Chapter IX: The Protestant Conception of Marriage (2)

Valid betrothals, like valid marriages, may be celebrated by signs as well as words. This is true, says Swinburne, notwithstanding "a ready text, extant in the bowels of the law," much relied upon by diverse writers, to the effect that words expressive of consent are essential.[1209] "And forasmuch as _Subarration_, that is the giving and receiving of a _Ring_, is a Sign of all others, most usual in Spousals and Matrimonial Contracts, I think it requisite to speak of it, before all other Signs; the rather because the Writers upon this Sign have diligently described unto us, what Persons did first devise the same, and to what end; and what was the matter, and what the form thereof, on which Finger it ought to be worn, and what is the Signification of each of those Circumstances, with divers other Observations which I will briefly run over. The first Inventer of the Ring (as is reported) was one _Prometheus_; The Workman which made it was _Tubal-Cain_, of whom there is mention in the fourth of Genesis, that he wrought cunningly in every Craft of Brass and Iron: And Tubal-Cain by the Counsel of our first Parent _Adam_ (as my Author telleth me), gave it unto his Son to this end, that therewith he should espouse a Wife, like as _Abraham_ delivered unto his Servant Bracelets and Ear-Rings of Gold, which he gave to _Rebecca_, when he chose her to be _Isaacks_ Wife.... But the first Ring was not of Gold, but of Iron, adorned with an Adamant, the Metal hard and durable, signifying the continuance and perpetuity of the Contract; the vertuous Adamant drawing the Iron unto it, signifying the perfect unity and indissoluble Conjunction of their minds, in true and faithful love; Howbeit it skilleth not at this day, what Metal the Ring be; The form of the Ring being circular, that is, round, and without end, importeth thus much, that their mutual love and hearty affection should roundly flow from the one to the other, as in a Circle, and that continually, and for ever; The Finger on which this Ring is to be worn is the fourth Finger of the left hand, next unto the little Finger; because by the received Opinion of the Learned and Experienced in Ripping up, and anatomizing Mens Bodies, there is a Vein of Blood which passeth from that fourth Finger unto the Heart, called _Vena amoris_, Love's Vein. And so the wearing of the Ring on that Finger signifieth, that the love should not be vain or fained, but that as they did give their Hands each to other, so likewise they should give their Hearts also, whereunto that Vein is extended. Furthermore I do observe, that in former Ages it was not tolerated to single or unmarried Persons to wear Rings, unless they were Judges, Doctors, or Senators, or such like honourable Persons: So that being destitute of such Dignity, it was a note of Vanity, Lasciviousness, and Pride for them to presume to wear a Ring, whereby we may collect how greatly they did honour and reverence the Sacred Estate of Wedlock in times past, in permitting the Parties affianced to be adorned with the honourable Ornament of the Ring: As also the Vanity, Lasciviousness, and intolerable Pride of these our days, wherein every skipping Jack and every flirting Jill, must not only be ring'd (forsooth) very daintily, but must have some special Jewel or Favour besides, as though they were descended of some noble House or Parentage, when as all their Houses and whole Patrimony is not worth the Ninth part of a Noble; or else, as if they were betrothed or assured in the holy Band of Wedlock, when as indeed, there is no manner of Contract betwixt them, unless peradventure it be such a Contract as _Judah_ made with _Thamar_, ... which bargain he concluded by delivering her a Ring."[1210]

[1209] SWINBURNE, _Of Spousals_, 203 ff. Whether the
ring alone, without the usual words of assent, is a sufficient
sign of contracting espousals or marriage, depends on its
presentation in solemn form or upon local or national custom:
_ibid._, 209-12.

[1210] SWINBURNE, _op. cit._, 207-9. The symbolism
of the ring is explained in the same spirit by MARTIN
BUCER, _Script. Anglic._ (Basel, 1577), _Censur. in ordinat.
eccles._, cap. xx, pp. 488, 489: WHITGIFT, "Defence of
the Answer," _Works_, III, 353 n. 11. (_Cf._ chap. xi, below,
where this passage is quoted.) The early rituals, as we have
seen (above, chap, vii, sec. 1), quote the Decree of Gratian as
authority for the "vein extending to the heart."

This curious passage is here quoted at length, not because it has historical value, but because the author has condensed therein the symbolism, conceits, and folklore connected with the betrothal ring as these are found in the writings of the canonists, whom he carefully and minutely cites in the margin.[1211]

[1211] On the archæology of the ring see further SAXSE,
_Arcana annuli pronubii_, 68 ff.; WOOD, _The Wedding
Day_, 217-34; WHEATLEY, _Illustrations of the Common
Prayer_, 437-40; BRAND, _Popular Antiquities_, II,
102 ff.; DOUCE, _Illustrations of Shakespeare_, I,
109 ff.; JEAFFRESON, _Brides and Bridals_, I, 138-66;
_Gentleman's Magazine_, 1795, pp. 727, 728, 987; also _Gent. Mag.
Library: Manners and Customs_, 54-57; _Notes and Queries_, 3d
series, VII, 12, 307, 350, 387 (metal of the ring); 5th series,
XII, 407, 474, 514. The fourth finger in connection with the
vein to the heart is mentioned by AULUS GELLIUS, lib.
x, c. 10; also by MACROBIUS, _Saturnal._, lib. vii, c.
13, who "quotes the opinion of Ateius Capito, that the right
hand was exempt from this office because it was much more useful
than the left hand, and therefore the precious stones of the
rings were liable to be broken; and that the finger of the left
hand was selected which was the least used."--_Gent. Mag. Lib._,
_loc. cit._, 54. The mediæval marriage ceremony is described by
CHAUCER, _Merchant's Tale_, ll. 450-509 (ed. Morris,
London, 1891), 332-333.

