HGL6I3 ."P88 Columbia flHnitursfitg STUDIES IN ENGLISH AND COMPARATIVE LITERATURE 61 ENGLISH DOMESTIC RELATIONS 1487—1653 COLUMBIA UNIVERSITY PRESS SALES AGENTS NEW YORK LEMCKE & BUECHNER 30-32 West 27th Street LONDON HUMPHREY MILFORD Amen Corner, E.C. i cjnnjisr none are conrepnen njeiwnem Scions of matrpmonpi m manans four* me of contractpngfoiempnprpngeanD Ip turns in tijc fame.flntl) Declacacponofail fucbctmpeDpmentesasiot^e let matrp* inonp tone maoe^no alfo ccttepne otijer tiipnges lbt)tct)c curates be bounoenbp^ iatbe to Declare oftentpmes fotliep? patpf the. 'JmptrnteDattb* inOaunce of mapttet jsolpoo* wtt8flaab«w*«>of oettia. , j x ‘ , ic Vim0b '*$ k ' ■' -r?* : ’ .* TITLE PAGE OF HARRINGTON S BOOK (Cut shows marriage scene) ENGLISH DOMESTIC RELATIONS 1487—1653 A STUDY OF MATRIMONY AND FAMILY LIFE IN THEORY AND PRACTICE AS REVEALED BY THE LITERATURE, LAW, AND HISTORY OF THE PERIOD BY v/ CHILTON LATHAM POWELL, Ph.D. INSTRUCTOR IN THE JOHNS HOPKINS UNIVERSITY gotk COLUMBIA UNIVERSITY PRESS 1917 All rights reserved Copyright, 1917 By Columbia University Press Printed from type, March, 1917 This Monograph has been approved by the Department of English and Comparative Literature in Columbia University as a contribution to knowledge worthy of publication. A. H. Thorndike, Executive Officer PREFACE The present work was undertaken in the belief that con¬ siderable knowledge of any particular subject could be gained by examining not only the literature centering around it but also whatever other expression of fact or opinion might exist in connection with it during the period under con¬ sideration. The subject of my investigation here is that of domestic relations in England, including both the con¬ tract of marriage (its making and breaking) and the sub¬ sequent life of the family. The period involved extends from the first appearance of the subject in English writing up to its first great crisis, a height of clear thinking and vigorous expression on which Milton and Cromwell stand alone. Although it has been necessary to thus limit the work in regard to time and place, an effort has been main¬ tained to make the field of investigation within these limits as all-inclusive as possible. I cannot fairly claim to be entering terra incognita in this study. Legal writers have already covered the field as thoroughly as available material from legal sources has allowed them to go; historians have also done something, though not a great deal, in tracing the development of the different marriage ceremonies during the period; and stu¬ dents of literature have made a few blind thrusts here and there whenever they found their heroes, like Milton, step¬ ping aside from the fields of the imagination to discuss a “business of such concernment to the fife of man” No one, however, has used all possible sources of information — yin PREFACE history, law, literature, and actual practice — to concen¬ trate research from different angles upon all the interests involved; and since the information hitherto discovered, except in the legal field, is scant to the point of being neg¬ ligible, it is only by using all available sources and com¬ bining the results thus gained that the actual conditions of the period may be set forth and the contemporary literature on the subject properly understood. As is suggested above, the field of literature (using the term broadly to include all kinds of writing) has been almost entirely neglected in connection with the present subject. For this reason, we may expect to find it, as an expression of current thought and practice, the most profitable source of information, particularly such works as may be eliminated from the stricter limits of literature on the ground of being utilitarian rather than artistic. On the legal and eccle¬ siastical status of matrimony, the conditions and opinions of the day are to be found principally in tracts, controversial and otherwise the Thomason collection being especially valuable, in confessions and defenses of faith, and occa¬ sionally, as a side issue, in books on domestic life. It is only when a writer turns aside from controverted subjects and aims to present his conception of ideal family life that we meet with books of any length or anything like a series of works that we may class together as a type or genre. The demonstration of such a series, developing from the beginning of the English Reformation up to the days of the Commonwealth and running parallel to legal and eccle¬ siastical agitation in the same field, is perhaps the most important contribution of the present study to the history of literature; but from a wider point of view, its contribu¬ tions to the history of law and practice in church and state as well as its assemblage of legal and historical material not elsewhere so available, may be thought to be of equal PREFACE IX moment. Attention should also be called to the first two appendices, which on account of their growth under investi¬ gation had to be removed from the main body of the book. The first presents the only existing account of the English writings on the divorce suit of Henry VIII, correcting many bibliographical errors previously made and discussing sev¬ eral important books hitherto practically unknown (e.g. those of John Fisher); and the second attempts to overthrow altogether the present conception of Milton’s early married life and the supposed cause of his tracts on divorce. Although this book was undertaken upon my own in¬ itiative and has been worked out according to my own ideas, I am indebted to others for incidental assistance. To Professor Charles William Wallace, of the University of Nebraska, I wish to express my gratitude for his ever ready kindness in helping me with bibliographical work at the British Museum. To Professors Ashley H. Thorn¬ dike, Jefferson B. Fletcher, George Philip Krapp, and Munroe Smith, of Columbia University, and to Rev. Dr. J. G. Dangar, Prebendary of Exeter Cathedral, I am also duly grateful for valuable suggestions on certain details. Professor Smith’s final approval of my investigation may be taken as a guarantee of its accuracy in points of law. Finally, I take this opportunity of expressing my appre¬ ciation of the privileges kindly extended to me by the following institutions, where my studies were carried on — the British Museum, the Bodleian Library, Oxford, the libraries of Christ College and St. John’s College, Cam¬ bridge, the University of Edinburgh Library, the Peabody Institute, Baltimore, and the Bar Library of Baltimore. Baltimore, Md. June, 1916. C. L. P. CONTENTS CHAPTER PAGE I. INTRODUCTION I. The Laws of Marriage. 1 II. Practice and Customs of Marriage. 13 II. CONTROVERSIES REGARDING MARRIAGE I. Historical Situation. 28 II. The Puritan Platform in regard to Marriage 37 III. The Position and Practice of the Indepen¬ dents . 44 IV. Continental, Scottish, and American Churches 49 V. The English Church of the Commonwealth.. 54 III. THE ATTEMPTED REFORM OF DIVORCE I. Legal Situation. 61 II. The Puritan - Anglican Controversy on Divorce. 70 III. The Final Deadlock. 84 IV. THE DOMESTIC CONDUCT BOOK I. The Type and its Origin. 101 II. Puritan and Romish Attitudes towards Marriage. 119 III. Later Domestic Books. 129 IV. The Domestic Book as Literature. 139 V. CONTEMPORARY ATTITUDES TOWARDS WOMAN I. Ecclesiastical . 147 II. Domestic and Courtly. 152 III. Commendation and Satire. 160 IV. Historical and General View. 169 VI. WIDER RANGES OF DOMESTIC LITERATURE I. More General Conduct Books. 179 II. Domestic Drama. 192 Xll CONTENTS APPENDICES A. English Writing on the Divorce of Henry VIII and Catherine. 207 B. Date and Occasion of Milton’s First Divorce Tract. 225 C. Directions for Matrimony from Harrington’s Book. 232 D. Contents of Typical Domestic Books. 234 BIBLIOGRAPHIES I. Early Books of Domestic Relations etc- 243 II. Books on Henry VIII’s Divorce. 252 HI. Later Books of Reference. 254 INDEX. 257 ENGLISH DOMESTIC RELATIONS 1487-1653 CHAPTER I INTRODUCTION I. The Laws of Marriage The legal aspects of marriage, in regard to both the orig¬ inal contract and the resultant relations of husband and wife, have been pretty thoroughly treated in books of law , 1 but it is necessary to have the principal facts involved 1 A brief but sufficient statement of the development of the legal history of marriage, including the principal points of Roman canon law, may be found in an article by Munroe Smith in the Universal Cyclopedia under the heading of Marriage. The best statement of the canon law of marriage is in Esmein, Le Manage en droit canonique. For the Roman canon law of marriage and divorce, see Coudert, Mar¬ riage and Divorce Laws in Europe; for the relations of Roman canon law to English law, see Maitland, Roman Canon Law in the Church of England; for English ecclesiastical law, as modified by the Reforma¬ tion and subsequent practice of ecclesiastical courts, see Phillimore, Ecclesiastical Law of the Church of England (Pt. Ill, ch. VII). An excel¬ lent book for the lay reader on the development of marriage and related subjects, from a broader and less legal point of view than the above works, is Howard, History of Matrimonial Institutions , which contains copious notes and the best existing bibliographies on the general sub¬ ject. The only early legal work unknown to Howard which I have found, is Ridley, A Viewe of Civile and Ecclesiasticall Law (published in 1607); but in addition to this, practically all the books discussed in my second, third, and fourth chapters below are here examined for the first time in connection with the subject of marriage. Other useful works are mentioned in the notes to the present chapter. 