IX. THE PROTESTANT CONCEPTION OF MARRIAGE

IX. THE PROTESTANT CONCEPTION OF MARRIAGE

[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.

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.

Spotted a typo or a problem in this chapter? Tell us