Chapter VIII (2)

[1082] "Ja, ich wüsste selbs nicht wol, wie ein Knecht oder Magd
sollten oder kunnten in deutscher Sprache _per verba de futuro_
sich veloben; denn wie man sich verlobet, so laut's _per verba de
praesenti_, und sonderliche weiss der Posel von solcher behender
Grammatica nichts, dass _accipio_ und _accipiam_ zweierlei
sei; er führet daher nach unserer Sprachen Art und spricht:
'Ich will Dich haben,' 'ich will Dich nehmen,' 'Du sollt mein
sein,' etc. Da ist die Stunde ja gesagt ohn weiter Aufzug oder
Bedenken."--LUTHER, "Von Ehesachen," _Werke_ (Erlangen
ed.), XXIII, 102, 103; also in _Bücher und Schriften_ (Jena,
1561), V, 240, 241; and in STRAMPFF, 318, 319. This
whole interesting passage, of which a portion is translated in
the text, is given by SOHM, _Eheschliessung_, 139; and
by FRIEDBERG, _Eheschliessung_, 206, 207. _Cf._ also
LUTHER'S _Tischreden_ (Frankfort ed., 1571), c. 36, p.
356. Luther's view is accepted by SCHEURL, _Das gemeine
deutsch. Eherecht_, 64; and SALIS, _Die Publikation des
trid. Rechts_, 3.

That German rustics were not the only lovers caught in the meshes of grammatical forms appears from the following passage written toward the close of the Tudor period by Swinburne, who nevertheless defends the canonical distinction, whether the contract be made in the Latin or in the vulgar tongue.[1083] After refuting, as he believes, the reasoning of those who hold that the forms "I will take thee to my wife" ("_Ego volo te accipere in uxorem_") and "I do take thee to my wife" ("_Ego accipio te in uxorem_") are equally a contract in the present tense, he proceeds to attack the argument "drawn from the Simplicity of the Vulgar sort, who albeit they intend to tye such a Knot as can never be loosed, and make the Contract so sure as it may never be dissolved; yet such is their unskilfulness and ignorance herein, that they cannot frame their words to their minds, nor know whether it be all one to say 'I will take thee to my wife' or 'I do take thee to my wife,' much less do they know the difference betwixt these words, 'I will marry thee' and 'I will have thee to my wife,' or betwixt these words, 'I will take thee to my wife' and 'I will hold thee for my wife,' or betwixt these words, 'I will espouse thee' and 'I will intreat thee as my wife,' or betwixt these words, 'I will Contract Matrimony with thee' and 'I will provide for thee as my Wife,' or betwixt these words, 'I will make thee my wife' and 'thou shalt be my Wife,' with an hundred such differences wherein appeareth no dissimilitude. And therefore, since it is the very Consent of Mind only which maketh Matrimony, we are to regard not their Words, but their Intents, not the formality of the Phrase, but the drift of their Determination, not the outward sound of their Lips, which cannot speak more cunningly, but the inward Harmony or Agreement of their Hearts, which mean uprightly." Otherwise, especially in case of people of the "ruder sort, whose Sayings are to be expounded with all favour to the furtherance of Matrimony," if "we shall curiously descant upon every word proceeding from a simple Conceit, we cannot but miss of their meanings, and with our fine and dainty Distinctions (which never came within the compass of their gross Understandings) incumber the Consciences of them which be coupled.... Lest therefore any Man's Conscience (through ignorance of Terms) might be intangled in the Snares of this subtle and more captious Distinction of 'I will' and 'I do' with the rest of the Differences more subtle and more captious, ... are the same to be rejected, and this reasonable and conscionable Conclusion received ... where two intend to Contract Spousals _de praesenti_, there is Matrimony always contracted, although the words import but future Consent only."[1084] Time has approved the soundness of this plea, in spite of the remonstrance of Swinburne and the logic of the worthy doctors whom he cites.

[1083] SWINBURNE, _Of Spousals_, 55-73, gives a most
interesting discussion of the verbal difficulties arising in
_sponsalia de praesenti vel futuro_, comparing the legal writers
for and against the distinction.

[1084] _Ibid._, 62 ff. _Cf._ JEAFFRESON, _Brides and
Bridals_, I, 114 ff., 124-37 (on "Pre-Contracts" before and after
the Reformation).

Scholastic hairsplitting had set a veritable trap for the feet of the unwary. "Of all people in the world lovers are the least likely to distinguish precisely between the present and the future tenses. In the Middle Ages marriages, or what looked like marriages, were exceedingly insecure. The union which had existed for many years between man and woman might with fatal ease be proved adulterous, and there would be hard swearing on both sides about 'I will' and 'I do.'"[1085] Accordingly the ecclesiastical courts were given a dangerous power[1086]--a perilous discretion in matrimonial causes, which, however wisely exercised, was sure to work much hardship and injustice. Since in substance espousals _de praesenti_ and _de futuro_ were identical, differing only in the consequences which the law attached to the tense form, it was inevitable that decisions should be arbitrary and wavering; and, as a matter of fact, practically the same form of contract was held at one time to constitute _sponsalia de praesenti_; at another, a promise _de futuro_;[1087] and the _Liber officialis_ of St. Andrews, Scotland, contains the record of a divorce granted from a second union because the man had already contracted a previous marriage in these words: "I promyth to yow Begis Abirnethy that I sall mary yow, and that I sall neuere haiff ane uther wiff and therto I giff yow my fayth." It is a striking illustration of the entanglements resulting from the canonical theory that this contract is styled in the record "_both sponsalia de futuro_ and _praesenti_."[1088] The worst of it was that the spiritual salvation or damnation of the man and woman, the genuineness of whose union was in question, depended upon the decision. The valid marriage was no less a sacrament, though dissolved through ignorance, error, or perjury; and the invalid marriage was no more a sacrament, though in the same way declared binding. For by a rule of the spiritual courts, in a suit growing out of a secret marriage, the plaintiff who affirmed the validity of the espousals, if the fact were denied by the defendant, had to prove his allegation. If he failed to do so--and this might easily happen, since often the espousals were formless and absolutely without witness[1089]--the case was dismissed, the contract dissolved, and the parties were free to form new marriages elsewhere. But if the secret marriage were after all really valid, and therefore a sacrament, though not sustained for lack of proof, the husband and wife were still bound in their consciences; and if either should form a second union with another person, though it were publicly solemnized in face of the church, he would be guilty of the sin of bigamy.[1090] To the existence of this cruel embarrassment Luther bears witness in a characteristic passage of his _Tischreden_.[1091] "Now the pope and the jurists say that marriage may never be dissolved. What happens? The wedded people fall out and separate. So they come to me in the cloister or wherever an official can be found and swear themselves apart; then they marry again. Thereafter they come to me or to some confessor and say: Dear sir, I have now a wife whom I espoused secretly. What am I to do about it? Help me, dear Doctor, lest I despair. For Greta whom I first married is my proper wife. But this Barbara whom I espoused later is not my wife, and yet must I not sleep with her? The former I dare not take, though I should like to have her if I could; but I cannot for I have another wife and she likewise has another husband; yet no one knows that she is my wife except God in heaven. O, I shall be damned, I know not what to do!"[1092] Luther's testimony is fully sustained by similar evidence afforded by the proceedings and decrees of the Council of Trent.[1093]

[1085] POLLOCK AND MAITLAND, _Hist. of Eng. Law_, II,
367.