Before the act of 1753 persons contracting espousals _de praesenti_ might be compelled to celebrate matrimony _in facie ecclesiae_, under penalty for refusal of excommunication by the spiritual and imprisonment by the secular power;[1212] but in case of a mere contract _de futuro_, if either party refused to keep his engagement, he was rather to be "admonished than compelled." The "judge is not to proceed to the _Significavit_, but rather to absolve that cursed Party which contemneth the Censures of the Church, albeit there be no Cause of favour, but fear of further mischief, by compelling them to go together, which hate one another. Yet is not this froward Party thus to be dismissed, but is to suffer pennance" for breach of faith.[1213]

[1212] _Cf._ 2 and 3 Ed. VI., c. 23, cited above; and
HOOPER, _Later Writings_, II, 138.

[1213] SWINBURNE, _op. cit._, 231,232; BURN,
_op. cit._, 138, 139, 140.

II. AS TO THE NATURE OF MARRIAGE

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

[1214] In general on the Protestant theory of marriage see
FRIEDBERG, _Geschichte der Civilehe_, 6 ff.; _idem_,
_Eheschliessung_, 153-98; RICHTER, _Lehrbuch_, 1050 ff.

[1215] The selections from Luther's writings relating to the
nature of marriage and the question of its sacramental character
take up the first 215 pages of STRAMPFF'S _Dr. Martin
Luther: Ueber die Ehe_.

[1216] LUTHER, "Vom ehelichen Stande," _Bücher
und Schriften_ (Jena, 1564), I, fol. 170_b_; also in
STRAMPFF, 205.

[1217] FRIEDBERG, _Eheschliessung_, 157.

[1218] LUTHER, _Von der Babylonischen gefencknuss
der Kirchen_; _idem_, _Von den Conciliis und Kirchen_ (1539):
quoted by FRIEDBERG, _op. cit._, 157, 158, notes. These
passages and others in STRAMPFF, 205 ff., 213 ff.

[1219] LUTHER, "Das siebend Capitel St. Paul zu den
Corinthern ausgelegt" (1523), _Bücher und Schriften_ (Jena,
1555), II, fol. 297; _idem_, "Auslegung des ersten Buch Moses"
(1536-45), _ibid._ (Jena, 1556), IV; or STRAMPFF,
163-203. See the passage quoted by FRIEDBERG,
_Eheschliessung_, 158. For similar expressions compare
_Tischreden_, foll. 350, 352, etc.

[1220] LUTHER, "Auslegung des ersten Buch Moses"
(1536-45), _loc. cit._, fol. 145_a_. _Cf._ FRIEDBERG,
_op. cit._, 157.

[1221] "So manchs Land, so manch Sitte, sagt das gemeine
Sprüchwort; demnach, weil die Hochzeit und Ehestand ein weltlich
Geschäft ist, gebührt uns Geistlichen oder Kirchendienern
nichts darin zu ordenen oder regieren, sondern lassen einer
iglichen Stadt und Land hierin ihren Brauch und Gewohnheit, wie
sie gehen."--LUTHER, "Der kleine Katechismus mit dem
Traubüchlein, Vorrede" (1529), in STRAMPFF, 340, 341,
422. Again LUTHER says: "Es kan ja niemand leugnen,
das die Ehe ein eusserlich weltlich ding ist, wie Kleider und
Speise, Haus und Hofe, weltlicher Oberkeit unterworffen."--"Von
Ehesachen," _Bücher und Schriften_ (1561), V, fol. 237.

[1222] Ehesachen gehen die Gewissen nicht an, sondern gehören
für die weltliche Oberkeit; darumb schlage sich keiner
drein, die Oberkeit befehl es denn, sprach D. M. L. zu den
Predigern."--_Tischreden_, fol. 369. In another passage, speaking
of the breach of the marriage vow and divorce, he says: "Solche
fälle gehören eigentlich der Oberkeit; denn die Ehe ist ein
weltlich ding, mit allen iren umbstenden; gehet die Kirch nichts
an, denn so viel es die Gewissen belanget."--_Ibid._, fol. 368.
_Cf._ FRIEDBERG, _Eheschliessung_, 160.

[1223] LUTHER, _Tischreden_, fol. 369. See the
passages relating to the "weltliche Regiment in Ehesachen," in
STRAMPFF, 411-30, with the author's critical essay.

Thus Luther provided the arsenal from which both the friends and the foes of civil marriage drew their weapons. His name, says Friedberg, became the "battle-cry," the "shield and mantle," of the contending factions; and while urging that Luther must be regarded as the champion of marriage as a "worldly thing," the same writer points out the two powerful motives which may in large measure account for this apparent contradiction.[1224] First, the evils growing out of the ecclesiastical jurisdiction in matrimonial causes were becoming an intolerable burden to Christendom; and only by denying the sacramental nature of marriage could the way be cleared for a transfer of that jurisdiction to the secular courts. Secondly, the abuses connected with sacerdotal celibacy were scarcely less threatening. The licentiousness of the clergy was "beyond belief." Many "bishops were at last content to convert the vows of celibacy into sources of revenue, suffering the clergy to live in concubinage in return for a yearly tax;"[1225] and yet the "ill preserved chastity of the priesthood was interpenetrated then as before by a profound contempt for the marriage state."[1226] Hence Luther proclaimed the natural and scriptural right of priests to marry; and rejecting the low ascetic ideal he laid stress on the purity and holiness of marriage as an institution ordained of heaven.[1227] But, after all, this doctrine is not so entirely out of harmony with the view that matrimony is a "worldly thing;" for with the Reformation a new conception of the temporal power arose. During the Middle Ages the contrast was not between church and state, as the latter is now understood; but between the "unholy world and the holy church." Hence the state, because it was comprehended under the conception of the world, "partook of its unholiness. The Reformation formulated the antithesis differently. It released the state from its shell of 'worldliness,' ascribed to it ethical tendencies, and made it the bearer of morality. Formerly the state was unholy, because it belonged to the world; now the world became ethical, because it fell within the sphere of the state, for the state itself was moral."[1228] Thus, in the sixteenth century, the conception of the "Christian state" and of the "Christian prince," to which Erasmus gave such fine expression, became thoroughly established.[1229] Theoretically church and state were kept apart; but practically they were united; for the idea of a "state church" no longer gave a shock to the religious sense. Accordingly the king as the Lord's anointed became the defender of the faith and the source of ecclesiastical authority.

