A History of Matrimonial Institutions (Vol. 1-3). George Elliott Howard
thereby not only perverting the order which God hath appointed in severing the civil causes from the ecclesiastical, but justling also with the civil magistrate, and thrusting him from the jurisdiction which appertaineth unto him, as the causes of the contracts of marriage, of divorce, of wills and testaments, with divers other such like things. For, although it appertain to the church and the gouvernors thereof to shew out of the word of God which is a lawful contract or just cause of divorce, and so forth, yet the judicial determination and definitive sentences of all these do appertain unto the civil magistrate. Hereunto may be added, that all their punishments almost are penalties of money, which can by no means appertain to the church, but is a thing merely civil."[1290]
So far as England is concerned, to assign the unfortunate "severing the civil causes from the ecclesiastical" under William the Conqueror to the "order which God hath appointed" may seem to the historical student a trifle bold; and Whitgift may well retort, if "'it pertain to the church to declare what is a lawful contract, and which be the just causes of divorce,' by what reason can you prove 'that the judicial determination and definitive sentence of those matters doth pertain to the civil magistrate only'? For is not he most meet to judge in these causes which best understandeth them?" But Whitgift himself undoubtedly begs the question when he advances the counter-statement that the civil magistrate already has authority in ecclesiastical cases, since "all jurisdiction that any court in England hath or doth exercise, be it civil or ecclesiastical," is "executed in her majesty's name and right," and comes "from her as supreme governor," so that in effect "we" make no "such distinction betwixt civil and ecclesiastical causes as the pope and you do;"[1291] for this very blending of church and state under the "defender of the faith" is really the root of the whole matter in controversy. Yet Cartwright represents a good cause, however lame his defense of it may be. Again returning to the charge, in effect he attacks the notorious character[1292] of the spiritual courts themselves, referring to the "unfitness of those which are chief officers" in them; for "the most" of these officials, he affirms, "are either papists, or bribers, or drunkards (I know what I write), or epicures, and such as live of benefices and prebends in England and in Ireland, doing nothing of those things which appertain unto them."[1293] Dilatory action in matrimonial causes was a standing grievance against the spiritual courts; and many "lamentable complaints and petitions" for redress, especially in cases where "summary hearing and speedy relief" are necessary, were addressed to the privy council. For this reason, in 1613, complaints from wives alleging desertion, cruel treatment, or "breach of the bonds of holy wedlock" on the part of their husbands were relegated to the High Commission for settlement.[1294]
But adding to the powers of the "Ecclesiastical Star Chamber" would scarcely be regarded by the Puritans as even a satisfactory palliation for such a grievance. The policy of the Stuarts tended swiftly to mold their opinions into organized resistance; and the marriage question became at last one of the cardinal issues in the reform program. Thus in the "Millenary Petition" of 1603 the Puritan ministers, while objecting to the "cross in baptism," the "cap and surplice," profanation of the Lord's day, "double-beneficed men," "popish opinions," and "longsomeness of service," pray also for the reversal of "divers popish canons," such "as the restraint of marriage at certain times;" for greater caution in granting "licenses for marriage without banns;" and for the correction of "divers terms of priests and absolution and some other used, with the ring in marriage, and other such like in the book."[1295] On the other hand, if the Puritan loathed the so-called "popish" tendencies of the established church, as these became more and more pronounced under the rule of Laud, both the Puritan and the Anglican united in merciless persecution of the adherents of Rome. The act of 1606, "to prevent and avoid dangers which may grow by Popish recusants," is one of the most barbarous of those which for ages disgraced the English statute book. By this law a "popish recusant convict," or a man whose wife alone is convicted of recusancy, is forbidden to "exercise any public office in the commonwealth," except "such husband himself and his children ... above the age of nine years abiding with him and his servants in household shall once every month at the least, not having any reasonable excuse to the contrary, repair to some church or chapel" of the establishment and "there hear divine service;" and unless, with