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]
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.
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]
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]
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]
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]
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]
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]
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.
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]
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]
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]
[Bibliographical Note X.—The beginning of the Puritan conception of marriage as a civil contract is best seen in Whitgift's "Defence of the Answer," Works (Parker Society, Cambridge, 1851-53), comprising Cartwright's Reply to the Answer, as well as extracts from the Answer itself, and from the original Admonition of 1572 which gave rise to the whole controversy. The views of the Independents, when fully developed, find their fullest expression in the writings of Milton on marriage and divorce, constituting, besides scattered allusions, Vol. III of his Prose Works (Bohn ed., London, 1888); the Likeliest Means to remove Hirelings out of the Church, and the version of Bucer's De regno Christi, entitled The Judgment of Martin Bucer, being of special interest in this connection. For the early period some useful material is afforded by Prothero's Statutes and Constitutional Documents (Oxford, 1894); Brereton's Travels in Holland, 1634-35: "Chetham Society Publications," Vol. I; Hallam's Constitutional History (New York, 1880); and Ranke's England in the Seventeenth Century (Oxford, 1875).
The act of 1653 is contained in Scobell's Collection of Acts and Ordinances, 1640-1656 (London, 1658); and in the contemporary newspaper entitled Several Proceedings of Parliament, No. 6; but, like all the acts of the revolutionary period, it is omitted in every edition of the Statutes at Large. Original material for a study of the administration of this law may be found in the parish registers covering the interregnum edited by Bulwer, Parish Registers of St. Martin-cum-Gregory in the City of York, Part IV (York, 1895); Cowper, The Booke of Register of the Parish of St. Peter in Canterbury (Canterbury, 1888); Parish Registers of Ellough, Suffolk (privately printed, 1886); Hoveden, The Register Booke ... of the Cathedral and Metropoliticall Church ... of Canterburie (Harleian Society, London, 1878); Margerison, The Registers of the Parish Church of Calverley, in the West Riding of ... York (Bradford, 1880-87); Moore, Registers of Broad Chalke, County Wilts (London, 1880); Phillimore, Gloustershire Parish Registers (London, 1896); Radcliffe, The Parish Registers of St. Chad, Saddlworth in County of York (Uppermill, 1887); Sanders, The Parish Registers of Eastham, Cheshire (London, 1891); idem, The Parish Registers of Bebington, County Chester (Liverpool, 1897); Stavert, The Parish Registers of Burnsall-in-Craven (Skipton, 1893); and Turner, The Non-Conformist Register (Brighouse, 1881). There is an interesting table in Graunt's Natural and Political Observations (Oxford, 1665); and examples of marriage certificates and other records under the act of 1653 may be found in The Register Booke of Inglebye iuxta Grenhow (Canterbury, 1889); Burn's Parish Registers; Friedberg's Eheschliessung; Notes and Queries (London, 1850 ff.); and the Gentleman's Magazine (London, 1731 ff.). The two periodicals just mentioned, like the Monthly Review (London, 1749 ff.), contain a great deal of matter—curious antiquities as well as serious discussion—relative to Fleet marriages, the Hardwicke act, and other phases of the subject. Inderwick's Interregnum (London, 1891) has an instructive discussion of some questions connected with the marriage act; and like Jenk's Constitutional Experiments (Cambridge, 1890) it is valuable for appreciating the legislation of the Commonwealth. Lathbury's History of the Book of Common Prayer (Oxford and London, 1859) describes the operation of the act; and some cases noted in Jeaffreson's Middlesex County Records (London, n. d.) prove the need of the safeguard against abduction or fraud afforded by the act; and there are a number of useful documents in the Reports of the Historical Manuscripts Commission. Illustrations of the ridicule called out by banns in the market-place and the justices' celebration may be found in Butler's Hudibras (Boston, 1864), and Flecknoe's Diarium (London, 1656).
