
necessity of parental consent for a valid contract leaves its trace
in the divergent provisions of law.[1176] In practice the jurists,
against the protest of Luther,[1177] held close to the principles
of the canon law.[1178] As a rule, the courts tended to treat all
secret betrothals followed by actual connubial life as binding
marriages.[1179] Until far down into the eighteenth century the
engaged lovers before the nuptials were held to be legally husband
and wife.[1180] It was common for them to begin living together
immediately after the betrothal ceremony;[1181] and the so-called
"bride children" were given rights of legitimate offspring, this
custom in part surviving until our own times.[1182]
[1175] SOHM, _Eheschliessung_, 198.
[1176] The church ordinances require sometimes only parental
consent; sometimes only witnesses; or again the solemnization
of the betrothal in church is prescribed, with the sanction of
nullity or else a mere penalty for non-observance: SOHM,
_op. cit._, 206, 207; FRIEDBERG, _Eheschliessung_, 212
ff., 224, 225. RICHTER'S _Evangelische Kirchenordnungen_
are analyzed by MEIER, _Jus, quod de forma mat. valet_,
49 ff.; and GOESCHEN, _Doctrina de mat._, 42 ff.
[1177] FRIEDBERG, _op. cit._, 225 ff.
[1178] Luther would have entirely rejected the canon law, but
even in his immediate environment he gained no following.
Theologians and jurists alike accepted it as generally valid,
giving it precedence over the Roman law. Only the Scriptures were
a higher authority. Compare MEJER, _Zum Kirchenrechte_,
170, 156 (Kling); _idem_, in _ZKR._, XVI, 44-48, 73.
[1179] SOHM, _op. cit._, 207; FRIEDBERG, _op.
cit._, 209, 225-27, 261, 277 ff. The famous case of Caspar Beyer
came before the consistorial court of Wittenberg in the latter
part of 1543; and its decision in 1544 led to the notorious
controversy between Luther and the jurists. Beyer wanted to marry
Sibylla, a ward of Melanchthon, but he had made a clandestine
contract with another woman without consent or knowledge of
her parents; although it was alleged that her brother had
given _post facto_ assent, the parents being perhaps dead.
Luther declared that such secret betrothals "sollen schlecht
keine Ehe stiften;" and in 1539 or 1540 a law of Saxony had
forbidden them. A decision of the consistory, following the
doctrine of the canon law, sustained the validity of Beyer's
marriage; but after a "starke Predigt" and long insistence by
Luther it was overruled by the Elector: MEJER, "Anfänge
des Witt. Consistoriums," _ZKR._, XIII, 28-123; _idem_, _Zum
Kirchenrechte_, 65 ff.
[1180] SOHM, _op. cit._, 198; FRIEDBERG, _op.
cit._, 208, 209, 225-27, 261, 277 ff., 299, 300.
[1181] In Germany betrothal rituals were sometimes prescribed
in the church ordinances: FRIEDBERG, _op. cit._, 222,
223, 224; and public espousal ceremonies were in use in England:
BURN, _Parish Registers_, 138 ff.
[1182] FRIEDBERG, _op. cit._, 293, 299, 300. On the
_Brautkinder_ see SCHOTT, _Einleit. in das Eherecht_,
193, 194; and on secret betrothals and the laws forbidding them
consult especially HOFMANN, _Handbuch des teutschen
Eherechts_, 146 ff.; and compare LOY, _Das protest.
Eherecht_, 447 ff.
The rites observed in the celebration of marriage differed in
some details from those in use before the Reformation. A model
was drafted by Luther, and it was often followed with variations
in the church ordinances.[1183] He does not urge the adoption of
a service which must be observed by all. On the contrary, every
place may use its customary form in the solemnization of wedlock.
A simple ritual is, however, provided for the use of those needing
assistance. When the bride and bridegroom so require, the banns are
to be asked in the chancel before the wedding. As in the mediæval
formularies already examined, the nuptial ceremony consists of two
acts. Before the church door the wedding vows and the wedding rings
are exchanged, the priest declaring to the assembled people, in the
name of the Trinity, that he pronounces the man and woman joined in
marriage. In the church before the altar the second act takes place.
Instead of the bride-mass, this consists simply in the reading of a
passage of Scripture followed by the priestly benediction.[1184]
[1183] The earliest Protestant marriage ritual appears to
have been written by BUGENHAGEN: see the ritual
(1523) ascribed mainly to him, published with discussion by
SCHUBERT, _Die evang. Trauung_, 142-53. Compare
"Der Bericht Christoph Gerungs von Memmingen über die erste
Priesterhochzeit zu Augsburg anno 1523;" _ibid._, 132-41, showing
that the nuptial ceremony is but a confirmation of the _sponsalia
de praesenti_ already concluded.
[1184] LUTHER, "Traubüchlein für die einfältigen
Pfarrherren" (1534), _Kleinere Schriften_, II, 219-23; with which
compare "Der kleine Katechismus" (1529), in STRAMPFF,
340, 341, 422; and the rituals analyzed by SOHM, _op.
cit._, 197 ff. In this connection read BULLINGER'S
discussion of the proper conduct at weddings in _Der christlich
Ehestand_, lvs. 59-68; or the same in SARCERIUS, _Vom
heil. Ehestande_, foll. 102-7; also BIDEMBACH, _De
causis mat. tr._, 3 ff.; FORSTER, _De nuptiis_, 167 ff.;
and BROUWER, _De jure connubiorum_, 619 ff.
DIECKHOFF, _Die kirch. Trauung_, 108-14, points
out that the exchange of rings and the declaration of the
marriage to the assembled people, instead of saying to the
parties themselves the words "_Ego conjungo vos in nomine_,"
etc., are innovations of the Reformation period. For further
discussion see SCHUBERT, _Die evang. Trauung_, 51
ff.; HOFMANN, _Handbuch des Eherechts_, 172 ff.;
RICHTER, _Lehrbuch_, 1121 ff.; SCHEURL, _Das
gemeine deutsche Eherecht_, 63 ff.
For examples of rules and rituals adopted by some of the
churches consult RICHTER, _Evang. Kirchenordnungen_,
I, 31, 32 ("Landesordnung des Herzogthums Preussen"), 330,
331 (Brandenburg), 347-50 (Geneva); II, 47, 48 ("Cölnische
Reformation"), 375-77 (Brandenburg); especially FISCHER,
"Die älteste evang. Kirchenordnung in Hohenlohe," _ZKR._, XV,
1-48; and compare MEIER, _Jus, quod de forma mat.
valet_, 49 ff.; GOESCHEN, _Doctrina de mat._, 48-58;
FRIEDBERG, _Eheschliessung_, 212 ff.; SOHM,
_Eheschliessung_, 197 ff., who analyzes the church ordinances.
The decree of the Council of Trent relating to the nuptial
celebration was not accepted in Protestant lands, and hence no
essential change was made in the forms of marriage. In England
during the whole period between the Reformation and the Commonwealth
ecclesiastical celebration was the rule; and the spiritual courts,
retaining their ancient jurisdiction in matrimonial causes, still
recognized the principles of the canon law, though appeals to Rome
were not allowed.[1185] Hence clandestine contracts _de praesenti_
were valid and could be maintained against regular marriages
subsequently solemnized in church. This fact is established by
abundant evidence,[1186] and by none more ample and convincing than
that afforded by the remarkable collection of documents recently
edited by Furnivall, to which further reference will presently be
made.[1187] But the parties were subject to clerical censure and
the forfeiture of certain property rights.[1188] An attempt was,
indeed, made by Henry VIII. in 1540 to restrict the validity of
private marriages by providing in effect that those solemnized by
the church, if consummate, should take precedence of unconsummated
precontracts not thus celebrated; and the same statute confined
the impediments to marriage to those comprised in the Levitical
degrees.[1189] But this act had little significance save in the
matrimonial transactions of Henry himself;[1190] for, so far as it
related to precontracts, it was repealed by a statute of Edward VI.
which restored the former law and provided that "when any cause or
contract of marriage is pretended to have been made, it shall be
lawful to the king's ecclesiastical judge of that place to hear
and examine" it; and after having it "sufficiently and lawfully
proved," to give "sentence of matrimony, commanding solemnization,
cohabitation, consummation, and tractation," as in times past the
king's spiritual courts had power to do.[1191] Referring to this
act, Swinburne, writing in the reign of Elizabeth, bears witness to
the strength with which the canonical theory of espousals had laid
hold of the legal mind. "Worthily, I say, and upon good ground was
this Branch of that Statute" of King Henry relating to precontracts
"repealed and made void by his gracious Son King _Edward_ the
Sixth, for Spousals _de praesenti_, though not consummate, be in
truth and substance very Matrimony, and therefore perpetually
indissoluble, except for Adultery: Although by the Common Laws of
this Realm (like as it is in _France_ and other places) Spousals
not only _de futuro_, but also _de praesenti_ be destitute of many
_legal Effects_ wherewith _Marriage solemnized_ doth abound, whether
we respect legitimation of Issue, alteration of property in her
Goods, or right of Dower in the Husbands Lands."[1192]
[1185] By 24 Hen. VIII., c. 12 (1532): _Statutes at Large_, II,
71-73; GEE AND HARDY, _Documents_, 187-95, appeals to
Rome in questions of marriage and divorce are forbidden. Such
cases may be carried from the archdeacon to the bishop, then to
the archbishop of Canterbury or York, whose decision is final. By
25 Hen. VIII, c. 21: _Statutes at Large_, II, 90, the archbishop
of Canterbury is given a right of dispensation similar to that
formerly exercised by the pope. Chapter 19 of the same statute,
_ibid._, II, 85-87; GEE AND HARDY, _Documents_, 195 ff.,
provides for the appointment of a commission of thirty-two men
to examine the whole body of canons in order to determine which
should be accepted as valid; but until the commission should
conclude its labors "such Canons Constitutions Ordinances and
Synodals Provincial being already made," not repugnant to the
laws or customs of the realm, "nor to the Damage or Hurt of the
King's Prerogative Royal, shall now still be used and executed
as they were afore." No report was made by this commission;
nor did the _Reformatio legum ecclesiasticarum_ prepared by
another commission, which was provided for by 3 and 4 Ed.
