Many similar proofs may be found in the plays and ballads of the sixteenth and seventeenth centuries.
The separation of the temporal and spiritual courts and the tenacity with which early custom and theory were preserved in the common law[1114] render the history of matrimonial judicature anomalous in England. The leading case occurs in the reign of Stephen. "Richard de Anesty's memorable law-suit[1115] was the outcome of a divorce pronounced in 1143 under the authority of a papal rescript, and one that to all appearance illustrated what was to be a characteristic doctrine of the canon law: a marriage solemnly celebrated in church, a marriage of which a child had been born, was set aside as null in favour of an earlier marriage constituted by a mere exchange of consenting words."[1116] By the time of Henry II. this doctrine was completely established in England, as shown by the famous decretal epistle of Alexander III. to the bishop of Norwich: "A strong case is put. On the one hand stands the bare consent per verba de praesenti, unhallowed and unconsummated, on the other a solemn and a consummated union. The latter must yield to the former."[1117] Such remained the law of England until the passage of the Hardwicke act in 1753.[1118]
The perils arising in the canonical theory of espousals were greatly increased by the doctrine of impediments to marriage, particularly those growing out of forbidden degrees of affinity, consanguinity, and spiritual relationship.[1119] "Reckless of mundane consequences, the church while she treated marriage as a formless contract, multiplied impediments which made the formation of a valid marriage a matter of chance."[1120] The stringency of the law in this regard appears to be entirely inconsistent with the theory that marriage should be encouraged. But doubtless the apparent contradiction is due largely to the same ideas which shaped that theory. The Fathers dreaded the sins of the flesh through which the sacramental nature of marriage might be defiled;[1121] and they may have felt a reaction against the freedom of the German custom touching the marriage of blood kindred.[1122]
The development of the law of forbidden degrees, through the doctrines of the early Christian teachers and a long series of conciliar decrees, cannot here be described. In the thirteenth century the various rules were codified by the schoolmen under fifteen heads; "and their code has been accepted and acted upon by the greater part of western Christendom down to the present day."[1123] For a time prohibition was extended to the seventh degree of consanguinity, counting, as did the canonists, in the collateral line, from the common ancestor and not through the same according to the Roman method.[1124] A distinction, however, was made. Kinship in the sixth or seventh degree was held to be only "impedimentum impediens, a reason for a refusal to solemnize a marriage, not impedimentum dirimens, a cause which would render a marriage null;" and this doctrine was "received in England as well as elsewhere."[1125] At the Lateran council of 1215 Innocent III. adopted the rule that "marriages within the fourth degree of consanguinity are forbidden and null."[1126] But the doctrines of the church touching affinity and relationship did not therefore cease to perplex the courts, molest the happiness of individuals, and threaten the tranquillity of nations.[1127] In England the perennial "deceased wife's sister" bill, the stubborn resistance to which has so long attested the amazing tenacity of theological prejudice, has not even yet successfully run the gauntlet of the House of Lords.[1128]
The relation of the temporal to the spiritual courts in the administration of English matrimonial law was anomalous.[1129] Strictly speaking, there was no lay jurisdiction whatever with regard to the genuineness of marriage. Only the ecclesiastical judge could determine whether a valid marriage existed.[1130] In such a case the jury could not "declare the right." The question was referred to the spiritual court for decision. On the other hand, the law tribunal, without aid of the spiritual judge, could say whether or not there was a de facto marriage as opposed to a marriage de jure. The jury could determine, in a possessory action, whether there had been a public ceremony in face of the church. This was a decisive proof; for the mere fact of living together as husband and wife was not always conclusive.[1131] "If a man and woman have gone through the ceremony of marriage at the church door, we may say that we have here a de facto marriage, a union which stands to a valid marriage in somewhat the same relation as that in which possession stands to ownership. On the other hand, if there has been no ceremony, we cannot in the thirteenth century say that there is a de facto marriage; mere concubinage, especially among the clergy, is far too common to allow us to presume a marriage wherever there is a long-continued cohabitation. But a religious ceremony is a different thing; it is definite and public; we can trust the jurors to know all about it; we can make it the basis of our judgments whenever the validity of the union has not been put in issue in such a fashion that the decision of an ecclesiastical court must be awaited."[1132]