The rule laid down by Anselm in 1102, already mentioned, really
invites such "hard swearing": "Promises of marriage made between
man and woman without witnesses" are to be "null if either party
deny them."--JOHNSON'S _Canons_, 11, 27. The following
is an example of what repeatedly happened in the ecclesiastical
courts: "_Omnium Sanctorum Honylane._--Thomas Potynger comparuit
coram comissario [of London] in domo officii xxii die
Augusti [1481], et prestitit juramentum, quod nunquam
contraxhit matrimonialiter cum Margareta Hudson de eadem,
ibidem presente, et confitente, quod nullum testem habuit ad
probandum contractum, et ideo commissarius remisit eos regulae
conscientiarum suarum."--HALE, _Precedents and Procds. in Crim.
Causes_, 5. For another example see _ibid._, 6.

[1086] They obtained a _Freibrief_, or license, for their
practice: SOHM, _Eheschliessung_, 138. _Cf._
FRIEDBERG, _Eheschliessung_, 16 ff., on the abuses of
matrimonial jurisdiction.

[1087] "The promise, se ducturum in conjugem, or one similar,
is conceived to be consensus de futuro in c. 5, 15, 17, 22x.
de sponsal. (4, 1); but as consensus de praesenti in c. 5x. de
sponsa duor. (4, 3)."--SOHM, _Eheschliessung_, 135 n. 51.

[1088] Ex et pro eo quia dictus David diu ante solemnizationem
dicti pretensi matrimonii ... alia sponsalia tam verba
de futuro quam de praesenti cum Margareta Abirnethy,
impressentiarum superstite, carnali copula subsecuta, contraxit,"
etc.--FRIEDBERG, _Eheschliessung_, 58; _Liber officialis
S. Andree_, 21. This book, 19, 33, 66, 73, 75, contains,
according to Friedberg, other records of marriages _de futuro_,
sometimes _copula subsecuta_, dissolved on account of later
_sponsalia de praesenti_. _Cf._ also SOHM, _op. cit._,
135.

[1089] In the spiritual courts two good witnesses were
required to establish a fact. On the "proof of marriage" see
ESMEIN, _Le mariage en droit canonique_, I, 189 ff.; II,
127 ff.; POLLOCK AND MAITLAND, _Hist. of Eng. Law_, II,
382 ff.; _Law Review_ (English), I, 378 ff.

[1090] SALIS, _Die Publikation des trid. Rechts_,
6, 7; POLLOCK AND MAITLAND, _op. cit._, II, 382,
383; ESMEIN, _op. cit._, I, 189 ff.; II, 127 ff.;
FRIEDBERG, _Eheschliessung_, 102 ff.; SOHM,
_Eheschliessung_, 187 ff.

[1091] Da spricht der Papst und die Juristen, die Ehe dürfe
nimmermehr gescheiden werden. Was geschah? Die Eheleute wurden
darnach uneins und schieden sich wieder von einander. Also ging
mirs im Kloster auch; oder wo man fur den Official kam, so schwur
sich eines vom andern, freieten wieder. Darnach kamen sie zu mir
oder einem Andern in die Beichte und sprachen: Lieber Herr, ich
habe itzt eine Frau, der hab ichs heimlich gelobt; wie thue ich
ihm immermehr? Helft mir, lieber Herr Doctor, dass ich nicht
verzweifele. Denn Greta, mit der ich mich am ersten verlob hab,
ist mein recht Eheweib. Aber diese Barbara, die mir darnach
vertrawet, ist nicht mein Weib und muss doch bei ihr schlaffen?
Jene darf ich nicht nehmen, die ich doch gerne möcht haben, da es
sein könnte; aber ich kann nu nicht, denn ich habe eine Andere,
so hat sie auch einen Andern: doch weiss es Niemand, dass sie
mein Weib ist, denn allein, Gott im Himmel, dem ist bewust. O,
ich werde verdampt, ich weiss keinen Rath."--"Tischreden," in
_Werke_ (Erlang. ed.), LXII, 229; quoted also in SALIS,
7, 8, who gives other proofs; likewise in SOHM, _op.
cit._, 189, 190; FRIEDBERG, _op. cit._, 102; and
ESMEIN, _op. cit._, II, 129.

[1092] In LUTHER'S "Von Ehesachen," _Werke_ (Erlang.,
XXIII, 98), is another interesting passage forcibly describing
the danger of bigamy through the confusion wrought by
clandestine marriages. The passage is also in STRAMPFF,
_Luther: Ueber die Ehe_, 313 ff.; and it is partly quoted by
SOHM, _op. cit._, 188, 189.

[1093] RICHTER-SCHULTE, _Canones et dec. conc. trid._,
216 ff.; PALLAVICINO, _1st. conc. Trent._, IV, lib.
XXII, 1, 16; THEINER, _Acta gen. conc. trid._, II,
314, 335. Cap. 1 of the decree of the council for the reform
of marriage contains the following: "Cum sancta synodus
animadvertat prohibitiones illas propter hominum inoboedientiam
jam non prodesse, et gravia peccata perpendat, quae ex eisdem
clandestinis conjugiis ortum habent, praesertim vero eorum qui
in statu damnationis permanent, dum priore uxore cum qua clam
contraxerant, relicta cum alia palam contrahunt et cum ea in
perpetuo adulterio vivunt, cui malo cum ab ecclesia, quae de
occultis non judicat, succurri non possit, nisi efficacius
aliquod remedeium adhibeatur;" also in WATERWORTH'S
_Canons and Decrees_, 196, 197. Compare the passage on the evil
resulting from the canon law of marriage in the address with
which Hieronymus Ragazzoni opens the last or xxv. solemn session
of the council: THEINER, _Acta gen._, II, 502. See this
and other excerpts in SALIS, _op. cit._, 1, 9, _passim_.