VI., c. 11: _Statutes at Large_, II, 295, ever take effect:
FRIEDBERG, _Eheschliessung_, 310 n. 3. The act of 25
Hen. VIII., c. 19, was repealed by 1 and 2 Philip and Mary, c. 8:
_Statutes at Large_, II, 342 ff.; but again restored by 1 Eliz.,
c. 1: _Statutes_, II, 379 ff. So the result was the practical
retention of the canon law. _Cf._ FRIEDBERG, _op. cit._,
309-11.
[1186] It is proved by the celebrated case of Bunting _v._
Lepingwell, 1585-86: COKE'S _Reports_, II, 355-59.
See FRIEDBERG'S analysis of this case and other
proofs collected by him: _Eheschliessung_, 313-18; also
SWINBURNE, _Of Spousals_, 13, 15, 74-108, especially
193 ff., 222 ff., 236-39, who shows the canon-law theory to be
in full force in the reign of Elizabeth; and CRANMER,
_Misc. Writings_, 359, 360. HALE'S _Precedents_,
120, 136, 137, 146, 147, 169, 170, 185, 192, affords several
interesting illustrations for the Reformation period.
[1187] FURNIVALL, _Child-Marriages, Divorces, and
Ratifications, in the Diocese of Chester, 1561-6_ (edited for
the Early Eng. Text Society, London, 1897), especially 56-71,
184-202 (trothplights), 140, 141 (clandestine marriages), 72-102
(adulteries and affiliations).
[1188] SWINBURNE, _Of Spousals_, 15, 233-35;
FRIEDBERG, _op. cit._, 315 n. 4.
[1189] 32 Hen. VIII., c. 38: _Statutes at Large_, II, 173, 174;
EVANS, _Statutes_, I, 152-54. The act of 25 Hen. VIII.,
c. 22: EVANS, I, 151, prescribes the Levitical degrees.
[1190] FRIEDBERG, _op. cit._, 311, 312. See
the elaborate discussion of the divorce controversy by
BURNET, _Hist. of the Reformation_, I, 26 ff.,
particularly 74 ff.
[1191] 2 and 3 Ed. VI., c. 23: _Statutes at Large_, II,
284, 285; EVANS, _Statutes_, I, 154, 155. _Cf._
JEAFFRESON, _Brides and Bridals_, I, 114 f., 124 ff.
[1192] SWINBURNE, _Of Spousals_, 15. This learned
treatise was first published in 1686, although written a century
before. See the introductory address "To the Reader."
Indeed, for the law and custom of betrothal in England, toward the
close of the sixteenth century, the quaint and recondite treatise
of Swinburne is a mine of information. A vast number of questions
illustrative of the principles, the snares and perplexities, of
the surviving canonical theories are there taken up and "resolved"
with singular brevity and clearness. "Albeit," he says, "this word
_Sponsalia_ (Englished _Spousals_) being properly understood, doth
only signifie Promises of future Marriage, yet is it not perpetually
tied to this only Sense, for sometimes it is stretched to the
signification of _Love Gifts and Tokens_ of the Parties betroathed;
as _Bracelets_, _Chains_, _Jewels_, and namely the _Ring_; being
often used for the very _Arrabo_ or assured Pledge of a perfect
Promise: Sometimes it is taken for the _Portion of the Goods_ which
is given for and in consideration of the Marriage to be Solemnized;
and sometimes for the _Feast or Banquet_ at the Celebration of
the Marriage, and of others it is otherwise used." The canonists,
however, distinguish between matrimony and betrothal, and they
"do also discern betwixt one kind of Spousals and another, being
the first Inventors of the several Names of Spousals _de futuro_,
and Spousals _de praesenti_, and yet nevertheless oftentimes they
make no difference, or very little, betwixt the Natures and
Effects of Spousals _de praesenti_ and of Matrimony solemnized and
consummate."[1193] Such contracts are "as indissoluble as perfect
matrimony;"[1194] and "as well the Sacred Scriptures, as the Civil
and Ecclesiastical Laws, do usually give to Women betroathed only,
or affianced, the Name and Title of _Wife_, because in truth the man
and woman, thus perfectly assured, by words of _present time_, are
Husband and Wife before God and his Church."[1195]
[1193] _Ibid._, 1-3.
[1194] _Ibid._, 236.
[1195] _Ibid._, 14. In _Twelfth Night_, Act V, scene i, Olivia
calls Cesario "husband;" and in Act IV, scene iii, referring to
the future nuptials, speaks of keeping celebration "according to
my birth." In _Measure for Measure_, Act I, scene iii, Claudio
calls Julietta his "wife;" and in Act IV, scene i, the duke,
addressing Mariana who had been _affianced_ to Angelo, says,
"he is your _husband_ on a precontract." _Cf._ DOUCE,
_Illustrations of Shakespeare_, I, 114.
The old perplexity growing out of the coincidence of illegality and
validity in the same contract still exists;[1196] and the conscience
may still be bound by secret marriage, though the court may declare
it null and void. The "Law doth forbid all Persons to make _Secret_
Contracts of Spousals, or Matrimony; and that justly, considering
the manifold discommodities depending thereupon, namely, for that
hereby it cometh to pass oftentimes, that the Parties secretly
contracting, are otherwise formally affianced, or so near in Blood
that they cannot be Married; or being free from those impediments,
yet do they alter their purposes, denying and breaking their
promises, whence Perjuries" and "many more intolerable mischiefs
do succeed."[1197] Yet though "Secret Marriages are done indeed
against the Law," it is held that once contracted they cannot be
dissolved, because public "solemnities are not of the Substance of
Spousals, or of Matrimony, but consent only; ... So that it may be
justly inferred, that the only want of Solemnity doth not hurt the
Contract." Moreover, if it be urged that "seeing secret Contracts
cannot be proved, it is all one in effect, as if they were not,"
it may be answered that such is truly the case "_Jure fori, non
jure poli_, Before Man, not before God; for the Church indeed doth
not judge of secret and hidden things," but before Almighty God
"bare Conscience alone is as a thousand Witnesses; Wherefore I do
admonish thee, that hast in truth contracted secret Matrimony, that
thou do not marry any other Person; for doubtless this thy pretended
Marriage, how lawful soever it may seem in the eye of Man, who
judgeth only according to the outward appearance, is nothing but
meer Adultery in the infallible sight of God's just Judgment."[1198]
[1196] SWINBURNE, _op. cit._, 193 ff.
[1197] _Ibid._, 194.
[1198] SWINBURNE, _op. cit._, 194, 195, 196.
Public as opposed to private espousals,[1199] according to
Swinburne, "are they which are contracted before sufficient
Witnesses, and wherein are observed all other Solemnities requisite
by the Ecclesiastical Law: For so careful were the ancient
Law-makers to avoid those mischiefs, which commonly attend upon
_secret_ and _clandestine_ Contracts, that they would have the same
Solemnities observed in contracting Spousals, which be requisite in
contracting Matrimony."[1200] In fact, according to one authority,
"public espousals were, upon pain of excommunication, to be in an
open place, and before diverse witnesses;" but it does not "appear
to have been necessary to the validity of these contracts, that
they should be made at church;"[1201] nor can we safely assume
that this requirement was generally enforced. During the period
following the Reformation the celebration of the betrothal and the
nuptials usually took place at the same time, on the wedding day
in the body of the church; and the form of each is prescribed in
the marriage rituals.[1202] The public solemnization of espousals
was, however, not entirely superseded. In the seventeenth[1203] and
eighteenth[1204] centuries, though passing out of use, the custom
was by no means extinct, especially in the case of noble or royal
persons. A record of betrothals contracted _in facie ecclesiae_ was
not usually kept; but at least one such entry has been discovered.