1 2 ENGLISH DOMESTIC RELATIONS immediately before us. Although in the early stages of the development of the Aryan races, marriage was regarded as a religious affair, and although one of the earliest forms of Roman marriage was of a religious nature, the only ele¬ ment required by the later Roman law to establish the validity of a marriage was the consent of the contracting parties. The Christian church, from its first organization, made a consistent and increasing effort to gain control of matrimonial affairs; but although by the beginning of the thirteenth century it had almost complete power over both marriage and divorce, it still recognized a privately con¬ tracted marriage, made by mutual vows only, as valid, and was unable to stop altogether the practice of private divorce. The constitution of marriage as a sacrament by the Council of Florence in 1439 — a conception that had been slowly maturing for centuries — was the obvious device to explain and perpetuate the doctrine of eccle¬ siastical jurisdiction; but not until the Council of Trent in 1563 did the church declare officially that marriage not contracted in the presence of a priest and witnesses should be void. This decree was, of course, too late to affect England, which had thrown off Papal supremacy in 1534; thus the English Reformation had to deal with the entire question of marriage and divorce in the vaguely defined status it enjoyed in the early sixteenth century. Previous to the Reformation, however, the case of England was identical with that of other Roman Catholic countries, its affairs ecclesiastical being regulated entirely by canon law, which in regard to matrimonial causes had drawn its whole theory of consent from Roman civil law. 1 1 The church, however, was seldom permitted to decide questions of property, inheritance, etc., involved in cases of marriage or divorce; it acted only in regard to the validity of the contract and the right of dissolving it. INTRODUCTION 3 The period which we are investigating in this book lies altogether within the days of church supremacy, and the conception of marriage with which we must start is that of the mediaeval Church of Rome. To understand the vari¬ ous elements here involved, it is necessary to look more closely into the regulations and ceremonies of marriage as it was then practiced. The fifteenth century is the time of our investigation for the moment, although very little change took place between the twelfth and the seventeenth. The first step in the contract of marriage was called spousals, which, roughly speaking, correspond to the be¬ trothal of preceding times and to the engagement of today. 1 Spousals differed widely in kind but were similar in effect. There were two distinct types, de futuro and de praesenti. Spousals de futuro were merely promises made by or for two persons to marry some time in the future, deo volente , and might be broken for any just and reasonable cause by either party. Such spousals might be made by parents for young children, just as vows are made for them at bap¬ tism, but these promises might be repudiated for any reason whatever by either of the young people upon coming to marriageable age. Spousals de praesenti were a far more serious matter. They were vows made similarly to the de futuro but in the present tense, and were in effect, though not in name, marriage itself. 2 They could be broken only by death and by entrance into holy orders. In case of cohabitation after either form of spousals, and without any marriage ceremony, the offenders laid themselves open to 1 For a full discussion of this subject from a legal point of view, see Swinburne, A Treatise of Spousals; for a treatment from a more general viewpoint, see Jeaffreson, Brides and Bridals. 2 Thus the Duchess in The Duchess of Malfi says: “I have heard lawyers say, a contract in a chamber Per verba praesenti is absolute marriage.” 4 ENGLISH DOMESTIC RELATIONS punishment by the church, but their union was recognize as a valid marriage by both church and state. It was thu possible to contract an irregular but perfectly legal marriag without the sanction or the intervention of either civi or ecclesiastical authority. Spousals of either type migh be pure or conditional, sworn or unsworn, public or pri vate, but these details were of no actual importance, al though publicity was strongly urged in all cases. Pri vat spousals could be accomplished by any of the lovers’ formula of today for becoming engaged, and in public spousals then was also a certain amount of latitude allowed. In th most orthodox form of the latter, a priest was present, an< a regular ceremony consisting of vows similar to those o a present-day wedding was gone through with. 1 From thi great diversity of practice here possible and the secrecy with which private spousals might be made, it is eviden that, as the church was the only authority in dispute! concerning spousals and marriages and as this authority was usually administered by local courts or priests, a grea latitude , of interpretation -and- practice was possible, espe daily as the ecclesiastics were extremely open to briber] 1 Readers of literature of this period (up to 1650) are likely to fal into two errors in regard to spousals, — first, that of not recognizinj a private spousal and its importance when it occurs, and second, tha of mistaking a public spousal for a marriage. Of public spousals w< have good examples in Twelfth Night , V, 1, and in The Taming of th Shrew, III, 2 (see below, p. 19). After spousals, the engaged couph might call each other “husband” and “wife,” although they were noi really so. Thus Olivia calls Cesario (mistaking him for Sebastian) hus band, and likewise Petruchio calls Katherine wife and Baptista father In Shakespeare, the exchange of rings is a fairly good guide to a mod¬ ern audience that a spousal is taking place, e.g. Merchant of Venice III, 2. An excellent example of a private spousal de futuro occur* in Hey wood’s English Traveller, II, 1. INTRODUCTION 5 of one kind or another. Despite this fact, so much impor¬ tance was attached to these contracts that a secret unsworn spousal could invalidate a later regular and church-blessed marriage and render the children of it illegitimate. 1 The legal age for marriage, which might follow spousals immediately or after an interval of any length, was fourteen for males and twelve for females. 2 But the church performed 1 The point here was that persons who had made a contract were married by that act “in the eyes of God,” and were controlled by the text, “What God hath joined together, let no man put asunder.” The proper application of this text in various instances was obviously difficult. Milton, remarking upon it and its effects, says that it is “as obscure as any clause fetched out of Genesis, and hath increased a yet undecided controversy of clandestine marriages.” Prose Works, II, 17. We find several instances of precontract in old plays. Beatrice in The Changeling, in order to escape from her contract with Alonzo, contrives to have him murdered. In The Roaring Girl, Mrs. Gallipot, in order to gull money out of her husband for her paramour, Laxton, tells him that she was once contracted to Laxton. He thereupon bribes Laxton not to bring suit, and furthermore says to his wife, “If thou shouldst wrestle with him at the law, Th’art sure to fall, no odd flight, no prevention.” In The Miseries of Enforced Marriage, a private contract occurs between Scarborow and Clare, after which he says to her father, “Your daughter’s made my wife, and I your son.” When his uncle later tries to contract him to another, he objects on the ground that it would make him an adulterer, “my babes being bastards, and a whore my wife.” When this marriage is finally forced upon him, Clare, hearing of it, says, “Whoe’er shall marry me I’m but his whore, live in adultery.” 2 It was presumed that twelve and fourteen were the ages of puberty for girls and boys respectively. The validity of a marriage rested on whether or not both were capable of sexual union rather than on their actual ages. For examples of child marriages, divorces, etc., see Fur- nivall’s reprint of the Chester records under the title of Child-Marriages, 6 ENGLISH DOMESTIC RELATIONS marriages upon infants in arms, their parents consenting, and recognized the age of seven as that when parental con¬ sent was no longer absolutely necessary. Such marriages, however, were voidable by either party upon coming of age (fourteen and twelve respectively) unless cohabitation had taken place. As indicated above, a valid but clan¬ destine marriage might be made merely by sexual inter¬ course preceded by promises to marry; but all such unions were stigmatized by public and ecclesiastical opinion. In order to increase the publicity of marriage and thus diminish the number of those clandestinely made, the practice of publishing banns grew up and became pretty general by the middle of the fourteenth century. Furthermore, only certain times of the year were proper for marriage, 1 although in case this rule was not observed, the contract was none the less valid. The final recognized step in the consummation of matri¬ mony was the performance of the marriage right of carnalis copula or bodily union. Legislation concerning the effect Divorces, etc., and also the references in Howard, Hist. Mat. Inst., I, 357-8. Children have been married, divorced, and widowed before reaching puberty. Heroines of tender years are not uncommon in Elizabethan drama. Juliet, it will be remembered, was only thirteen. Manthea in English - men for my Money at the age of twelve cries, “Good God, how abject is this single fife. I’ll not abide it.” 1 The prohibited times varied somewhat in different localities but always occurred at the three chief sacred seasons of the year. They embraced Advent and shortly after, a part of Lent, and from Rogation Sunday to Trinity. For further details, see Jeaffreson, I, 285 ff. Since the Reformation, no season has been prohibited, but the former ones continued to be observed for some time. In the fifteenth century, a marriage had to take place before twelve o’clock, just as it must be before three in England today. However, all these obstructions could be set aside by the purchase of a special license. INTRODUCTION 7 of the performance or omission of this act was scant, but the opinions of the church fathers, which in the absence of canons on the subject had the force of law, were both num¬ erous and conflicting. From our discussion of spousals, it will be seen how great was the importance laid upon this act, as it might in itself convert either form of spousals into actual marriage or might legalize the marriage of children under age. It is impossible here to go into the effect of its total omission; it will be enough for our purpose to say that in such a case an applicant for divorce might find a court which would thereby make a point in his favor, and again he might not . 