A History of Matrimonial Institutions (Vol. 1-3). George Elliott Howard

      II. CLANDESTINE MARRIAGES THE FRUIT OF THE CANONICAL THEORY

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      The way was thus cleared for clandestine marriages. All efficient restraints upon hasty unions were rejected; and often it became impossible for the courts or even the parties themselves to know whether a man and a woman were legally husband and wife or their children legitimate. Seldom have mere theory and subtle quibbling had more disastrous consequences in practical life than in the case of the distinction between sponsalia de praesenti and de futuro. The difference was not essential, but purely verbal.[1080] The canonist had before his mind the tense inflections of a Latin verb. He insisted on a distinction which found no place in popular ideas and which the usages of popular speech refused to observe. In the English as well as the German idiom the contrast between the present and the future tense is not always sharply defined.[1081] This anomaly is described by Martin Luther in his usual trenchant style. "They have played a regular fool's game," he says, "with their verbis de praesenti vel futuro. With it they have torn apart many marriages which were valid according to their own law, and those which were not valid they have bound up.... Indeed I should not myself know how a churl ... would or could betroth himself de futuro in the German tongue; for the way one betroths himself means per verba de praesenti, and surely a clown knows nothing of such nimble grammar as the difference between accipio and accipiam; therefore he proceeds according to our way of speech and says: 'I will have thee,' 'I will take thee,' 'thou shalt be mine.' Thereupon 'yes' is said at once without more ado."[1082]

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

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

      The evil of clandestine