The register of Boughton Monchelsea, Kent, shows that on the tenth
day of January, 1630, William Maddox and Elizabeth Grimestone were
affianced "in due form of law;" and in this case the marriage
was not celebrated until three years later.[1205] "The form of
betrothing at church" in England "has not been handed to us in any
of its ancient ecclesiastical service books;" but it "has been
preserved in a few of the French and Italian rituals."[1206] "The
ceremony, generally speaking, was performed by the priest demanding
of the parties if they had entered into a contract with any other
person, or made a vow of chastity or religion; whether they had
acted for each other, or for any child they might have had, in the
capacity of godfather or godmother." Then, if the contract were in
the form of _sponsalia jurata_ or sworn espousals, the "oath was
administered. 'You swear by God and his holy Saints herein and by
all the Saints of Paradise, that you will take this woman whose name
is N., to wife within forty days, if holy church will permit.' The
priest then joined their hands, and said--'And thus you affiance
yourselves;' to which the parties answered,--'Yes, Sir.' They
then received a suitable exhortation on the nature and design of
marriage, and an injunction to live piously and chastily until that
event should take place. They were not permitted, at least by the
church, to reside in the same house, but were nevertheless regarded
as man and wife independently of the usual privileges."[1207] Later
in France espousals in church were often prohibited, "because
instances frequently occurred when the parties, relying on the
testimony of the priest, scrupled not to live together as man and
wife.... Excesses were likewise often committed by the celebration
of Espousals in taverns and ale-houses, and some of the synodal
decrees expressly injoin that the parties shall not get drunk on
these occasions."[1208]
[1199] "In an ancient manuscript (No. 1042 in the Archiepiscopal
Library at Lambeth Palace) the methods of contracting espousals
are thus described: Contrahunt^a sponsalia iiij modis--Aliqu^a
promissione, aliqu^a datis arris sponsalitiis interveniente anuli
subarra[~c]oe, aliqu^a interveniente jura[~m]to. Nuda promissione
cum dicit vir, Accipiam te ī meā uxorem, et illa respondet,
Accipiā te in meū maritū. Vel alia verba equipollencia, et
ista [~s]t vera sponsalia [~q]ndo sit per [~v]ba de futuro
cont^ahuntur."--BURN, _Parish Registers_, 139. On sworn
espousals and the other forms see SWINBURNE, _op. cit._,
213 ff., 193 ff., _passim_.
[1200] _Ibid._, 193.
[1201] BURN, _Parish Registers_, 139, citing
LYNDWOOD'S _Provinciale_, 271. "In an Almanack for
1665, certain days (January 2, 4, etc.) are pointed out as 'good
to marry, or contract a wife (for then women will be fond and
loving).'"--_Ibid._, 139 n. 2. See also WOOD, _The
Wedding Day_, 235-60, for an account of the superstitions and
folklore on this subject.
[1202] Thus in the rituals of Edward VI. and Elizabeth, when the
priest says, "Wilt thou have this woman to thy wedded wife?" or
"this man to thy wedded husband?" we have the case of espousals.
Thereafter, when each party says, "I, N., take thee, N., to my
wedded wife" or "husband," we see matrimony contracted, though
the form is precisely that of _sponsalia per verba de praesenti_.
See the Parker Society _Liturgical Services_, Edward VI., 128,
129; Elizabeth, 218, 219. The same forms are retained in the
existing ritual of the English church: BINGHAM, _The
Christian Marriage Ceremony_, 163, 164.
[1203] In NICHOLS'S _Progresses of King James the First_
(London, 1828), II, 513 ff., "will be found two accounts (one
by Camden) of the ceremonial of the Affiancing of the Princess
Elizabeth in 1612. It took place in the Banquetting House at
Whitehall, before dinner; Sir Thomas Lake, as Secretary of State,
read the words from the book of Common Prayer, in French, 'I
Frederick take thee Elizabeth,' etc., after which the Archbishop
gave his Benediction: 'The God of Abraham, the God of Isaac, and
the God of Jacob, bless these Espousals, and make them prosperous
to these Kingdoms, and to his Church.' This appears to have been
the whole of the office, and the service was probably not longer
in ordinary cases. In the Contract for the Princess's marriage,
executed the same day (Dec. 27), is a clause, 'Quòd Matrimonium
verum et legitimum contrahatur inter eos in Angliā ante initium
mensis Maii, et interim _Sponsalia legitima de praesenti_.' 'It
would be no difficulty,' remarks Mr. Anstis, Garter [Leland's
_Collectanea_, V, 329-36], 'to show the antient custom of such
Espousals by the daughter of the Crown of England as distinct
acts from the office of Matrimony, and that they frequently
were performed some months or years before the marriage was
actually celebrated.'"--BURN, _Parish Registers_, 140
n. 2. As shown in the case of Princess Elizabeth, even the banns
followed the public betrothal: NICHOLS, II, 524, 525.
In the fifth year of Henry V., the espousals of Thomas Thorp and
Katerina Burgate were publicly celebrated: NAPIER'S
_Swincombe_, 65; BURN, _op. cit._, 144. "We find, under
date 1476, that a certificate was given by the minister and six
parishioners of Ufford, in Suffolk, to the effect that since
the death of a certain man's wife he had not been 'trowhplyht'
to any woman, and that he might therefore lawfully take a
wife."--WOOD, _The Wedding Day_, 212.
[1204] In a breach of promise suit before the common pleas, 1747,
the plaintiff proved that she had been publicly betrothed, and
received £7,000 damage: _Gentleman's Magazine_, 1747, p. 293;
also _Gent. Mag. Library: Manners and Customs_, 54.
[1205] BURN, _op. cit._, 144. The author has evidently
transposed the dates. "The Eastern Emperor Leo, surnamed
Philosophus (in order to prevent the mischiefs arising from
Espousals to be concluded by marriage at a distant period)
commanded that the Espousals and Weddings should be performed
both upon one day. Alexius Comnenus endeavoured to restore
the old custom."--_Alex. Com. Novel. de Spons._, 1, 2.;
BURN, _loc. cit._, n. 1.
[1206] DOUCE, _Illustrations of Shakespeare_ (London,
1807), I, 108. Douce discusses the more interesting references
to the betrothal in Shakespeare's plays: _ibid._, 107-14,
403. _Cf._ also BURN, _op. cit._, 140, 143. On the
mediæval English practice of spousals, private and in church,
see PALMER, _Origines liturgicae_, II, 211, 212; and
in general JEAFFRESON, _Brides and Bridals_, I, 60-87;
BRAND, _Popular Antiquities_, II, 87 ff.
[1207] DOUCE, _op. cit._, I, 113, 114. See also
WOOD, _The Wedding Day_, 211, 212; and compare the
Greek betrothal ritual in BURN, _op. cit._, 141, 142,
taken from the _Euchologion sive rituale graecorum_, 380. On
_sponsalia jurata_ see SWINBURNE, _Of Spousals_, 213-21;
KLING, _Tr. mat. causarum_, 2, 3; BEUST, _Tr.
de spons. et mat._, 219 ff.
[1208] DOUCE, _op. cit._, I, 112, 113. Compare the
interesting passage in BULLINGER, _Der christlich
Ehestand_, lvs. 60 ff.
Valid betrothals, like valid marriages, may be celebrated by signs
as well as words. This is true, says Swinburne, notwithstanding "a
ready text, extant in the bowels of the law," much relied upon by
diverse writers, to the effect that words expressive of consent are
essential.[1209] "And forasmuch as _Subarration_, that is the giving
and receiving of a _Ring_, is a Sign of all others, most usual in
Spousals and Matrimonial Contracts, I think it requisite to speak
of it, before all other Signs; the rather because the Writers upon
this Sign have diligently described unto us, what Persons did first
devise the same, and to what end; and what was the matter, and what
the form thereof, on which Finger it ought to be worn, and what is
the Signification of each of those Circumstances, with divers other
Observations which I will briefly run over. The first Inventer of
the Ring (as is reported) was one _Prometheus_; The Workman which
made it was _Tubal-Cain_, of whom there is mention in the fourth of
Genesis, that he wrought cunningly in every Craft of Brass and Iron:
And Tubal-Cain by the Counsel of our first Parent _Adam_ (as my
Author telleth me), gave it unto his Son to this end, that therewith
he should espouse a Wife, like as _Abraham_ delivered unto his
Servant Bracelets and Ear-Rings of Gold, which he gave to _Rebecca_,
when he chose her to be _Isaacks_ Wife.... But the first Ring
was not of Gold, but of Iron, adorned with an Adamant, the Metal
hard and durable, signifying the continuance and perpetuity of the
Contract; the vertuous Adamant drawing the Iron unto it, signifying
the perfect unity and indissoluble Conjunction of their minds, in
true and faithful love; Howbeit it skilleth not at this day, what
Metal the Ring be; The form of the Ring being circular, that is,
round, and without end, importeth thus much, that their mutual love
and hearty affection should roundly flow from the one to the other,
as in a Circle, and that continually, and for ever; The Finger on
which this Ring is to be worn is the fourth Finger of the left hand,
next unto the little Finger; because by the received Opinion of the
Learned and Experienced in Ripping up, and anatomizing Mens Bodies,
there is a Vein of Blood which passeth from that fourth Finger unto
the Heart, called _Vena amoris_, Love's Vein. And so the wearing of
the Ring on that Finger signifieth, that the love should not be vain
or fained, but that as they did give their Hands each to other, so
likewise they should give their Hearts also, whereunto that Vein is
extended. Furthermore I do observe, that in former Ages it was not
tolerated to single or unmarried Persons to wear Rings, unless they
were Judges, Doctors, or Senators, or such like honourable Persons:
So that being destitute of such Dignity, it was a note of Vanity,
Lasciviousness, and Pride for them to presume to wear a Ring,
whereby we may collect how greatly they did honour and reverence the
Sacred Estate of Wedlock in times past, in permitting the Parties
affianced to be adorned with the honourable Ornament of the Ring: As
also the Vanity, Lasciviousness, and intolerable Pride of these our
days, wherein every skipping Jack and every flirting Jill, must not
only be ring'd (forsooth) very daintily, but must have some special
Jewel or Favour besides, as though they were descended of some noble
House or Parentage, when as all their Houses and whole Patrimony
is not worth the Ninth part of a Noble; or else, as if they were
betrothed or assured in the holy Band of Wedlock, when as indeed,
there is no manner of Contract betwixt them, unless peradventure it
be such a Contract as _Judah_ made with _Thamar_, ... which bargain
he concluded by delivering her a Ring."[1210]
[1209] SWINBURNE, _Of Spousals_, 203 ff. Whether the
ring alone, without the usual words of assent, is a sufficient
sign of contracting espousals or marriage, depends on its
presentation in solemn form or upon local or national custom:
_ibid._, 209-12.
