A History of Matrimonial Institutions (Vol. 1-3). George Elliott Howard
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save in the matrimonial transactions of Henry himself;[1190] for, so far as it related to precontracts, it was repealed by a statute of Edward VI.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 "Worthily, I say, and upon good ground was this Branch of that Statute" of King Henry relating to precontracts "repealed and made void by his gracious Son King Edward the Sixth, for Spousals de praesenti, though not consummate, be in truth and substance very Matrimony, and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]
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]
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]
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]
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,