Chapter IX: The Protestant Conception of Marriage (1)

[BIBLIOGRAPHICAL NOTE IX.--The ideas of the German Reformation,
and therefore ultimately of Protestantism, relative to the
form and the nature of marriage were molded by the thought
of Martin Luther. Among his numerous writings on the subject
most important are the "Vom heiligen Ehestandt und Oeconomia
oder Haushaltung," being the thirty-sixth chapter of the
_Tischreden_ (folio, Frankfort, 1571); and the following
articles in his _Bücher und Schriften_ (folio, Jena, 1555-80):
"Sermon vom ehelichen Stande" (1519, in Vol. I); "Predigten
über das erste Buch Mose" (1527, in Vol. IV); and especially
the "Von Ehesachen" (1530, in Vol. V). The principal passages
from all of Luther's writings on the subject of matrimony
and divorce, classified in seven groups, with critical and
historical notes and marginal explanation of archaic words, are
conveniently given in von Strampff's _Dr. Martin Luther: Ueber
die Ehe_ (Berlin, 1857). This is an important _Quellenbuch_
for the student. A very useful book also, containing twelve
of his most important papers, is the second volume of the
_Kleinere Schriften Dr. Martin Luthers_, entitled "Von Ehe- und
Klostersachen" (Bielefeld and Leipzig, 1877). Older works which
afford some assistance are Niess's _Ehestands-Buch_ (Eisleben
and Leipzig, 1858), comprising, with other matter, some of the
utterances of Luther; and Froböse's _Dr. Martin Luther's ernste,
kräftige Worte über Ehe und eheliche Verhältnisse_ (Hanover,
1825).

The first philosophical treatise on marriage, anticipating in
various ways the modern conception, is Erasmus's _Christiani
matrimonii institutio_ (Basel, 1526). The dedicatory epistle,
dated July, 1526, is addressed to Queen Catherine of England.
The edition cited in the text bears the general title _De
matrimonio christiano_ (Lugd. Bat., 1650); and to it is appended
Vivus's _Conjugii origine et utilitate discursus_. Erasmus's
treatise may also be found in Vol. V of his _Opera omnia_ (Lugd.
Bat., 1704). The work was prohibited mainly because of its
critical tone regarding the excessive ardor of the primitive
Christians for celibacy and perpetual virginity. Of first-rate
importance for obtaining a general view of the doctrines of
the German Reformation is Sarcerius, _Vom heiligen Ehestande_
(1553); or the same work enlarged under title _Corpus juris
matrimonialis_ (Frankfort, 1569). It has been found convenient
to relegate the description of many writings available as
sources for this chapter to Bibliographical Note XI. See
particularly the works of Brenz, Kling, Beust, Schneidewin,
Melanchthon, Zwingli, Bullinger, Bucer, Monner, Bidembach,
Mentzer, Brouwer, and Forster, there referred to. Besides
Melanchthon's "De conjugio" (1551), in _Opera_, I (Erlangen,
1828), see also his "De arbore consanguinitatis et affinitatis"
(1541), in Sarcerius, _Vom heiligen Ehestande_, lvs. xii-xxvii;
or the "Corpus juris matrimonialis," lvs. xi-xxvii, where
may also be found much additional matter from Luther, Kling,
and others relating to forbidden degrees. In this connection
may also be consulted Niemeier, _De conjugiis prohibitis
dissertationes_ (Helmstadt, 1705), comprising ten distinct
essays, with a critical and bibliographical supplement, produced
during the years 1699-1705.

The most important collection of church regulations regarding
marriage is Richter's _Die evangelische Kirchordnungen des
sechszehnten Jahrhunderts_ (Weimar, 1846). These have been
partly analyzed by Meier, _Jus, quod de forma matrimonii
ineundi valet_ (Berlin, 1856); and thoroughly by Goeschen,
_Doctrina de matrimonio_ (Halle, 1848). The rejection of
priestly celibacy by the Reformers has called forth numerous
writings, among which the earliest are Luther, _Bedenken und
Unterricht von den Klöstern und allen geistlichen Gelübden_
(1522); _idem_, _An die herrn deutschs Ordens_ (original edition
in the author's possession, Wittenberg, 1523); Bugenhagen,
_De conjugio episcoporum et diaconorum_ (1525); the anonymous
_Underricht auss Göttlichen und Gaystlichen Rechten, Auch auss
den flayschlichen Bepstlischen unrechten, ob ain Priester
ain Eeweyb, oder Concubin ... haben möge_ (1526). See also
the elaborate treatise of Calixtus, _De conjugio clericorum_
(Frankfort, 1653); and the dissertation of Roldanus, _De mente
Pauli, volentis episcopum esse unius uxoris maritum_ (Lugd.
Bat., 1710).

On the famous "double marriage" of Landgrave Philip of Hesse
a source of unique interest is the _Argumenta Buceri pro et
contra_, a manuscript by Bucer written in 1539 and first
published at Cassel in 1878. The original documents in the
case are appended to the exceedingly lively work of Arcuarius,
_Kurtze, Doch unpartheyisch- und Gewissenhaffte Betrachtung
des ... Heiligen Ehestandes_ (1679), decidedly inclining to
the side of Luther and his colleagues. Beza, _Tractatio de
polygamia_ (Geneva, 1568), replies to the defense of polygamy
by Ochino, _Dialogue_ (Zurich, 1563; Eng. trans., London,
1657). The most celebrated book produced in this controversy is
Theophilus Alethaeus's (Johann Lyser's) _Discursus politicus
de polygamia_ (2d ed., Freiburg, 1676); or the same with the
prefixed general title, _Polygamia triumphatrix_ (Londini
Scanorum, 1682), this edition containing the learned and
very elaborate notes of "Athenasius Vincentius" who is none
other than Lyser himself. The first edition, in German, is
entitled _Politischer Discurs zwischen Monogamo und Polygamo_
(Freiburg, 1675). Lyser is harshly answered by Johann Frischen,
_Unvorgreiffliche Erörterung der Frage: Was von der
Polygamie oder Viel-Weiberey zu halten sey_ (Hamburg, 1677);
and more coarsely by "Simplicius Christianus," _Eilfertiges
Antwort-Schreiben.... Darin eine Summarische Widerlegung des
politischen Discurs von der Viel-Weiberey, so ein Atheistischer
Huren-Teuffel J. L. Bosshafftiglich ausgestreuet, enthalten
ist_ (Leipzig, 1677). In this connection see also Thomasius,
_De concubinatu_ (Halle, 1713); Baumgart, _De concubinatu,
a Christo et apostolis prohibito_ (Halle, 1713); N. N., _De
licito concubinatu opponenda_ (Freistadt, 1714); Michaelis,
_Paralipomena contra polygamiam_ (Göttingen, 1757); Swinderen,
_De polygamia_ (Groningae, 1795); Premontval, _La monogamie_
(La Haye, 1751); or the translation by Windheim entitled _Des
Herrn Premontvals Monogamie_ (Nuremberg, 1753); Rantzow,
_Discussion si la polygamie est contre la loi nat. ou divine_
(St. Petersburg, 1774); and the works of Madan, Cookson, and
others mentioned in the next chapter. An interesting monograph
based on the correspondence of Bucer and the landgrave is
Rady's _Die Reformatoren in ihrer Beziehung zur Doppelehe des
Landgrafen Philipp_ (Frankfort and Lucerne, 1890). Luther's
alleged sensuality and coarseness of speech are examined by
"Lutherophilus," _Das sechste Gebot und Luthers Leben_ (Halle,
1893); with which may be read Altenrath, _Zur Beurtheilung und
Würdigung Martin Luthers_ (Frankfort, 1889).