On the Fleet and Mayfair celebrations Burn's now very scarce Fleet Marriages (2d ed., London, 1834) is the chief authority. It is supplemented by his Parish Registers; and these books as well as the original sources have been used for Friedberg's excellent account in the Eheschliessung, which on this topic and the whole ground covered by the present chapter is a trustworthy guide. A famous contemporary book is Brady's Some Considerations upon Clandestine Marriages (2d ed., London, 1750). There is an article by Ewald, "Fleet Marriages," in his Paper and Parchment (London, 1890); and Waters's excellent Parish Registers (new ed., London, 1883) is more reliable than the similar work of Burn. Fleet marriages are also discussed, with interesting extracts from the contemporary newspapers, by Tegg, The Knot Tied (London, 1877); Ashton, The Fleet (London, 1889); and Jeaffreson, Brides and Bridals (London, 1872), whose book, like Brand's Observations on the Popular Antiquities of Great Britain (London, 1873-77), contains a mass of information relating to every phase of marriage customs. On these marriages and on the Hardwicke act see also Horace Walpole's Letters (London, 1880); and Lecky, History of England in the 18th Century (New York, 1879).
Many illustrations of matrimonial usage and folklore may be found in Howlett, "Marriage Customs," in Andrews's Curious Church Customs (London, 1895); Edgar, "Marriage in Olden Times," in his Old Church Life in Scotland (London, 1886); Vaux, "Marriage Customs," in his Church Folklore (London, 1894); Ashton, Social Life in the Reign of Queen Anne (London, 1882); and Hutchinson, Chronicles of Gretna Green (London, 1844). In England as well as in Germany the question of polygamy was much debated. A version of Ochino was brought out by Garfeild, A Dialogue of Polygamy (London, 1657). This was followed by the anonymous Concubinage and Polygamy Disproved (London, 1698); Turner, Discourse on Fornication with an Appendix on Concubinage (London, 1698); Delany, Reflections upon Polygamy (London, 1737), opposing the practice; Hamilton, A Treatise on Polygamy proving it to be the Will of God (Dublin, 1786); especially the notorious work of Madan, Thelyphthora; or a Treatise on Female Ruin (2d ed., London, 1781); answered by Towers, Polygamy Unscriptural; or two Dialogues between Philalethes and Monogamus (London, 1780); by Hill, The Blessings of Polygamy (London, 1781); and more elaborately by Cookson, Thoughts on Polygamy (Winchester, 1782). See also Dwight, The Hebrew Wife (Glasgow, 1837); and Colenzo, A Letter to the Archbishop of Canterbury (Cambridge, 1862).
The development of contemporary sentiment and opinion may be traced in The Lawes Resolutions of Womens Rights (London, 1632); Courtin, A Treatise of Jealousie (London, 1684); Salmon, A Critical Essay Concerning Marriage (London, 1724); De Foe, Religious Courtship (London, 1729); Astell's sensible and liberal Reflections upon Marriage (4th ed., London, 1730); the critical and vigorous Hardships of the English Laws in Relation to Wives (London, 1735); Dove, Dissertations on Marriage, Celibacy, etc. (1769); Giles, A Treatise on Marriage (London, 1771); the anonymous Considerations on the Causes of the present Stagnation of Matrimony (London, 1772), alleging the unreasonable authority of parents; The Laws respecting Women, as they regard their Natural Rights (London, 1777); Wollstonecraft, A Vindication of the Rights of Men (London, 1790); her more celebrated A Vindication of the Rights of Woman (London, 1792); Jay, Essay on Marriage, or the duty of Christians to marry Religiously (2d ed., Bath, 1807); Observations on the Marriage Laws (London, 1815); Thompson, Marriage: Two Sermons (London, 1837); and Wardell-Yerburgh (ed.), Marriage Addresses and Marriage Hymns (London and New York, 1900). For the socialistic marriage doctrines of Robert Owen and others see Bibliographical Note XVIII.
For the debates on the act of 1753 see Cobbett, Parliamentary History, XV; the lively comments of Horace Walpole in his Letters; and the same writer's account of the proceedings in his Memoirs of the Reign of George the Second (2d ed., London, 1847). The act is harshly criticised by Madan; and among the writings which it called forth are Considerations on the Bill for preventing Clandestine Marriages (London, 1753); Fry, Considerations on the Act to prevent Clandestine Marriages (London, 1754); Merrick, Marriage a Divine Institution (London, 1754), approving the conservative views of Stebbing, An Enquiry into the Force and Operation of the Annulling Clauses (London, 1754); idem, A Dissertation on the Power of States to deny Civil Protection to the Marriage of Minors (London, 1755); both papers being criticised by Sayer, A Vindication of the Power of Society to Annull the Marriage of Minors (London, 1755). The acts of 1753 and 1836 are noticed also by Mahon, History of England (New York, 1849); Knight, History of England (New York, 1880); Lecky, Democracy and Liberty (New York, 1896); and Spencer Walpole, History of England (London, 1890).