his children and servants of meet age, he receives the sacrament of the Lord's Supper when required by law, and "bring up his children in the true religion." Every married woman convicted of recusancy, her husband not being so convicted, who shall not "conform herself ... by the space of one whole year next before the death of her said husband, shall forfeit to the King's Majesty ... the issues and profits of two parts of her jointure and two parts of her dower, ... and also be disabled to be executrix or administratrix" of her husband, "and to have ... any part of his goods and chattels." Any child[1296] sent abroad without the king's license, to prevent his "good education in England or for any other cause," may have "no benefit by any gift, conveyance, descent, devise or otherwise of any lands ... goods or chattels," until he reach the age of eighteen or more, when, as a condition of recovering his property, he must take an iron-clad oath of allegiance[1297] and partake of the sacrament. In the meantime—and here a broad way was opened up for fraud and wickedness—all the rights mentioned are to pass to the "next of kin which shall be no Popish recusant." Moreover, this infamous statute imposes harsh penalties upon every recusant who shall hereafter be "married otherwise than according to the orders of the Church of England by a minister lawfully authorized." The man is "utterly disabled to have any estate of freehold in any the lands ... of his wife as a tenant by curtesy of England," or in case she have no lands he must forfeit a hundred pounds. The woman is not only disabled from claiming her dower or jointure, but is also denied her "widow's estate and frank-bank in any customary lands whereof her husband died seized," as well as any part of her husband's goods "by virtue of any custom." Should a child be born to them, it must within a month be baptized in open church according to Anglican rites, under penalty of one hundred pounds for refusal.[1298] In all other essential features during the first two Stuart reigns the law of espousals and marriage remained the same as during the age of Elizabeth.[1299] After Laud gained control there was a strong tendency to accent those parts of the nuptial ceremonial which gave offense to the Puritans.[1300] The civil war brought all this to an end; and "on January 3, 1644-5, a few days before the execution of Archbishop Laud, the Directory was by a solemn ordinance substituted for the Book of Common Prayer." But the form prescribed in the latter remained valid, "although the celebrant was liable to a fine of £5 for not using the form inserted in the Directory of Public Worship. Still many people clung to the ancient service, and amongst others Stephen Marshall the Preacher, who had a chief hand in compiling the Directory, deliberately made use of the Prayer Book in marrying his own daughter, when he paid down to the churchwardens the legal fine which he had incurred."[1301]
With the triumph of Cromwell the hour had come for realization of the new ideals. The act of 1653, though marking the end of a century of religious controversy in which not a little of bigotry and fanaticism on both sides is mingled, and though passed by the much-abused "Barebone's Parliament,"[1302] is nevertheless a measure wise and clear, resting on principles which two centuries and a half of subsequent history have fully sanctioned. For, like so much of the legislation and experimentation of the period, it is anticipatory of the best reforms of the present age. With remarkable clearness and brevity, but with adequate fulness of detail, the form of celebration, the exercise of matrimonial jurisdiction, and the machinery of administration are provided for.[1303]
An obligatory civil ceremony before a justice of the peace is prescribed. After due publication of banns, with a proper certificate thereof obtained from the parish register, the persons to be married are to come before "some justice of peace within and of the same county, city, or town corporate" where publication was made. If either of them is under the age of twenty-one, "sufficient proof of the consent of their parents or guardians" must be presented. The magistrate is required to "examine by witness upon oath, or otherwise ... concerning the truth of the certificate, and due performance of all the premises;" and he is also to take cognizance of any "exceptions" to the marriage "made or arising." If "no reasonable cause to the contrary" appear, "the marriage shall proceed in this manner: The man to be married, taking the woman to be married by the hand, shall plainly and distinctly pronounce these words:
'I A. B. do here in the presence of God the Searcher of all Hearts, take thee C. D. for my wedded wife; and do also in the presence of God, and before these witnesses, promise to be unto thee a Loving and Faithful Husband.'" The woman