Typical of an extensive literature in the sixteenth century,
whose aim is the appreciation and elevation of marriage, is Adam
Colbius von Buchen's _Christliche Predigten über das Buch Tobie,
darinnen, als in einem lustigen Ehespiegel ... vom heyligen
Ehestandt ... erkläret wirdt_ (Frankfort, 1592). On the other
hand, in contempt of womanhood and in mockery of wedlock was
produced a mass of prose and verse coarse and unclean beyond
description. Both kinds of writing--the evangelical _Ehespiegel_
and the literature dedicated to "St. Grobian"--are treated in
an instructive way by Kawerau, _Die Reformation und die Ehe_
(Halle, 1892). To aid in obtaining a more complete conception
of post-Reformation sentiment may also be consulted Agrippa,
_De nobilitate et praecellentia foeminei sexus libellus_
(Coloniae, 1532, 1567); Saxse, _Arcana annuli pronubi, Das ist:
Geheimnis und bedeutung des Ehelichen Traw Ringes_ (Leipzig,
1594); Müller, _Ungerathene Ehe, oder vornehmste Ursachen, so
heute den Ehestand zum Wehestand machen_ (Frankfort, 1674);
Lehman, _Florilegium politicum auctum_ (Frankfort, 1662); and
Feyerabend, _De privilegiis mulierum_ (Jena, 1672). Two learned
general treatises, untouched by the Reformation doctrines, are
Johannis Nevizianus's _Sylvae nuptialis libri sex_ (Lugduni,
1556), containing a vast amount of curious matter ostensibly
designed to aid in solving the question, "_An nubendum sit,
vel non_;" and Antonius Gubertus Costanus's _De sponsalibus,
matrimoniis et dotibus commentarius_ (Marpurgi, 1597),
dealing in a clear and scholarly manner with the matrimonial
institutions of the Hebrews, Greeks, Romans, and Christians
under the canon law.

Several doctrines of Luther and the early Reformers have each
produced a literature. Whether under various conditions parental
consent is necessary to a legal or valid marriage is discussed
by Lohen, _De parentum ad nuptias a liberis contrahendas
consensu_ (Regiomonti, 1685); Lauginger, _De consensu parentum
ad nuptias liberorum_ (Regiomonti, 1699); Schmalian, _De ambitu
connubiali: Vom Frey-Werben_ (Wittenberg, 1745); especially by
the two great leaders of the "naturalistic" movement, Thomasius,
_De validitate conjugii invitis parentibus contracti et per
benedictionem sacerdotis depositi consummati_ (Leipzig, 1689);
(Halle and Leipzig, 1722), and J. H. Boehmer, _De matrimonio
coacto_ (Halle, 1735). With the last-named dissertation may be
read G. L. Boehmer's _De copulae sacerdotalis a deposito clerico
furtim impetratae injusto favore_ (Göttingen, 1745); Delbrück's
_De matrimonio ad benedictionem sacerdotis incompetentis
contracto_ (Halle, 1759); and in general on the doctrine of
espousals, Greiff, _De pactis futurorum sponsaliorum: von
Ja-Wort_ (Halle, 1712); Schelhas, _De clandestinis sponsalibus
juratis: Vulgo von heimlichen Verlöbnüssen_ (Jena, 1716);
Bendeleben, _De diverso sponsalium et matrimonii jure_ (Halle,
1718); Sahme, _De matrimonii legitimo absque benedictione
sacerdotali_ (Halle, 1722); Berger, _De praescriptione
sponsaliorum_ (Wittenberg, 1724); Richardus, _De conditionalibus
sponsaliorum impossibilibus_ (Halle, 1741; presented, 1701);
Wachsmuth, _De exceptione sponsaliorum clandestinorum, ab
ipso contrahente opposita_ (Jena, 1754). See further, on
special questions, Mentzer, _Num sponsis, ante solennem in
ecclesiae copulationem et benedictionem, concubentibus, publica
poenitentia juste imponatur?_ (6th reprint, Wittenberg, 1728);
Willenberg, _De matrimonio imparum_ (Halle, 1727); Bennemann,
_De natura matrimonii_ (Halle, 1708); Krull, _De nuptiis_
(Wittenberg, 1632); Schnetter, _De matrimonio cum damnato ad
mortem contrahendo_ (Halle, 1727; presented, 1679).

