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