[1224] FRIEDBERG, _op. cit._, 160-75.

[1225] _Ibid._, 166. See TYNDALE, _Answer to More_, 29
n. 4: "More saith in his _Conf._ (p. ccliiii), 'Syth the marriage
(of a priest) is no marriage, it is but whoredom itself. And
I am sure also that it defileth the priest more than double
and treble whoredom.'" Tyndale accuses the pope of opposing
God's law in denying marriage to priests and by dispensations
licensing concubinage for money, "as through Dutchland every
priest, paying a gildren unto the archdeacon, shall freely and
quietly have his whore, ... as they do in Wales, in Ireland,
Scotland, France, and Spain;" and in "England, thereto, they be
not few which have" such licenses. When the parishes go to law
to make them put away their concubines, "the bishop's officers
mock them, poll them, and make them spend their thrifts and the
priests keep their whores still."--_Ibid._, 40, 41 n. 4, and the
documents there quoted. _Cf._ COVERDALE, _Remains_, 484;
TYNDALE, _Doc. Treatise_, 232; HUTCHINSON,
_Works_, 202; and especially JEWELL'S controversy with
Harding in "Defence of the Apology," _Works_, IV, 629 ff., 640
ff. On the prevalence of concubinage in England during the
Middle Ages see STUBBS, _Const. Hist._, III, 372;
MAKOWER, _Const. Hist. Eng. Church_, 217-20, notes,
who declares that from the close of the twelfth century onward
a priest was punished less severely for fornication than for
marrying. "Loss of office is the penalty only for a breach of
the prohibition to marry," not for fornication, unless very
notorious: _op. cit._, 217. Compare JOHNSON, _Canons_,
II, 26, 33, 40, 80, 81, 114, 132; and 2 and 3 Ed. VI.: GEE
AND HARDY, _Documents_, 367, for complaints of this evil.
See the literature on the evils of celibacy cited in chap. viii.

[1226] FRIEDBERG, _Eheschliessung_, 166. For Germany
compare KAWERAU, _Die Reformation und die Ehe_, 1-40.

[1227] LUTHER, "Bedenken und Unterricht von den
Klöstern" (1522), _Kleinere Schriften_, II, 45-73; _idem_, _An
die herrn deutschs Ordens_ (1523); and BUGENHAGEN, _De
conjugio episcoporum et diaconorum_ (1525).

[1228] FRIEDBERG, _op. cit._, 175.

[1229] FRIEDBERG, _Eheschliessung_, 173, 175. He finds
traces of the idea of a Christian state in the writings of Huss
and Tauler: _ibid._, 173 n. 8.

With Luther's teachings regarding the nature of marriage the German Protestant leaders were mainly agreed.[1230] In his reaction against celibacy and asceticism, however, he went to an extreme where all could not follow him. There were doubtless many persons attached to the new doctrines who were inclined to tolerate or sanction concubinage and even polygamy.[1231] But the "double marriage" of the landgrave of Hesse, which was sanctioned by Luther, Melanchthon, and Bucer, created a scandal for which the majority were not willing to be held responsible. Indeed, from the tone of the decision of Luther and his colleagues it seems clear that they were conscious of treading on dangerous ground.[1232] Regarding another important point the Reformers were not entirely in harmony. The abuses arising in the complex law relating to forbidden degrees and the other canonical impediments, it was felt, ought to be remedied. But there was much divergence of opinion as to the "exact content of the reform needed and even as to the principle which ought to be followed. Should simply a return be made to the Mosaic or to the Roman law?" Or should the canon law be retained with certain modifications?[1233] All were agreed that the hindrance of spiritual kinship must be absolutely abandoned; and there was a tendency to allow intermarriage within the third degree of affinity and consanguinity.[1234] But there was much diversity in legislation and judicial practice, the rules of the Levitical code being followed with varied interpretations.[1235] By the old Protestant law and doctrine, as well as by the rule of the mother church, _disparitas cultus_, or difference of religious faith, was regarded as an impediment to wedlock. Marriages between Christians and non-Christians were positively forbidden.[1236] In like spirit, unions between adherents of different Christian confessions were either entirely prohibited or else severely discouraged.[1237] Such intolerance was sure to produce the natural bitter fruit; and the controversy over these "mixed marriages" has perpetuated itself to our own times.[1238]

[1230] For example see BULLINGER, _Der christ.
Ehestand_, lvs. 3 ff.; MELANCHTHON, "De conjugio,"
_Opera_, I, pars ii, 221, 222; MENTZER, _De
conjugio tr._, 1 ff.; FORSTER, _De nuptiis_, 1 ff.;
SARCERIUS, _Vom heil. Ehestande_, foll. 1-12; _idem_,
_Corpus juris mat._, foll. 1-11. Compare the sentiments of
ERASMUS, _De matrimonio christiano_, 2 ff., _passim_.

[1231] RICHTER, _Beiträge zur Gesch. des
Ehescheidungsrechts_, 46 ff.; FORSTER, _De nuptiis_, 44.

[1232] See the "Bedencken" and the other documents in the
case in ARCUARIUS, _Betrachtung_, 210 ff., 220 ff.
Consult GOTTLIEB WARMUND (JOHANN LYSER?),
_Gewissenhaffte Gedancken vom Ehestande_, first six pages; and
the literature mentioned in Bibliographical Note IX.

[1233] SCHEURL, "Zur Lehre von dem Ehehindernisse der
Verwandtschaft," _ZKR._, XVI, 1-34, giving a clear account of the
Protestant doctrine and its relation to the canon law. Compare
his _Das gemeine deutsche Eherecht_, 183 ff., 195 ff.