[1210] SWINBURNE, _op. cit._, 207-9. The symbolism
of the ring is explained in the same spirit by MARTIN
BUCER, _Script. Anglic._ (Basel, 1577), _Censur. in ordinat.
eccles._, cap. xx, pp. 488, 489: WHITGIFT, "Defence of
the Answer," _Works_, III, 353 n. 11. (_Cf._ chap. xi, below,
where this passage is quoted.) The early rituals, as we have
seen (above, chap, vii, sec. 1), quote the Decree of Gratian as
authority for the "vein extending to the heart."
This curious passage is here quoted at length, not because it has
historical value, but because the author has condensed therein the
symbolism, conceits, and folklore connected with the betrothal
ring as these are found in the writings of the canonists, whom he
carefully and minutely cites in the margin.[1211]
[1211] On the archæology of the ring see further SAXSE,
_Arcana annuli pronubii_, 68 ff.; WOOD, _The Wedding
Day_, 217-34; WHEATLEY, _Illustrations of the Common
Prayer_, 437-40; BRAND, _Popular Antiquities_, II,
102 ff.; DOUCE, _Illustrations of Shakespeare_, I,
109 ff.; JEAFFRESON, _Brides and Bridals_, I, 138-66;
_Gentleman's Magazine_, 1795, pp. 727, 728, 987; also _Gent. Mag.
Library: Manners and Customs_, 54-57; _Notes and Queries_, 3d
series, VII, 12, 307, 350, 387 (metal of the ring); 5th series,
XII, 407, 474, 514. The fourth finger in connection with the
vein to the heart is mentioned by AULUS GELLIUS, lib.
x, c. 10; also by MACROBIUS, _Saturnal._, lib. vii, c.
13, who "quotes the opinion of Ateius Capito, that the right
hand was exempt from this office because it was much more useful
than the left hand, and therefore the precious stones of the
rings were liable to be broken; and that the finger of the left
hand was selected which was the least used."--_Gent. Mag. Lib._,
_loc. cit._, 54. The mediæval marriage ceremony is described by
CHAUCER, _Merchant's Tale_, ll. 450-509 (ed. Morris,
London, 1891), 332-333.
Before the act of 1753 persons contracting espousals _de praesenti_
might be compelled to celebrate matrimony _in facie ecclesiae_,
under penalty for refusal of excommunication by the spiritual
and imprisonment by the secular power;[1212] but in case of a
mere contract _de futuro_, if either party refused to keep his
engagement, he was rather to be "admonished than compelled." The
"judge is not to proceed to the _Significavit_, but rather to
absolve that cursed Party which contemneth the Censures of the
Church, albeit there be no Cause of favour, but fear of further
mischief, by compelling them to go together, which hate one another.
Yet is not this froward Party thus to be dismissed, but is to suffer
pennance" for breach of faith.[1213]
[1212] _Cf._ 2 and 3 Ed. VI., c. 23, cited above; and
HOOPER, _Later Writings_, II, 138.
[1213] SWINBURNE, _op. cit._, 231,232; BURN,
_op. cit._, 138, 139, 140.
II. AS TO THE NATURE OF MARRIAGE
In its practical results, therefore, the Reformation had little
effect on law and theory as to the _form_ of wedlock. For England
it had no significance at all; and the same is true of Germany,
except so far as Luther's view of the _sponsalia_ may have found
some expression in legislation and judicial decree. With respect to
the _nature_ of marriage the case is very different. The dogma of
its sacramental character was abandoned throughout the Protestant
world.[1214] In its place a new conception arose; and it is very
instructive to trace the process of change in the mind of Luther
himself.[1215] As late as 1519 he declares that "the marriage state
is a sacrament," an outward "symbol of the greatest, holiest,
noblest, most worthy thing that has ever existed or can exist:
the union of the divine and human natures in Christ;"[1216] and
this symbol he explains entirely in harmony with the "dogmatism of
the Middle Ages, notably that of St. Thomas Aquinas, who sought
the motive of marriage sacrament in legalization of the sensual
impulse."[1217] In the very next year, however, and again in 1539,
he expresses himself decisively against the ancient Catholic
doctrine.[1218] Nevertheless in his various attempts to define the
matrimonial state an apparent contradiction is presented which is
hard to reconcile, and which is of great significance in the long
struggle for the instituting of civil marriage. On the one hand,
though not technically a sacrament, marriage is described as holy,
a "most spiritual" status, "ordained and founded" by God himself.
It is the source of domestic and public government, the foundation
of human society, which without it would "fall to pieces."[1219]
So holy is the state of matrimony, in Luther's conception, that
he must perforce still use the term "sacrament" to convey his
meaning.[1220] On the other hand, his writings contain passages of
a very different tenor. "So many lands, so many customs, runs the
common saying. Therefore since weddings and matrimony are a temporal
business, it becomes us clerks and servants of the church to order
or rule nothing therein, but to leave to each city and state its own
usages and customs in this regard."[1221] Elsewhere, in words which
anticipate the sentiment of Milton by a hundred years, he insists
that "matrimonial questions do not touch the conscience, but belong
to the temporal power," warning the clergy not to meddle with them
unless commanded by that authority.[1222] Marriage, he emphatically
declares, is a "temporal, worldly thing" which "does not concern the
church."[1223]
[1214] In general on the Protestant theory of marriage see
FRIEDBERG, _Geschichte der Civilehe_, 6 ff.; _idem_,
_Eheschliessung_, 153-98; RICHTER, _Lehrbuch_, 1050 ff.
[1215] The selections from Luther's writings relating to the
nature of marriage and the question of its sacramental character
take up the first 215 pages of STRAMPFF'S _Dr. Martin
Luther: Ueber die Ehe_.
[1216] LUTHER, "Vom ehelichen Stande," _Bücher
und Schriften_ (Jena, 1564), I, fol. 170_b_; also in
STRAMPFF, 205.
[1217] FRIEDBERG, _Eheschliessung_, 157.
[1218] LUTHER, _Von der Babylonischen gefencknuss
der Kirchen_; _idem_, _Von den Conciliis und Kirchen_ (1539):
quoted by FRIEDBERG, _op. cit._, 157, 158, notes. These
passages and others in STRAMPFF, 205 ff., 213 ff.
[1219] LUTHER, "Das siebend Capitel St. Paul zu den
Corinthern ausgelegt" (1523), _Bücher und Schriften_ (Jena,
1555), II, fol. 297; _idem_, "Auslegung des ersten Buch Moses"
(1536-45), _ibid._ (Jena, 1556), IV; or STRAMPFF,
163-203. See the passage quoted by FRIEDBERG,
_Eheschliessung_, 158. For similar expressions compare
_Tischreden_, foll. 350, 352, etc.
[1220] LUTHER, "Auslegung des ersten Buch Moses"
(1536-45), _loc. cit._, fol. 145_a_. _Cf._ FRIEDBERG,
_op. cit._, 157.
[1221] "So manchs Land, so manch Sitte, sagt das gemeine
Sprüchwort; demnach, weil die Hochzeit und Ehestand ein weltlich
Geschäft ist, gebührt uns Geistlichen oder Kirchendienern
nichts darin zu ordenen oder regieren, sondern lassen einer
iglichen Stadt und Land hierin ihren Brauch und Gewohnheit, wie
sie gehen."--LUTHER, "Der kleine Katechismus mit dem
Traubüchlein, Vorrede" (1529), in STRAMPFF, 340, 341,
422. Again LUTHER says: "Es kan ja niemand leugnen,
das die Ehe ein eusserlich weltlich ding ist, wie Kleider und
Speise, Haus und Hofe, weltlicher Oberkeit unterworffen."--"Von
Ehesachen," _Bücher und Schriften_ (1561), V, fol. 237.
[1222] Ehesachen gehen die Gewissen nicht an, sondern gehören
für die weltliche Oberkeit; darumb schlage sich keiner
drein, die Oberkeit befehl es denn, sprach D. M. L. zu den
Predigern."--_Tischreden_, fol. 369. In another passage, speaking
of the breach of the marriage vow and divorce, he says: "Solche
fälle gehören eigentlich der Oberkeit; denn die Ehe ist ein
weltlich ding, mit allen iren umbstenden; gehet die Kirch nichts
an, denn so viel es die Gewissen belanget."--_Ibid._, fol. 368.
_Cf._ FRIEDBERG, _Eheschliessung_, 160.
[1223] LUTHER, _Tischreden_, fol. 369. See the
passages relating to the "weltliche Regiment in Ehesachen," in
STRAMPFF, 411-30, with the author's critical essay.
Thus Luther provided the arsenal from which both the friends and the
foes of civil marriage drew their weapons. His name, says Friedberg,
became the "battle-cry," the "shield and mantle," of the contending
factions; and while urging that Luther must be regarded as the
champion of marriage as a "worldly thing," the same writer points
out the two powerful motives which may in large measure account
for this apparent contradiction.[1224] First, the evils growing
out of the ecclesiastical jurisdiction in matrimonial causes were
becoming an intolerable burden to Christendom; and only by denying
the sacramental nature of marriage could the way be cleared for
a transfer of that jurisdiction to the secular courts. Secondly,
the abuses connected with sacerdotal celibacy were scarcely less
threatening. The licentiousness of the clergy was "beyond belief."