The evil of clandestine marriages prevailed generally throughout Christendom.[1094] The provincial church councils as well as the temporal powers, local and national, were kept busy in devising penalties or other restraints in the vain hope of putting a stop to it. Such was the case in Holland, where, in spite of the decrees of the church and the statutes of the state, secret marriages, without the presence of witness, magistrate, or priest, were common.[1095] The same is true of Portugal;[1096] and Pope Alexander III. confesses that they were frequent in Italy, at least in the bishopric of Salerno, and they gave rise to vexatious litigation.[1097] Suits were sometimes brought to enforce an alleged secret marriage for impure purposes. So severe were the provisions of Swiss legislation to check this evil, toward the close of the Middle Ages, that even the innocent were deterred from appealing to the courts to enforce their matrimonial rights. Before bringing suit security was required; and the unsuccessful plaintiff was fined and compelled to pay damage.[1098] "Against a Zürich law of this kind an official of Konstanz remonstrates, declaring that 'without doubt there are in the bishoprick of Konstanz hundreds of persons who before the Lord God are married people, legally joined together, and yet who are so much in dread of the penalty as not to dare to enforce their legal rights against one another.'"[1099] At the Council of Trent report was made of secret marriages in Africa[1100] and the West Indies;[1101] while in Germany they gave trouble both to the temporal and spiritual law-maker long after the Reformation.[1102] The uncertainty and complexity of matrimonial law bore their natural fruit in Spain[1103] and in France.[1104] It was the king of France who through his _oratores_, or representatives, brought before the Council of Trent the proposal which prevailed to reform the abuse by making the validity of marriage depend upon its public solemnization;[1105] while a measure of Alfonso the Wise of Castile, in 1258, not only defines the well-known three kinds of clandestine marriages, but shows clearly, what Gratian[1106] had already pointed out, that the permanence or dissolution of such a marriage really depends upon the will of the parties themselves, or even one of them. "Three kinds of marriage are called 'secret;' the first is one concluded privately and without witnesses, so that it cannot be proved. The second is one formed before witnesses, but without the consent of the bride's father, or mother, or other relative in whose protection she is, and without payment of the arrha or observing the other forms (honors) which holy church demands. The third is one whose banns have not been published in the parish where the parties live.... The reason why the holy church forbids secret marriages is this: When a difference arises between the wedded pair, and the one will no longer live with the other, the church has no means to prevent the separation, even when in truth a marriage exists; because it cannot be proved. For the church cannot pass judgment on secrets; but only on the allegations of the parties which are proved."[1107]

[1094] In general see FRIEDBERG, Index, at "Ehe,
heimliche;" SALIS, _op. cit._, 1-14; SOHM, _op.
cit._, 187 ff., 132 ff.; ESMEIN, _op. cit._, II, 121
ff.; I, 189 ff.; GEARY, _Marriage and Family Relations_,
434 ff., Index; POLLOCK AND MAITLAND, _op. cit._, II,
367 ff., 382; SCHELHAS, _De clandestinis sponsalibus
juratis_ (Jena, 1716); LYNDWOOD, _Provinciale_ (Oxford,
1679), 273 ff.; SANCHEZ, _Disputat. de s^{to}. mat.
sac._, I, 221-358. LUTHER'S "Von Ehesachen," _Bücher
und Schriften_, V, 237-57, is largely devoted to a discussion of
secret betrothals.

[1095] FRIEDBERG, _op. cit._, 66-69.

[1096] _Ibid._, 75.

[1097] SALIS, _op. cit._, 8; FRIEDBERG, _op.
cit._, 75-77.

[1098] SALIS, _op. cit._, 8, 9; _ap. Zeitschrift für
schweiz. Recht_, 1878, XX, 114 ff.

[1099] "Und ist ungezwyfelt, es sitzen im Bisthum Costanntz
hundert und aber hundert parthyen, die vor Gott dem Herrn
Eelüt sin und mit recht zusammen gewyst wurden, und doch umb
sorg des penfals einander mit gepürlichen Rechten nit thüren
fürnemmen."--SALIS, _op. cit._, 9.

[1100] See the letter of Mutio Calini to Cardinal Luigi Cornara,
July 29, 1563, in SALIS, _op. cit._, 13.

[1101] THEINER, _Acta gen._, II, 367, 513;
PALLAVICINO, _1st. conc. trid._, Vol. IV, lib. xxii, 4,
24; SALIS, _op. cit._, 12.

[1102] FRIEDBERG, _Eheschliessung_, 79, 260, 261.

[1103] _Ibid._, 71-74; SALIS, _op. cit._, 11, 12.

[1104] FRIEDBERG, _op. cit._, 62 ff., 499;
SALIS, _op. cit._, 9, 11, 12.

[1105] THEINER, _op. cit._, II, 316; SALIS,
_op. cit._, 9; FRIEDBERG, _op. cit._, 110.

[1106] "Coniugia, que (quae) clam contrahuntur, non negantur
esse coniugia, nec iubentur dissolui, si utriusque confessione
probari poterunt: uerumtamen prohibentur, quia mutata alterius
eorum uoluntate, alterius professione fides iudici fieri non
potest. Unde publice, cum alterius uota in alteram partem se
transtulerint, pro priore coniugio, quod iudici incertum est,
sentencia ferri non poterit."--GRATIAN, _Decreti sec.
pars causa_ xxx, quest. v, c. ix: RICHTER-FRIEDBERG,
_Corpus juris can._, I, 1107. The passage is also quoted from
different text by SALIS, _op. cit._, 6, who adds the
statement of the cardinal of Lothringen at the Council of Trent:
"Clandestinum matrimonium est causa disjunctionis conjugum; tales
enim cum nullos habeant testes matrimonii contracti, _pro libito_
possunt separari."--_Ap._ THEINER, _op. cit._, II, 314.

[1107] The document, of which a part is translated in the text,
will be found in FRIEDBERG, _op. cit._, 72, 73. On the
kinds of clandestine marriage see SALIS, _op. cit._,
5, 6; BOHN, _Pol. Cyc._, III, 320; ESMEIN,
_Le mariage en droit canonique_, I, 181 ff.; LYNDWOOD,
_Provinciale_, 276.

Nowhere perhaps is the history of secret marriages so interesting as in Scotland[1108] and mediæval England. Many proofs and illustrations from literature, early rituals, law-books, and judicial decisions have been collected by Friedberg.[1109] Usually the nuptials were celebrated in presence of a priest at the church door according to popular forms, or, in the later period, according to more elaborate religious rites. But by custom the simple hand-fasting, with or without giving to the bride a penny or piece of gold, sufficed; and the hand-fasting is found also in connection with the ecclesiastical ceremony. Even in the case of secret marriages "it is characteristic that mention is almost always made of the presence of a priest who confers his blessing."[1110] Miles Coverdale's translation of Bullinger's _Christen State of Matrimonye_ (_ca._ 1541) contains the following instructive passage:

"Yet in thys thynge also must I warne everye reasonable & honest parson to beware, that in contractyng of maryage they dyssemble not, nor set forthe any lye. Every man lykewyse must esteme the parson to whom he is hand-fasted, none otherwyse than for his owne spouse, though as yet it be not done in the church nor in the streate. After the hand fasting & makyng of the contracte, the church goyng & weddyng shulde not be deffered to long, lest the wicked sowe hys vngracious sede in the mene season. Likewise the wedding (& cohabitaciō of the parties) ought to be bego[=n]e with god, & with the ernest prayer of the whole church or congregaciō.... In to this dishe hath the devill put his foote, & myngled it with many wicked vses & customes. For in some places ther is such a maner, wel worthy to be rebuked that at the hand fastynge there is made a great feast & superfluous bancket, & even the same night are the two hād fasted persones brought & layed together, yea certayne wekes afore they go tot [sic] the church."[1111]

[1108] For Scotland see GEARY, _Marriage and Family
Relations_, 534 ff.; FRIEDBERG, _op. cit._, 57, 58,
_passim_; JEAFFRESON, _Brides and Bridals_, II, 259, 260.