In the modern scientific literature of the subject the first
place belongs to the general treatise of Richter, _Lehrbuch_
(8th ed., Leipzig, 1886); the _Lehrbuch_ of Friedberg (3d
ed., Leipzig, 1889); and Scheurl's _Das gemeine deutsche
Eherecht_ (Erlangen, 1882). An older work, very thorough and
very careful in the citation of the literature, is Hofmann's
_Handbuch des teutschen Eherechts_ (Jena, 1789); while,
besides the books of Göschl, Lobethan, Schott, and Stäudlin
elsewhere described, Loy's _Das protestantische Eherecht_
(Nuremberg and Altdorf, 1793) is of service. Much valuable
biographical and bibliographical material may be found in
the great work of Schulte, _Die Geschichte der Quellen und
Litteratur des canonischen Rechts_ (Stuttgart, 1875-80).
Important monographs are Schubert's _Die evangelische Trauung_
(Berlin, 1890); Scheurl's _Die Entwicklung des kirchlichen
Eheschliessungsrechts_ (Erlangen, 1877); Dieckhoff's _Die
kirchliche Trauung_ (Rostock, 1878); and there is an able
article by Goeschen, "Ehe," in Herzog's _Encyclopaedie_,
III (Stuttgart and Hamburg, 1855). For the present state of
German matrimonial law consult Blumstengel, _Die Trauung in
evangelischem Deutschland nach Recht und Ritus_ (Weimar, 1879);
Klein, _Das heutige Eherecht im Herzogthum Sachsen-Altenburg_
(Strassburg, 1881); Stölzel, _Deutsches Eheschliessungsrecht
nach amtlichen Ermittelungen_ (3d ed., Berlin, 1876); and
Hergenhahn's work elsewhere mentioned. Several early church
ordinances, and a number of matrimonial decisions of rare
interest from the consistory court of Wittenberg, commencing
soon after its formation, are communicated by Schleusner,
"Zu den Anfängen des protestantischen Eherechts," in _ZKG._,
VI, XII, XIII (Gotha, 1884, 1891, 1892). The "Bedencken"
or ordinance adopted at Dresden in 1556 by the three Saxon
consistories, with other matter, is also published by Muther,
"Drei Urkunden zur Reformationsgeschichte," in Niedner's
_Zeitschrift für historische Theologie_, XXX (Gotha, 1860).
These same documents and also the famous case of Caspar Beyer
(1543-44) are discussed by Mejer, "Anfänge des Wittenberger
Consistoriums," in _ZKR._, XIII (Tübingen, 1876). Mejer,
"Zur Geschichte des ältesten protestantischen Eherechts,"
_ibid._, XVI (Freiburg and Tübingen, 1881), gives an excellent
historical, biographical, and bibliographical account of the
Wittenberg consistory; and the two preceding articles, with a
discussion of the establishment of the consistory of Rostock,
are reprinted in his _Zum Kirchenrechte_ (Hanover, 1891).
Original material is communicated by Fischer, "Die älteste
evangelische Kirchenordnung ... in Hohenlohe," in _ZKR._,
XV (Freiburg and Tübingen, 1880), and by Friedberg, _Aus
der protestantischen Eherechtspflege des 16. Jahrhunderts_,
reprinted from _ZKR._, IV (Tübingen, 1864), containing,
in connection with the case of Zaschwitz, letters and
other papers of Melanchthon regarding forbidden degrees.
Another article of Friedberg, "Beiträge zur Geschichte des
brandenburgisch-preussischen Eherechts," _ibid._, VI, VII
(Tübingen, 1866-67), includes the very long petition of Dr.
Stiel (1553) for enforcement of a betrothal, with other original
documents relating to matrimonial doctrine and judicial
practice. A history of "conditional marriages" is given by
Phillips, "Das Ehehinderniss der beigefügten Bedingung,"
_ibid._, V, VI (Tübingen, 1865-66); and the rise of the
Protestant doctrine regarding the impediment of relationship
is discussed by Scheurl, "Zur Lehre von dem Ehehindernisse der
Verwandtschaft," _ibid._, XVI (Freiburg and Tübingen, 1881).
See also the monograph of Berg, _Ueber die Verbindlichkeit
der kanonischen Ehehindernisse in Betriff der Ehen der
Evangelischen_ (Breslau, 1835).

On the controversy regarding "mixed marriages" and marriages
of diverse religion, consult Gregorovius, _De mat. person.
diversae relig._ (Regiomonti, 1712); Carpzovius, _Circa nuptias
person. diversae relig._ (Wittenberg, 1735); Breitenbach,
_De mat. allophilorum_ (Giessen, 1740); Zum-Bach, _Ueber die
Ehen zwischen Katholiken und Protestanten_ (Cologne, 1820);
_Ueber die gemischten Ehen_ (Stuttgart, 1827); Wittmann,
_Katholische Grundsätze über die Ehen welche zwischen Katholiken
und Protestanten geschlossen werden_ (Stadtamhof, 1831);
Kutschker, _Die gemischten Ehen von dem katholisch-kirchlichen
Standpuncte_ (Vienna, 1838); _Nationaler und historischer
Standpunkt_ (Cologne and Vienna, 1838); Sack, _Die katholische
Kirche innerhalb des Protestantismus_ (Cologne, 1838); Bessel,
_Die gemischten Ehen_ (Frankfort, 1839); Mack, _Die Einsegnung
der gemischten Ehen_ (Tübingen, 1840); Perronne, _Ueber die
gemischten Ehen_ (Augsburg, 1840); _Eintracht gibt Macht oder
... Nothwendigkeit zu einem gleichmässigen Verfahren in Hinsicht
auf die gemischten Ehen_ (Düsseldorf, 1844); _Die gemischten
Ehen in der Erzdiöcese Freiburg_ (Regensburg, 1846); Binterim,
_An matrimonio mixto_ (Düsseldorf, 1846); _idem_, _Dissertatio
altera_ (Düsseldorf, 1847); _Der Streit über gemischte Ehen ...
in Baden_ (Karlsruhe, 1847); _Beleuchtung_ [of the foregoing]
_Karlsruher Schrift_ (Schaffhausen, 1847); Hilse, _Civil- und
Misch-Ehe_ (Berlin, 1869); and Hübler, _Eheschliessung und
gemischte Ehen in Preussen_ (Berlin, 1883).

For England the principal source is the _Works of the Fathers
and Early Writers of the Reformed English Church_, published
by the Parker Society (Cambridge, 1841-55). Among the large
number of books comprised in this series, those of Latimer,
Cranmer, Tyndale, Jewell, Hooper, Bullinger, Parker, Coverdale,
and particularly Whitgift's _Defence of the Answer_ (containing
also Cartwright's _Reply to the Answer_) have been of most
service. Three important treatises of the English Reformation
period bearing on marriage and the family are Coverdale's
translation of _The Christen State of Matrimonye_ (1541);
Whitforde's _A Werke for housholders_ (1530, 1537); and
Vives's (Vivus's) _A very frvteful and pleasant booke called
the Instruction of a Christen Woman ... tourned out of latyne
into Englische by Rycharde Hyrde_ (London, 1557). The original
may be found in Vol. II, 650-755, of Vives's _Opera_ (Basel,
1555); and Rudolph Heine has a German translation in Vol.
XVI of Richter's _Pädagogische Bibliothek_ (Leipzig, n. d.).
Much valuable material may also be found in Gee and Hardy's
_Documents_ (London, 1896); Prothero's _Select Statutes and
Other Constitutional Documents_ (Oxford, 1894); while the
_Statutes at Large_ (Raithby, London, 1811) are of course
in constant requisition. The more important acts relating
to marriage are contained in Vol. I of Evans's convenient
_Collection of Statutes_ (London, 1823). Swinburne's fascinating
_Treatise of Spousals_ (London, 1686), written in the last
days of Elizabeth's reign, but published a century later, is
indispensable for understanding the law and theory of the
matrimonial contract during the Tudor period. Some assistance
has also been gained from the collections of Hale, Johnson, and
Wilkins mentioned in preceding notes.

The exhaustive treatment of the Protestant conception of
marriage for Germany contained in Friedberg's great work
on _Eheschliessung_ (Leipzig, 1865), supplemented by his
suggestive monograph _Geschichte der Civilehe_ (Berlin, 1877),
leaves little for others to do. Sohm's _Eheschliessung_ is
also important. For England Makower has a brief but excellent
discussion; and much illustrative material may be found in
Burn's _Parish Registers_ (London, 1862); Wood's _Wedding
Day_ (New York, 1869); Douce's _Illustrations of Shakespeare_
(London, 1807); Brand's _Popular Antiquities_ (new ed., London,
1873-77); Burnet's gossipy _History of the Reformation_ (London,
1850); and Jeaffreson's _Brides and Bridals_ (London, 1872).
Nichols, _Progresses ... of King James the First_ (London,
1828), gives an interesting example of the former practice of
public betrothals; and the same may also be found in Leland's
_Collectanea_, V (2d ed., London, 1770). Queen Mary's Articles
(1553) regarding married priests and some other important papers
are given in Cardwell's _Documentary Annals_ (Oxford, 1839,
1844). Palmer's _Origines liturgicae_ (3d ed., Oxford, 1839;
4th ed., London, 1845) has also been of service; while new
light is thrown on social conditions in Elizabeth's reign by
the unique collection of documents edited for the Early English
Text Society by Furnivall, _Child-Marriages, Divorces, and
Ratifications_ (London, 1897).]