The practical application of this doctrine appears in the two cases of divorce and inheritance. Here the temporal courts tried indirectly to put a check upon clandestine marriages, to remedy the evils resulting from the scholastic dogma that mere consent secretly expressed in words of the present tense constitutes a valid marriage, by making the acquisition of certain property rights depend upon the publicity of the espousals.[1133] The widow could not receive her dower unless it had been publicly assigned at the nuptials before the church door.[1134] "The result is curious, for at first sight the lay tribunal seems to be rigidly requiring a religious ceremony which in the eyes of the church is unessential.... We soon see, however, that what our justices are demanding is, not a religious rite nor 'the presence of an ordained clergyman,' but publicity.... Marriages contracted elsewhere may be valid enough, but only at the church door can a bride be endowed. There is a special reason for this requirement. The common-law contrast to the church-door marriage is the death-bed marriage.[1135] At the instance of the priest and with the fear of death before him, the sinner 'makes an honest woman' of his mistress. This may do well enough for the church, and may, one hopes, profit his soul in another world, but it must give no rights in English soil."[1136] So also with regard to inheritance, in certain cases,[1137] the lay court made the rights of children depend upon public solemnization of the nuptials, thus adopting the canonical theory of "putative marriages."[1138] Although there may be no valid marriage on account of the existence of certain impediments, such as too near kinship, the children are nevertheless legitimate if the nuptials were publicly celebrated at the church door, and if at least one of the parents, at the time the children were begotten, was "ignorant of the fact which constituted the impediment." They are entitled to inheritance, though the parents are not really husband and wife. On this point in the thirteenth century church and state were at one;[1139] but later a less liberal doctrine was adopted by the secular tribunals. "The ultimate theory of the English lawyers took no heed of good or bad faith, and made the legitimacy of the children depend on the fact that their parents while living were never divorced."[1140]
The refusal of the church to prescribe a proper age condition for those entering matrimony led, as might be expected, to child marriages; and in this case the rules of the English common law only tended to magnify the evil. By the canonists the age of consent to marriage was fixed at seven years.[1141] Thereafter a marriage formed without consent of parent or guardian, and even in opposition to it, was held to be legal; but it was "voidable so long as either of the parties to it was below the age at which it could be consummated. A presumption fixed this age at fourteen years for boys and twelve years for girls. In case only one of the parties was below that age, the marriage could be avoided by that party but was binding on the other. So far as we can see, this doctrine was accepted by our temporal courts."[1142] By the teaching of the common lawyers a widow of nine years of age at her husband's death could claim dower, though the marriage would have been voidable by her at the age of puberty.[1143] The English temporal courts appear to have disregarded the canonical rule that a marriage is absolutely void when formed below the age of seven. "Coke tells us that the nine years old widow shall have her dower 'of what age soever her husband be, albeit he were but four years old,' and certain it is that the betrothal of babies was not consistently treated as a nullity. In Henry III.'s day marriage between a boy of four or five years and a girl who was no older seems capable of ratification, and as a matter of fact parents and guardians often betrothed, or attempted to betroth, children who were less than seven years old. Even the church could say no more than that babies in the cradle were not to be given in marriage, except under the pressure of some urgent need."[1144] For such infant marriages, however, there were two practical motives during the Middle Ages. In England, just as in India and often among lower races,[1145] the betrothal or espousal of very young children was a means of peaceful treaty or alliance; and the "rigour" of the feudal law was also in this way avoided.[1146] "As deaths were early in those days, and wardship frequent, a father sought by early marriage of his son or daughter to dispose of their hands in his lifetime, instead of leaving them to be dealt out to hungry courtiers who only sought to make as large a profit as they could from the marriage of the wards they had bought for that purpose;"[1147] and the lord's right of marriage might in like manner be defeated by conferring knighthood upon a son in tender years.[1148] Even as late as the age of the Tudors "much immorality resulted from the child marriages which were common in fashionable life."[1149]
Without doubt the wrong and confusion arising in the ecclesiastical theory and definition of marriage were manifold,h3 and they were patent to every observer. At the Council of Trent it was asserted that some action to put a check upon clandestine marriages was demanded by all the temporal powers;[1150] and the provincial church councils, aided by state legislation, had done what they could by imposing; penalties to remedy the abuse.[1151] Nevertheless, strange as it may seem to one not acquainted with the devious logic of scholastic theology, many members of the Council of Trent, on dogmatic grounds, were stubbornly opposed to the only reform which experience showed could be effective. They affirmed that severer discipline would suffice. They apologized for clandestine marriages on the pretext that they are sometimes useful, even necessary; or they denied that to declare them null would prove an efficient remedy.[1152]