For Luther's views on impediments, including the forbidden
degrees, consult the collection of writings in STRAMPFF,
215 ff., 228 ff.; and compare ERASMUS, _De mat.
christ._, 94 ff., 100 ff.; MELANCHTHON, "De
conjugio," _Opera_, I, pars ii, 223 ff.; _idem_, "De arbore
consang.," in SARCERIUS, _Vom heil. Ehestande_,
foll. 12 ff.; BULLINGER, _Der christ. Ehestand_,
lvs. 16 ff.; or the same in SARCERIUS, _op. cit._,
foll. 44 ff.; SCHNEIDEWIN, _De nuptiis_, tit. x,
"De arbore affinitas," secs. 1-23; BEUST, _Tr. de
spons. et mat._, 23, 24, 225 ff.; KLING, _Tr. mat.
caus._, 43-58; BIDEMBACH, _De causis mat. tr._, 37
ff.; MENTZER, _De conjugio tr._, 60 ff., 70 ff.;
BROUWER, _De jure connub._, 435 ff., 444 ff., 461 ff.

[1234] See the Dresden resolutions of 1653 in
SCHLEUSNER, "Zu den Anfängen protest. Eherechts,"
_ZKG._, VI, 411, 412; also in MEJER, "Zur Gesch. des
ält. protest. Eherechts," _ZKR._, XVI, 36, 37; _idem_, _Zum
Kirchenrecht_, 147-71.

[1235] RICHTER, _Lehrbuch_, 1089; FRIEDBERG,
_Lehrbuch_, 296-336; _idem_, "Beiträge zur Geschichte des
brand.-preuss. Eherechts," _ZKR._, VI, 90-135, particularly 129
ff.; _idem_, "Aus der protest. Eherechtspflege des 16. Jahrh.,"
_ibid._, IV, 304-49, discussing the case of Zaschwitz and
communicating important documents of Melanchthon which disclose
his liberal views regarding affinity. The church ordinances
regarding impediments are analyzed by GOESCHEN,
_Doctrina de mat._, 9 ff., 30 ff. Compare his article "Ehe," in
HERZOG'S _Encyclopaedie_, III, 674-80.

[1236] Luther, however, was more tolerant, refusing to accept
difference of religion as a proper hindrance to marriage: see the
passages collected by STRAMPFF, 282, 283. On the other
hand, MELANCHTHON, "De conjugio," _Opera_, I, pars ii,
235, 236, disapproved of such unions. Compare ERASMUS,
_De mat. christ._, 108, 109. The law was gradually relaxed,
especially in favor of intermarriage with Jews, and it is now
abrogated under the imperial legislation: RICHTER,
_Lehrbuch_, 1110, 1111; SCHEURL, _Das gemeine deutsche
Eherecht_, 218, 219; _idem_, _Kirchenrecht. Abhandlungen_, 521;
FRIEDBERG AND WASSERSCHLEBEN, "Zwei Gutachten," _ZKG._,
IX.

[1237] Thus, according to _Des Herzogthums Wirtemberg erneuerte
Ehe- und Ehe-Gerichts-Ordnung_ (1687), 96-99, mixed marriages are
not absolutely prohibited; but the parties are to be "dehortirt;"
the peril to their souls is to be pointed out; a special order
procured for the nuptials; while the evangelical party is to be
admonished to have the marriage celebrated in some evangelical
place abroad, to frequent the orthodox services and sacraments,
and to have the future children brought up in the orthodox
religion.

[1238] SCHEURL, _Das gemeine deutsche Eherecht_, 219-21;
RICHTER, _Lehrbuch_, 1201 ff., 1207 ff., especially nn.
28, 30, 32, 45; SCHOTT, _Einleit. in das Eherecht_, 123,
124.

In general for the controversy regarding mixed marriages see the
literature described in Bibliographical Note IX.

In England as well as in Germany the law and judicature of the church rested on the sanction of the state.[1239] This is the fundamental fact in the history of the English revolt from Rome. But, owing to the peculiar circumstances of that revolt, the investiture of the king with the headship of the church was very unfortunate. Henry VIII. clung to the old doctrines. A stumbling-block was thus placed in the way of intellectual and spiritual progress which in the end cost a second revolution to remove. The effects of this unlucky settlement are plainly discernible in the ecclesiastical conception of marriage. If the teachings of the fathers of the English church[1240] be examined for the period between the death of Wolsey and the death of Elizabeth, it will be found that they are less bold, showing more of the spirit of compromise with the mediæval doctrines, than are those of Luther and his immediate followers on the continent. Not a single clear voice, apparently, is raised for civil marriage. Technically matrimony as a sacrament is rejected by all,[1241] though its sacramental nature was first definitely denied by the church in the Thirty-nine Articles of 1552.[1242] It is, however, something more than a mere civil status. It is, declares Fulke, "nothing else but a devilish slander to say that we 'esteem it but in respect of the flesh, or for a civil contract.'"[1243] Tyndale calls matrimony "a similitude of the kingdom of heaven;"[1244] and in general it is held to be a holy institution, "ordained by God himself in Paradise."[1245] It represents the union of Christ and the church;[1246] and it is "pure," "dignified," and "honorable" for all men.[1247] Hence the natural and scriptural right of priests to marry is vindicated;[1248] and, following St. Paul, the forbidding of them to marry is called a "doctrine of devils."[1249]

[1239] In Germany, at the Reformation, matrimonial jurisdiction
fell partly into the hands of the parish clergy, partly into the
hands of secular judges. The former in their decisions followed
mainly the Roman law and the scriptural teachings under the
guidance of Luther and other great theologians; while the lay
judges were guided by the _corpus juris canonici_. Confusion
arose; the law was carelessly and ignorantly administered; and so
a demand was made for special courts for matrimonial questions.
This resulted, generally, in the relegation of matrimonial
causes to the newly created consistories, composed partly
of spiritual and partly of temporal judges, who in practice
followed the principles of the canon law and constituted in fact
ecclesiastical courts. Compare the very interesting decisions of
the consistory court of Wittenberg, already quoted, beginning
soon after its formation, in SCHLEUSNER, _Anfänge des
prot. Eherechts_, 130-62. It can scarcely be said that the evils
of matrimonial law and administration in Germany were very
much lessened as a result of the Reformation during the first
two centuries after Luther. See the minute investigation of
FRIEDBERG, _Eheschliessung_, 177 ff., 186 ff.; and his
_Geschichte der Civilehe_. Compare the discussion of the rise of
matrimonial jurisdiction in chap. xi.