I. AS TO THE FORM OF MARRIAGE

The Protestant Reformation in Germany produced many ideas which were eventually fruitful for good in the history of matrimonial law; but unfortunately, owing to a number of causes, more than two centuries were to elapse before any effective remedy was provided for the evils of clandestine wedlock. Ecclesiastical rites were prescribed by the authority of the state as the best means of securing publicity; but neither Luther[1164] nor the other Protestant leaders insisted upon them as necessary to a binding marriage.[1165] Luther, indeed, perceived the absurdity of the scholastic distinction between _sponsalia de praesenti_ and _de futuro_; and proposed to retain espousals _de futuro_ or precontracts only in the sense of "conditional betrothals."[1166] On failure of the condition, or for other weighty reasons, these engagements might be dissolved. But unconditional betrothals, or his _sponsalia de praesenti_--that is to say, practically all betrothals, including the espousals _de futuro_ of the canonists--if publicly made and with parental consent, were regarded by Luther as valid marriages which could not be dissolved.[1167] Parental consent[1168] he appears to think essential, though on this point his statements are by no means clear;[1169] and he urges the need of public espousals in face of the parish.[1170] Yet he admits that a secret engagement--by which he seems to mean espousals without the presence of witnesses, but with parental consent--if followed by physical union, constitutes a true marriage equally binding with the open betrothal. In effect, the doctrine of Luther did not provide a complete remedy for the evils of clandestine contract; for all marriages, save only the conditional when not consummated, and possibly those formed secretly against the parents' will, were now indissoluble at the will of the parties.[1171] Moreover, an action was allowed to enforce a promise of marriage; and for more than two centuries after the Reformation the fulfilment of a betrothal could be enforced by severe penalties.[1172] Yet in one respect there was a decided advance. The pernicious distinction of Peter Lombard between espousals _de praesenti_ and _de futuro_ was practically rejected, and with it much of the danger which had lurked in the vacillating discretion of the ecclesiastical judge might have been removed had the jurists accepted Luther's teaching.[1173] Thus from a historical point of view the result is instructive. The ancient _wette_ or _beweddung_, handed down through the slightly weakened form of the canonical _sponsalia de praesenti_, was restored to even more than its original relative importance as compared with the _Trauung_ or nuptials.[1174]

[1164] See the extracts illustrating Luther's views as to the
form of wedlock in STRAMPFF, 337-44.

[1165] Consult the elaborate investigation of FRIEDBERG,
_Eheschliessung_, 198-305; _idem_, _Die Geschichte der
Civilehe_, 7 ff.; with which should be compared SOHM,
_Eheschliessung_, chap. vii, and his _Trauung und
Verlobung_, chap, iv.; SCHEURL, _Ent. des kirch.
Eheschliessungsrechts_, 123 ff., 126 ff.; _idem_, _Das gemein.
deutsch. Eherecht_, 64-73; DIECKHOFF, _Die kirch.
Trauung_, 108 ff., 180 ff., 223 ff. (views of Melanchthon,
Chemnitz, and others); MEJER, _Zum Kirchenrechte_, 154
ff. (views of Kling, Mauser, Schneidewin, Wesenbeck, Monner,
and Beust--all connected with the consistory of Wittenberg);
SCHUBERT, _Die evang. Trauung_, 41 ff., 49 ff.;
RICHTER, _Lehrbuch_, 1136 ff.

[1166] "Das liess ich wohl verba de futuro heissen, wenn ein
conditio, Anhang oder Auszug dabei gesetzt würde, als: Ich
will dich haben, wo du mir willt zu gut, zwei oder ein Jahr
harren; item: Ich will dich haben, so du mir hundert Gulden
mitbringest; item: so deine oder meine Aeltern wollen; und
dergleichen."--LUTHER, "Von Ehesachen," _Bücher und
Schriften_ (Jena, 1561), V, 241.

As an illustration of the early judicial practice see the
interesting decision of the consistory court of Wittenberg, among
the cases published by SCHLEUSNER, _Anfänge des protest.
Eherechts_, 136, where a contract is dissolved for failure of the
condition. The case is undated, but it probably occurred before
1550.

Conditional espousals were recognized by the canon law: for
England see SWINBURNE, _Of Spousals_, 109-53, where the
many intricate questions connected with conditional contracts are
discussed with much learning; and in general the monograph of
RIEDLER, _Bedingte Eheschliessung_ (Kempten, 1892).

With Luther's views regarding conditional betrothal compare
those of Melanchthon, "De conjugio," _Opera omnia_, I, pars ii,
232; SCHNEIDEWIN, _De nuptiis_, tit. x, "De spons.,"
pars i, 32-38; BEUST, _De spons. et mat._, secs.
xviii, xix; KLING, _Tr. mat. causarum_, foll. 73 ff.;
BROUWER, _De jure con._, 188-204. For discussion see
SCHLEUSNER, "Zu den Anfängen des prot. Eherechts,"
_ZKG._, VI, 402-5; SCHEURL, "Zur Geschichte des kirch.
Eheschliessungsr.," _ibid._, XV, 69, 70; _idem_, _Das gemein.
deutsche Eherecht_, 368-70; RICHARDUS, _De cond.
sponsaliorum impossibilibus_, 29 ff., _passim_; RICHTER,
_Lehrbuch_, 1061 ff., 1200; and especially the excellent
historical paper of PHILLIPS, "Das Ehehinderniss der
beigefügten Bedingung," _ZKR._, V, VI, 153 ff., reviewing the
literature of the subject from the sixteenth to the nineteenth
century; SCHOTT, _Einleit. in das Eherecht_, 199 ff.

[1167] For a collection of the writings of Luther on precontracts
or betrothals see STRAMPFF, 287-334; especially the
extract from the _Von Ehesachen_, 334, where breach of troth is
made equivalent to adultery.

[1168] The passages of Luther's works on parental consent,
with an introductory note, are collected in STRAMPFF,
299-325. Compare BEUST, _De spons. et mat._, 201-10;
MELANCHTHON, "De conjugio," _Opera omnia_, I, pars ii,
231; BULLINGER, _Der Christlich Ehestand_, lvs. 11
ff., 14, 15; KLING, _Tr. mat. causarum_, foll. 77 ff.;
SCHNEIDEWIN, _De nuptiis_, tit. x, "De nupt. licitis,"
pars ii, secs. 29 ff.; BRENZ, "Wie yn Ehesachen ...
zu Handeln," in SARCERIUS, _Vom heil. Ehestande_,
foll. 69 ff.; MENTZER, _De conjugio tr._, 136-50, 153;
BIDEMBACH, _De causis mat. tract._, 3 ff., 15 ff.;
FORSTER, _De nuptiis_, 145 ff., 149 ff. (the law of
Saxony requiring); BROUWER, _De jure connubiorum_, 71
ff., 76 ff., 80 ff.