Hence we are better able to appreciate at its true value the significance for the Catholic world of the victory gained by the common-sense of the majority. It was a victory in favor of that publicity which the state demanded. Indeed, the church had already done something, in spite of dogma, to change marriage from a private to a public transaction. Her collision with the state, her anomalous position with respect to social order, was involuntary. She was caught, as it were, in the meshes of her own philosophy. Yet in the interest of morality she strove to secure publicity. The priest at the nuptials, declares Sohm, "appears first of all as a public person."[1153] In particular the church tried to gain publicity for marriage by the institution of banns. The custom of publishing banns seems first to have made its appearance in France, probably as early as the fifth century.[1154] It is enforced by the capitulary of 802, which gains its real significance from this fact, and not from the mention of the priestly benediction.[1155] From France it gradually made its way into other countries of Europe. Thus in the year 1200, as already noted, banns were enforced by Archbishop Walter; and they were first made a general requirement by Innocent III. at the fourth Lateran council in 1215.[1156] Later the English archbishops found it necessary from time to time to impose more stringent penalties for neglect of the proper publication of banns;[1157] and they were enforced, without making the publication essential to a valid marriage, by the Council of Trent. From the twelfth century onward the marriage rituals contain directions for the asking and publication of banns;[1158] while the punishment of persons guilty of violating the canons in this regard gave much employment to the spiritual courts during the Middle Ages.[1159]
The institution of banns has a special historical interest as being in some sense the mediæval substitute for the modern registration and official license to wed. The practice was to announce the marriage, usually on three successive Sundays preceding the nuptials, that any objection on the ground of relationship or other disability might be brought forward. But the decrees of the church were not carefully enforced. Dispensation from the obligation to publish banns was the right of the bishop, but his license was usually granted only in favor of the nobility and higher classes; and the right constituted an important source of revenue.[1160]
The year 1538 marks an important epoch in the administration of English matrimonial law. It was then, according to the researches of Burn, that parish registers of births, deaths, and marriages were first introduced; although before this time it had been customary in some places to inscribe such records in the missals and psalters of the church.[1161] The first article of the injunctions issued by Thomas Cromwell, vice-regent under Henry VIII., provided: "Item, That you and every parson, vicar, or curate within this Diocese, for every Church keep one Book or Register, wherein he shall write the day and year of every Wedding, Christening, and Burial, made within your parish for your time, and so every man succeeding you likewise, and also there insert every person's name, that shall be so wedded, christened, and buried. And for the safe keeping of the same Book the parish shall be bound to provide of their common charges one sure coffer, with two locks and keys, whereof the one to remain with you, and the other with the Wardens of every parish wherein the said Book shall be laid up, which Book ye shall every Sunday take forth, and in the presence of the said Wardens or one of them, write and record in the same, all the Weddings, Christenings, and Burials made the whole week afore, and that done, to lay up the Book in the said coffer as afore; and for every time that the same shall be omitted, the party that shall be in the fault thereof, shall forfeit to the said Church iijs. iiijd. to be employed on the reparation of the said Church."[1162]
Thus in this, the most ancient English registration act, the parson or incumbent appears as the original registrar; and that the importance of keeping such record was keenly appreciated is shown by the anxious, almost painful, minuteness with which his duties are defined. The order of Henry VIII. was enforced or supplemented under Edward VI., Elizabeth, William III., and other monarchs; but, save during the Commonwealth, no material change was made in the mode of registration until in 1836 the present system was introduced.[1163]
[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).]
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]
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]
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]
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]
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]
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]
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]
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]
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]
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]