[1240] See the _Works of the Fathers and Early Writers of the
Reformed English Church_, published by the Parker Society in a
long series of volumes. There is an excellent index, six columns
of which are devoted to "marriage."

[1241] Matrimony is no sacrament, except in the general sense
of "mystery": CRANMER, _Misc. Writings_, 115, 116;
TYNDALE, _Doctrinal Treatises_, I, 254; _idem_, _Answer
to More_, 175; CALFHILL, _An Answer to John Martiall's
Treatise of the Cross_, 235 ff.; ROGERS, _The Catholic
Doc. of the Church of England, an Exposition of the Thirty-Nine
Articles_, 260 ff.; FULKE, _Answer_, 229, 243; _idem_,
_Defence against Gregory Martin_, 168, 492-96; JEWELL,
_Works_, II, 1125; WHITAKER, _Disputation on Holy
Scripture against the Papists_, 197, 489.

[1242] FRIEDBERG, _Eheschliessung_, 309 n. 1. "Henry the
VIII. stood so far upon the ground of the canonical doctrine that
before and after his breach with Leo X. he declared marriage to
be a sacrament."--_Ibid._

[1243] FULKE, _Defence against Gregory Martin_, 492.

[1244] TYNDALE, _Answer to More_, 175.

[1245] JEWELL, _Works_, II, 1128; LATIMER,
_Sermons and Remains_, 161, 162; HUTCHINSON, _Works_,
148; BECON, _Prayers_, 27, 611; BULLINGER,
_Decades_, I, 394, 397; BRADFORD, _Writings_, I, 167;
TYNDALE, _Doctrinal Treatises_, 254.

[1246] BULLINGER, _Decades_, I, 397; PHILPOT,
_Examinations and Writings_, 246; SANDYS, _Sermons_,
317, 313-30 (marriage in general); TYNDALE, _Doc.
Treatises_, 254; _idem_, _Answer to More_, 153, 154.

[1247] CALFHILL, _Answer_, 238-41; BULLINGER,
_Decades_, I, 394, 396; HOOPER, _Early Writings_, 375;
_idem_, _Later Writings_, 55; JEWELL, _Works_, I,
158; II, 1128; IV, 803; LATIMER, _Sermons_, I, 366,
393; _idem_, _Sermons and Remains_, 160, 162; SANDYS,
_Sermons_, 313, 314; TYNDALE, _Expositions_, 125.

[1248] Authorized by 2 and 3 Ed. VI., c. 21, 1549, which was
confirmed in 1552: CRANMER, _Misc. Writings_, p. x;
LATIMER, _Sermons_, 529 n. 3; _Zürich Letters_, II, 159;
_Statutes at Large_, II, 283, 305, 306.

[1249] LATIMER, _Sermons and Remains_, 77, 162;
HOOPER, _Early Writings_, 375; _idem_, _Later Writings_,
55, 56, 126; BULLINGER, _Decades_, IV, 509. _Cf._
ROGERS, _Thirty-Nine Articles_, 302-7; BECON,
_Prayers_, 235 ff.; COVERDALE, _Remains_, 483-85;
PILKINGTON, _Works_, 564; TYNDALE,
_Expositions_, 29, 151, 155, 156; _idem_, _Doc. Treatises_, 230;
JEWELL, _Works_, II, 882; III, 406; CRANMER,
_Misc. Writings_, 393 n. 5, also pp. viii, x. For many other
references see the Index to the Parker Society _Publications_, at
"Marriage of Clergy."

Still the new teaching did not at once find expression in the law of the land. Under its influence, at the beginning of the Reformation, some of the clergy, notably Archbishop Cranmer, married; but Henry VIII. tenaciously clung to the doctrine of clerical celibacy and issued several proclamations against the marriage of priests.[1250] Thus in 1535 "his majestie understanding that a few number of this his realme being priests, as well religious as other, have taken wives, and married themselves," and not wishing the "generalitie of the clergy" to follow their example, doth command all such priests "as have attempted marriages" or shall "hereafter presumptuously proceed in the same, that they nor any of them shall minister any sacrament or other ministry mysticall, nor have any office, dignity, cure, privilege, profitt or commoditye heretofore accustomed, and belonging to the clergie of this realme, but shall utterly after such marriages be expelled and deprived from the same, and be had and reputed as lay persons, to all purposes and intents. And that such as shall after this proclamation ... take wives, and be married, shall run in his grace's indignation, and suffer further punishment and imprisonment at his grace's will and pleasure."[1251] Proclamations[1252] of like nature were later enacted; and finally the six-articles law of 1539 provided that all marriages or matrimonial contracts, made by priests or between a man and a woman either of whom has vowed chastity, before or during "this present parliament," shall "be utterly void and of none effect;" while any future transgression is to be punished as felony.[1253] Nevertheless Cranmer was allowed to retain his wife; and through his influence the penalties prescribed by the six-articles act were somewhat modified in 1540.[1254]

[1250] MAKOWER, _Const. Hist. Eng. Church_, 220-24,
gives an excellent discussion, with quotations from the sources,
of the laws relating to the marriage of priests from Henry VIII.
to James I.

[1251] WILKINS, _Concilia_, I, 776. Compare
MAKOWER, _op. cit._, 220 n. 17.

[1252] There were "similar proclamations of 16th November, 1538
(Strype, _Cranmer_, ed. 1812, I, 98) and of 1539 (Wilkins, III,
847). The proclamations had the force of law, as can be seen from
31 Hen. VIII. (1539), c. 8."--MAKOWER, _op. cit._, 221,
note. _Cf. Statutes at Large_, II, 143.

[1253] This statute (31 Hen. VIII., c. 14) may be found in
GEE AND HARDY, _Documents_, 303-19; an abstract in
MAKOWER, _op. cit._, 221 n. 19; and a summary in
_Statutes at Large_, II, 149. Compare the comments on the act
as showing matrimony "to have been a more grievous offence than
concubinage," in _New Monthly Review_, XXIX (1763), 270.