Many "bishops were at last content to convert the vows of celibacy
into sources of revenue, suffering the clergy to live in concubinage
in return for a yearly tax;"[1225] and yet the "ill preserved
chastity of the priesthood was interpenetrated then as before by
a profound contempt for the marriage state."[1226] Hence Luther
proclaimed the natural and scriptural right of priests to marry; and
rejecting the low ascetic ideal he laid stress on the purity and
holiness of marriage as an institution ordained of heaven.[1227]
But, after all, this doctrine is not so entirely out of harmony
with the view that matrimony is a "worldly thing;" for with the
Reformation a new conception of the temporal power arose. During
the Middle Ages the contrast was not between church and state, as
the latter is now understood; but between the "unholy world and
the holy church." Hence the state, because it was comprehended
under the conception of the world, "partook of its unholiness. The
Reformation formulated the antithesis differently. It released
the state from its shell of 'worldliness,' ascribed to it ethical
tendencies, and made it the bearer of morality. Formerly the state
was unholy, because it belonged to the world; now the world became
ethical, because it fell within the sphere of the state, for the
state itself was moral."[1228] Thus, in the sixteenth century, the
conception of the "Christian state" and of the "Christian prince,"
to which Erasmus gave such fine expression, became thoroughly
established.[1229] Theoretically church and state were kept apart;
but practically they were united; for the idea of a "state church"
no longer gave a shock to the religious sense. Accordingly the king
as the Lord's anointed became the defender of the faith and the
source of ecclesiastical authority.
[1224] FRIEDBERG, _op. cit._, 160-75.
[1225] _Ibid._, 166. See TYNDALE, _Answer to More_, 29
n. 4: "More saith in his _Conf._ (p. ccliiii), 'Syth the marriage
(of a priest) is no marriage, it is but whoredom itself. And
I am sure also that it defileth the priest more than double
and treble whoredom.'" Tyndale accuses the pope of opposing
God's law in denying marriage to priests and by dispensations
licensing concubinage for money, "as through Dutchland every
priest, paying a gildren unto the archdeacon, shall freely and
quietly have his whore, ... as they do in Wales, in Ireland,
Scotland, France, and Spain;" and in "England, thereto, they be
not few which have" such licenses. When the parishes go to law
to make them put away their concubines, "the bishop's officers
mock them, poll them, and make them spend their thrifts and the
priests keep their whores still."--_Ibid._, 40, 41 n. 4, and the
documents there quoted. _Cf._ COVERDALE, _Remains_, 484;
TYNDALE, _Doc. Treatise_, 232; HUTCHINSON,
_Works_, 202; and especially JEWELL'S controversy with
Harding in "Defence of the Apology," _Works_, IV, 629 ff., 640
ff. On the prevalence of concubinage in England during the
Middle Ages see STUBBS, _Const. Hist._, III, 372;
MAKOWER, _Const. Hist. Eng. Church_, 217-20, notes,
who declares that from the close of the twelfth century onward
a priest was punished less severely for fornication than for
marrying. "Loss of office is the penalty only for a breach of
the prohibition to marry," not for fornication, unless very
notorious: _op. cit._, 217. Compare JOHNSON, _Canons_,
II, 26, 33, 40, 80, 81, 114, 132; and 2 and 3 Ed. VI.: GEE
AND HARDY, _Documents_, 367, for complaints of this evil.
See the literature on the evils of celibacy cited in chap. viii.
[1226] FRIEDBERG, _Eheschliessung_, 166. For Germany
compare KAWERAU, _Die Reformation und die Ehe_, 1-40.
[1227] LUTHER, "Bedenken und Unterricht von den
Klöstern" (1522), _Kleinere Schriften_, II, 45-73; _idem_, _An
die herrn deutschs Ordens_ (1523); and BUGENHAGEN, _De
conjugio episcoporum et diaconorum_ (1525).
[1228] FRIEDBERG, _op. cit._, 175.
[1229] FRIEDBERG, _Eheschliessung_, 173, 175. He finds
traces of the idea of a Christian state in the writings of Huss
and Tauler: _ibid._, 173 n. 8.
With Luther's teachings regarding the nature of marriage the German
Protestant leaders were mainly agreed.[1230] In his reaction
against celibacy and asceticism, however, he went to an extreme
where all could not follow him. There were doubtless many persons
attached to the new doctrines who were inclined to tolerate or
sanction concubinage and even polygamy.[1231] But the "double
marriage" of the landgrave of Hesse, which was sanctioned by
Luther, Melanchthon, and Bucer, created a scandal for which the
majority were not willing to be held responsible. Indeed, from the
tone of the decision of Luther and his colleagues it seems clear
that they were conscious of treading on dangerous ground.[1232]
Regarding another important point the Reformers were not entirely
in harmony. The abuses arising in the complex law relating to
forbidden degrees and the other canonical impediments, it was felt,
ought to be remedied. But there was much divergence of opinion
as to the "exact content of the reform needed and even as to the
principle which ought to be followed. Should simply a return be
made to the Mosaic or to the Roman law?" Or should the canon law be
retained with certain modifications?[1233] All were agreed that the
hindrance of spiritual kinship must be absolutely abandoned; and
there was a tendency to allow intermarriage within the third degree
of affinity and consanguinity.[1234] But there was much diversity
in legislation and judicial practice, the rules of the Levitical
code being followed with varied interpretations.[1235] By the old
Protestant law and doctrine, as well as by the rule of the mother
church, _disparitas cultus_, or difference of religious faith, was
regarded as an impediment to wedlock. Marriages between Christians
and non-Christians were positively forbidden.[1236] In like spirit,
unions between adherents of different Christian confessions were
either entirely prohibited or else severely discouraged.[1237] Such
intolerance was sure to produce the natural bitter fruit; and the
controversy over these "mixed marriages" has perpetuated itself to
our own times.[1238]
[1230] For example see BULLINGER, _Der christ.
Ehestand_, lvs. 3 ff.; MELANCHTHON, "De conjugio,"
_Opera_, I, pars ii, 221, 222; MENTZER, _De
conjugio tr._, 1 ff.; FORSTER, _De nuptiis_, 1 ff.;
SARCERIUS, _Vom heil. Ehestande_, foll. 1-12; _idem_,
_Corpus juris mat._, foll. 1-11. Compare the sentiments of
ERASMUS, _De matrimonio christiano_, 2 ff., _passim_.
[1231] RICHTER, _Beiträge zur Gesch. des
Ehescheidungsrechts_, 46 ff.; FORSTER, _De nuptiis_, 44.
[1232] See the "Bedencken" and the other documents in the
case in ARCUARIUS, _Betrachtung_, 210 ff., 220 ff.
Consult GOTTLIEB WARMUND (JOHANN LYSER?),
_Gewissenhaffte Gedancken vom Ehestande_, first six pages; and
the literature mentioned in Bibliographical Note IX.
[1233] SCHEURL, "Zur Lehre von dem Ehehindernisse der
Verwandtschaft," _ZKR._, XVI, 1-34, giving a clear account of the
Protestant doctrine and its relation to the canon law. Compare
his _Das gemeine deutsche Eherecht_, 183 ff., 195 ff.
For Luther's views on impediments, including the forbidden
degrees, consult the collection of writings in STRAMPFF,
215 ff., 228 ff.; and compare ERASMUS, _De mat.
christ._, 94 ff., 100 ff.; MELANCHTHON, "De
conjugio," _Opera_, I, pars ii, 223 ff.; _idem_, "De arbore
consang.," in SARCERIUS, _Vom heil. Ehestande_,
foll. 12 ff.; BULLINGER, _Der christ. Ehestand_,
lvs. 16 ff.; or the same in SARCERIUS, _op. cit._,
foll. 44 ff.; SCHNEIDEWIN, _De nuptiis_, tit. x,
"De arbore affinitas," secs. 1-23; BEUST, _Tr. de
spons. et mat._, 23, 24, 225 ff.; KLING, _Tr. mat.
caus._, 43-58; BIDEMBACH, _De causis mat. tr._, 37
ff.; MENTZER, _De conjugio tr._, 60 ff., 70 ff.;
BROUWER, _De jure connub._, 435 ff., 444 ff., 461 ff.
[1234] See the Dresden resolutions of 1653 in
SCHLEUSNER, "Zu den Anfängen protest. Eherechts,"
_ZKG._, VI, 411, 412; also in MEJER, "Zur Gesch. des
ält. protest. Eherechts," _ZKR._, XVI, 36, 37; _idem_, _Zum
Kirchenrecht_, 147-71.
[1235] RICHTER, _Lehrbuch_, 1089; FRIEDBERG,
_Lehrbuch_, 296-336; _idem_, "Beiträge zur Geschichte des
brand.-preuss. Eherechts," _ZKR._, VI, 90-135, particularly 129
ff.; _idem_, "Aus der protest. Eherechtspflege des 16. Jahrh.,"
_ibid._, IV, 304-49, discussing the case of Zaschwitz and
communicating important documents of Melanchthon which disclose
his liberal views regarding affinity. The church ordinances
regarding impediments are analyzed by GOESCHEN,
_Doctrina de mat._, 9 ff., 30 ff. Compare his article "Ehe," in
HERZOG'S _Encyclopaedie_, III, 674-80.
