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]
The change in matrimonial jurisdiction effected by this measure of the Commonwealth has a twofold significance. Not only is judicial authority thus vested in civil rather than spiritual tribunals; but it is placed in the hands of local judges. It is an illustration of the democratic or decentralizing tendency which marks the legislation of the seventeenth-century Puritans on both sides of the Atlantic. It was, moreover, natural that the county magistrates should be vested with these new functions. In the exercise of their general peace authority they had already performed duties not wholly dissimilar to some of those called for under the act. In certain instances, before as well as after the reign of Cromwell, one may be surprised to find the justices exercising a sort of jurisdiction in cases of alleged breach of promise. "Forasmuch," declare the magistrates of Devon in 1626, "as it hath apeared unto this court that Bridget Howsley of Langton, spinster, liveth idly and lewdly at home, not betaking herself to any honest course of life, and hath lately falsely and scandalously accused" a certain man of Honiton, "challenging a promise of marriage from him, which tended much to his disgrace, and that she is a continual brawler and sower of strife and debate between neighbors;" therefore it is ordered that the said Bridget "be forthwith committed to the House of Correction there to be set on work and remain for the space of six whole months," and thereafter until she find good sureties or a "master that will take her into service."[1316] Here the justices may have acted merely as peace officers, though it is plain that as a precedent their sentence is far-reaching in its consequences. As late as 1835 we find the magistrates at Exeter, following the principle of the Roman law, "obliging a faithless swain to return a damsel's watch, and the latter to return half the value of a broach" which he had given her.[1317]
In no respect is the essential "modernness" of Cromwell's marriage act more strikingly shown than in its provisions to secure publicity, with a safe and perfect record. Nothing so wise and practical in this regard was again seen in England until the law of 1836. It is provided that in each parish a register of marriages, births, and deaths shall be elected for three years by the contributors to the poor rate. The register is to be an "able and honest person," such "as shall be sworn and approved" by a justice of the peace, who is to enter the fact of election and qualification in the register book of the parish;[1318] and he is removable either by the justice or by the parish with the justice's consent. A "Book of good Vellum or Parchment" is to be provided by each parish, in which it is the duty of the register to enter all marriages, births, and burials of "all sorts of people."[1319]