1 At any rate, a marriage was regarded as much more firmly cemented if copulation had taken place. From the foregoing discussion, it will readily be seen that the question of divorce, or rather of annulment, which turned on the original validity and subsequent nature of a marriage, was one of the most vexing problems that the church ever brought upon itself. We are not here concerned with civil legislation, for although it may have differed in a few details where rights of property and so forth were involved, it left the actual granting of divorces entirely in the hands of the church . 2 Such cases were usually decided in local ecclesi- 1 Henry VIII, in seeking a divorce from his wife Catherine, tried to establish the fact that her previous marriage with Arthur had been con¬ summated by bodily knowledge; but although the judges seem to have been convinced that such was the case, it is far from clear whether this decision had any real effect in the suit. 2 Milton, with his usual acumen, says on this point: “The Popes of Rome, perceiving the great revenue and high authority it would give them even over Princes, to have the judging and deciding of such a main consequence in the life of man as was divorce; wrought so upon the superstition of those ages as to divest them of that right.” Prose Works , II, 53. Almost the same language had been previously used in the act by which Henry VIII tried to reform the abuses of the church in divorce matters. See p. 62, below. 8 ENGLISH DOMESTIC RELATIONS astical courts, but might be carried to Rome on appeal. In the Roman Catholic Church, there never has been any such thing as divorce in the modern sense of the word. Here the term was used as a general one to include two types of separation, neither of which corresponds to the divorce of today. The first of these was divortium a mensa et thoro, which was simply a separation and did not allow either party to remarry . 1 The causes for this were various, but those usually plead were adultery, heresy or apostasy, and cruelty. The second type was divortium a vinculo matri¬ monii, which took the form of a declaration that the mar¬ riage had been illegally contracted and was therefore null and void ab initio, that any children born during it were bastards, and that either party might marry again without further ado . 2 The state of abuse into which matrimony had fallen is well illustrated by the fact that there were more grounds for the annulment of marriage than for separation a mensa et thoro. This brings us to another large and vaguely settled ques¬ tion, as to what conditions prohibited a marriage, or if it were already made, what causes, previously existing, were sufficient to nullify it. Here we must distinguish, for there 1 Nevertheless, second marriages after such a separation were prac¬ ticed to a certain extent, either by legal manipulation or by pleading St. Paul’s words, “It is better to marry than to burn,” and obtaining an indulgence. For a discussion of this practice in England, see below, p. 87, n 1. The separation a mensa et thoro is, of course, the only type of divorce granted by the Catholic Church today, except the complete annulment of marriage. 2 Up to 1337, children were not bastardized if their parents had married in ignorance of an existing impediment. After that date, both civil and church law held them to be illegitimate if a divorce was ob¬ tained; otherwise they were legitimate, although legal grounds for divorce actually existed. For further discussion of these points, see Pollock and Maitland, History of English Law, II, 373 ff. INTRODUCTION 9 were a number of impediments which obstructed marriage but which if unobserved were not weighty enough to have any further effect except that of subjecting the offenders to the discipline of the church. These were set forth in verse form as follows: “Ecclesiae vetitum, tempus, sponsalia, votum Impediunt fieri, permittunt facta teneri” 1 The impediments which forbade marriage and annulled it completely if already contracted were, “ poetically com- prised”: “Error, conditio, votum, cognitio, crimen, Cultus disparitas, vis, or do, ligamen, honestas, Si sis afiinis, si forte coire nequibis, — Haec socianda vetant connubia, facta retractant ” 2 1 This verse is taken from Renton and Phillimore, Comparative Law of Marriage and Divorce, p. 24. Its source is not given, and I have not seen it elsewhere. The impediments are: veto by the church, improper time, precontract (i.e. de futuro), and informal vows. 2 This verse is given by Hemmingius, Libellus de Coniugio, Repudio, & Divortio, p. 137, by the author of A Curtaine Lecture, p. 141, who attributes it to Cardinal Cajetanus, and by Godolphin, Repertorium Canonicum, p. 493, who attributes it to Thomas Aquinas. Renton and Phillimore, Comparative Law of Marriage and Divorce, p. 19, cite a similar verse, except that the third line is increased to two, in which aetas (minority) and si clandestinas et impos (if clandestine and uncon¬ summated) are added. The source of the verse is not given. Coudert, Marriage and Divorce Laws in Europe, p. 7, gives still another and longer verse, not mentioning the source, which adds the further impediments of amentia (insanity) and raptio (abduction). Erasmus, Matrimonii Christiani Institutio, f. e6 ff., discusses the im¬ pediments at great length, but does not distinguish between the abso¬ lute and the prohibitive. He mentions eighteen altogether: inter dictum ecclesiae sive generate, tempus anni, conditio (i.e. honesta, turpis, indif- ferens, impossibilis, et hinc mille casuum varietatis), error, votum castitatus , ordo, cognitio, adoptio et arrogatio (adoptantur filii familias, arrogant qui sui juris sunt), cognatio spiritualis, ajfinitas, publica honestas, con- suetudo sive constitutio, crimen, dispar cultus (hoc est diversa religio), 10 ENGLISH DOMESTIC RELATIONS As interpreted by the church, these impediments were re¬ spectively: mistaken identity, certain conditions of one party unknown to the other, solemn religious vows, relation¬ ship within the forbidden degrees , 1 criminality , 2 difference of religious faith, fear (caused by threats etc.), membership in holy orders, prior marriage or contract de praesenti (with any one still living), lack of public decency, affinity , 3 and impotency . 4 It may be seen from the number and diver¬ sity of these causes that a marriage might be annulled for metus, praecedens obligation inhabilitas corporum ad usum matrimonii , ubi dissidium est animorum et inamabilis cantio est. Commenting upon these impediments and their effects, he says, u Quorum alia sunt eius generis , ut non dirimant contraetum , sed obsistant contrahendo, & con - temptorem impedimenti crimini faciant obnoxium, non depellant ab uxore: alia dirimunt ad tempus: alia & contrahendo obsistunt, & contraetum distrahunt. Quaedam dirimunt matrimonium ratum, non dirimunt consummatum. . . . Rursus alia dirimunt coniunctum domesticum aut societatem thori, alia restituunt marem & foeminam in integrum. . . . Iam circa unumquodque impedimentorum mille quaestionum examina pugnaeque innumerabiles opinionum humanarum” Op. cit., f. el. Wm. Harrington, the first to set forth the impediments in English, in 1528, agrees as well as can be expected with those given here. See below, p. 72, n. 2. 1 Cognatio or relationship was of three kinds: (1) blood relation¬ ship within four degrees (before 1215 within seven degrees); (2) spirit¬ ual relationship (abolished in 1563), which existed between all persons taking part in the baptism or confirmation of a child; (3) relationship by adoption, forbidding marriage between adopter (or his wife) with the adopted and between the adopted and the children of the adopter. 2 By criminality was meant one of two things: (1) the murder of a person who obstructed a contemplated marriage, and (2) adultery with promise of marriage at the death of obstructing person. 3 Affinity existed between each party and the relatives of the other both in the case of a married couple and in that of a couple who had had illicit relations. 4 For further explanation of the impediments, with qualifications, exceptions, etc., see Godolphin, p. 492 ff., Renton and Phillimore, p. 19 ff., and Coudert, p. 7 ff. INTRODUCTION 11 almost any reason that the church wished to sanction in any particular case, a condition of affairs that was widely taken advantage of. “No exercise of its power yielded more money, or caused more scandal. So tangled was the casuistry respecting marriage, at the beginning of the six¬ teenth century, that it might be said that, for a sufficient consideration, a canonical flaw might be found in almost any marriage .” 1 The impediments which were surest of recognition and which were oftenest plead, were precontract, that is spousals de praesenti , and consanguinity or affinity between the con¬ tracting parties. Voluminous and widespread was the writing on the latter case, especially after Henry VIIFs divorce, opinion differing chiefly as to how many degrees of relationship should be forbidden, and in Henry’s suit as to whether the Pope had exceeded his authority in grant¬ ing the original dispensation by which the King was enabled to marry Catherine . 2 The Reformation in Germany, in regard to matrimonial affairs, was like the voice of John the Baptist crying in the wilderness, but unfortunately its message was hampered to no small extent by the fact that the leaders of thought there still tried to reconcile the authority of the Scriptures with the reason of every-day demands . 