[1236] Luther, however, was more tolerant, refusing to accept
difference of religion as a proper hindrance to marriage: see the
passages collected by STRAMPFF, 282, 283. On the other
hand, MELANCHTHON, "De conjugio," _Opera_, I, pars ii,
235, 236, disapproved of such unions. Compare ERASMUS,
_De mat. christ._, 108, 109. The law was gradually relaxed,
especially in favor of intermarriage with Jews, and it is now
abrogated under the imperial legislation: RICHTER,
_Lehrbuch_, 1110, 1111; SCHEURL, _Das gemeine deutsche
Eherecht_, 218, 219; _idem_, _Kirchenrecht. Abhandlungen_, 521;
FRIEDBERG AND WASSERSCHLEBEN, "Zwei Gutachten," _ZKG._,
IX.
[1237] Thus, according to _Des Herzogthums Wirtemberg erneuerte
Ehe- und Ehe-Gerichts-Ordnung_ (1687), 96-99, mixed marriages are
not absolutely prohibited; but the parties are to be "dehortirt;"
the peril to their souls is to be pointed out; a special order
procured for the nuptials; while the evangelical party is to be
admonished to have the marriage celebrated in some evangelical
place abroad, to frequent the orthodox services and sacraments,
and to have the future children brought up in the orthodox
religion.
[1238] SCHEURL, _Das gemeine deutsche Eherecht_, 219-21;
RICHTER, _Lehrbuch_, 1201 ff., 1207 ff., especially nn.
28, 30, 32, 45; SCHOTT, _Einleit. in das Eherecht_, 123,
124.
In general for the controversy regarding mixed marriages see the
literature described in Bibliographical Note IX.
In England as well as in Germany the law and judicature of the
church rested on the sanction of the state.[1239] This is the
fundamental fact in the history of the English revolt from Rome.
But, owing to the peculiar circumstances of that revolt, the
investiture of the king with the headship of the church was
very unfortunate. Henry VIII. clung to the old doctrines. A
stumbling-block was thus placed in the way of intellectual and
spiritual progress which in the end cost a second revolution
to remove. The effects of this unlucky settlement are plainly
discernible in the ecclesiastical conception of marriage. If the
teachings of the fathers of the English church[1240] be examined
for the period between the death of Wolsey and the death of
Elizabeth, it will be found that they are less bold, showing more
of the spirit of compromise with the mediæval doctrines, than are
those of Luther and his immediate followers on the continent. Not
a single clear voice, apparently, is raised for civil marriage.
Technically matrimony as a sacrament is rejected by all,[1241]
though its sacramental nature was first definitely denied by the
church in the Thirty-nine Articles of 1552.[1242] It is, however,
something more than a mere civil status. It is, declares Fulke,
"nothing else but a devilish slander to say that we 'esteem it but
in respect of the flesh, or for a civil contract.'"[1243] Tyndale
calls matrimony "a similitude of the kingdom of heaven;"[1244] and
in general it is held to be a holy institution, "ordained by God
himself in Paradise."[1245] It represents the union of Christ and
the church;[1246] and it is "pure," "dignified," and "honorable" for
all men.[1247] Hence the natural and scriptural right of priests to
marry is vindicated;[1248] and, following St. Paul, the forbidding
of them to marry is called a "doctrine of devils."[1249]
[1239] In Germany, at the Reformation, matrimonial jurisdiction
fell partly into the hands of the parish clergy, partly into the
hands of secular judges. The former in their decisions followed
mainly the Roman law and the scriptural teachings under the
guidance of Luther and other great theologians; while the lay
judges were guided by the _corpus juris canonici_. Confusion
arose; the law was carelessly and ignorantly administered; and so
a demand was made for special courts for matrimonial questions.
This resulted, generally, in the relegation of matrimonial
causes to the newly created consistories, composed partly
of spiritual and partly of temporal judges, who in practice
followed the principles of the canon law and constituted in fact
ecclesiastical courts. Compare the very interesting decisions of
the consistory court of Wittenberg, already quoted, beginning
soon after its formation, in SCHLEUSNER, _Anfänge des
prot. Eherechts_, 130-62. It can scarcely be said that the evils
of matrimonial law and administration in Germany were very
much lessened as a result of the Reformation during the first
two centuries after Luther. See the minute investigation of
FRIEDBERG, _Eheschliessung_, 177 ff., 186 ff.; and his
_Geschichte der Civilehe_. Compare the discussion of the rise of
matrimonial jurisdiction in chap. xi.
[1240] See the _Works of the Fathers and Early Writers of the
Reformed English Church_, published by the Parker Society in a
long series of volumes. There is an excellent index, six columns
of which are devoted to "marriage."
[1241] Matrimony is no sacrament, except in the general sense
of "mystery": CRANMER, _Misc. Writings_, 115, 116;
TYNDALE, _Doctrinal Treatises_, I, 254; _idem_, _Answer
to More_, 175; CALFHILL, _An Answer to John Martiall's
Treatise of the Cross_, 235 ff.; ROGERS, _The Catholic
Doc. of the Church of England, an Exposition of the Thirty-Nine
Articles_, 260 ff.; FULKE, _Answer_, 229, 243; _idem_,
_Defence against Gregory Martin_, 168, 492-96; JEWELL,
_Works_, II, 1125; WHITAKER, _Disputation on Holy
Scripture against the Papists_, 197, 489.
[1242] FRIEDBERG, _Eheschliessung_, 309 n. 1. "Henry the
VIII. stood so far upon the ground of the canonical doctrine that
before and after his breach with Leo X. he declared marriage to
be a sacrament."--_Ibid._
[1243] FULKE, _Defence against Gregory Martin_, 492.
[1244] TYNDALE, _Answer to More_, 175.
[1245] JEWELL, _Works_, II, 1128; LATIMER,
_Sermons and Remains_, 161, 162; HUTCHINSON, _Works_,
148; BECON, _Prayers_, 27, 611; BULLINGER,
_Decades_, I, 394, 397; BRADFORD, _Writings_, I, 167;
TYNDALE, _Doctrinal Treatises_, 254.
[1246] BULLINGER, _Decades_, I, 397; PHILPOT,
_Examinations and Writings_, 246; SANDYS, _Sermons_,
317, 313-30 (marriage in general); TYNDALE, _Doc.
Treatises_, 254; _idem_, _Answer to More_, 153, 154.
[1247] CALFHILL, _Answer_, 238-41; BULLINGER,
_Decades_, I, 394, 396; HOOPER, _Early Writings_, 375;
_idem_, _Later Writings_, 55; JEWELL, _Works_, I,
158; II, 1128; IV, 803; LATIMER, _Sermons_, I, 366,
393; _idem_, _Sermons and Remains_, 160, 162; SANDYS,
_Sermons_, 313, 314; TYNDALE, _Expositions_, 125.
[1248] Authorized by 2 and 3 Ed. VI., c. 21, 1549, which was
confirmed in 1552: CRANMER, _Misc. Writings_, p. x;
LATIMER, _Sermons_, 529 n. 3; _Zürich Letters_, II, 159;
_Statutes at Large_, II, 283, 305, 306.
[1249] LATIMER, _Sermons and Remains_, 77, 162;
HOOPER, _Early Writings_, 375; _idem_, _Later Writings_,
55, 56, 126; BULLINGER, _Decades_, IV, 509. _Cf._
ROGERS, _Thirty-Nine Articles_, 302-7; BECON,
_Prayers_, 235 ff.; COVERDALE, _Remains_, 483-85;
PILKINGTON, _Works_, 564; TYNDALE,
_Expositions_, 29, 151, 155, 156; _idem_, _Doc. Treatises_, 230;
JEWELL, _Works_, II, 882; III, 406; CRANMER,
_Misc. Writings_, 393 n. 5, also pp. viii, x. For many other
references see the Index to the Parker Society _Publications_, at
"Marriage of Clergy."
Still the new teaching did not at once find expression in the law of
the land. Under its influence, at the beginning of the Reformation,
some of the clergy, notably Archbishop Cranmer, married; but Henry
VIII. tenaciously clung to the doctrine of clerical celibacy and
issued several proclamations against the marriage of priests.[1250]
Thus in 1535 "his majestie understanding that a few number of this
his realme being priests, as well religious as other, have taken
wives, and married themselves," and not wishing the "generalitie of
the clergy" to follow their example, doth command all such priests
"as have attempted marriages" or shall "hereafter presumptuously
proceed in the same, that they nor any of them shall minister any
sacrament or other ministry mysticall, nor have any office, dignity,
cure, privilege, profitt or commoditye heretofore accustomed, and
belonging to the clergie of this realme, but shall utterly after
such marriages be expelled and deprived from the same, and be
had and reputed as lay persons, to all purposes and intents. And
that such as shall after this proclamation ... take wives, and be
married, shall run in his grace's indignation, and suffer further
punishment and imprisonment at his grace's will and pleasure."[1251]
Proclamations[1252] of like nature were later enacted; and finally
the six-articles law of 1539 provided that all marriages or
matrimonial contracts, made by priests or between a man and a woman
either of whom has vowed chastity, before or during "this present
parliament," shall "be utterly void and of none effect;" while any
future transgression is to be punished as felony.[1253] Nevertheless
Cranmer was allowed to retain his wife; and through his influence
the penalties prescribed by the six-articles act were somewhat
modified in 1540.[1254]
[1250] MAKOWER, _Const. Hist. Eng. Church_, 220-24,
gives an excellent discussion, with quotations from the sources,
of the laws relating to the marriage of priests from Henry VIII.
to James I.
[1251] WILKINS, _Concilia_, I, 776. Compare
MAKOWER, _op. cit._, 220 n. 17.