[1109] FRIEDBERG, _op. cit._, 36-57, 317, 335, 344,
355. Secret marriages are censured by CRANMER, _Misc.
Writings_, 82, 159; HOOPER, _Later Writings_, 137,
149; LATIMER, _Sermons_, II, 243. Consent of parents
is urged by SANDYS, _Sermons_, 50, 281, 325, 326,
455; BECON, _Catechism_, 355, 358, 371, 372; _idem_,
_Prayers_, 199, 532; TYNDALE, _Early Writings_, 169,
170, 199; JEAFFRESON, _Brides and Bridals_, II, 104-14;
I, 113 ff., discusses clandestine marriages, mainly after the
Reformation.

[1110] FRIEDBERG, _op. cit._, 39, 40. This appears
plainly from the constitution of Stratford, 1343, against
clandestine marriages; as well as from that of Zouche, 1347:
JOHNSON'S _Canons_, II, 395-97, 410, 411.

[1111] MILES COVERDALE, _The Christen State of
Matrimonye_ (1st ed., 1541), xlviii, xlviiii.

This passage was transcribed for me from a copy of the first
edition (1541) in the library of the British Museum by Professor
William H. Hudson. To his kindness I am also indebted for
the extract from Whitforde's book taken from a copy in the
possession of the same library. In 1899 Sotheran offered for £4
10s. a "probably unique" copy of a 24mo edition of Coverdale's
work, 1543. This he regards as a copy of the second edition,
the title differing somewhat from that of the first edition.
An 8vo edition appeared also in 1543, with a preface by Becon.
FRIEDBERG, _op. cit._, 40, quotes the same passage; but
the different spelling indicates that he has not used the first
edition.

Eleven years earlier similar testimony is given in Richard Whitforde's _Werke for housholders_. "The ghostly ennemy," he says, "doth deceyue many psones by y^e pretence & colour of matrymony in pryuate & secrete contractes. For many men whan they can not obteyn theyr vnclene desyre of the woman wyl promyse marryage, & thervpon make a contracte promyse, & gyue fayth & trouth eche vnto other sayenge. Here I take the Margery vnto my wyfe, I therto plyght the my trouth. And she agayne, vnto hym in lyke maner. And after that done, they suppose they maye lawfully vse theyr vnclene behauyour, and somtyme the acte and dede doth folow, vnto the great offence of god & theyr owne soules. It is a great ieopardy therfore to make ony suche contractes, specyally amonge them selfe secretely alone, without recordes, whiche must be two at the least."[1112]

[1112] RICHARD WHITFORDE, _A Werke for housholders_
(2d ed., 1537), sign. E. iii and following page. There is no
pagination. For the date see BAYNE, in _Dict. Nat.
Biog._, LXI, 125-27.

In Scudmore's _A Woman's a Weathercocke_ the priest who is expected to solemnize the marriage of a lady with Count Frederick says:

"She is contracted, sir, nay married,
Unto another man, though it want forme:
And such strange passages and mutuall vowes,
I would make your short haire start, through youre blacke
Cap, should you heare it."[1113]

[1113] FRIEDBERG, _op. cit._, 41.

Many similar proofs may be found in the plays and ballads of the sixteenth and seventeenth centuries.

III. THE EVILS OF THE SPIRITUAL JURISDICTION

The separation of the temporal and spiritual courts and the tenacity with which early custom and theory were preserved in the common law[1114] render the history of matrimonial judicature anomalous in England. The leading case occurs in the reign of Stephen. "Richard de Anesty's memorable law-suit[1115] was the outcome of a divorce pronounced in 1143 under the authority of a papal rescript, and one that to all appearance illustrated what was to be a characteristic doctrine of the canon law: a marriage solemnly celebrated in church, a marriage of which a child had been born, was set aside as null in favour of an earlier marriage constituted by a mere exchange of consenting words."[1116] By the time of Henry II. this doctrine was completely established in England, as shown by the famous decretal epistle of Alexander III. to the bishop of Norwich: "A strong case is put. On the one hand stands the bare consent _per verba de praesenti_, unhallowed and unconsummated, on the other a solemn and a consummated union. The latter must yield to the former."[1117] Such remained the law of England until the passage of the Hardwicke act in 1753.[1118]

[1114] _Ibid._, 47, 48.

[1115] Discussed in PALGRAVE, _Commonwealth_, II,
v-xxvii; BIGELOW, _Placita Anglo-Normannica_, 175;
POLLOCK AND MAITLAND, _Hist. of Eng. Law_, I, 137, 138.

[1116] _Ibid._, II, 365.

For further illustration see LOERSCH, "Ein
eherechtliches Urtheil," _ZKR._, XV, 407-10; and
FRENSDORFF, "Ein Urtheilsbuch des geist. Gerichts zu
Augsburg," _ibid._, X, 1-37, publishing a manuscript containing
decisions for the years 1348-52 which afford abundant proof of
the doctrine and practice regarding _sponsalia de praesenti_.

[1117] POLLOCK AND MAITLAND, _op. cit._, II, 369, where
a translation of the epistle is given. _Cf._ BOHN, _Pol.
Cyc._, III, 319; SOHM., _Eheschliessung_, 124 ff., who
discusses from the canons the influence of Alexander III. on this
doctrine.

[1118] This principle is illustrated in a suit for jactitation of
marriage before the commissary of London, 1501: HALE,
_Precedents_, 72, 73; and in a case of punishing clandestine
marriage by prescribing penance by the same court in 1502:
_ibid._, 78, 79.