All authorities, seemingly, are agreed that a parent may not
rightly force a child to marry; see BULLINGER, _Der
christlich Ehestand_, lvs. 15, 16; SCHNEIDEWIN, _De
nupt._, tit. x, "De nupt. licitis," pars. ii, secs. 41, 42;
SARCERIUS, _Vom heil. Ehestande_, foll. 73 ff.; 96
ff. (Luther); MENTZER, _De conjugio tr._, 253-55;
BIDEMBACH, _De causis mat._, 25-27; BOEHMER,
_De mat. coacto_; and the literature on parental consent
described in Bibliographical Note IX.

[1169] In his "Von Ehesachen" (1530), _Bücher und Schriften_,
V, 247, he says directly that a public betrothal, that is a
marriage, not followed by _copula_ should yield to an earlier
secret betrothal _cum copula_. It is argued, however, that
by "secret" he means a betrothal without witnesses, but with
consent of the parents: FRIEDBERG, _Eheschliessung_,
209 n. 2, 210 n. 1; SOHM, _Eheschliessung_, 206 n. 16.
LUTHER'S "Von Ehesachen," _Bücher und Schriften_, V,
237-57, is mainly devoted to a discussion of secret and public
betrothals.

As a matter of fact, I find the consistory court of Wittenberg
dissolving a betrothal for lack of parental consent:
SCHLEUSNER, _Anfänge des protest. Eherechts_, 137. In
another interesting case a girl was persuaded by her lover to
marry him without the consent of her mother or step-father, but
saying: "I would not, however, offend my dear mother." The two
clerical judges held the contract to be conditioned on getting
the mother's consent, and therefore void, since the condition
had not been fulfilled and the law of Saxony forbade marriages
without parental consent. The two lay judges, however, held the
contract binding, because the girl's father being dead, to whom
real authority belonged, she was free to marry whom she chose.
The case was referred to Luther and another person as arbiters.
Luther, in opposition to his associate, held the marriage void
because conditional and a violation of the fourth commandment,
and the court accepted his opinion: SCHLEUSNER, _op.
cit._, 138, 139.

[1170] The consistory court of Wittenberg declared a public
betrothal legal as opposed to an earlier secret engagement:
see the case in SCHLEUSNER, _Anfänge des protest.
Eherechts_, 140; and for other cases _cf. ibid._, 145, 146.

[1171] On espousals, especially clandestine contracts, compare
SCHNEIDEWIN, _De nuptiis_, tit. x, "De spons.," pars.
i, secs. 1 ff., 21 ff.; BEUST, _Tr. de spons. et mat._,
1 ff., 12 ff., 27 ff. (_sponsalia clandestina_); KLING,
_Tr. mat. causarum_, lvs. 1 ff., 6 ff., 68 ff. (_sponsalia
clandestina_); SARCERIUS, _Vom heil. Ehestande_, foll.
67 ff., 91 ff., 73 ff. (Luther); MENTZER, _De conjugio
tr._, 156 ff., 168 ff.; BIDEMBACH, _De causis mat.
tr._, 3 ff., 29-35; FORSTER, _De nuptiis_, 52 ff.;
BROUWER, _De jure connubiorum_, 9 ff., 100 ff.; and the
literature on _sponsalia_ mentioned in Bibliographical Note IX.

For discussion see SCHEURL, _Die Entwick. des kirch.
Eheschliessungsrechts_, 130 ff., 140 ff.; SCHUBERT,
_Die evang. Trauung_, 44 ff.; CREMER, _Kirch. Trauung_,
68-71; DIECKHOFF, _Die Kirch. Trauung_, 189 ff., 212
ff., 221 ff.; RICHTER, _Lehrbuch_, 1121, 1194 ff.;
FRIEDBERG, _Lehrbuch_, 295, 296, 337-59; LOY,
_Das protest. Eherecht_, 425 ff., 437 ff., 445, 447 ff.;
HOFMANN, _Handbuch des teutschen Eherechts_, 27 ff.,
143, 146 ff.; SCHOTT, _Einleitung in das Eherecht_, 174
ff., 182 ff., 193; SOHM, _Eheschliessung_, 197-249.

[1172] The most famous case of enforcement of a betrothal,
against an unwilling bride, is that of Dr. Stiel, 1553. The
plaintiff's petition (_Gesuch_) in fifty-eight articles or
specifications, setting forth in a most realistic way the whole
courtship and the betrothal proceedings, is communicated by
FRIEDBERG, "Beiträge zur Geschichte des brand.-preuss.
Eherechts," _ZKR._, VI, 72 ff. Actual force to compel the
fulfilment of a betrothal was used only when it was followed
by _copula_: _ibid._, 81. Friedberg traces the history of the
subject to the reign of Frederick the Great, citing various
cases. As a result he declares that in the sixteenth century
betrothed persons could be forced to keep their engagement even
when both were willing to dissolve it; while in the eighteenth
century action depended upon the will of the interested parties:
_ibid._, 87, 88. Compare BIDEMBACH, _De causis mat.
tr._, 35 ff.

[1173] See the argument of SOHM, _Eheschliessung_,
202 ff.; _Trauung und Verlobung_, 110 ff.; against
FRIEDBERG, _Eheschliessung_, 206, 210; _Geschichte der
Civilehe_, 8, who holds that Luther _doubled_ the evils of secret
marriage.

[1174] SOHM, _Eheschliessung_, chap. vii; _Trauung und
Verlobung_, chap. iv, has demonstrated this against the view of
Friedberg.

Nevertheless by the middle of the seventeenth century was
established a dualism in effect similar to that which had existed
under the later canon law. More and more stress was placed
upon the nuptials as compared with the betrothal, although in
theory the latter still constituted the marriage. J. H.
BOEHMER, _Jus ecclesiasticum protestantium_ (Halle, 1714),
whose teaching has mainly determined the modern law, attacked
Luther as being responsible for this dualism, holding that a
true betrothal, like the Roman _sponsalia_, is only a promise
of future wedlock, and may therefore be dissolved; while the
nuptial contract, publicly and formally made, is the true
marriage. On Boehmer's doctrines see DIECKHOFF, _Die
kirch. Trauung_, 270-95; SCHUBERT, _Die evang. Trauung_,
62-76; SCHEURL, _Kirch. Eheschliessungsrecht_, 140 ff.;
PHILLIPS, "Das Ehehinderniss der beigefügten Bedingung,"
_ZKR._, VI, 154.