[1252] There were "similar proclamations of 16th November, 1538
(Strype, _Cranmer_, ed. 1812, I, 98) and of 1539 (Wilkins, III,
847). The proclamations had the force of law, as can be seen from
31 Hen. VIII. (1539), c. 8."--MAKOWER, _op. cit._, 221,
note. _Cf. Statutes at Large_, II, 143.
[1253] This statute (31 Hen. VIII., c. 14) may be found in
GEE AND HARDY, _Documents_, 303-19; an abstract in
MAKOWER, _op. cit._, 221 n. 19; and a summary in
_Statutes at Large_, II, 149. Compare the comments on the act
as showing matrimony "to have been a more grievous offence than
concubinage," in _New Monthly Review_, XXIX (1763), 270.
[1254] By 32 Hen. VIII., c. x: MAKOWER, _op. cit._, 221
n. 20.
Under Edward VI. the doctrine of the Reformation gained a victory.
The six-articles law was repealed in 1547.[1255] In the same year
the lower house of convocation prayed "that all provisions against
clerical marriages might be set aside and all vows of chastity
pronounced void."[1256] Accordingly by 2 and 3 Edward VI. (1548), c.
21, the obstacles to such unions were formally swept away on grounds
of expediency; though the act sanctions the ancient prejudice
by declaring that "it were not only better for the estimation
of priests, and other ministers in the Church of God, to live
chaste, sole, and separate from the company of women and the bond
of marriage, but also thereby they might the better intend to the
administration of the gospel, and be less intricated and troubled
with the charge of household, being free and unburdened from the
care and cost of finding wife and children, and that it were most
to be wished that they would willingly endeavour themselves to a
perpetual chastity."[1257] This clause was explained by the act of
5 and 6 Edward VI. (1551-52), c. 12, "as meaning not simply that
the marriages in question were exempt from punishment, but that
they were good and lawful marriages, the offspring of which were
legitimate and could inherit in the usual way, and that priests
might be tenants by courtesy on the death of their wives, and wives
endowable of their lands."[1258]
[1255] By 1 Ed. VI., c. 12 (1547): _Statutes at Large_, II, 256.
[1256] MAKOWER, _op. cit._, 222; _ap._ WILKINS,
_Concilia_, IV, 16. _Cf._ GEE AND HARDY, _Documents_,
366.
[1257] _Ibid._, 367: _Statutes at Large_, II, 283. On the
debates and controversial writings connected with this act see
BURNET, _Hist. of Reformation_, I, 354-58. By the
Injunctions of 1548, in the visitations inquiry is to be made
whether any "do condemn married priests, and for that they be
married will not receive the communion or other sacraments at
their hands."--CARDWELL, _Doc. Annals_, I, 51.
[1258] Summary of the statute by MAKOWER, _op. cit._,
222. _Cf. Statutes at Large_, II, 305; BURNET, _Hist.
of Reformation_, I, 432.
After the accession of Mary, a royal ordinance again prescribed
celibacy as the condition of holding priestly office.[1259] The
matrimonial laws of Edward's reign were repealed;[1260] and it
is significant of Elizabeth's conservative position on religious
questions that those enactments were not restored on her coming
to power. She was shocked at the marriage of priests and was very
reluctant to sanction it by statute. "The Queen's majesty," writes
Sandys to Parker in 1559, "will wink at it but not stablish it by
law, which is nothing else but to bastard our children;"[1261] and
two years later, according to Cecil, "her majesty continueth very
evil affected to the state of matrimony in the clergy. And if [I]
were not therein very stiff," she "would utterly and openly condemn
and forbid it."[1262] Yet already by her first Injunctions, 1559,
she had grudgingly given her consent to clerical marriage, though
it was hampered by severe conditions. "It is thought therefore very
necessary, that no manner of priest or deacon shall hereafter take
to his wife any manner of woman without the advice and allowance
first had upon good examination by the bishop of the same diocese,
and two justices of the peace of the same shire, dwelling next to
the place, where the same woman hath made her most abode before
her marriage; nor without the good will of the parents of the said
woman, if she have any living, or two of the next of her kinsfolk,
or, for lack of knowledge of such, of her master or mistress, where
she serveth." If "any shall do otherwise," he is forbidden to
administer either the "word" or the "sacraments," and is declared
incapable of "any ecclesiastical benefice." The marriage of a bishop
is allowed only on approval of the "metropolitan of the province"
and of "such commissioners" as the queen may appoint; while the
master, dean, or head of a college must obtain the consent of those
to whom the right of visitation belongs, who shall provide that the
marriage "tend not to the hindrance of their house."[1263] Two years
later "the queen further ordained that, upon pain of forfeiting
his office, no head or member of any college or cathedral church
should have his wife or other woman within the precincts,"[1264]
and "in the thirty-nine articles of 1563 the marriage of the clergy
was recognized as permissible."[1265] Still throughout the reign
of Elizabeth, apparently, clerical marriages continued to be
resisted; for "in the _Millenary Petition_ addressed by the Puritans
to James I. at his accession, among other requests was one for
the restoration of the laws of Edward VI. as to the marriage of
priests.[1266] That restoration and, consequently, the repeal of the
obstructing act of Mary were accomplished" in 1603.[1267]
[1259] See the "Articles of Queen Mary, 4th March, 1553,"
in CARDWELL, _Doc. Ann._, I, 112, 113; also
MAKOWER, _op. cit._, 222 n. 26. Such married priests,
"after deprivation of their benefice, or ecclesiastical
promotion," are to "be also divorced every one from his said
woman, and due punishment otherwise taken for the offence
therein." But the bishops are to "use more lenity and clemency
with such as have married, whose wives be dead, than with others
whose women do yet remain alive;" as also with those who, with
their wife's consent, in the bishop's presence, promise to
"abstain." _Cf._ BURNET, _Hist. of Reformation_, I, 490,
who says "many were set to write against the marriage of the
clergy."
[1260] See 1 Mary, stat. 2, c. 2, 1553: GEE AND HARDY,
_Documents_, 377-80.
[1261] PARKER'S _Correspondence_, 66.
[1262] _Ibid._ (Cecil to Parker, Aug. 12, 1561), 148. Parker
replies: "I was in an horror to hear such words to come from her
mild nature and christianly learned conscience, as she spoke
concerning God's holy ordinance and institution of matrimony;"
and he complains that she holds that the English clergy "alone
of our time" are "openly brought in hatred, shamed and traduced
before the malicious and ignorant people, as beasts without
knowledge to Godward, in using this liberty of his word, as men
of effrenate intemperancy.... Insomuch that the Queen's Highness
expressed to me a repentance that we were thus appointed in
office, wishing it had been otherwise."--_Correspondence_, 156,
157. Marriage of priests was defended by COX, _ibid._,
151.
[1263] GEE AND HARDY, _Documents_, 431, 432;
PROTHERO, _Statutes and Documents_, 184 ff.;
CARDWELL, _Doc. Ann._, I, 192, 193; MAKOWER,
_op. cit._, 223 n. 27; BURNET, _Hist. of Reformation_,
I, 577. These regulations of marriage are mentioned by
PERCIVAL WIBURN in _Zürich Letters_, II, 359.
_Cf. ibid._, II, 61 n. 129; I, 164, 179, 358. Compare the
hostile "Articles of Visitation" of Bishop Bonner, 1554:
CARDWELL, _op. cit._, I, 125, 126; and compare _ibid._,
153, 171, 172.
[1264] MAKOWER, _op. cit._, 223 n. 28;
CARDWELL, _Doc. Ann._, I, 273.
[1265] See the extract from the thirty-second article in
MAKOWER, _op. cit._, 223 n. 29.
[1266] MAKOWER, _op. cit._, 223, 71. The _Millenary
Petition_ is in GEE AND HARDY, _Documents_, 508-11;
PROTHERO, _Statutes and Documents_, 413-16; according to
Makower, in PERRY, _Hist. Eng. Church_, II, 372, c. 22,
notes and illustrations; COLLIER, _Eccles. Hist._, ed.
1852, VII, 273.
[1267] By 1 James I., c. 25, sec. 8: PROTHERO, _Statutes
and Documents_, 255; _Statutes at Large_, II, 640. _Cf._
MAKOWER, _op. cit._, 224.
In fact, the primitive ascetic ideal was by no means utterly extinct
among the Protestant theologians of the Tudor period. Some, like
Latimer, Fulke, and Hutchinson, insist that matrimony is inferior
to virginity;[1268] and very generally it is still held to be
ordained of heaven, especially as a "remedy" for sin, though more
worthy motives are admitted. According to Bradford, God "has made
womankind, and ordained the state of matrimony," "not only for
the help and community of man, but also for a remedy of man's
infirmity."[1269] Bullinger assigns the usual three reasons "for
which God hath ordained marriage for men to embrace." The "first
cause why wedlock was instituted is man's commodity, that thereby
the life of man might be the pleasanter and more commodious; for
Adam seemed not to live half happily nor sweetly enough, unless he
had a wife to join himself unto; which wife is not in the scriptures
called an impediment or necessary evil, as certain poets and beastly
men who hated women have foolishly jangled."[1270] The "second
cause is the begetting of children for the preservation of mankind;"
and the third is to provide a safeguard against the weakness of the
flesh.[1271]
[1268] "But when thou livest godly and honestly in single
life, it is well and allowable afore God; yea, and better
than marriage."--LATIMER, _Sermons_, 393, 394. _Cf._
FULKE, _Answers_, 228, 383; _idem_, _Defence_, 492;
HUTCHINSON, _Works_, 148; see also CARTWRIGHT,
in WHITGIFT'S _Works_, III, 293. But see the curious
passage in TYNDALE'S _Doctrinal Treatises_, 21, which
should be compared with his argument against the doctrine that
"widowhood and virginity exceed matrimony," _ibid._, 313-15.