The perils arising in the canonical theory of espousals were greatly increased by the doctrine of impediments to marriage, particularly those growing out of forbidden degrees of affinity, consanguinity, and spiritual relationship.[1119] "Reckless of mundane consequences, the church while she treated marriage as a formless contract, multiplied impediments which made the formation of a valid marriage a matter of chance."[1120] The stringency of the law in this regard appears to be entirely inconsistent with the theory that marriage should be encouraged. But doubtless the apparent contradiction is due largely to the same ideas which shaped that theory. The Fathers dreaded the sins of the flesh through which the sacramental nature of marriage might be defiled;[1121] and they may have felt a reaction against the freedom of the German custom touching the marriage of blood kindred.[1122]

[1119] The canonists distinguished _cognatio_ from
_affinitas_. There are three sorts of _cognatio_: (1)
_consanguinitas_; (2) _cognatio legalis_, or adoption; (3)
_cognatio spiritualis_, arising in a participation in the
same sacrament: ESMEIN, _op. cit._, 335 ff., 374 ff.
On the whole subject see NIEMEIER, _De conjugiis
prohibitis_, comprising ten separate dissertations with critical
and bibliographical "supplementa," but relating largely to
post-Reformation doctrine; SANCHEZ, _Disput. de s^{to}.
mat. sac._, II, 1-402; TANCRED, _Summa de mat._ (ed.
WUNDERLICH), 16 ff.; the monograph of EICHBORN,
_Die Ehehinderniss der Blutsverwandtschaft nach kan. Rechte_
(Breslau, 1872); SCHULTE, _Lehrbuch_, 355-57;
FRIEDBERG, _Lehrbuch_, 337, 359; SEHLING,
_Die Wirkungen der Geschlechtsgemeinschaft_ (impotence);
GEARY, _Marriage and Family Relations_, 20 ff.;
POLLOCK AND MAITLAND, _Hist. of Eng. Law_, II, 383
ff.; FREISEN, _Geschichte des can. Eherechts_, 371
ff.; JEAFFRESON, _Brides and Bridals_, I, 108 ff.; II,
306 ff.; MORGAN, _Marriage, Adultery, and Divorce_, I,
199 ff. The Catholic doctrine is set forth at great length by
SCHEICHER-BINDER, _Praktisches Handbuch_, 8-354; and in
PERRONE, _De mat. christ._, II, 31 ff.

[1120] POLLOCK AND MAITLAND, _op. cit._, II, 383 ff.

[1121] ESMEIN, _op. cit._, I, 87, 90, 335 ff., discusses
the causes which produced this irrational and intricate system.

[1122] KEMBLE, _Saxons_, II, 406-8; LINGARD,
_Hist. Anglo-Saxon Church_ (2d ed.), II, 5 ff. Gregory advises
Augustine to relax the rules of the church in England so as
to allow marriage beyond the second degree: HADDAN AND
STUBBS, _Councils_, III, 20, 21. _Cf._ also ESMEIN,
_op. cit._, I, 344 ff.; EICHBORN, _Ehehinderniss_, 11 ff.

The development of the law of forbidden degrees, through the doctrines of the early Christian teachers and a long series of conciliar decrees, cannot here be described. In the thirteenth century the various rules were codified by the schoolmen under fifteen heads; "and their code has been accepted and acted upon by the greater part of western Christendom down to the present day."[1123] For a time prohibition was extended to the seventh degree of consanguinity, counting, as did the canonists, in the collateral line, _from_ the common ancestor and not _through_ the same according to the Roman method.[1124] A distinction, however, was made. Kinship in the sixth or seventh degree was held to be only "_impedimentum impediens_, a reason for a refusal to solemnize a marriage, not _impedimentum dirimens_, a cause which would render a marriage null;" and this doctrine was "received in England as well as elsewhere."[1125] At the Lateran council of 1215 Innocent III. adopted the rule that "marriages within the fourth degree of consanguinity are forbidden and null."[1126] But the doctrines of the church touching affinity and relationship did not therefore cease to perplex the courts, molest the happiness of individuals, and threaten the tranquillity of nations.[1127] In England the perennial "deceased wife's sister" bill, the stubborn resistance to which has so long attested the amazing tenacity of theological prejudice, has not even yet successfully run the gauntlet of the House of Lords.[1128]

[1123] MEYRICK, "Marriage," in _Dict. Christ. Ant._, II,
1092-1103. See also his article "Prohibited Degrees," _ibid._,
1725-30; and ESMEIN, _op. cit._, I, 205 ff.

[1124] Thus, according to the Roman law, brother and sister are
in the second degree; but by the canon law they are in the first
degree. Second cousins by the canonists are regarded as in the
third degree; by the Romans, as in the sixth (if they are equally
distant from the common ancestor): MEYRICK, _op. cit._,
II, 1725; POLLOCK AND MAITLAND, _op. cit._, II, 383-85;
ESMEIN, _op. cit._, I, 351 ff.; FREISEN,
_Geschichte des can. Eherechts_, 371-439. For the eastern church
see ZHISHMAN, _Das Eherecht der orient. Kirche_, 213-373.

[1125] POLLOCK AND MAITLAND, _op. cit._, II, 385;
ESMEIN, _op. cit._, I, 75 ff., 203-5.

[1126] POLLOCK AND MAITLAND, _op. cit._, II, 385.

[1127] Much trouble grew out of the theory of spiritual affinity.
Thus "in 1462, John Howthon, of Tonbridge, was sentenced by the
Consistory Court of Rochester to be whipt three times round
both market and church for having married Dionysia Thomas, for
whom his former wife had been godmother. The like spiritual
relation occasioned (Jan. 7, 1465) a dissolution of the marriage
between John Trevennock and Joan Peckham; Letitia, the former
wife of the said John having been godmother to a child of
the said Joan." On December 29, 1472, William Lovelasse, of
Kingsdown, was cited to appear "on a charge of having married his
spiritual sister, viz., a woman whom his mother had held at her
confirmation."--BURN, _Parish Registers_, 3, 4, notes,
citing THORPE, _Customale_. The case of Henry VIII. and
Catherine, wife of his elder brother Arthur, and the anecdote
of Andowera and Fredegonda, wife of King Chilperic of Neustria
(THIERRY, _Narratives of the Merovingian Era_, London,
n. d., 20), are in point. On the evils of the complex system see
THWING, _The Family_, 83; _Law Review_ (English), I,
353 ff.; WOOLSEY, _Divorce_, 120 ff.; and especially
HUTH, _Marriage of Near Kin_, 113 ff.

[1128] ESMEIN, _op. cit._, I, 203-402, gives an
elaborate historical account of matrimonial impediments.