On the existing law as developed since 1753, especially the acts of 1836, the Parliamentary History and the Parliamentary Debates are of course necessary; and for this topic, as well as for the entire chapter, the Statutes at Large are in constant requisition. There are contemporary notices of the acts of 1823 and 1836 in the Annual Register, LXV and LXXVIII; while the sources have been carefully examined by Oppenheim in his valuable monograph, "Ueber die Einführung der Civil-Ehe in England," in ZKR., I (Berlin, 1861). The temper and arguments with which the efforts to secure justice were opposed are disclosed in A Letter to the ... Earl of Liverpool (London, 1827) by a "Presbyter of the Church of England;" Le Geyt, Observations on the Bill now before Parliament (London, 1827); and Griffin-Stonestreet, Nuptiæ Sacræ: Objections to the Amended Unitarian Marriage Bill (London, 1828). See further Phillimore, Substance of the Speech ... on moving ... to amend the Marriage Act (2d ed., London, 1822); and Lawton's edition of The Marriage Act, 4 Geo. IV., c. 76 (London, 1823); Beard, Notes on Lord John Russell's Marriage Bill (London, 1834); and in particular the "Report of the Royal Commission on the Laws of Marriage," in British Documents, 1867-68, XXXII (London, 1868). Of service also are Cooke, A Report of the Case of Horner against Liddiard, Consistorial Court of London, 1799 (London, 1800); Poynter, Doctrine and Practice of the Ecclesiastical Courts in Doctors Commons (London, 1822); Robertson, The Law of Legitimation by Subsequent Marriage (London, 1829); Moodie, Principles, Changes, and Improvements in the Law of Marriage (London, 1849); Wilks, Present Law of Banns a Railroad to Marriage (London, 1864), with which may be compared Ewen, Proclamation of Banns in Scotland (Edinburgh, 1877).
The best short technical treatises on the English marriage laws as a whole are Hammick's The Marriage Law (London, 1887); Geary's Marriage and Family Relations (London, 1892); Ernst's Treatise on Marriage and Divorce (London, 1879); and the concise discussions in Brett's excellent Commentaries on the Laws of England (London, 1891). Of some service also is Tegg's popular book, The Knot Tied, already mentioned; and the compact manual of Moore, How to Be Married (London, 1890), is convenient for ready reference. Useful likewise in this study are the works of Blackstone, Toulmin Smith, Bishop, Evans, Fischel, Burn (Ecclesiastical Laws), Bohn (Political Cyclopædia), all of which have been mentioned in preceding Notes; as well as Campbell, Chancellors (4th ed., London, 1856-57); Howell, State Trials (London, 1809-28); Molesworth, History of England (London, 1877); May, Constitutional History (New York, 1880); Taswell-Langmead, Constitutional History (London, 1880); Green, English People (New York, 1880); and the valuable article on "Marriage" by Robertson in the Encyclopædia Britannica, XV.]