[1269] BRADFORD, _Writings_, I, 167.
[1270] BULLINGER quotes in favor of marriage the
views of ANTIPATER, _In sermone de nuptiis_, and
HIEROCLES, _De nuptiis_.
[1271] BULLINGER, _Decades_, I, 394-410. The three
reasons are also given by SANDYS, _Sermons_, 316
ff.; and JAMES I., "Basilikon Doron," _Workes_
(London, 1616), 171. On marriage as a "remedy" _cf._ also
CRANMER, _Misc. Writings_, 115, 116; TYNDALE,
_Expositions_, 125; HOOPER, _Early Writings_, 381;
BECON, _Catechism_, 103.
Thus the change effected by the religious revolution in the
conception of marriage, highly important as it was from a
speculative point of view, was not destined to bear its proper fruit
until after many days. In Germany, after a time, the bolder and more
liberal teachings of Luther were generally ignored; so that by the
middle of the seventeenth century the reactionary theories which had
then gained ascendency were substantially in harmony with the ideas
of the English clergy. In both countries the ecclesiastical courts
still continued to try matrimonial causes in the spirit of the canon
law; and more and more, as the new churches grew in power and became
conservative, did the theological view of the nature of marriage
approach the ancient dogma. "According to the canon law, the church
claimed matrimonial jurisdiction because marriage was a sacrament;
by the Protestants marriage was made almost a sacrament because the
church exercised matrimonial jurisdiction."[1272] Not until the full
triumph of civil marriage in the nineteenth century were the logical
results of the new doctrines at last attained.
[1272] FRIEDBERG, _Eheschliessung_, 192.
III. CHILD-MARRIAGES IN THE AGE OF ELIZABETH
Seldom has a more vivid light been thrown on social conditions
than that afforded for the age of Elizabeth by the depositions
taken in the bishop's court of the diocese of Chester, 1561-66,
and edited for the Early English Text Society by Furnivall in
1897. Their value for the student is enhanced by the very lively
"forewords" of the learned and enthusiastic editor. The evils
naturally flowing from the law and doctrine of espousals are here
realistically disclosed in the "trothplights" and the similar cases
of "clandestine marriages."[1273] There is the usual juggling with
the words of the present or future tense; and the usual puzzling
over conditions and irregular phrases. For the basest of motives
girls are tricked into vows which may or may not prove to be valid
marriages according to the uncertain interpretation of the words or
acts of betrothal sworn to in court. "Ten of the seventeen cases"
of trothplight, says Furnivall, "show us men trying to sneak out of
their contracts when they've had their fill of pleasure with the
women."[1274] Needy and unscrupulous priests, worthy predecessors
of the notorious Fleet parsons, without banns or license, are
seen "solemnizing" the nuptials "accordinge to the book of Common
prayer," in a private house, in a meadow, or on the "heighe waie,"
during "the night season" and "by the lighte of the moone."[1275]
[1273] For the trothplights and clandestine contracts see
FURNIVALL, _Child-Marriages_, xliii-liii, lxii, lxiii,
56-71, 140, 141, 184-202. CHAMBERLAIN, _The Child
and Childhood in Folk-Thought_, 224-33, has made good use of
Furnivall's collection.
[1274] FURNIVALL, _op. cit._, xliii.
[1275] _Ibid._, 140, 141. Further light is thrown on the secret
marriages by the cases of adultery and affiliation: _ibid._,
72-102, 202-204.
The astonishing prevalence of child-marriages is, however, the
most important fact revealed by these documents.[1276] In a
single diocese during the short space of six years, besides three
"ratifications," occurred twenty-eight cases of so-called divorce
or voidance of contracts which were formed in infancy or early
childhood. The age of the persons varies from two to thirteen
years; and in at least ten cases the girl is older than the boy.
It should also be observed that these thirty-one contracts are
merely those brought before the court for confirmation or annulment
after at least one of the parties has reached the age of puberty,
which by the canon law is fixed at twelve for females and fourteen
for males. It is, of course, proper to assume that the number of
child-marriages which never thus came up for settlement was very
much larger than the number of those which did so arise. What the
number for all England may have been during the period, it is
startling to contemplate! Moreover, the majority of these marriages
took place, not among the rich or noble, but among common people
of small means. In a number of instances we are told in the record
that the infant bride or bridegroom was carried before the priest
in someone's arms. Thus, in a case which arose in 1564, a witness
deposes that "he was present bie, when John Somerforth and Jane
Brerton were maried together in the parish church of Brerton about
xij yeres ago ... that he carried the said John in his armes, beinge
at tyme of the said Mariage about iij yeres of age, and spake somme
of the wordes of Matrimonye, that the said John, bie reason of his
younge age, cold not speake hym self, holdinge him in his armes
all the while the wordes of Matrimonie were in speakinge. And one
James Holford caried the said Jane in his armes, beinge at the said
tyme about ij yeres of age, and spake all, or the most parte of,
the wordes of matrimony for her." Being further "required whether
the said marriage was euer ratified bie carnall Copulacion or other
meane, Answereth that, in his Conscience, it was neuer." Another
witness testified to the same facts and added, "it was the youngest
Mariage that euer he was at."[1277]
[1276] _Ibid._, xv-xliii, 1-55, 183, 184. In addition to these
Chester cases FURNIVALL (xxi-xliii) presents very
interesting material regarding child-marriages, some of which
were before or after the age of Elizabeth. Two cases under Henry
VII. and Henry VIII., respectively, are mentioned in _Reports
of the Hist. Manuscripts Commission_, III, 247. Sometimes such
marriages were secured by abduction or conspiracy: see _ibid._,
III, 55, 59, 61 (three cases in the reign of James I.).
[1277] FURNIVALL, _op. cit._, 25, 28.
Looked at from a religious point of view, it would be hard to
imagine a more absurd travesty of "holy wedlock" than such
proceedings conducted by the parish priest.[1278] Nor was there much
sentiment involved in the matter. If the great folk betrothed their
children while babes to escape the king's right of wardship, the
small folk were influenced by like motives on a smaller scale. "If
the parent of either child is mercenary," summarizes Furnivall, "a
money-bargain is made for it: the father of a boy of two, gets from
an older girl's father, 'monie to bie a pece of land,' and executes
a Bond to repay the money if his boy doesn't marry the girl (pp.
6-9). In another case, the boy's father is in debt, 'and to get
somme money of William Whitfield, to the discharge of his debtes,
maried and bargained his sonne to the said Whitfeildes doughter'
(pp. 23, 24). Again, a girl of 3 or 4 is married to a boy of 7
'biecause her frendes thought she shuld have had a lyvinge bie hym'
(p. 4), and her father-in-law is under Bond to marry them (p. 5).
So again, a girl's father says that she married a boy of her own
age, 11-12 'biecause she shold have had bie hym a prety bargane,
yf they cold have lovid, on the other' (p. 12). Another girl of
11 is married to a boy of 9, because, on her father's death, the
boy's father gets the landlord's leave to take-on the girl's house
(p. 10). Another girl of 8 is married to a boy of 10, because the
boy's father feard 'lest he shuld lose his parte of his lyvinge' in
a tenement which he held in common with the girl's protector (p.
14). In another instance, the girl's grandfather 'was a very welthie
man; and it was supposed that he wold have bene good vnto' her & her
boy-husband, 'and bestowid somme good ferme apon her' (p. 32), so a
boy of 12 married her when she was 10. Other children are married
'bie the compulsion of their frendes' (pp. 11, 13, 23 &c.); another
'by a wile' (p. 16), the girl being invited by a relation of the
boy's to come and make merry, and then married to the boy against
her consent. But in one case, a girl arranged her own marriage.
She was 'a bigge damsell & mariageable' (p. 47), that is, past 12,
and evidently fancying a nice boy of 10-11, 'intised hym with two
Apples, to go with her to Colne, and to marry her' (p. 45). No
wonder that this boy 'repentid' next morning, and that others say
'at the tyme of their mariage they knewe not what they did' (p.
15)."[1279]
[1278] In the light of these facts, some of the discussions of
child-marriages in India, often intolerant or condescending, have
a very curious interest; compare the sensible and instructive
paper of REES, "Meddling with Hindu Marriages,"
_Nineteenth Century_, Oct., 1890, 660-76.
[1279] FURNIVALL, _op. cit._, "Forewords," xv, xvi.
According to SWINBURNE, _Of Spousals_, 18 ff., both
by civil and canon law, children are infants until they have
completed the seventh year; and "Spousals contracted during
Infancy are utterly _void_, whether the Infants themselves, or
their Parents for them, do make the Contract." After the close
of that period such void contracts may be ratified by express
words or by deeds. On the other hand, spousals contracted
between infancy and the "ripe" years of twelve or fourteen are
voidable by either spouse when that age is reached. To express
dissent divorce proceedings are not necessary, although a divorce
may be desirable to prevent future question. Either party may
cancel the contract by simply marrying another person; just as a
child-marriage may be ratified by words of consent or by simply
living together as husband and wife: compare FURNIVALL,
_op. cit._, xix-xxv; and _The Lawes Resolutions of Womens
Rights_, 7, 52, 57.