3 Consequently the chief actual result was to set ideas to work which ultimately brought some kind of order out of chaos, but which for a century after Luther’s time could accomplish very little in 1 Thwing, The Family, p. 83. 2 For an account of the English writing on the subject of the royal divorce, see below, Appendix A. 3 Almost all the leaders of the German Reformation contributed something to the discussion of marriage and divorce, some of them writing books on this subject alone. For further account, see Milton Prose Works, II, 231 ff., Woolsey, Divorce and Divorce Legislation, p. 126 ff. 12 ENGLISH DOMESTIC RELATIONS themselves. The most important step taken was to deny the sacramental character of marriage, which Luther did in his De Captivitate Babylonica in 1520. 1 He also wished to do away with the distinction between spousals de futuro and de praesenti and to make all such contracts either simple betrothals, like the present-day engagement, or else mar¬ riages per se; but this proposition was not accepted. With the greatest evil in marriage and divorce legislation, — the multiplicity of impediments and the consequent ease with which a divorce a vinculo matrimonii might be obtained — the Reformers did nothing at all, although they seem to have realized the need of some action in regard to these conditions. In the field of divorce itself, perhaps the great¬ est immediate results were attained. Separation, or divorce a mensa et thoro, was abolished altogether, and in place of it was established a divorce resembling the modern type, by which the children remained legitimate but the innocent party might remarry without further suit in either spiritual or civil court. 2 For such divorce the ordinances of Witten¬ berg in 1534 and 1553 give two recognized causes, adultery and desertion. 3 Finally, all questions and suits in regard 1 In this he was followed by Calvin in his Institutiones, 1536, and in the discipline of the Geneva church, which became the model for the church discipline of Holland and Scotland and influenced the Thirty- nine Articles of the Church of England. 2 This was the origin of divorce as it is practiced today in Protes¬ tant countries. The only difference between a modern divorce and one under the German Reformation, is that nowadays either party may remarry. 3 Divorce for adultery was based on the words of Christ {Matt. V, 32, and XIX, 9); that for desertion was based on those of St. Paul (I Cor. VII, 5). But the latter was taken in a more general sense than the literal meaning of the word, and included other causes, such as the refusal of the marriage right. The Wittenberg ordinances expressed the most conservative opinion. That of Zurich in 1525 stated that adultery, desertion, etc., were not only causes for divorce but represented INTRODUCTION 13 to marriage and divorce were placed partly in the hands of the parish clergy and partly in those of secular judges. Owing to the confusion of opinion arising from this arrange¬ ment, the result was hardly an improvement over the old system of jurisdiction except in principle; and this fact, together with the failure of the Reformers to attack the evils of impediments and nullification, in the end produced conditions which were actually much the same as those preceding, except for the possibility of remarriage after a divorce for adultery or desertion. • What has been said of the Roman Catholic Church in general prior to Luther’s time, applies also to England before Henry VIII precipitated the whole Reformation question by his divorce from Catherine. Some one has made a re¬ mark to the effect that Henry first saw the light of the Reformation in the shining eyes of Anne Boleyn; and although this is no doubt true, the conditions he brought into the forum of public opinion were real faults in civil and ecclesiastical jurisdiction; and however insincere may have been his own concern in the general question, his personal attitude and the publicity of his case instigated thought and argument, which by provoking a wide controversy, finally resulted in great benefit to the realm. II. Practice and Customs of Marriage As a matter of actual practice, aside from ecclesiastical or civil concern, we may say that marriages were of three kinds, — those of children, those clandestinely performed by persons either under or over the age of puberty, and also the standard of abuse which it was designed to remedy, “and to the judge it is left to decide what other causes shall be put by their side.” Woolsey, p. 132. For further discussion, see Woolsey, ibid., and Howard, II, 60 ff. 14 ENGLISH DOMESTIC RELATIONS those openly and formally made with the blessing of the church and the celebration of friends. As we are interested in the practices and customs herein involved, as well as the legal aspects of the contract, we must examine briefly each of these three methods of marriage. Infants, that is “those Younglings and Babes which as yet cannot speak” could not effect any kind of contract, but their parents could “make marriages” for them regard¬ less of their age. These so-called marriages, however, had only the force of promises de futuro and were of no legal standing. The youngest couple reported in the Chester records is that of John Somerford, age three, and Jane Brerton, age two. The testimony, descriptive of the wed¬ ding, given later at John’s suit for divorce (when fifteen years old), was as follows: “Johannes Somerforth . . . dicit, that he was present bie, when John Somerforth and Jane Brerton were maried together in the parish church at Brerton about xij yeres ago. ... He saies that he carried the said John in his armes, beinge at the 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 selfe, 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; and so held her still in his armes.” 1 The reasons for such child marriages were several. First, the parents were fulfilling the responsibility of settling their children in marriage, or at least taking steps thereto, which was one of the recognized duties of parenthood. Secondly, a peaceful treaty or alliance was often formed by families or countries hostile to one another by means of such a union. Thirdly, in case of the death of a father, 1 Furnivall, Child-Marriages , etc., p. 25. INTRODUCTION 15 by the laws of feudalism, the crown or its grantee had the right of the persons and estates of the children and might sell them to its own advantage; this the parents obviated by marrying their children as soon as possible. Fourthly, if the child was seven years old, the parents might benefit by the marriage settlements. It cannot be determined how common these child marriages were, but references to them are sufficiently numerous to make it clear that the practice was by no means out of the ordinary, especially among noblemen. Becon, writing about 1562 of the causes of the low esteem in which marriage was held, says: “First as touching men of nobilitie, wee see dayly by experyence that they for the moste parte marrye theyr chyldren at theyr pleasure whan they are verye yonge, euen to suche as wyll geue them most mony for them, as men use to sel theyr horses, oxen, sheepe, or any other cattel. Who that wyl geue most mony, shalbe sonest sped.” 1 Although it was a deplorable state of affairs that children should have been married for financial considerations only, the duty of parents to provide for their children in marriage is so clearly expressed in the domestic conduct books of the time that it is only fair to suppose that the impulse to settle them as soon as possible proceeded in most cases from worthy motives. 1 Becon, Worckes, Pt. I, f. ccccclxiiii. It may be objected that the children could break these contracts upon coming of age; but it must be remembered that “of age” in those days meant twelve and fourteen instead of eighteen and twenty-one, and it is hardly to be thought that such children would be able to act for their own best interests even if they realized what their rights or their interests were. If the marriage was made at the parents’ instigation after the children were of age, whether the latter knew what they were doing or not, it was accom¬ plished once and for all. Milton calls this practice a “savage inhuman¬ ity,” and says that “the law which gives not all freedom of divorce to any creature endued with reason so assassinated, is next to cruelty.” Prose Works , I, 373. 16 ENGLISH DOMESTIC RELATIONS Clandestine marriages were those performed by children over seven years of age, either publicly or secretly, without parental consent, or those performed secretly by youths of fourteen and girls of twelve. In either case, the church condemned the practice but recognized the marriage as valid; but, as stated above, in the case of children under the age of puberty, the marriage had to be ratified later by both. An interesting wedding is cited in the Chester records as having been clandestinely performed by a priest between a boy of eleven and a girl, “a bigge damsell & mariageable,” as follows: “Jacobus Hartley . . . Dicit, that he hard say that the said James and Anne articulate, were Maried in the parish Church of Colne, upon the xij th even in the Christmas shalbe v yeres, comme the Twelfth even next, about x of the Clocke in the night, — the said James at that tyme beinge about xj or vnder xij yeres of age,— without the consent of any of his frendes, bie one Sir Roger Blakey, then Curate of Colne ... he saies, that the same night, this depo¬ nent was in the house of Christopher Hartley of Wwller, vncle to the said James libellate, and sawe when the said James [Ballard] was brought into the said house about Midnight bie ij° fellowes, which (as this Deponent supposethe) had bene at the said Mariage. And in the morowe after, the same James [Ballard] declarid vnto his Vnckle, that the said Anne had intised hym with two Apples, to go with her to Colne, and to marry her. . . . And further he saieth, that the said Curate was ponished by the Archbushop of York his grace, for marieng at inconvenient tymes and vnlawfull persons.” 