[1238] Scheurl, Das gemeine deutsche Eherecht, 219-21; Richter, Lehrbuch, 1201 ff., 1207 ff., especially nn. 28, 30, 32, 45; Schott, Einleit. in das Eherecht, 123, 124.
In general for the controversy regarding mixed marriages see the literature described in Bibliographical Note IX.
[1239] In Germany, at the Reformation, matrimonial jurisdiction fell partly into the hands of the parish clergy, partly into the hands of secular judges. The former in their decisions followed mainly the Roman law and the scriptural teachings under the guidance of Luther and other great theologians; while the lay judges were guided by the corpus juris canonici. Confusion arose; the law was carelessly and ignorantly administered; and so a demand was made for special courts for matrimonial questions. This resulted, generally, in the relegation of matrimonial causes to the newly created consistories, composed partly of spiritual and partly of temporal judges, who in practice followed the principles of the canon law and constituted in fact ecclesiastical courts. Compare the very interesting decisions of the consistory court of Wittenberg, already quoted, beginning soon after its formation, in Schleusner, Anfänge des prot. Eherechts, 130-62. It can scarcely be said that the evils of matrimonial law and administration in Germany were very much lessened as a result of the Reformation during the first two centuries after Luther. See the minute investigation of Friedberg, Eheschliessung, 177 ff., 186 ff.; and his Geschichte der Civilehe. Compare the discussion of the rise of matrimonial jurisdiction in chap. xi.
[1240] See the Works of the Fathers and Early Writers of the Reformed English Church, published by the Parker Society in a long series of volumes. There is an excellent index, six columns of which are devoted to "marriage."
[1241] Matrimony is no sacrament, except in the general sense of "mystery": Cranmer, Misc. Writings, 115, 116; Tyndale, Doctrinal Treatises, I, 254; idem, Answer to More, 175; Calfhill, An Answer to John Martiall's Treatise of the Cross, 235 ff.; Rogers, The Catholic Doc. of the Church of England, an Exposition of the Thirty-Nine Articles, 260 ff.; Fulke, Answer, 229, 243; idem, Defence against Gregory Martin, 168, 492-96; Jewell, Works, II, 1125; Whitaker, Disputation on Holy Scripture against the Papists, 197, 489.
[1242] Friedberg, Eheschliessung, 309 n. 1. "Henry the VIII. stood so far upon the ground of the canonical doctrine that before and after his breach with Leo X. he declared marriage to be a sacrament."—Ibid.
[1243] Fulke, Defence against Gregory Martin, 492.
[1244] Tyndale, Answer to More, 175.
[1245] Jewell, Works, II, 1128; Latimer, Sermons and Remains, 161, 162; Hutchinson, Works, 148; Becon, Prayers, 27, 611; Bullinger, Decades, I, 394, 397; Bradford, Writings, I, 167; Tyndale, Doctrinal Treatises, 254.
[1246] Bullinger, Decades, I, 397; Philpot, Examinations and Writings, 246; Sandys, Sermons, 317, 313-30 (marriage in general); Tyndale, Doc. Treatises, 254; idem, Answer to More, 153, 154.