The relation of the temporal to the spiritual courts in the administration of English matrimonial law was anomalous.[1129] Strictly speaking, there was no lay jurisdiction whatever with regard to the genuineness of marriage. Only the ecclesiastical judge could determine whether a valid marriage existed.[1130] In such a case the jury could not "declare the right." The question was referred to the spiritual court for decision. On the other hand, the law tribunal, without aid of the spiritual judge, could say whether or not there was a _de facto_ marriage as opposed to a marriage _de jure_. The jury could determine, in a possessory action, whether there had been a public ceremony in face of the church. This was a decisive proof; for the mere fact of living together as husband and wife was not always conclusive.[1131] "If a man and woman have gone through the ceremony of marriage at the church door, we may say that we have here a _de facto_ marriage, a union which stands to a valid marriage in somewhat the same relation as that in which possession stands to ownership. On the other hand, if there has been no ceremony, we cannot in the thirteenth century say that there is a _de facto_ marriage; mere concubinage, especially among the clergy, is far too common to allow us to presume a marriage wherever there is a long-continued cohabitation. But a religious ceremony is a different thing; it is definite and public; we can trust the jurors to know all about it; we can make it the basis of our judgments whenever the validity of the union has not been put in issue in such a fashion that the decision of an ecclesiastical court must be awaited."[1132]

[1129] The relation of the two jurisdictions is carefully
examined by FRIEDBERG, _Eheschliessung_, 47-57,
with citation of the principal cases; also in a very clear
and interesting way by POLLOCK AND MAITLAND, _op.
cit._, II, 370 ff., to whom I am particularly indebted. _Cf._
GEARY, _Marriage and Family Relations_, 1-6.

[1130] GLANVILLE, _Tractatus_, lib. vii, c. 13:
PHILLIPS, II, 402. _Idem_, c. 14: PHILLIPS, II,
402, gives the form of writ by which a question of valid marriage
is referred to the archbishop.

[1131] See, however, FRIEDBERG, _op. cit._, 51: "Lag
aber die Frage vor, haben die Parteien wie Mann und Frau zusammen
gelebt, haben sie sich verlobt, war mithin über das Recht der
Ehe ['the right of marriage'] keine Entscheidung zu fällen,
sondern allein über den factischen Thatbestand, so urtheilte der
weltliche Richter." But this led to strange embarrassments. Thus
it was in doubt whether a compulsory marriage belonged to the
spiritual or to the temporal court: ROLLE, _Abridgment_
(1688), I, 340; and "still greater was the doubt in case of the
question, whether a second marriage were invalid if the first
still existed": FRIEDBERG, _op. cit._, 51 n. 2; _Year
Book_, 49 Ed. III., 18.

[1132] POLLOCK AND MAITLAND, _op. cit._, II, 378. _Cf._
FRIEDBERG, _op. cit._, 56. "The canonists themselves
having made marriages all too easy, and valid marriages all
too difficult, had been driven into a doctrine of possessory
marriage." In a case where a valid or canonical marriage could
not be proved by the plaintiff, he was given a possessory action,
_actio spolii_, and "in this the defendant will not be allowed
to set up pleas which dispute, not the existence of a _de facto_
marriage, but its validity," while the "plaintiff must prove
a marriage celebrated in face of the church": POLLOCK AND
MAITLAND, _op. cit._, II, 379. _Cf._ ESMEIN, _op.
cit._, II, 15 ff.

The practical application of this doctrine appears in the two cases of divorce and inheritance. Here the temporal courts tried indirectly to put a check upon clandestine marriages, to remedy the evils resulting from the scholastic dogma that mere consent secretly expressed in words of the present tense constitutes a valid marriage, by making the acquisition of certain property rights depend upon the publicity of the espousals.[1133] The widow could not receive her dower unless it had been publicly assigned at the nuptials before the church door.[1134] "The result is curious, for at first sight the lay tribunal seems to be rigidly requiring a religious ceremony which in the eyes of the church is unessential.... We soon see, however, that what our justices are demanding is, not a religious rite nor 'the presence of an ordained clergyman,' but publicity.... Marriages contracted elsewhere may be valid enough, but only at the church door can a bride be endowed. There is a special reason for this requirement. The common-law contrast to the church-door marriage is the death-bed marriage.[1135] At the instance of the priest and with the fear of death before him, the sinner 'makes an honest woman' of his mistress. This may do well enough for the church, and may, one hopes, profit his soul in another world, but it must give no rights in English soil."[1136] So also with regard to inheritance, in certain cases,[1137] the lay court made the rights of children depend upon public solemnization of the nuptials, thus adopting the canonical theory of "putative marriages."[1138] Although there may be no valid marriage on account of the existence of certain impediments, such as too near kinship, the children are nevertheless legitimate if the nuptials were publicly celebrated at the church door, and if at least one of the parents, at the time the children were begotten, was "ignorant of the fact which constituted the impediment." They are entitled to inheritance, though the parents are not really husband and wife. On this point in the thirteenth century church and state were at one;[1139] but later a less liberal doctrine was adopted by the secular tribunals. "The ultimate theory of the English lawyers took no heed of good or bad faith, and made the legitimacy of the children depend on the fact that their parents while living were never divorced."[1140]

[1133] On the divergence of the temporal and ecclesiastical laws
as to legitimacy see GLANVILLE, _Tractatus_, lib. vii,
c. 15: PHILLIPS, II, 403. Compare SWINBURNE,
_Of Spousals_, 15, 233 ff.

[1134] FRIEDBERG, _Eheschliessung_, 50; POLLOCK AND
MAITLAND, _op. cit._, II, 372; BRACTON, _De leg. et
consuetud._, foll. 302-4; _idem_, _Note Book_, placita 891, 1669,
1718, 1875, MAITLAND'S ed., II, 688; III, 517, 559, 659.

[1135] _Ap._ BRACTON, _De leg. et consuetud._, fol. 92;
_Note Book_, pl. 891, 1669, 1718, 1875, MAITLAND'S ed.,
II, 688; III, 517, 559, 659.

[1136] POLLOCK AND MAITLAND, _op. cit._, II, 372, 373.

[1137] GLANVILLE, _op. cit._, lib. vii, c. 15:
PHILLIPS, II, 403. For an interesting case, showing that
the spiritual court could determine only the question of the
validity of marriage, and not that of inheritance, which belonged
to the king's courts, see _Corpus juris can._, c. 17, x, 1, 29;
c. 4, x, 4, 17; c. 7; quoted by FRIEDBERG, _op. cit._,
50 n. 2.

[1138] On "putative" marriages see ESMEIN, _op. cit._,
II, 33-37; FREISEN, _Geschichte des can. Eherechts_,
857-62; especially POLLOCK AND MAITLAND, _op. cit._, II,
373-77.

[1139] "To this agreement between church and state there was
the one well-known exception: our temporal courts would not
allow to marriage any retroactive power; the bastard remained
incapable of inheriting land even though his parents had become
husband and wife and thereby made him capable of receiving holy
orders and, in all probability, of taking a share in the movable
goods of his parents.... But about all other matters the church
could have, and apparently had, her way.... 'You are a bastard,
for your father was a deacon': that was a good plea in the
king's court, and the king's court did nothing to narrow the
mischievous latitude of the prohibited degrees."--POLLOCK AND
MAITLAND, _op. cit._, II, 375, 376. On legitimation through
subsequent marriage by the canon law see ESMEIN, _op.
cit._, II, 37 ff.; SWINBURNE, _Of Spousals_, 233 ff.

[1140] POLLOCK AND MAITLAND, _op. cit._, II, 375 n. 3;
_ap._ PIKE, _Year Book_, 11-12 Ed. III., pp. xx-xxii.