1 Between persons of age, clandestine marriages were made simply by exchanging such words as “I take thee for my wife” and “I take thee for my husband.” Such a con¬ tract was in name a mere spousal de praesenti, but in effect it was a marriage, and if it was followed by cohabitation, it became automatically recognized as such. Swinburne, Furnivall, p. 45. INTRODUCTION 17 writing about 1600, says on this point, “Albeit there be no Witnesses of the Contract, yet the parties having verily (though secretly) Contracted Matrimony, they are very Man and Wife before God; neither can either of them with safe Conscience Marry elsewhere, so long as the other party liveth.” 1 The contracted parties were man and wife before the law as well as before God, although the lack of witnesses made the proof of the marriage difficult. The form of such spousals might be anything from a simple promise to the complete ceremonial for public spousals as far as could be managed under the circumstances. At least the bride and groom might exchange a handclasp and a kiss, both of which had from ancient times been associated with the marriage contract. Great significance was also attached to the gift of a ring, usually given by the man to the woman or by each to the other, and one was always provided, if it could possibly be afforded, even in the most secret marriages. As has already been said, both the child marriage and the union by means of spousals only were somewhat irreg¬ ular though not unusual. The former had to be ratified at the children’s coming of age, and the latter was always regarded with disfavor and was the cause of much legislative dispute. In the regular course of events leading to mar¬ riage, both spousals, either de futuro or de praesenti , and the solemnization by the church of the contract so made, were conducted openly and with a certain amount of set formality. A marriage might include both forms of spousals as well as the church celebration, but this would naturally occur seldom, as the latter embraced all the necessary vows and the ecclesiastical benediction in one service. On the other hand, no contract at all was required before the wed¬ ding ceremony, for the same reason. However, the contract 1 Swinburne, Treatise of Spousals , p. 87. 18 ENGLISH DOMESTIC RELATIONS itself, whether made in secret, in a private gathering of friends, or in the church service, was the essential feature of matrimony, the ceremony of the church being quite second¬ ary in importance. On this point the publisher of Swin¬ burne’s book says, “In all Marriages Solemnized after the most strict manner, the Contract of Parties is the principal Ingredient and most essential Part, all other Matters being only as it were Foreign and Extrinsical to its Nature.” 1 In regard to the forms of spousals de futuro and de prae - senti, they were so nearly alike, in whatever sentences they were expressed, that we may say that if the words spoken gave the impression that the parties at that moment took one another in the contract of matrimony, the spousals were de praesenti; if the words implied a promise against the future, a de futuro spousal was established. 2 Indeed, the simple intention to marry, though accompanied by the wrong formula, was sufficient to effect the contract. Swin¬ burne says here, “Albeit the words of the Contract, neither of their own natural signification, neither yet by common use and acceptation conclude Matrimony; Yet whereas the Parties do thereby intend to Contract Matrimony, they are inseparable man and wife, not only before God, but also before Man; in case their meaning may lawfully appear.” 3 Furthermore, for the protection of innocent girls against evil men, “when the words of the Contract are indifferent or equally flexible to the signification of Spousals de futuro, or Matrimony; In this Case the Law 1 Swinburne, f. A3. 2 Howard, I, 340 ff, brings considerable evidence to bear that the distinction between de futuro and de praesenti spousals was not under¬ stood or recognized by the humble people, but was in fact mere eccle¬ siastical hair-splitting. This was also Luther's view. Swinburne acknowledges the difficulty but upholds the distinction at length. Ibid., secs. Ill, X, XII. 3 Swinburne, p. 87. INTRODUCTION 19 presumeth Matrimony to be contracted, except in certain cases.” 1 Spousals might be qualified to some extent by the stipulation of certain conditions. This subject is treated at length by Swinburne, 2 but is not of sufficient impor¬ tance to be considered here. The public spousal was performed either at the bride’s house or at the church porch, but in either case the priest was recognized as the official witness. Here the vows were exchanged for either a future or a present union, but the couple was not pronounced to be man and wife, nor were they supposed to cohabit until the contract was solemnized by the church ceremony for marriage. Next to the vows, the exchange of gifts, principally from the man to the woman, was the most important feature of spousals. The ring of betrothal was worn on the right hand. A public spousal in full form is described by the priest in Twelfth Night between Olivia and Sebastian: “A contract of eternal bond of love, Confirm’d by mutual joinder of your hands, Attested by the holy close of lips, Strengthen’d by interchangement of your rings; And all this ceremony and compact Sealed in my function, by my testimony.” 3 1 Swinburne, p. 88. Throughout his treatise, Swinburne uses the terms matrimony and spousals de praesenti as synonyms. 2 Ibid., sec. XII. 3 Shakespeare, op. cit., V, 1. In All's Well, II, 3, a contract is per¬ formed by the King between Helena and Bertram. The ceremony is appointed to be held that night, and the “solemn feast” later. A spou¬ sal similar to the Twelfth Night one takes place in Reade’s The Cloister and the Hearth, although it is not described in detail. It is interesting to note that although this union was not solemnized by the church, the birth of a child was no stigma to the bride, except for the fact that her “ bethrothal paper ” was missing. 20 ENGLISH DOMESTIC RELATIONS Here we find all the principal details, the handfasting, the kiss, the exchange of rings, and the benediction of the priest. But, so far as we know, there were no other witnesses. An espousal or a marriage was supposed to be witnessed by two persons, but it seems likely that the presence of a priest served just as well. The time between the performance of spousals and the celebration of marriage varied. Since the publishing of banns was usually done on the three successive Sundays after the spousals, a space of about three weeks was the proper minimum; on the other hand, it might extend to years, as is often the case with engagements of today. The banns publicly asked in church as well as posted in public places of the town, were devised to make sure that no im¬ pediments existed which might later invalidate the mar¬ riage. In case any of such nature were discovered, the contract was annulled ipso facto without any formality at all, and was of no force in obstructing a later marriage. In Cromwell’s time, the betrothed couple were given the choice of being “asked” on three Sundays in church or “cried” by the town bellman on three successive market days, and it seems that the latter method was the more popular. The modern marriage ceremony originated in times too remote for us to investigate. The general form and phrase¬ ology of it go back to the twelfth century and became per¬ petuated in England for all succeeding time, with but slight changes, by the first English Prayer Book, 1 published by 1 Many things in our modern ceremony are significant of old prac¬ tices. One may notice that the vows made at the chancel steps are future in tense, corresponding to the ancient spousals de futuro. The bride’s father accompanies her through these, as he did formerly, and then drops out altogether, since originally this was where he presented his daughter’s dower to the groom and gave the bride herself into the hands of the priest. The vows now made at the altar rail are present in tense, corresponding to the spousals de praesenti. The earliest Prot- INTRODUCTION 21 order of Edward VI in 1549. The service of the Church of England today is practically the same as this. 1 The orthodox ceremony of the period we are studying used a form which was simply a repetition of spousals de futuro and spousals de praesenti , followed by the minister’s pro¬ nouncing the couple to be “man and wife” and the prayers of the congregation for the success of the union. The pub¬ lisher of Swinburne’s book explains this clearly in his preface. “In our Publick Office of Marriage,” he says, “Spousals and Matrimony 2 are united, and performed in one con¬ tinued Act; When the Minister demands, Wilt thou have this Woman to thy wedded Wife, &c. And the Man answers, I will, and so the Woman vice versa, there’s a Specimen of Spousals de futuro. When the Man repeats the words, J. N. take thee N. to my wedded Wife, &c., and so the Woman vice versa, there’s the form of Spousals de praesenti, which in Substance are perfect Matrimony. . . . When the Min¬ ister adds his Benediction, and pronounces them to be Man and Wife, then ’tis a perfect Marriage to all constructions and purposes in Law.” 3 estant marriage ceremony seems to have been drawn up by Bugenhagen in 1523. (See his De Conjunctio episcopum.) Since the Reformation, the minister has performed the legal marriage in pronouncing the couple “man and wife.” The purely religious part of the ceremony, which followed, has been much curtailed in Protestant churches, but among Catholics the mass is still used to complete the marriage. In the American branch of the Church of England, the introductory part of the service has been shortened by the omission of much of the expla¬ nation of the uses and abuses of matrimony, which to our taste is offensive and ill-timed. 1 The practices of the other churches and the origin of their cere¬ monies are discussed in the next chapter. 