It was not until the middle of the seventeenth century that the ideas of the early German[1280] Reformation relating to the temporal nature of marriage gained ascendancy in England, and then only for the brief period of the Commonwealth. Yet the civil-marriage act of 1653 is of extraordinary historical interest, not only as an example of the statesmanship of Cromwell, so often anticipating the reforms of our own age, but especially as being mainly the result of the revolt of the Puritans, more particularly of the Independents, against the unnatural union of church and state produced by the compromise of the sixteenth century, and of their intense hatred of the formalism and ceremonial of the "Romanizing" party in the established church. The act is of special significance for our present purpose, since it reveals the conceptions which shaped the matrimonial laws of New England. Paradoxical as it may at first glance appear, it cannot be doubted that the first establishment of obligatory civil marriage in England owes its origin chiefly to the desire of an intensely religious party to separate all things worldly from the functions of the clergy and the church.[1281] True, a foreign people, closely related by blood and speech, with whom England had long had intimate relations and to whom the Puritans were drawn through sympathy with their heroic resistance to ecclesiastical oppression, had already provided a model, which may have had a certain influence. For in the Netherlands, on April 1, 1580, after the independence from Spain had been declared, the provinces of Holland and West Friesland had established a civil-marriage form, permissively even for the members of the Reformed church; and in principle this was adopted by the States General for the United Provinces in 1656, three years after the appearance of the English statute under consideration.[1282]
Familiar as many Englishmen probably were with Dutch institutions,[1283] and close as had been the relations of Dutch and English Puritans,[1284] so important an event as the introduction of civil marriage can hardly be due primarily to imitation. Though Holland may have provided a model, it must be essentially the product of English religious history. Already in the reign of Elizabeth there are signs of discontent with the established ritual and with the quasi-sacramental character of marriage as conceived by the Anglican clergy. Especially obnoxious to the Protestant non-conformists, as appears from the well-known controversy between Whitgift and Thomas Cartwright, leader of the English Presbyterian party, are the use of the ring, the "worshipping" of the bride by the bridegroom, requiring the newly married pair to partake of the communion, and certain customs popularly connected with the wedding celebration, but not enjoined by the liturgy. "As for matrimony," runs a passage in the celebrated Admonition to the Parliament, published in 1572, "that also hath corruptions, too many. It was wont to be counted a sacrament; and therefore they use yet a sacramental sign, to which they attribute the virtue of wedlock, I mean the wedding-ring, which they foully abuse and dally withal, in taking it up and laying it down: in putting it on they abuse the name of the Trinity, they make the new-married man, according to the popish form, to make an idol of his wife, saying 'with this ring I thee wed, with my body I thee worship,' etc. And because in popery no holy action may be done without a mass, they enjoin the married persons to receive the communion (as they do their bishops and priests when they are made), etc. Other petty things out of the book we speak not of, as that women, contrary to the rule of the apostle, come, and are suffered to come, bareheaded, with bagpipes and fiddlers before them, to disturb the congregation, and that they must come in at the great door of the church, else all is marred [with divers other heathenish toys in sundry countries, as carrying of wheat-sheaves on their heads, and casting of corn, with a number of such like, whereby they make rather a May-game of marriage than a holy institution of God]."[1285]
In his Answer to the Admonition Whitgift denies that the ring is looked upon as a "sacramental sign," and admits that "it is not material" whether it "be used or not;" while he quotes with approval Bucer's opinion[1286] that the "ceremony is very profitable, if the people be made to understand what is thereby signified, as that the ring and other things, first laid upon the book, and afterward by the minister given to the bridegroom to be delivered to the bride, do signify that we ought to offer all that we have to God before we use them, and to acknowledge that we receive them at his hand to be used to his glory. The putting of the ring upon the fourth finger of the woman's left hand, to which, as it is said there cometh a sinew or string from the heart, doth signify that the heart of the wife ought to be united to her husband; and the roundness of the ring doth signify that the wife ought to be joined to her husband with a perpetual band of love, as the ring itself is without end." Cartwright in his Reply declares that "if it be M. Bucer's judgment which is alleged here for the ring, I see that sometimes Homer sleepeth. For, first of all, I have shewed that it is not lawful to institute new signs and sacraments. And, then, it is dangerous to do it, especially in this which confirmeth the false and popish opinion of a sacrament." Next he ridicules Bucer for his "fond allegories" touching the ring, and thinks that having "the minister to preach upon these toys" savoureth not of his learning and sharpness of judgment.[1287] Whitgift, however, further defends the practice on the score of "convenience" and because it is "void of all manner of superstition."[1288] Moreover, he sustains the requirement of communion, again quoting Bucer in its favor; accuses Cartwright of weak argument and of trying to make "schism in the church" by bringing forward popular customs, "mere trifles" not sanctioned by the "book" which is the real object of his attack; and rightly points out that "worship" implies not idolatry, since it signifies merely to "honor" and not to "adore" according to the more modern devotional sense.[1289] Indeed, it is historically instructive that already in the sixteenth century the original meaning of "worship" should have passed out of common use.