The teachings of Luther regarding espousals were largely determinative for the future history of marriage in the German states. According to the ordinances, the doctrine, and the practice of the evangelical churches, the betrothal was a true marriage, the nuptials merely its confirmation.[1175] Even his wavering as to the necessity of parental consent for a valid contract leaves its trace in the divergent provisions of law.[1176] In practice the jurists, against the protest of Luther,[1177] held close to the principles of the canon law.[1178] As a rule, the courts tended to treat all secret betrothals followed by actual connubial life as binding marriages.[1179] Until far down into the eighteenth century the engaged lovers before the nuptials were held to be legally husband and wife.[1180] It was common for them to begin living together immediately after the betrothal ceremony;[1181] and the so-called "bride children" were given rights of legitimate offspring, this custom in part surviving until our own times.[1182]

[1175] SOHM, _Eheschliessung_, 198.

[1176] The church ordinances require sometimes only parental
consent; sometimes only witnesses; or again the solemnization
of the betrothal in church is prescribed, with the sanction of
nullity or else a mere penalty for non-observance: SOHM,
_op. cit._, 206, 207; FRIEDBERG, _Eheschliessung_, 212
ff., 224, 225. RICHTER'S _Evangelische Kirchenordnungen_
are analyzed by MEIER, _Jus, quod de forma mat. valet_,
49 ff.; and GOESCHEN, _Doctrina de mat._, 42 ff.

[1177] FRIEDBERG, _op. cit._, 225 ff.

[1178] Luther would have entirely rejected the canon law, but
even in his immediate environment he gained no following.
Theologians and jurists alike accepted it as generally valid,
giving it precedence over the Roman law. Only the Scriptures were
a higher authority. Compare MEJER, _Zum Kirchenrechte_,
170, 156 (Kling); _idem_, in _ZKR._, XVI, 44-48, 73.

[1179] SOHM, _op. cit._, 207; FRIEDBERG, _op.
cit._, 209, 225-27, 261, 277 ff. The famous case of Caspar Beyer
came before the consistorial court of Wittenberg in the latter
part of 1543; and its decision in 1544 led to the notorious
controversy between Luther and the jurists. Beyer wanted to marry
Sibylla, a ward of Melanchthon, but he had made a clandestine
contract with another woman without consent or knowledge of
her parents; although it was alleged that her brother had
given _post facto_ assent, the parents being perhaps dead.
Luther declared that such secret betrothals "sollen schlecht
keine Ehe stiften;" and in 1539 or 1540 a law of Saxony had
forbidden them. A decision of the consistory, following the
doctrine of the canon law, sustained the validity of Beyer's
marriage; but after a "starke Predigt" and long insistence by
Luther it was overruled by the Elector: MEJER, "Anfänge
des Witt. Consistoriums," _ZKR._, XIII, 28-123; _idem_, _Zum
Kirchenrechte_, 65 ff.

[1180] SOHM, _op. cit._, 198; FRIEDBERG, _op.
cit._, 208, 209, 225-27, 261, 277 ff., 299, 300.

[1181] In Germany betrothal rituals were sometimes prescribed
in the church ordinances: FRIEDBERG, _op. cit._, 222,
223, 224; and public espousal ceremonies were in use in England:
BURN, _Parish Registers_, 138 ff.

[1182] FRIEDBERG, _op. cit._, 293, 299, 300. On the
_Brautkinder_ see SCHOTT, _Einleit. in das Eherecht_,
193, 194; and on secret betrothals and the laws forbidding them
consult especially HOFMANN, _Handbuch des teutschen
Eherechts_, 146 ff.; and compare LOY, _Das protest.
Eherecht_, 447 ff.

The rites observed in the celebration of marriage differed in some details from those in use before the Reformation. A model was drafted by Luther, and it was often followed with variations in the church ordinances.[1183] He does not urge the adoption of a service which must be observed by all. On the contrary, every place may use its customary form in the solemnization of wedlock. A simple ritual is, however, provided for the use of those needing assistance. When the bride and bridegroom so require, the banns are to be asked in the chancel before the wedding. As in the mediæval formularies already examined, the nuptial ceremony consists of two acts. Before the church door the wedding vows and the wedding rings are exchanged, the priest declaring to the assembled people, in the name of the Trinity, that he pronounces the man and woman joined in marriage. In the church before the altar the second act takes place. Instead of the bride-mass, this consists simply in the reading of a passage of Scripture followed by the priestly benediction.[1184]

[1183] The earliest Protestant marriage ritual appears to
have been written by BUGENHAGEN: see the ritual
(1523) ascribed mainly to him, published with discussion by
SCHUBERT, _Die evang. Trauung_, 142-53. Compare
"Der Bericht Christoph Gerungs von Memmingen über die erste
Priesterhochzeit zu Augsburg anno 1523;" _ibid._, 132-41, showing
that the nuptial ceremony is but a confirmation of the _sponsalia
de praesenti_ already concluded.

[1184] LUTHER, "Traubüchlein für die einfältigen
Pfarrherren" (1534), _Kleinere Schriften_, II, 219-23; with which
compare "Der kleine Katechismus" (1529), in STRAMPFF,
340, 341, 422; and the rituals analyzed by SOHM, _op.
cit._, 197 ff. In this connection read BULLINGER'S
discussion of the proper conduct at weddings in _Der christlich
Ehestand_, lvs. 59-68; or the same in SARCERIUS, _Vom
heil. Ehestande_, foll. 102-7; also BIDEMBACH, _De
causis mat. tr._, 3 ff.; FORSTER, _De nuptiis_, 167 ff.;
and BROUWER, _De jure connubiorum_, 619 ff.

DIECKHOFF, _Die kirch. Trauung_, 108-14, points
out that the exchange of rings and the declaration of the
marriage to the assembled people, instead of saying to the
parties themselves the words "_Ego conjungo vos in nomine_,"
etc., are innovations of the Reformation period. For further
discussion see SCHUBERT, _Die evang. Trauung_, 51
ff.; HOFMANN, _Handbuch des Eherechts_, 172 ff.;
RICHTER, _Lehrbuch_, 1121 ff.; SCHEURL, _Das
gemeine deutsche Eherecht_, 63 ff.

For examples of rules and rituals adopted by some of the
churches consult RICHTER, _Evang. Kirchenordnungen_,
I, 31, 32 ("Landesordnung des Herzogthums Preussen"), 330,
331 (Brandenburg), 347-50 (Geneva); II, 47, 48 ("Cölnische
Reformation"), 375-77 (Brandenburg); especially FISCHER,
"Die älteste evang. Kirchenordnung in Hohenlohe," _ZKR._, XV,
1-48; and compare MEIER, _Jus, quod de forma mat.
valet_, 49 ff.; GOESCHEN, _Doctrina de mat._, 48-58;
FRIEDBERG, _Eheschliessung_, 212 ff.; SOHM,
_Eheschliessung_, 197 ff., who analyzes the church ordinances.

