A History of Matrimonial Institutions, Vol. 1 of 3

by George Elliott Howard

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]

II. AS TO THE NATURE OF MARRIAGE

In its practical results, therefore, the Reformation had little effect on law and theory as to the form of wedlock. For England it had no significance at all; and the same is true of Germany, except so far as Luther's view of the sponsalia may have found some expression in legislation and judicial decree. With respect to the nature of marriage the case is very different. The dogma of its sacramental character was abandoned throughout the Protestant world.[1214] In its place a new conception arose; and it is very instructive to trace the process of change in the mind of Luther himself.[1215] As late as 1519 he declares that "the marriage state is a sacrament," an outward "symbol of the greatest, holiest, noblest, most worthy thing that has ever existed or can exist: the union of the divine and human natures in Christ;"[1216] and this symbol he explains entirely in harmony with the "dogmatism of the Middle Ages, notably that of St. Thomas Aquinas, who sought the motive of marriage sacrament in legalization of the sensual impulse."[1217] In the very next year, however, and again in 1539, he expresses himself decisively against the ancient Catholic doctrine.[1218] Nevertheless in his various attempts to define the matrimonial state an apparent contradiction is presented which is hard to reconcile, and which is of great significance in the long struggle for the instituting of civil marriage. On the one hand, though not technically a sacrament, marriage is described as holy, a "most spiritual" status, "ordained and founded" by God himself. It is the source of domestic and public government, the foundation of human society, which without it would "fall to pieces."[1219] So holy is the state of matrimony, in Luther's conception, that he must perforce still use the term "sacrament" to convey his meaning.[1220] On the other hand, his writings contain passages of a very different tenor. "So many lands, so many customs, runs the common saying. Therefore since weddings and matrimony are a temporal business, it becomes us clerks and servants of the church to order or rule nothing therein, but to leave to each city and state its own usages and customs in this regard."[1221] Elsewhere, in words which anticipate the sentiment of Milton by a hundred years, he insists that "matrimonial questions do not touch the conscience, but belong to the temporal power," warning the clergy not to meddle with them unless commanded by that authority.[1222] Marriage, he emphatically declares, is a "temporal, worldly thing" which "does not concern the church."[1223]

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]