But the attack of the sixteenth-century reformers was not directed solely against the ceremonies and phrases of the marriage ritual. A bold step was taken toward civil marriage when resistance was made to ecclesiastical jurisdiction in matrimonial causes on the ground that these belong to the temporal judge. On this subject Cartwright has a characteristic passage, disclosing his usual ignorance of history and his confusion of mind—of which Whitgift does not fail to take advantage—but nevertheless revealing plainly enough the new ideas which more and more came to the front during the Puritan revolution. "Another thing," he says, "is that in these courts (which they call spiritual) they take the knowledge of matters which are mere civil, thereby not only perverting the order which God hath appointed in severing the civil causes from the ecclesiastical, but justling also with the civil magistrate, and thrusting him from the jurisdiction which appertaineth unto him, as the causes of the contracts of marriage, of divorce, of wills and testaments, with divers other such like things. For, although it appertain to the church and the gouvernors thereof to shew out of the word of God which is a lawful contract or just cause of divorce, and so forth, yet the judicial determination and definitive sentences of all these do appertain unto the civil magistrate. Hereunto may be added, that all their punishments almost are penalties of money, which can by no means appertain to the church, but is a thing merely civil."[1290]
So far as England is concerned, to assign the unfortunate "severing the civil causes from the ecclesiastical" under William the Conqueror to the "order which God hath appointed" may seem to the historical student a trifle bold; and Whitgift may well retort, if "'it pertain to the church to declare what is a lawful contract, and which be the just causes of divorce,' by what reason can you prove 'that the judicial determination and definitive sentence of those matters doth pertain to the civil magistrate only'? For is not he most meet to judge in these causes which best understandeth them?" But Whitgift himself undoubtedly begs the question when he advances the counter-statement that the civil magistrate already has authority in ecclesiastical cases, since "all jurisdiction that any court in England hath or doth exercise, be it civil or ecclesiastical," is "executed in her majesty's name and right," and comes "from her as supreme governor," so that in effect "we" make no "such distinction betwixt civil and ecclesiastical causes as the pope and you do;"[1291] for this very blending of church and state under the "defender of the faith" is really the root of the whole matter in controversy. Yet Cartwright represents a good cause, however lame his defense of it may be. Again returning to the charge, in effect he attacks the notorious character[1292] of the spiritual courts themselves, referring to the "unfitness of those which are chief officers" in them; for "the most" of these officials, he affirms, "are either papists, or bribers, or drunkards (I know what I write), or epicures, and such as live of benefices and prebends in England and in Ireland, doing nothing of those things which appertain unto them."[1293] Dilatory action in matrimonial causes was a standing grievance against the spiritual courts; and many "lamentable complaints and petitions" for redress, especially in cases where "summary hearing and speedy relief" are necessary, were addressed to the privy council. For this reason, in 1613, complaints from wives alleging desertion, cruel treatment, or "breach of the bonds of holy wedlock" on the part of their husbands were relegated to the High Commission for settlement.[1294]
But adding to the powers of the "Ecclesiastical Star Chamber" would scarcely be regarded by the Puritans as even a satisfactory palliation for such a grievance. The policy of the Stuarts tended swiftly to mold their opinions into organized resistance; and the marriage question became at last one of the cardinal issues in the reform program. Thus in the "Millenary Petition" of 1603 the Puritan ministers, while objecting to the "cross in baptism," the "cap and surplice," profanation of the Lord's day, "double-beneficed men," "popish opinions," and "longsomeness of service," pray also for the reversal of "divers popish canons," such "as the restraint of marriage at certain times;" for greater caution in granting "licenses for marriage without banns;" and for the correction of "divers terms of priests and absolution and some other used, with the ring in marriage, and other such like in the book."