The refusal of the church to prescribe a proper age condition for those entering matrimony led, as might be expected, to child marriages; and in this case the rules of the English common law only tended to magnify the evil. By the canonists the age of consent to marriage was fixed at seven years.[1141] Thereafter a marriage formed without consent of parent or guardian, and even in opposition to it, was held to be legal; but it was "voidable so long as either of the parties to it was below the age at which it could be consummated. A presumption fixed this age at fourteen years for boys and twelve years for girls. In case only one of the parties was below that age, the marriage could be avoided by that party but was binding on the other. So far as we can see, this doctrine was accepted by our temporal courts."[1142] By the teaching of the common lawyers a widow of nine years of age at her husband's death could claim dower, though the marriage would have been voidable by her at the age of puberty.[1143] The English temporal courts appear to have disregarded the canonical rule that a marriage is absolutely void when formed below the age of seven. "Coke tells us that the nine years old widow shall have her dower 'of what age soever her husband be, albeit he were but four years old,' and certain it is that the betrothal of babies was not consistently treated as a nullity. In Henry III.'s day marriage between a boy of four or five years and a girl who was no older seems capable of ratification, and as a matter of fact parents and guardians often betrothed, or attempted to betroth, children who were less than seven years old. Even the church could say no more than that babies in the cradle were not to be given in marriage, except under the pressure of some urgent need."[1144] For such infant marriages, however, there were two practical motives during the Middle Ages. In England, just as in India and often among lower races,[1145] the betrothal or espousal of very young children was a means of peaceful treaty or alliance; and the "rigour" of the feudal law was also in this way avoided.[1146] "As deaths were early in those days, and wardship frequent, a father sought by early marriage of his son or daughter to dispose of their hands in his lifetime, instead of leaving them to be dealt out to hungry courtiers who only sought to make as large a profit as they could from the marriage of the wards they had bought for that purpose;"[1147] and the lord's right of marriage might in like manner be defeated by conferring knighthood upon a son in tender years.[1148] Even as late as the age of the Tudors "much immorality resulted from the child marriages which were common in fashionable life."[1149]

[1141] For the growth of the doctrines of the canonists as to the
age of consent and the consequences of espousals before puberty
see FREISEN, _Geschichte des can. Eherechts_, 323 ff.;
ESMEIN, _op. cit._, II, 149 ff., with whom POLLOCK
AND MITLAND, _op. cit._, II, 387 ff., appear to agree. Read
also JEAFFRESON, _Brides and Bridals_, I, 70 ff., 276
ff., who gives interesting illustrations of infantile betrothals
and marriages; the learned monograph of HOFFMANN, _De
aetate juvenili_, 22 ff.; LYNDWOOD, _Provinciale_ (ed.
1505), liber quartus, fol. cxcvi; TANCRED, _Summa de
mat._, tit. 4, pp. 4, 5.

The constitution _De desponsatione impuberum_ of the primate
Edmund de Abingdon (1233-40) runs thus: "Ubi non est consensus
utriusque non est conjugium. Igitur qui pueris dant puellas
in cunabulis, nihil faciunt, nisi uterque puerorum, postquam
venerit ad tempus discretionis, consentiat. Hujus ergo Decreti
auctoritate inhibemus, ne de caetero aliqui, quorum uterque vel
alter ad aetatem legibus constitutam et canonibus determinatam
non pervenerit, conjungantur; nisi urgente necessitate pro
bono pacis talis conjunctio toleretur."--LYNDWOOD,
_Provinciale_; quoted by JEAFFRESON, _op. cit._, I, 74.

[1142] POLLOCK AND MAITLAND, _op. cit._, II, 387, 388,
who cite as proof the case of Thomas of Bayeux and Elena de
Morville. The king's court decided that Elena should remain in
ward to the king until the age of puberty, that "she may then
consent or dissent."

[1143] POLLOCK AND MAITLAND, _op. cit._, II, 388: _ap._
LITTLETON, sec. 36; COKE upon Lit., 33_a_.

[1144] POLLOCK AND MAITLAND, _op. cit._, II, 388, 389,
and the sources there cited.

[1145] See above, chap. iv.

[1146] "A treaty of peace involved an attempt to bind the
will of a very small child, and such treaties were made not
only among princes, but among men of humbler degree, who thus
patched up their quarrels or compromised their law-suits. The
rigour of our feudal law afforded another reason for such
transactions; a father took the earliest opportunity of marrying
his child in order that the right of marriage might not fall
to the lord."--POLLOCK AND MAITLAND, _op. cit._, II,
389. See the case of Grace, supposititious child of Thomas of
Saleby, married at four years of age to Adam Neville, and after
his death _sold_ in marriage twice by King John: _ibid._, 389,
390: _ap. Magna vita S. Hugonis_, 170-77; and in general on
early marriages, especially as a means of alliance, compare
ESMEIN, _op. cit._, I, 151 ff.

[1147] DENTON, _England in the Fifteenth Century_,
161. For an illustration of the lord's marriage rights see the
case of 1220 (H. III.) in _Select Pleas of the Crown_ (ed.
MAITLAND), I, 135-38.

[1148] "As knighthood prevented wardship, a father sometimes
endowed his son with land to qualify him for knighthood at an
early age, so as to bar the claims of the mesne lord or of the
crown to wardship. An instance occurs of knighthood at the age of
seven years avowedly procured for this reason."--DENTON,
_Eng. in Fifteenth Century_, 261 n. I: _ap._ SMITH,
_Lives of the Berkeleys_, 140.

[1149] TRAILL, _Social England_, III, 578.

IV. PUBLICITY SOUGHT THROUGH BANNS AND REGISTRATION

Without doubt the wrong and confusion arising in the ecclesiastical theory and definition of marriage were manifold, and they were patent to every observer. At the Council of Trent it was asserted that some action to put a check upon clandestine marriages was demanded by all the temporal powers;[1150] and the provincial church councils, aided by state legislation, had done what they could by imposing; penalties to remedy the abuse.[1151] Nevertheless, strange as it may seem to one not acquainted with the devious logic of scholastic theology, many members of the Council of Trent, on dogmatic grounds, were stubbornly opposed to the only reform which experience showed could be effective. They affirmed that severer discipline would suffice. They apologized for clandestine marriages on the pretext that they are sometimes useful, even necessary; or they denied that to declare them null would prove an efficient remedy.[1152]

[1150] THEINER, _Acta gen._, II, 334, 347, 351, 352,
391, 395: SALIS, _Pub. des trid. Rechts_, 10 n. 16.
_Cf._ WATERWORTH, _Canons_, ccxxiii.

[1151] So, for instance, in France: FRIEDBERG,
_Eheschliessung_, 64 n. 5; and in Spain, _ibid._, 74.