2 The writer follows Swinburne’s usage of these terms, applying them to spousals de futuro and de praesenti respectively. 3 Swinburne, f. A3 b*. It must be remembered that this book was written after the Reformation and treats of the Church of England only. * The letter b indicates the back side or verso of the folio mentioned. 22 ENGLISH DOMESTIC RELATIONS The marriage itself, through the part just described, was performed in the church porch; 1 the company then proceeded within the church, the bridal couple entering the chancel itself; and the blessing of God was spoken over them, as they kneeled beneath the “ care-cloth,’’ which was held by four ecclesiastics. 2 Jeaffreson picturesquely describes a wedding ceremony in full form as follows: 3 “To the church-porch . . . the espoused woman of pre-Ref or- mation times, with loosened locks falling to the waist, came on her wedding day, preceded by minstrels and vase-bearer, conducted by bride-knights or pages, attended by maidens, surrounded by her kindred, and followed at a distance by her father. There she met her espoused groom and became his wife, in the presence of God, the priest and the people. If she had previously gone through no ceremony of public betrothal, the earlier part of the proceedings at the porch corrected the omission. In answer to the priest’s inquiry, she declared her wish to obey, serve, love, honor, and keep, alike in sickness and in health, the man who had just before in the hearing of the congregation expressed his desire to be her loving, worshipful, and considerate husband. The marriage followed im¬ mediately on the utterance of her wish for it. “She stood at the groom’s left hand. . . . Firmly pressing with his grasp the unreluctant hand . . . the groom said, ‘ I, * *, take the * *, to my wedded wyf, to have and to holde, fro this day forwarde, for bettere for wers, for richere for porere; in sykeness and in hele; tyll dethe us departe: if holy chyrche it wol ordeyne; 1 Thus the Wife of Bath, “Housbondes at chirche-dore she hadde fyve.” Marriage was performed in the body of the church for the first time in the reign of Edward VI, but this practice did not become universal until about a century later. 2 If either bride or groom had been previously married, the care- cloth was not extended over them. 3 Jeaffreson places his description before the Reformation probably because several variations of usage came in shortly after it. His ac¬ count, however, does very well for the orthodox practice in post- Reformation days. INTRODUCTION 23 and therto I plight the my trouthe.’ The hands of the spouses having been momentarily separated, the fairer and gentler of the two caught the other’s large hand with a nervous grasp, and said, ‘I, * *, take thee, * *, to my wedded husbonde, to have and to holde, fro this day forwarde, for better for wors; for richer for porere; in syknesse and in hele; to be bonere and buxom, in bedde and at borde, tyll dethe us departhe, if holy chyrche it woll ordeyne; and therto I plight the my trouth.’ Next came the use of the ring. . . . Together with the ring the groom put gold and silver on the officiating priest’s book; and after the symbol had been duly consecrated before the assembly, ... he took it up with the thumb and two next fingers of his right hand, and placed it with peculiar ceremoniousness on the particular finger of the bride which it was destined to adorn. 1 ‘With this rynge I the wed, and this gold and silver I the give, and with my body I the worship, and with all my worldely chatels I the endow,’ he uttered following the priest’s voice. . . . The ceremony of placing the ring on the bride’s ring-finger was followed by the priestly utterance of a benediction 2 . . . which was followed by the recital of verses of the 68th Psalm, and the delivery of other blessings, that terminated the proceedings at the church-door.” 3 The real ceremony of the wedding was now complete, but prayers, additional benediction, and mass or sermon were yet to follow within the church. 4 These, however, were not 1 The third finger of the left hand. In case the maiden already wore a bethrothal ring, it became the marriage ring also and was shifted from the right hand to the left. 2 At this point, in post-Reformation times, the minister declared the couple to be “man and wife.” 3 Jeaffreson, I, 88 ff. Further details of the trappings of marriage — costumes, music, the ring, the feast, etc. — are set forth in this interesting book. These are particularly valuable in throwing light on the stage-business of contemporary drama, as in the case of the wed¬ ding of Petruchio and Katherine and the former’s abuse of the con¬ ventional ceremonials. 4 After the Reformation, the mass was given up as part of the marriage ceremony when the church dropped its use altogether. The 24 ENGLISH DOMESTIC RELATIONS essential to a marriage. Before leaving the church, the bridal party partook of wine, bread, and sweetmeats, blessed by the priest, who also gave the groom a benedic- tional kiss, which the latter conveyed to the bride. The ceremony over, the whole company adjourned to the house of the groom, where a feast was provided. Indeed, the groom’s friends usually started feasting before they attended the church ceremony, a custom that unfortunately has not yet altogether died out. This practice and the evils resulting from it, are commented upon by Bullinger in his The Christen state of Matrimonye, as follows: “But the deuell hath crept in her also / & though he can not make the ordinaunce of goying to the church to be vtterly omitted & despised / yet is he thus mightie / & ca bring it to pas / that the ordinuance is nothing regarded but blemished with all maner of lightnesse: In so much that early in the morning the wedding people begynne to exceade in superflous eating & drinkyng / wherof they spytte vntill the halfe sermon be done. And whan they come to the preaching / they are halfe dronke / some alltogether / ther- fore regard they nether the preaching ner prayer / but stonde ther onely because of the custome. Such folkes also do come vnto the church with all maner of pompe and pryde / & gorgiousnesse of rayment and Jewels. They come with a greate noyse of basens and drommes / wher with they trouble the whole church / & hindre them in matters pertayninge to god.” 1 The propriety of celebrating marriages with feasting and sermon was not a part of the ceremony in England until it was intro¬ duced by the Reformers. After about 1650, it was postponed until the first Sunday after the wedding. 1 Bullinger, op. cit., f. L. Bullinger was not an Englishman, but the fact that Coverdale, who translated his work, retained this passage, is evidence that the description represents English practices accurately enough. That Coverdale was not above taking liberties with his text is shown by the variations in the different editions of the book in question. INTRODUCTION 25 merrymaking seems to have been under debate, but if conducted with moderation, both were approved by clergy and laity alike, as proper and fitting, even upon Scriptural authority. William Perkins, a Puritan of the less radical type, writes in 1590: “Heere question is moued, whether mariage is to be solemnized with mirth and feasting. Answ. I. It is lawfull and warrantable to vse feasting and mirth at mariages, because these be things indiffer¬ ent, and wee haue examples thereof in the Scriptures. . . . Christ himselfe did approue the resort of people to the mariage at Cana in Galilee, both by his presence, and by that honorable gift of sixe water-pots of best wine, Ioh. 2. 2. 7. 8. II. It is not only lawfull, but conuenient and fit to be done, if there be abilitie; according to the commendable custome of the place & countrie wherein men do dwell; so as in the vse thereof, these cautions bee obserued. First, that in mirth and merry-making, there be care had that nothing be done which is dishonest, prophane, or of ill report. Philip. 4. 8. Whatsoeuer things are honest — pure — of good re¬ port, thinke on these things. Secondly, that ioy in them be mixed and moderated with feare of God, without which Laughter and reioycing is meere madnesse, Eccles. 2. 2. Thirdly, That it be per¬ formed in a moderate and sober vse of the creatures, without riot & excesse. Thus we reade at the great feast of Ahashuerosh, it was appointed by the King himself, that they should drink orderly, & none might compel another to drinke more then he thought con¬ uenient. Ester I. 8.” 1 William Gouge, a later Puritan, goes still further, declar¬ ing that such a feast partakes of the nature of a civil ceremony and is “very requisite.” “Though vpon the forenamed consecrating of mariage it bee in regard to the substance thereof fully consummate, yet for the greater solemnity of so honourable a thing, it is very requisite that further there be added a ciuill celebration of it: vnder which I comprise all 1 Perkins, Christian Oeconomie, p. 96. 26 ENGLISH DOMESTIC RELATIONS those lawfull customes that are vsed for the setting forth of the out¬ ward solemnitie thereof, as meeting of friends, accompanying the Bridgroome and Bride both to and from the Church, putting on best apparell, feasting, with other tokens of reioycing: for which we haue expresse warrant out of Gods word.” 1 Among the Independents, who opposed all ecclesiastical performance of marriage, the rejoicing and feasting of friends was regarded almost as an essential part of the wedding, in order to make it public and to take the place of the church ceremony. Under the caption “How must they be duelie ioined in manage,” Robert Brown, one of the leaders of the sect, lays down these principles: “Their bethrothing & espousing must be further made known vnto witnesses. Their friendes must be glad and reioyce together, in some ioyefull and seemelie manner.” 