[1295] On the other hand, if the Puritan loathed the so-called "popish" tendencies of the established church, as these became more and more pronounced under the rule of Laud, both the Puritan and the Anglican united in merciless persecution of the adherents of Rome. The act of 1606, "to prevent and avoid dangers which may grow by Popish recusants," is one of the most barbarous of those which for ages disgraced the English statute book. By this law a "popish recusant convict," or a man whose wife alone is convicted of recusancy, is forbidden to "exercise any public office in the commonwealth," except "such husband himself and his children ... above the age of nine years abiding with him and his servants in household shall once every month at the least, not having any reasonable excuse to the contrary, repair to some church or chapel" of the establishment and "there hear divine service;" and unless, with his children and servants of meet age, he receives the sacrament of the Lord's Supper when required by law, and "bring up his children in the true religion." Every married woman convicted of recusancy, her husband not being so convicted, who shall not "conform herself ... by the space of one whole year next before the death of her said husband, shall forfeit to the King's Majesty ... the issues and profits of two parts of her jointure and two parts of her dower, ... and also be disabled to be executrix or administratrix" of her husband, "and to have ... any part of his goods and chattels." Any child[1296] sent abroad without the king's license, to prevent his "good education in England or for any other cause," may have "no benefit by any gift, conveyance, descent, devise or otherwise of any lands ... goods or chattels," until he reach the age of eighteen or more, when, as a condition of recovering his property, he must take an iron-clad oath of allegiance[1297] and partake of the sacrament. In the meantime—and here a broad way was opened up for fraud and wickedness—all the rights mentioned are to pass to the "next of kin which shall be no Popish recusant." Moreover, this infamous statute imposes harsh penalties upon every recusant who shall hereafter be "married otherwise than according to the orders of the Church of England by a minister lawfully authorized." The man is "utterly disabled to have any estate of freehold in any the lands ... of his wife as a tenant by curtesy of England," or in case she have no lands he must forfeit a hundred pounds. The woman is not only disabled from claiming her dower or jointure, but is also denied her "widow's estate and frank-bank in any customary lands whereof her husband died seized," as well as any part of her husband's goods "by virtue of any custom." Should a child be born to them, it must within a month be baptized in open church according to Anglican rites, under penalty of one hundred pounds for refusal.[1298] In all other essential features during the first two Stuart reigns the law of espousals and marriage remained the same as during the age of Elizabeth.[1299] After Laud gained control there was a strong tendency to accent those parts of the nuptial ceremonial which gave offense to the Puritans.[1300] The civil war brought all this to an end; and "on January 3, 1644-5, a few days before the execution of Archbishop Laud, the Directory was by a solemn ordinance substituted for the Book of Common Prayer." But the form prescribed in the latter remained valid, "although the celebrant was liable to a fine of £5 for not using the form inserted in the Directory of Public Worship. Still many people clung to the ancient service, and amongst others Stephen Marshall the Preacher, who had a chief hand in compiling the Directory, deliberately made use of the Prayer Book in marrying his own daughter, when he paid down to the churchwardens the legal fine which he had incurred."[1301]
With the triumph of Cromwell the hour had come for realization of the new ideals. The act of 1653, though marking the end of a century of religious controversy in which not a little of bigotry and fanaticism on both sides is mingled, and though passed by the much-abused "Barebone's Parliament,"[1302] is nevertheless a measure wise and clear, resting on principles which two centuries and a half of subsequent history have fully sanctioned. For, like so much of the legislation and experimentation of the period, it is anticipatory of the best reforms of the present age. With remarkable clearness and brevity, but with adequate fulness of detail, the form of celebration, the exercise of matrimonial jurisdiction, and the machinery of administration are provided for.[1303]
An obligatory civil ceremony before a justice of the peace is prescribed. After due publication of banns, with a proper certificate thereof obtained from the parish register, the persons to be married are to come before "some justice of peace within and of the same county, city, or town corporate" where publication was made. If either of them is under the age of twenty-one, "sufficient proof of the consent of their parents or guardians" must be presented. The magistrate is required to "examine by witness upon oath, or otherwise ... concerning the truth of the certificate, and due performance of all the premises;" and he is also to take cognizance of any "exceptions" to the marriage "made or arising." If "no reasonable cause to the contrary" appear, "the marriage shall proceed in this manner: The man to be married, taking the woman to be married by the hand, shall plainly and distinctly pronounce these words:
'I A. B. do here in the presence of God the Searcher of all Hearts, take thee C. D. for my wedded wife; and do also in the presence of God, and before these witnesses, promise to be unto thee a Loving and Faithful Husband.'" The woman in like manner taking the man by the hand accepts him for her husband, promising to be his "Loving, Faithful, and Obedient Wife."