[1254] By 32 Hen. VIII., c. x: MAKOWER, _op. cit._, 221
n. 20.

Under Edward VI. the doctrine of the Reformation gained a victory. The six-articles law was repealed in 1547.[1255] In the same year the lower house of convocation prayed "that all provisions against clerical marriages might be set aside and all vows of chastity pronounced void."[1256] Accordingly by 2 and 3 Edward VI. (1548), c. 21, the obstacles to such unions were formally swept away on grounds of expediency; though the act sanctions the ancient prejudice by declaring that "it were not only better for the estimation of priests, and other ministers in the Church of God, to live chaste, sole, and separate from the company of women and the bond of marriage, but also thereby they might the better intend to the administration of the gospel, and be less intricated and troubled with the charge of household, being free and unburdened from the care and cost of finding wife and children, and that it were most to be wished that they would willingly endeavour themselves to a perpetual chastity."[1257] This clause was explained by the act of 5 and 6 Edward VI. (1551-52), c. 12, "as meaning not simply that the marriages in question were exempt from punishment, but that they were good and lawful marriages, the offspring of which were legitimate and could inherit in the usual way, and that priests might be tenants by courtesy on the death of their wives, and wives endowable of their lands."[1258]

[1255] By 1 Ed. VI., c. 12 (1547): _Statutes at Large_, II, 256.

[1256] MAKOWER, _op. cit._, 222; _ap._ WILKINS,
_Concilia_, IV, 16. _Cf._ GEE AND HARDY, _Documents_,
366.

[1257] _Ibid._, 367: _Statutes at Large_, II, 283. On the
debates and controversial writings connected with this act see
BURNET, _Hist. of Reformation_, I, 354-58. By the
Injunctions of 1548, in the visitations inquiry is to be made
whether any "do condemn married priests, and for that they be
married will not receive the communion or other sacraments at
their hands."--CARDWELL, _Doc. Annals_, I, 51.

[1258] Summary of the statute by MAKOWER, _op. cit._,
222. _Cf. Statutes at Large_, II, 305; BURNET, _Hist.
of Reformation_, I, 432.

After the accession of Mary, a royal ordinance again prescribed celibacy as the condition of holding priestly office.[1259] The matrimonial laws of Edward's reign were repealed;[1260] and it is significant of Elizabeth's conservative position on religious questions that those enactments were not restored on her coming to power. She was shocked at the marriage of priests and was very reluctant to sanction it by statute. "The Queen's majesty," writes Sandys to Parker in 1559, "will wink at it but not stablish it by law, which is nothing else but to bastard our children;"[1261] and two years later, according to Cecil, "her majesty continueth very evil affected to the state of matrimony in the clergy. And if [I] were not therein very stiff," she "would utterly and openly condemn and forbid it."[1262] Yet already by her first Injunctions, 1559, she had grudgingly given her consent to clerical marriage, though it was hampered by severe conditions. "It is thought therefore very necessary, that no manner of priest or deacon shall hereafter take to his wife any manner of woman without the advice and allowance first had upon good examination by the bishop of the same diocese, and two justices of the peace of the same shire, dwelling next to the place, where the same woman hath made her most abode before her marriage; nor without the good will of the parents of the said woman, if she have any living, or two of the next of her kinsfolk, or, for lack of knowledge of such, of her master or mistress, where she serveth." If "any shall do otherwise," he is forbidden to administer either the "word" or the "sacraments," and is declared incapable of "any ecclesiastical benefice." The marriage of a bishop is allowed only on approval of the "metropolitan of the province" and of "such commissioners" as the queen may appoint; while the master, dean, or head of a college must obtain the consent of those to whom the right of visitation belongs, who shall provide that the marriage "tend not to the hindrance of their house."[1263] Two years later "the queen further ordained that, upon pain of forfeiting his office, no head or member of any college or cathedral church should have his wife or other woman within the precincts,"[1264] and "in the thirty-nine articles of 1563 the marriage of the clergy was recognized as permissible."[1265] Still throughout the reign of Elizabeth, apparently, clerical marriages continued to be resisted; for "in the _Millenary Petition_ addressed by the Puritans to James I. at his accession, among other requests was one for the restoration of the laws of Edward VI. as to the marriage of priests.[1266] That restoration and, consequently, the repeal of the obstructing act of Mary were accomplished" in 1603.[1267]

[1259] See the "Articles of Queen Mary, 4th March, 1553,"
in CARDWELL, _Doc. Ann._, I, 112, 113; also
MAKOWER, _op. cit._, 222 n. 26. Such married priests,
"after deprivation of their benefice, or ecclesiastical
promotion," are to "be also divorced every one from his said
woman, and due punishment otherwise taken for the offence
therein." But the bishops are to "use more lenity and clemency
with such as have married, whose wives be dead, than with others
whose women do yet remain alive;" as also with those who, with
their wife's consent, in the bishop's presence, promise to
"abstain." _Cf._ BURNET, _Hist. of Reformation_, I, 490,
who says "many were set to write against the marriage of the
clergy."

[1260] See 1 Mary, stat. 2, c. 2, 1553: GEE AND HARDY,
_Documents_, 377-80.

[1261] PARKER'S _Correspondence_, 66.

[1262] _Ibid._ (Cecil to Parker, Aug. 12, 1561), 148. Parker
replies: "I was in an horror to hear such words to come from her
mild nature and christianly learned conscience, as she spoke
concerning God's holy ordinance and institution of matrimony;"
and he complains that she holds that the English clergy "alone
of our time" are "openly brought in hatred, shamed and traduced
before the malicious and ignorant people, as beasts without
knowledge to Godward, in using this liberty of his word, as men
of effrenate intemperancy.... Insomuch that the Queen's Highness
expressed to me a repentance that we were thus appointed in
office, wishing it had been otherwise."--_Correspondence_, 156,
157. Marriage of priests was defended by COX, _ibid._,
151.