The decree of the Council of Trent relating to the nuptial celebration was not accepted in Protestant lands, and hence no essential change was made in the forms of marriage. In England during the whole period between the Reformation and the Commonwealth ecclesiastical celebration was the rule; and the spiritual courts, retaining their ancient jurisdiction in matrimonial causes, still recognized the principles of the canon law, though appeals to Rome were not allowed.[1185] Hence clandestine contracts _de praesenti_ were valid and could be maintained against regular marriages subsequently solemnized in church. This fact is established by abundant evidence,[1186] and by none more ample and convincing than that afforded by the remarkable collection of documents recently edited by Furnivall, to which further reference will presently be made.[1187] But the parties were subject to clerical censure and the forfeiture of certain property rights.[1188] An attempt was, indeed, made by Henry VIII. in 1540 to restrict the validity of private marriages by providing in effect that those solemnized by the church, if consummate, should take precedence of unconsummated precontracts not thus celebrated; and the same statute confined the impediments to marriage to those comprised in the Levitical degrees.[1189] But this act had little significance save in the matrimonial transactions of Henry himself;[1190] for, so far as it related to precontracts, it was repealed by a statute of Edward VI. which restored the former law and provided that "when any cause or contract of marriage is pretended to have been made, it shall be lawful to the king's ecclesiastical judge of that place to hear and examine" it; and after having it "sufficiently and lawfully proved," to give "sentence of matrimony, commanding solemnization, cohabitation, consummation, and tractation," as in times past the king's spiritual courts had power to do.[1191] Referring to this act, Swinburne, writing in the reign of Elizabeth, bears witness to the strength with which the canonical theory of espousals had laid hold of the legal mind. "Worthily, I say, and upon good ground was this Branch of that Statute" of King Henry relating to precontracts "repealed and made void by his gracious Son King _Edward_ the Sixth, for Spousals _de praesenti_, though not consummate, be in truth and substance very Matrimony, and therefore perpetually indissoluble, except for Adultery: Although by the Common Laws of this Realm (like as it is in _France_ and other places) Spousals not only _de futuro_, but also _de praesenti_ be destitute of many _legal Effects_ wherewith _Marriage solemnized_ doth abound, whether we respect legitimation of Issue, alteration of property in her Goods, or right of Dower in the Husbands Lands."[1192]

[1185] By 24 Hen. VIII., c. 12 (1532): _Statutes at Large_, II,
71-73; GEE AND HARDY, _Documents_, 187-95, appeals to
Rome in questions of marriage and divorce are forbidden. Such
cases may be carried from the archdeacon to the bishop, then to
the archbishop of Canterbury or York, whose decision is final. By
25 Hen. VIII, c. 21: _Statutes at Large_, II, 90, the archbishop
of Canterbury is given a right of dispensation similar to that
formerly exercised by the pope. Chapter 19 of the same statute,
_ibid._, II, 85-87; GEE AND HARDY, _Documents_, 195 ff.,
provides for the appointment of a commission of thirty-two men
to examine the whole body of canons in order to determine which
should be accepted as valid; but until the commission should
conclude its labors "such Canons Constitutions Ordinances and
Synodals Provincial being already made," not repugnant to the
laws or customs of the realm, "nor to the Damage or Hurt of the
King's Prerogative Royal, shall now still be used and executed
as they were afore." No report was made by this commission;
nor did the _Reformatio legum ecclesiasticarum_ prepared by
another commission, which was provided for by 3 and 4 Ed.
VI., c. 11: _Statutes at Large_, II, 295, ever take effect:
FRIEDBERG, _Eheschliessung_, 310 n. 3. The act of 25
Hen. VIII., c. 19, was repealed by 1 and 2 Philip and Mary, c. 8:
_Statutes at Large_, II, 342 ff.; but again restored by 1 Eliz.,
c. 1: _Statutes_, II, 379 ff. So the result was the practical
retention of the canon law. _Cf._ FRIEDBERG, _op. cit._,
309-11.

[1186] It is proved by the celebrated case of Bunting _v._
Lepingwell, 1585-86: COKE'S _Reports_, II, 355-59.
See FRIEDBERG'S analysis of this case and other
proofs collected by him: _Eheschliessung_, 313-18; also
SWINBURNE, _Of Spousals_, 13, 15, 74-108, especially
193 ff., 222 ff., 236-39, who shows the canon-law theory to be
in full force in the reign of Elizabeth; and CRANMER,
_Misc. Writings_, 359, 360. HALE'S _Precedents_,
120, 136, 137, 146, 147, 169, 170, 185, 192, affords several
interesting illustrations for the Reformation period.

[1187] FURNIVALL, _Child-Marriages, Divorces, and
Ratifications, in the Diocese of Chester, 1561-6_ (edited for
the Early Eng. Text Society, London, 1897), especially 56-71,
184-202 (trothplights), 140, 141 (clandestine marriages), 72-102
(adulteries and affiliations).

[1188] SWINBURNE, _Of Spousals_, 15, 233-35;
FRIEDBERG, _op. cit._, 315 n. 4.

[1189] 32 Hen. VIII., c. 38: _Statutes at Large_, II, 173, 174;
EVANS, _Statutes_, I, 152-54. The act of 25 Hen. VIII.,
c. 22: EVANS, I, 151, prescribes the Levitical degrees.

[1190] FRIEDBERG, _op. cit._, 311, 312. See
the elaborate discussion of the divorce controversy by
BURNET, _Hist. of the Reformation_, I, 26 ff.,
particularly 74 ff.

[1191] 2 and 3 Ed. VI., c. 23: _Statutes at Large_, II,
284, 285; EVANS, _Statutes_, I, 154, 155. _Cf._
JEAFFRESON, _Brides and Bridals_, I, 114 f., 124 ff.

[1192] SWINBURNE, _Of Spousals_, 15. This learned
treatise was first published in 1686, although written a century
before. See the introductory address "To the Reader."

Indeed, for the law and custom of betrothal in England, toward the close of the sixteenth century, the quaint and recondite treatise of Swinburne is a mine of information. A vast number of questions illustrative of the principles, the snares and perplexities, of the surviving canonical theories are there taken up and "resolved" with singular brevity and clearness. "Albeit," he says, "this word _Sponsalia_ (Englished _Spousals_) being properly understood, doth only signifie Promises of future Marriage, yet is it not perpetually tied to this only Sense, for sometimes it is stretched to the signification of _Love Gifts and Tokens_ of the Parties betroathed; as _Bracelets_, _Chains_, _Jewels_, and namely the _Ring_; being often used for the very _Arrabo_ or assured Pledge of a perfect Promise: Sometimes it is taken for the _Portion of the Goods_ which is given for and in consideration of the Marriage to be Solemnized; and sometimes for the _Feast or Banquet_ at the Celebration of the Marriage, and of others it is otherwise used." The canonists, however, distinguish between matrimony and betrothal, and they "do also discern betwixt one kind of Spousals and another, being the first Inventors of the several Names of Spousals _de futuro_, and Spousals _de praesenti_, and yet nevertheless oftentimes they make no difference, or very little, betwixt the Natures and Effects of Spousals _de praesenti_ and of Matrimony solemnized and consummate."[1193] Such contracts are "as indissoluble as perfect matrimony;"[1194] and "as well the Sacred Scriptures, as the Civil and Ecclesiastical Laws, do usually give to Women betroathed only, or affianced, the Name and Title of _Wife_, because in truth the man and woman, thus perfectly assured, by words of _present time_, are Husband and Wife before God and his Church."[1195]

[1193] _Ibid._, 1-3.