The ceremony thus consists merely in the expression of mutual consent, accompanied by the interlocking of hands, the old handfasting; but the use of the ring is not permitted.[1304] All legal requirements being satisfied, the justice pronounces the parties husband and wife; and their simple declaration, as above given, is to be taken "as to the form of marriage" to be "good and effective in law; and no other marriage whatsoever within the Commonwealth," after September 29, 1653, "shall be held or accompted a marriage according to the Laws of England."[1305] But this restriction was omitted when the act was confirmed in 1656.[1306]
In thorough harmony with the doctrine that marriage is a "worldly thing" is the provision of this act depriving the clergy of jurisdiction in matrimonial causes and placing it in the hands of the justices of the peace. It is provided that all "matters and controversies touching contracts and marriages, and the lawfulness and unlawfulness thereof; and all exceptions against contracts and marriages, and the distribution of forfeiture within this act, shall be in the power, and referred to the determination of the justices of peace in each county, city, or town corporate, at the general quarter sessions," or to such "other persons" as the "parliament shall hereafter appoint." All offenses against the act committed on or beyond the sea are in like manner to be tried in the places where the offenders are taken. Jurisdiction in cases of divorce is not, however, mentioned in this act; nor was any provision made for the trial of such causes during the Commonwealth. Indeed, a strong religious prejudice still survived against divorce, even among the Independents. "Thus," says Mr. Inderwick, "while on the one hand they treated marriage as a civil contract, on the other they gave to it all the inviolability of a sacrament, an inconsistency which is, however, to be found in many other acts of this period. The Jewish law, to which they much adhered, provided for and regulated divorces. They were recognized by most Protestant communities, and Milton, oppressed by his own domestic difficulties, had written powerfully on the subject, but through all the minutes of the various parliaments and councils of state I find, what I conceive to be somewhat surprising, no trace of any proposal to introduce into England any system of divorce. And, indeed, the prejudice against divorce appears to have been so strong that the laxity of the Jews in this respect was found in 1655 to be one of the strongest arguments against their proposed admission to the rights of citizenship."[1307] Nor is there any clear provision for the determination of cases of separation and alimony; although the consistory and other ecclesiastical courts having been abolished, these questions in practice were managed by "delegates appointed by the Commissioners of the Great Seal[1308] or by justices of the peace in quarter sessions—a course which would seem to have been the reasonable outcome" of the civil marriage act.[1309] On similar grounds the county justices probably dealt with "matrimonial squabbles," though in one case at least the intervention of the Council of State was sought.[1310]
On the other hand, the act of 1653 grants authority to the justices in cases of the marriage of minors through fraud or forcible abduction. According to Inderwick, the attempt to check this abuse was entirely novel. The Commonwealth, he says, "interfered in a manner[1311] hitherto unknown for the protection of women from those forcible abductions and marriages which were but too common under the former and later reigns of the Stuarts. Fraudulent marriages, induced by needy men or intriguing women, formed the common staple of the plays and interludes which the puritans so heartily condemned. In these comedies, while the unhappy father or deluded guardian was not infrequently the subject of mirth or of contempt, the lucky intriguer was made the hero of the play. From this species of offense, carried from the play-house into private life,[1312] the middle class peculiarly suffered, and while the wealthy merchant or the prosperous tradesman had to endure as best he might the entrapping of his daughter or the abduction of his ward, the gay cavalier or dashing spark who carried her off was the lion of the hour. Of this phase of society the puritan party had long and loudly proclaimed their horror and detestation, and the Commonwealth was not long installed before an occasion arose which enabled them to give practical effect to their expressed opinions." This was the case of the forcible abduction of Jane Pickering, "who was the only daughter and heiress of Sir Thomas Pickering, knight and baronet, deceased." While "walking in Greenwich Park with her maids in October of 1649, she was seized by one Joseph Walsh and his companions" and transported to Flanders; "after which Walsh asserted a marriage to have taken place between them and was prepared to claim his pecuniary rights as her husband." The Council of State took speedy action. The lady was eventually brought back to England. Under authority of an act of Parliament,[1313] the case was tried in 1651 by a special court consisting of delegates appointed by the Lords Commissioners of the Great Seal; "and it is to be presumed that she had judgment in her favour, and her marriage set aside;" for subsequently an "indictment of felony was found against Walsh and his companions."[1314] Accordingly the marriage act declares that if anyone by violence or fraud steal or cause to be stolen any person under the age of twenty-one years, "with intent to marry the said person," the offender shall forfeit his whole estate, one-half to the Commonwealth and one-half to the aggrieved, and besides "suffer strict and close imprisonment, and be kept to hard labor ... during life." Severe punishment likewise is prescribed for those aiding or abetting the crime; and any guardian or overseer who shall abuse his trust "by seducing, selling, or otherwise wilfully" promoting the marriage of his ward with another without such ward's free consent "shall forfeit double the portion which of right" belongs to the child.[1315]