[1263] GEE AND HARDY, _Documents_, 431, 432;
PROTHERO, _Statutes and Documents_, 184 ff.;
CARDWELL, _Doc. Ann._, I, 192, 193; MAKOWER,
_op. cit._, 223 n. 27; BURNET, _Hist. of Reformation_,
I, 577. These regulations of marriage are mentioned by
PERCIVAL WIBURN in _Zürich Letters_, II, 359.
_Cf. ibid._, II, 61 n. 129; I, 164, 179, 358. Compare the
hostile "Articles of Visitation" of Bishop Bonner, 1554:
CARDWELL, _op. cit._, I, 125, 126; and compare _ibid._,
153, 171, 172.

[1264] MAKOWER, _op. cit._, 223 n. 28;
CARDWELL, _Doc. Ann._, I, 273.

[1265] See the extract from the thirty-second article in
MAKOWER, _op. cit._, 223 n. 29.

[1266] MAKOWER, _op. cit._, 223, 71. The _Millenary
Petition_ is in GEE AND HARDY, _Documents_, 508-11;
PROTHERO, _Statutes and Documents_, 413-16; according to
Makower, in PERRY, _Hist. Eng. Church_, II, 372, c. 22,
notes and illustrations; COLLIER, _Eccles. Hist._, ed.
1852, VII, 273.

[1267] By 1 James I., c. 25, sec. 8: PROTHERO, _Statutes
and Documents_, 255; _Statutes at Large_, II, 640. _Cf._
MAKOWER, _op. cit._, 224.

In fact, the primitive ascetic ideal was by no means utterly extinct among the Protestant theologians of the Tudor period. Some, like Latimer, Fulke, and Hutchinson, insist that matrimony is inferior to virginity;[1268] and very generally it is still held to be ordained of heaven, especially as a "remedy" for sin, though more worthy motives are admitted. According to Bradford, God "has made womankind, and ordained the state of matrimony," "not only for the help and community of man, but also for a remedy of man's infirmity."[1269] Bullinger assigns the usual three reasons "for which God hath ordained marriage for men to embrace." The "first cause why wedlock was instituted is man's commodity, that thereby the life of man might be the pleasanter and more commodious; for Adam seemed not to live half happily nor sweetly enough, unless he had a wife to join himself unto; which wife is not in the scriptures called an impediment or necessary evil, as certain poets and beastly men who hated women have foolishly jangled."[1270] The "second cause is the begetting of children for the preservation of mankind;" and the third is to provide a safeguard against the weakness of the flesh.[1271]

[1268] "But when thou livest godly and honestly in single
life, it is well and allowable afore God; yea, and better
than marriage."--LATIMER, _Sermons_, 393, 394. _Cf._
FULKE, _Answers_, 228, 383; _idem_, _Defence_, 492;
HUTCHINSON, _Works_, 148; see also CARTWRIGHT,
in WHITGIFT'S _Works_, III, 293. But see the curious
passage in TYNDALE'S _Doctrinal Treatises_, 21, which
should be compared with his argument against the doctrine that
"widowhood and virginity exceed matrimony," _ibid._, 313-15.

[1269] BRADFORD, _Writings_, I, 167.

[1270] BULLINGER quotes in favor of marriage the
views of ANTIPATER, _In sermone de nuptiis_, and
HIEROCLES, _De nuptiis_.

[1271] BULLINGER, _Decades_, I, 394-410. The three
reasons are also given by SANDYS, _Sermons_, 316
ff.; and JAMES I., "Basilikon Doron," _Workes_
(London, 1616), 171. On marriage as a "remedy" _cf._ also
CRANMER, _Misc. Writings_, 115, 116; TYNDALE,
_Expositions_, 125; HOOPER, _Early Writings_, 381;
BECON, _Catechism_, 103.

Thus the change effected by the religious revolution in the conception of marriage, highly important as it was from a speculative point of view, was not destined to bear its proper fruit until after many days. In Germany, after a time, the bolder and more liberal teachings of Luther were generally ignored; so that by the middle of the seventeenth century the reactionary theories which had then gained ascendency were substantially in harmony with the ideas of the English clergy. In both countries the ecclesiastical courts still continued to try matrimonial causes in the spirit of the canon law; and more and more, as the new churches grew in power and became conservative, did the theological view of the nature of marriage approach the ancient dogma. "According to the canon law, the church claimed matrimonial jurisdiction because marriage was a sacrament; by the Protestants marriage was made almost a sacrament because the church exercised matrimonial jurisdiction."[1272] Not until the full triumph of civil marriage in the nineteenth century were the logical results of the new doctrines at last attained.

[1272] FRIEDBERG, _Eheschliessung_, 192.

III. CHILD-MARRIAGES IN THE AGE OF ELIZABETH

Seldom has a more vivid light been thrown on social conditions than that afforded for the age of Elizabeth by the depositions taken in the bishop's court of the diocese of Chester, 1561-66, and edited for the Early English Text Society by Furnivall in 1897. Their value for the student is enhanced by the very lively "forewords" of the learned and enthusiastic editor. The evils naturally flowing from the law and doctrine of espousals are here realistically disclosed in the "trothplights" and the similar cases of "clandestine marriages."[1273] There is the usual juggling with the words of the present or future tense; and the usual puzzling over conditions and irregular phrases. For the basest of motives girls are tricked into vows which may or may not prove to be valid marriages according to the uncertain interpretation of the words or acts of betrothal sworn to in court. "Ten of the seventeen cases" of trothplight, says Furnivall, "show us men trying to sneak out of their contracts when they've had their fill of pleasure with the women."[1274] Needy and unscrupulous priests, worthy predecessors of the notorious Fleet parsons, without banns or license, are seen "solemnizing" the nuptials "accordinge to the book of Common prayer," in a private house, in a meadow, or on the "heighe waie," during "the night season" and "by the lighte of the moone."[1275]

[1273] For the trothplights and clandestine contracts see
FURNIVALL, _Child-Marriages_, xliii-liii, lxii, lxiii,
56-71, 140, 141, 184-202. CHAMBERLAIN, _The Child
and Childhood in Folk-Thought_, 224-33, has made good use of
Furnivall's collection.