2 The elaborateness of these festal celebrations depended, of course, upon the position and wealth of the bridal couple. In full form, they lasted two or three days, and included banqueting, dancing, song, games (particularly of a kissing nature), outdoor sports, sometimes masques or interludes, and finally a levee held by the bride and groom to their nearest friends in the bed chamber, the receiving couple being enthroned in the bed. 3 It may readily be imagined that at a time of such general abandon, abuses and excesses might easily take place. This was indeed the case, and the evil practices are often commented on by the writers on marriage. Bullinger’s description, in his Cristen state , of such an afternoon and evening is too good to miss. 1 Gouge, Domestical Duties, p. 120. 2 Brown, Life and manners of true Christians, cap. 172. 3 In The Changeling , the inmates of a mad-house are hired to amuse a wedding company on the third day of the feast. In The Wonder of Women, a pageant takes place in the bridal chamber. INTRODUCTION 27 “After the bancket and feast / there begynneth a vayne / madd/ and vnmanerly fashio. For the bryde must be brought in to an open dauncyng place. Then there is such a renninge /leapinge/ and flynging amonge them / then there is such a lyftinge vp and discoueringe of damesels clothes and of other wemens apparell/ that a man might thinke / all these dauncers had cast all shame behinde the / and were become starke madde and out of theyr wyttes / and that they were sworne to the deuels daunce. Then must the poore bryd kepe foote with all dauncers / & refuse none/ how scabbed / foule / dronke / rude and shamels so euer he be. Then must she oft tymes heare and se much wickednesse / & many an vncomely word. And that noyse and robling endureth euen tyll supper. “As for supper / loke how much shamels & droken the euenyng is more then the murnyng / so much the more vyce / excesse/ and mysnourtoure is vsed at the supper. After supper must they begynne to pype and daunce agayne of the new. And though the yonge parsones / beynge weery of the bablyng noyse and incon- uenience / come ones towarde theyr rest / yet can they haue no quietnesse. For a man shall fynd unmanerly & restlesse people/ that will first go to theyr chabre dore / and there syng vycious and naughtie balates that the deuell maye haue his tryuphe now to the vttermost.” 1 With the coining of Puritan and Independent ideas after the Reformation, both ceremony and custom underwent certain changes. Those described above, however, may be taken as representative of the so-called Church of England after it broke away from the Pope. For the severing of the Anglican Church from the Church of Rome, so far as marriage and divorce were concerned, had no effect upon general conditions whatsoever. 1 Bullinger, f. L b. A similar description of wedding revelry occurs in the old morality play The Disobedient Child (Dodsley, Old Plays, ed. Hazlitt, II, 300). Another, but with fewer details, is given by Chaucer, Merchant’s Tale, 11. 465 ff. CHAPTER II CONTROVERSIES REGARDING MARRIAGE I. Historical Situation The first years of the Reformation in England were pic¬ turesquely and aptly described by Thomas Fuller in a sermon in 1643. “King Henry the eight,” he says, “brake the Popes necke, but bruised not the least finger of Popery; rejecting his Supremacy, but retaining his superstition in the six Articles. The Reformation under Edward the sixth, was like the Reformer, little better then a child. ... As Nurses to woe their Children to part from knives do suffer them to play with Rattles; so the State then permitted the People (infants in Piety) to please themselves with some frivilous points of Popery, on condition they would forsake the dangerous opinions thereof. As for Queene Elizabeth, her Character is given in that plaine, but true expression, that shee swept the Church of England and left all the dust behind the door.” 1 The Puritan doctrines referred to here, which began to make themselves felt in Elizabeth’s reign, were advanced in their early conception in both Eng¬ land and Germany long before this name was attached to the sect in 1564. Indeed, the beginning of this agitation may be traced back without break to Wiclif; but although the present movement was the result of principles similar to those of the Lollards, as a historical development it is so clearly the immediate outcome of the Reformation that the earlier influences may be quite disregarded here. 1 Fuller, A Sermon of Reformation, p. 7. The passage given is quoted by Fuller from some work which he does not name. He repudiates the characterization of Elizabeth’s reign, but history rather supports it. 28 CONTROVERSIES REGARDING MARRIAGE 29 As early as 1550, the effect of the German Reformation and the still more sweeping reform ideas, many of which were not as yet in actual operation anywhere, began to have some influence in England. Many of the future leaders of English thought, such as Hooper, Coverdale, Rogers, and Ridley, “the first race of Puritans,” were"at this time return¬ ing from their exile on the continent, and by sermons and teaching began to spread the doctrine of the purification of the English Church from Popish practices and Popish form of government. Although in the succeeding years under the oppression of Elizabeth, this purification was still aimed at certain ceremonial details, — the minister’s robe, the ring of marriage, etc. — and some historians have represented the Puritan movement as originating from the desire to get rid of these, the fact is that prelatical episcopacy in its fundamental conception was attacked, by some at least, from the very first. Hooper, in his Declaration of the Ten Commandments, published in 1550, spends three chapters in expounding the nature of ecclesiastical law and the necessity of avoiding the decrees and interpretations of Popish bishops. 1 And Bucer, in his Draft of a more 'primi¬ tive Church system , 2 in 1557, goes so far as to advocate provincial synods as well as a council of bishops and presbyters. The Puritan form of church government in its complete conception was first drawn up in England by a committee of sixty divines, of which Cartwright and Travers were 1 Hooper, Early Writings , p. 270 ff. 2 Contained in his De Regno Christi. Such a form of church gov¬ ernment was instituted by Calvin in Geneva in 1541, having been submitted to the civil authorities in 1536. Church government by synods of clergy and laity had been established by Zwingli at Zurich as early as 1528. Bucer’s ideas were, of course, taken from continental practice, which influenced Hooper and the other English Reformers also. 30 ENGLISH DOMESTIC RELATIONS members, in 1576. Here we find provisions for three types of governing bodies, — classes, comitial assemblies, and provincial synods — following the form of Calvin’s church government at Geneva. These, under different names, continued to be advocated as the disciplinary powers of the Reformed church. These principles of ecclesiastical govern¬ ment had been previously set forth in 1574 in a Latin book by Travers, Ecclesiasticae Disciplinae, et Anglicanae Ecclesiae . . . explicatio, which was translated by Cart¬ wright in the same year under the title of A full and plaine declaration of Ecclesiasticall discipline, etc. A second Latin book by Travers, in 1584, since known as the Book of Discipline, was also translated in that year by Cart¬ wright, but its publication was suppressed. 1 Robert Brown, later the founder of the Brownist sect, issued a book in 1582, The life and manners of true Christians, which for the first time set forth in English the Puritan interpretation of Scrip¬ tural instruction for life and church government. But with the establishment of the Court of High Commissions in 1571 and the increasing power of Archbishop Whit gift, the advance of the Puritan cause was brought almost to an 1 This is the book which was found among Cartwright's papers after his death and published in 1664 under the title of A Directory of Church- government. Neal ( History of Puritans, I, 358) confounds these two translations from Travers. Heylyn {History of Presbyterians, p. 291) speaks of a Form by Cartwright as being popular in 1582. This was the translation of the first book. The confusion of the two works, which existed from Neal's time until 1872, is set right by the editor of the reprint of the 1664 edition of Cartwright’s Directory. Both books, however, contain the same principles. The Elizabethan names for the Directory were The Book of Discipline, The Form of Discipline, etc. The editor of the reprint says that this was “no doubt the same book as that referred to in the proceedings of Parliament in 1584, under the title of A Book of the Form of Common Prayer, Administration of the Sacraments, etc.” I think he is mistaken here, as a book of this name and date is extant which bears no resemblance to Cartwright’s. CONTROVERSIES REGARDING MARRIAGE 31 end, although its adherents held their ground and spread their gospel by personal teaching and suffering. It was at this time that the Puritans were martyrs as non-conform¬ ists to ritualistic details rather than as advocates of a reform of church government, as it was easier to convict a man of ceremonial omissions than of doctrinal opinions. For this reason, it is natural that most of the public expression of the time in sermons, petitions, tracts, etc., is concerned with superficialities rather than fundamentals, the famous Marprelate tracts being a case in point; but the treatises mentioned above show clearly that the real trouble was more than surface deep. In the reign of James I, there was no change in the condi¬ tion of affairs except for the slackening of persecution. In the Humble Petition to King James and at the Hampton Court Conference, only minor points were discussed, and the only things obtained by the Puritans were the King’s scorn and enmity. The limitation of the power of the eccle¬ siastical courts, which Neal says were an “insufferable grievance” on account of the “bottomless deeps of canon law,” and the widening of the jurisdiction of the civil mag¬ istrate on much the same lines as were afterwards established in Charles’ time, were advocated by William Bradshaw in his English Puritanisme, published