[1194] _Ibid._, 236.

[1195] _Ibid._, 14. In _Twelfth Night_, Act V, scene i, Olivia
calls Cesario "husband;" and in Act IV, scene iii, referring to
the future nuptials, speaks of keeping celebration "according to
my birth." In _Measure for Measure_, Act I, scene iii, Claudio
calls Julietta his "wife;" and in Act IV, scene i, the duke,
addressing Mariana who had been _affianced_ to Angelo, says,
"he is your _husband_ on a precontract." _Cf._ DOUCE,
_Illustrations of Shakespeare_, I, 114.

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]

[1196] SWINBURNE, _op. cit._, 193 ff.

[1197] _Ibid._, 194.

[1198] SWINBURNE, _op. cit._, 194, 195, 196.

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]

[1199] "In an ancient manuscript (No. 1042 in the Archiepiscopal
Library at Lambeth Palace) the methods of contracting espousals
are thus described: Contrahunt^a sponsalia iiij modis--Aliqu^a
promissione, aliqu^a datis arris sponsalitiis interveniente anuli
subarra[~c]oe, aliqu^a interveniente jura[~m]to. Nuda promissione
cum dicit vir, Accipiam te ī meā uxorem, et illa respondet,
Accipiā te in meū maritū. Vel alia verba equipollencia, et
ista [~s]t vera sponsalia [~q]ndo sit per [~v]ba de futuro
cont^ahuntur."--BURN, _Parish Registers_, 139. On sworn
espousals and the other forms see SWINBURNE, _op. cit._,
213 ff., 193 ff., _passim_.

[1200] _Ibid._, 193.

[1201] BURN, _Parish Registers_, 139, citing
LYNDWOOD'S _Provinciale_, 271. "In an Almanack for
1665, certain days (January 2, 4, etc.) are pointed out as 'good
to marry, or contract a wife (for then women will be fond and
loving).'"--_Ibid._, 139 n. 2. See also WOOD, _The
Wedding Day_, 235-60, for an account of the superstitions and
folklore on this subject.

[1202] Thus in the rituals of Edward VI. and Elizabeth, when the
priest says, "Wilt thou have this woman to thy wedded wife?" or
"this man to thy wedded husband?" we have the case of espousals.
Thereafter, when each party says, "I, N., take thee, N., to my
wedded wife" or "husband," we see matrimony contracted, though
the form is precisely that of _sponsalia per verba de praesenti_.
See the Parker Society _Liturgical Services_, Edward VI., 128,
129; Elizabeth, 218, 219. The same forms are retained in the
existing ritual of the English church: BINGHAM, _The
Christian Marriage Ceremony_, 163, 164.

[1203] In NICHOLS'S _Progresses of King James the First_
(London, 1828), II, 513 ff., "will be found two accounts (one
by Camden) of the ceremonial of the Affiancing of the Princess
Elizabeth in 1612. It took place in the Banquetting House at
Whitehall, before dinner; Sir Thomas Lake, as Secretary of State,
read the words from the book of Common Prayer, in French, 'I
Frederick take thee Elizabeth,' etc., after which the Archbishop
gave his Benediction: 'The God of Abraham, the God of Isaac, and
the God of Jacob, bless these Espousals, and make them prosperous
to these Kingdoms, and to his Church.' This appears to have been
the whole of the office, and the service was probably not longer
in ordinary cases. In the Contract for the Princess's marriage,
executed the same day (Dec. 27), is a clause, 'Quòd Matrimonium
verum et legitimum contrahatur inter eos in Angliā ante initium
mensis Maii, et interim _Sponsalia legitima de praesenti_.' 'It
would be no difficulty,' remarks Mr. Anstis, Garter [Leland's
_Collectanea_, V, 329-36], 'to show the antient custom of such
Espousals by the daughter of the Crown of England as distinct
acts from the office of Matrimony, and that they frequently
were performed some months or years before the marriage was
actually celebrated.'"--BURN, _Parish Registers_, 140
n. 2. As shown in the case of Princess Elizabeth, even the banns
followed the public betrothal: NICHOLS, II, 524, 525.
In the fifth year of Henry V., the espousals of Thomas Thorp and
Katerina Burgate were publicly celebrated: NAPIER'S
_Swincombe_, 65; BURN, _op. cit._, 144. "We find, under
date 1476, that a certificate was given by the minister and six
parishioners of Ufford, in Suffolk, to the effect that since
the death of a certain man's wife he had not been 'trowhplyht'
to any woman, and that he might therefore lawfully take a
wife."--WOOD, _The Wedding Day_, 212.

[1204] In a breach of promise suit before the common pleas, 1747,
the plaintiff proved that she had been publicly betrothed, and
received £7,000 damage: _Gentleman's Magazine_, 1747, p. 293;
also _Gent. Mag. Library: Manners and Customs_, 54.

[1205] BURN, _op. cit._, 144. The author has evidently
transposed the dates. "The Eastern Emperor Leo, surnamed
Philosophus (in order to prevent the mischiefs arising from
Espousals to be concluded by marriage at a distant period)
commanded that the Espousals and Weddings should be performed
both upon one day. Alexius Comnenus endeavoured to restore
the old custom."--_Alex. Com. Novel. de Spons._, 1, 2.;
BURN, _loc. cit._, n. 1.

[1206] DOUCE, _Illustrations of Shakespeare_ (London,
1807), I, 108. Douce discusses the more interesting references
to the betrothal in Shakespeare's plays: _ibid._, 107-14,
403. _Cf._ also BURN, _op. cit._, 140, 143. On the
mediæval English practice of spousals, private and in church,
see PALMER, _Origines liturgicae_, II, 211, 212; and
in general JEAFFRESON, _Brides and Bridals_, I, 60-87;
BRAND, _Popular Antiquities_, II, 87 ff.

[1207] DOUCE, _op. cit._, I, 113, 114. See also
WOOD, _The Wedding Day_, 211, 212; and compare the
Greek betrothal ritual in BURN, _op. cit._, 141, 142,
taken from the _Euchologion sive rituale graecorum_, 380. On
_sponsalia jurata_ see SWINBURNE, _Of Spousals_, 213-21;
KLING, _Tr. mat. causarum_, 2, 3; BEUST, _Tr.
de spons. et mat._, 219 ff.

[1208] DOUCE, _op. cit._, I, 112, 113. Compare the
interesting passage in BULLINGER, _Der christlich
Ehestand_, lvs. 60 ff.