[1274] FURNIVALL, _op. cit._, xliii.

[1275] _Ibid._, 140, 141. Further light is thrown on the secret
marriages by the cases of adultery and affiliation: _ibid._,
72-102, 202-204.

The astonishing prevalence of child-marriages is, however, the most important fact revealed by these documents.[1276] In a single diocese during the short space of six years, besides three "ratifications," occurred twenty-eight cases of so-called divorce or voidance of contracts which were formed in infancy or early childhood. The age of the persons varies from two to thirteen years; and in at least ten cases the girl is older than the boy. It should also be observed that these thirty-one contracts are merely those brought before the court for confirmation or annulment after at least one of the parties has reached the age of puberty, which by the canon law is fixed at twelve for females and fourteen for males. It is, of course, proper to assume that the number of child-marriages which never thus came up for settlement was very much larger than the number of those which did so arise. What the number for all England may have been during the period, it is startling to contemplate! Moreover, the majority of these marriages took place, not among the rich or noble, but among common people of small means. In a number of instances we are told in the record that the infant bride or bridegroom was carried before the priest in someone's arms. Thus, in a case which arose in 1564, a witness deposes that "he was present bie, when John Somerforth and Jane Brerton were maried together in the parish church of Brerton about xij yeres ago ... that he carried the said John in his armes, beinge at tyme of the said Mariage about iij yeres of age, and spake somme of the wordes of Matrimonye, that the said John, bie reason of his younge age, cold not speake hym self, holdinge him in his armes all the while the wordes of Matrimonie were in speakinge. And one James Holford caried the said Jane in his armes, beinge at the said tyme about ij yeres of age, and spake all, or the most parte of, the wordes of matrimony for her." Being further "required whether the said marriage was euer ratified bie carnall Copulacion or other meane, Answereth that, in his Conscience, it was neuer." Another witness testified to the same facts and added, "it was the youngest Mariage that euer he was at."[1277]

[1276] _Ibid._, xv-xliii, 1-55, 183, 184. In addition to these
Chester cases FURNIVALL (xxi-xliii) presents very
interesting material regarding child-marriages, some of which
were before or after the age of Elizabeth. Two cases under Henry
VII. and Henry VIII., respectively, are mentioned in _Reports
of the Hist. Manuscripts Commission_, III, 247. Sometimes such
marriages were secured by abduction or conspiracy: see _ibid._,
III, 55, 59, 61 (three cases in the reign of James I.).

[1277] FURNIVALL, _op. cit._, 25, 28.

Looked at from a religious point of view, it would be hard to imagine a more absurd travesty of "holy wedlock" than such proceedings conducted by the parish priest.[1278] Nor was there much sentiment involved in the matter. If the great folk betrothed their children while babes to escape the king's right of wardship, the small folk were influenced by like motives on a smaller scale. "If the parent of either child is mercenary," summarizes Furnivall, "a money-bargain is made for it: the father of a boy of two, gets from an older girl's father, 'monie to bie a pece of land,' and executes a Bond to repay the money if his boy doesn't marry the girl (pp. 6-9). In another case, the boy's father is in debt, 'and to get somme money of William Whitfield, to the discharge of his debtes, maried and bargained his sonne to the said Whitfeildes doughter' (pp. 23, 24). Again, a girl of 3 or 4 is married to a boy of 7 'biecause her frendes thought she shuld have had a lyvinge bie hym' (p. 4), and her father-in-law is under Bond to marry them (p. 5). So again, a girl's father says that she married a boy of her own age, 11-12 'biecause she shold have had bie hym a prety bargane, yf they cold have lovid, on the other' (p. 12). Another girl of 11 is married to a boy of 9, because, on her father's death, the boy's father gets the landlord's leave to take-on the girl's house (p. 10). Another girl of 8 is married to a boy of 10, because the boy's father feard 'lest he shuld lose his parte of his lyvinge' in a tenement which he held in common with the girl's protector (p. 14). In another instance, the girl's grandfather 'was a very welthie man; and it was supposed that he wold have bene good vnto' her & her boy-husband, 'and bestowid somme good ferme apon her' (p. 32), so a boy of 12 married her when she was 10. Other children are married 'bie the compulsion of their frendes' (pp. 11, 13, 23 &c.); another 'by a wile' (p. 16), the girl being invited by a relation of the boy's to come and make merry, and then married to the boy against her consent. But in one case, a girl arranged her own marriage. She was 'a bigge damsell & mariageable' (p. 47), that is, past 12, and evidently fancying a nice boy of 10-11, 'intised hym with two Apples, to go with her to Colne, and to marry her' (p. 45). No wonder that this boy 'repentid' next morning, and that others say 'at the tyme of their mariage they knewe not what they did' (p. 15)."[1279]

[1278] In the light of these facts, some of the discussions of
child-marriages in India, often intolerant or condescending, have
a very curious interest; compare the sensible and instructive
paper of REES, "Meddling with Hindu Marriages,"
_Nineteenth Century_, Oct., 1890, 660-76.

[1279] FURNIVALL, _op. cit._, "Forewords," xv, xvi.

According to SWINBURNE, _Of Spousals_, 18 ff., both
by civil and canon law, children are infants until they have
completed the seventh year; and "Spousals contracted during
Infancy are utterly _void_, whether the Infants themselves, or
their Parents for them, do make the Contract." After the close
of that period such void contracts may be ratified by express
words or by deeds. On the other hand, spousals contracted
between infancy and the "ripe" years of twelve or fourteen are
voidable by either spouse when that age is reached. To express
dissent divorce proceedings are not necessary, although a divorce
may be desirable to prevent future question. Either party may
cancel the contract by simply marrying another person; just as a
child-marriage may be ratified by words of consent or by simply
living together as husband and wife: compare FURNIVALL,
_op. cit._, xix-xxv; and _The Lawes Resolutions of Womens
Rights_, 7, 52, 57.