[1152] SALIS, _Pub. des trid. Rechts_, 11, 12, collates
the evidence for the various opinions from THEINER,
_Acta gen._, II. _Cf._ FRIEDBERG, _op. cit._, 108 ff.

Hence we are better able to appreciate at its true value the significance for the Catholic world of the victory gained by the common-sense of the majority. It was a victory in favor of that publicity which the state demanded. Indeed, the church had already done something, in spite of dogma, to change marriage from a private to a public transaction. Her collision with the state, her anomalous position with respect to social order, was involuntary. She was caught, as it were, in the meshes of her own philosophy. Yet in the interest of morality she strove to secure publicity. The priest at the nuptials, declares Sohm, "appears first of all as a public person."[1153] In particular the church tried to gain publicity for marriage by the institution of banns. The custom of publishing banns seems first to have made its appearance in France, probably as early as the fifth century.[1154] It is enforced by the capitulary of 802, which gains its real significance from this fact, and not from the mention of the priestly benediction.[1155] From France it gradually made its way into other countries of Europe. Thus in the year 1200, as already noted, banns were enforced by Archbishop Walter; and they were first made a general requirement by Innocent III. at the fourth Lateran council in 1215.[1156] Later the English archbishops found it necessary from time to time to impose more stringent penalties for neglect of the proper publication of banns;[1157] and they were enforced, without making the publication essential to a valid marriage, by the Council of Trent. From the twelfth century onward the marriage rituals contain directions for the asking and publication of banns;[1158] while the punishment of persons guilty of violating the canons in this regard gave much employment to the spiritual courts during the Middle Ages.[1159]

[1153] SOHM, _Eheschliessung_, 175.

[1154] _Ibid._, 181.

[1155] Capit. 802, c. 35: WALTER, _Corpus juris germ._,
II, 167: "conjunctiones facere non praesumant, antequam episcopi
presbyteri cum senioribus populi consanguinitatem conjungentium
diligenter exquirant, et tune cum benedictions jungantur." _Cf._
SOHM'S interpretation, _op. cit._, 181, _vs._ that of
FRIEDBERG, _Eheschliessung_, 59.

[1156] See p. 314, above; and _cf._ POLLOCK AND
MAITLAND, _op. cit._, II, 368; FRIEDBERG, _op.
cit._, 10, 653, 654, for the present practice as to banns in
various countries.

[1157] JOHNSON's _Canons_, II, 91, 340, 352, 395, 410.

[1158] See the rituals of York, Sarum, Hereford, and others, in
Surtees Society _Publications_, LXIII, 26 ff., Appendix, 17 ff.,
115 ff., 155 ff.; and the Salisbury ritual in MASKELL'S
_Monumenta_, I, 50 ff.

[1159] For many cases see HALE'S _Precedents_, 6, 33,
38, 39, 54, 56, 65, 82, 83, 85, 92, 166, 181, 182, 199, 255.

The institution of banns has a special historical interest as being in some sense the mediæval substitute for the modern registration and official license to wed. The practice was to announce the marriage, usually on three successive Sundays preceding the nuptials, that any objection on the ground of relationship or other disability might be brought forward. But the decrees of the church were not carefully enforced. Dispensation from the obligation to publish banns was the right of the bishop, but his license was usually granted only in favor of the nobility and higher classes; and the right constituted an important source of revenue.[1160]

[1160] FRIEDBERG, _Eheschliessung_, 10, 124;
ESMEIN, _Le mariage en droit canonique_, II, 170
ff., who shows that the rules relating to banns were too
vague to be effective. On the requirement of banns see
CRANMER, _Misc. Writings_, 159; GRINDAL,
_Remains_, 126; HOOPER, _Later Writings_, 126, 138, 149;
RIDLEY, _Works_, 531; SANDYS, _Sermons_, 434.
_Cf._ on the history of the institution JEAFFRESON,
_Brides and Bridals_, I, 99-107, 130 ff. Compare BORN,
_De bannis nuptialibus_ (Leipzig, 1716), secs. 1 ff.

The year 1538 marks an important epoch in the administration of English matrimonial law. It was then, according to the researches of Burn, that parish registers of births, deaths, and marriages were first introduced; although before this time it had been customary in some places to inscribe such records in the missals and psalters of the church.[1161] The first article of the injunctions issued by Thomas Cromwell, vice-regent under Henry VIII., provided: "_Item_, That you and every parson, vicar, or curate within this Diocese, for every Church keep one Book or Register, wherein he shall write the day and year of every Wedding, Christening, and Burial, made within your parish for your time, and so every man succeeding you likewise, and also there insert every person's name, that shall be so wedded, christened, and buried. And for the safe keeping of the same Book the parish shall be bound to provide of their common charges one sure coffer, with two locks and keys, whereof the one to remain with you, and the other with the Wardens of every parish wherein the said Book shall be laid up, which Book ye shall every Sunday take forth, and in the presence of the said Wardens or one of them, write and record in the same, all the Weddings, Christenings, and Burials made the whole week afore, and that done, to lay up the Book in the said coffer as afore; and for every time that the same shall be omitted, the party that shall be in the fault thereof, shall forfeit to the said Church iij^s. iiij^d. to be employed on the reparation of the said Church."[1162]

[1161] BURN, _Hist. of Parish Registers_, 1-16.
Compare WATERS, _Parish Registers_, 5. Mention is made
of registers in France as early as 1308; and by an order of
Cardinal Ximenes, 1497, they were to be kept in every parish
of the diocese of Toledo "in order to remedy the disorders
occasioned by the frequency of divorces in Spain, on the ground
of spiritual affinity."--BURN, 3; MARSOLIER,
_Histoire du ministère du Cardinal Ximenes_, tom. 1, liv. 2, 263;
WATERS, _Parish Registers_, 4. _Cf._ PALGRAVE,
in _Quart. Rev._, LXXIII, 561, who thus goes too far in saying
that "parish registers were never kept _in any part of the world
until the sixteenth century_."

There is some evidence, held to be inconclusive by BURN,
_op. cit._, 5-15, that an order for the use of registers may
have been made earlier than 1538. The fact that at least eight
registers begin before that date points to instructions given
at the time of the suppression of the smaller monasteries:
WATERS, _op. cit._, 6. At the time of the insurrection
in Yorkshire, 1536, in order to draw the common people, it was
given out "that the king designed to get all the gold of England
into his hands, under colour of recoining it; that he would seize
all unmarked cattle, and all the ornaments of parish churches,
and they should be forced _to pay for christenings, marriages,
and burials_ (orders having been given for keeping Registers
thereof), and for licenses to eat white bread."--CARTE,
_Hist. of England_. See also the rare tract by Holmes (1537), and
the letter of Sir Piers Edgcumb to Cromwell (April 20, 1539),
both quoted by BURN, _op. cit._, 8, 9. For the date
see WATERS, _op. cit._, 7; and compare BURN'S
_Fleet Marriages_, 3.