in 1605. The same views were for the first time expressed in Parliament in 1607, in a speech which is important both in showing the coming attitude of the period and in throwing light upon previous history. The following is extracted from it: “And whereas by the laws of God and the land, ecclesiastical persons should use only the spiritual sword, by exhortation, admoni¬ tion, and excommunication, which are the keys of the church, to exclude impenitent sinners, and leave the temporal sword to the civil magistrate, which was always so used in England, till the second year of the reign of king Henry IV. at which time the Popish prelates 32 ENGLISH DOMESTIC RELATIONS got the temporal sword into their hands; which statute was since by several acts of Parliament made void; yet by virtue of that tem¬ poral authority once for a short space by them used, some eccle¬ siastical persons do use both swords, and with those two swords the oath ex officio, which began first in England by the statute of the second of king Henry IV. being contrary to the laws of England, and, as I verily think, contrary to the laws of God.” 1 But nothing came either of Bradshaw’s book or of this speech. Another attempt was made in the same direction by a petition in 1610, but the King was still obdurate. The Puritan movement was once more changed from an aggressive to a defensive cause under the high hand of Archbishop Laud in the reign of Charles I. So bitter and so sweeping was this prelate in his attack against the followers of the antipapal movement that the various sects of non¬ conformists which had split off from time to time from the established church almost lost their individuality in the defense of their common doctrines, especially as there was no occasion to quarrel over the details of Protestantism until Popery, now in the ascendent, was cast from the realm. In this period we find but few publications on the Puritan side, as Laud suppressed them as thoroughly as he could. A few, however, appeared anonymously, but their supposed authors were severely dealt with, Prynne, Burton, and Bastwick being imprisoned, tortured, pilloried, and fined. Under Elizabeth and Whitgift, the High Commission Court had been oppressive enough; but Laud, by obtaining from Charles a decree removing ecclesiastical courts from state control, became himself the absolute master of every church and every minister in the country. This, of course, could not have been the case had he not had the support of all the bishops, — with the exception of a few who had become non-conformists — for they, realizing that their positions 1 Neal, History of the Puritans , II, 68 ff. CONTROVERSIES REGARDING MARRIAGE 33 were to be maintained only by the continuance of the exist¬ ing form of church government, upheld the Archbishop and opposed the growing attitude of independence in the House of Commons. In 1640, Laud’s power reached its zenith, as expressed in the canons of that year. Canon 6, “that all archbishops, bishops, priests, and deacons take oath upholding the present doctrine and discipline of the church,” was aimed directly at all those opposed to ortho¬ doxy, with the intention of driving every non-conformist from his church or subjecting him to such punishment as Laud’s courts saw fit. But such autocracy could not be maintained indefinitely. Already ministers and congregations were fleeing the country to Holland, Geneva, and America in order to escape perse¬ cution and to worship as they pleased. In 1640, the House of Commons asserted itself, repudiated the canons just passed, and resolved “that the clergy of England . . . have no power to make any constitutions, canons, or acts, what¬ soever, in matters of doctrine, discipline or otherwise, to bind the laity of the land, without consent of Parliament.” 1 Laud was sentenced to the Tower in 1641, and Parliament set about to strip the church and the bishops of the power obtained under his administration. By this time, the Puritans and their fellow non-conformists represented not only the general opinion but also the real power of the entire kingdom; hereafter their labors were to be directed merely towards forcing their desired reforms from the House of Lords and the King. The bishops in the House of Lords stubbornly blocked every effort of the Commons for reform; but the Commons, supported by the populace of London and the greater part of the laity of the upper house, were becoming too powerful to be resisted. In 1641, the Star Chamber and the Court 1 Neal, II, 319. 34 ENGLISH DOMESTIC RELATIONS of High Commissions were abolished; and in 1642, a bill was railroaded through both houses taking all temporal jurisdiction from the bishops. Thus the first obstacle to complete church reform was overcome. The King, who by this time was pretty well intimidated by Parliament, was approached in the same year with a summary in nineteen propositions of the reforms desired, the most important of which for us was “that your Majesty will be pleased to consent, that such a Reformation be made of the Church- Government and Liturgy as both Houses of Parliament shall Advise; wherein they intend to have Consultations with Divines.” 1 These propositions were not granted in any satisfactory way, and the deadlock between the King and the country, which embraced other matters than eccle¬ siastical, finally resulted in civil war. It is not possible here to go sufficiently into the history of this period to show the various efforts and the failures thereof on the part of Parliament to obtain a real reform of ecclesiastical affairs. It will be enough for our purpose to set forth the propositions for church government sub¬ mitted to the King at Uxbridge in 1645. These, though not accepted by him, are important in that they express the general principles of all the non-conforming parties, of which the English Puritans and the Scotch Presbyterians were the leaders, and also because they became in the next year the basis of the church doctrine and government under the Commonwealth. The new doctrine was set forth in a Directory for Public Worship , which was to supersede the Book of Common Prayer of Edward VI. It was drawn up by the official assembly appointed in 1643. 2 It contained, beside an introduction explaining its origin, the proper 1 Rushworth, Historical Collections , Pt. 3, I, 723. 2 The Directory was not made law until January 3, 1645. It may be found in Scobell, Acts and Ordinances of Parliament , I, 76 ff. CONTROVERSIES REGARDING MARRIAGE 35 forms and usages connected with the functions of the church under the following headings: (1) Assembling the Congre¬ gation, (2) Public Reading of the Holy Scriptures, (3) Public Prayer before the Sermon, (4) Preaching the Word, (5) Prayer after the Sermon, (6) The Sacrament of Baptism, (7) The Sacrament of the Lord’s Supper, (8) The Sanctifi¬ cation of the Lord’s Day, (9) The Solemnization of Matri¬ mony, (10) Visitation of the Sick, (11) Burial of the Dead, (12) Public Solemn Fasting, (13) Observance of Days of Public Thanksgiving, (14) Singing of Psalms, and (15) an Appendix on the Days and Places of Public Worship. The government of the church was to be in the hands of congre¬ gational, classical, and synodical assemblies, in practically the same manner as that of Calvin’s church at Geneva, which had been advocated by Cartwright in England in the previous century. 1 This form of church government became established nationally, by way of trial, under the Commonwealth in 1646. The order of bishop was abolished, London was divided into twelve classical elderships, each containing twelve parishes, and persons were appointed by Parliament to settle the counties of England and Wales into provinces, as had already been done in Scotland by the Presbyterian Church. The eldership of each parish was obliged to meet every week, the classical assemblies once a month, provincial assemblies twice a year, and national assemblies as often as summoned by Parliament. The exact limita¬ tions of the jurisdiction of the church under this regime 1 See his Directory and Discipline. Some similar form of church government was established as early as 1576 by Cartwright in the islands of Guernsey and Jersey, which had obtained royal permission to manage their own ecclesiastical affairs. But I have been unable to find any further information on the subject, except that this arrange¬ ment came to an end in the latter part of James Ps reign. 36 ENGLISH DOMESTIC RELATIONS cannot be determined. The sole disciplinary function seems to have been to deprive individuals of the Holy Com¬ munion in cases of sufficient offense. The ordinances “that cognizance and examination of any capital Offence, shall be by the Magistrate thereunto appointed,” and that “the Presbytery . . . shall not have cognizance of anything wherein any matter of Payment, Contract, or Demand is concerned, or of any matter of Conveyance, Title, Inter¬ est, or Property,” 1 which had been established in 1645, give us the general status of the case but leave us in the dark as to the particular interests of our investigation, namely marriage and divorce. The abolishing of the tem¬ poral power of the bishops in 1642, and the utter overthrow of their office in 1646, together with the final establish¬ ment of the new form of government in 1648, when the power of the assemblies was limited to settling points of faith and to excommunication for disorders, 2 would seem to make it clear that questions of marriage and divorce were, at least officially, taken entirely out of the jurisdiction of the church. On the other hand, no law was passed touching upon either subject, and no new method of judicature has been discovered as operating at the time. This situation was brought to an end by Cromwell's marriage act in 1653, in which it was provided that marriage should be performed by the local justices of the peace, and that all controversies or exceptions concerning contracts and marriages should also be referred to them or to such other persons as Parliament might appoint. 1 Rush worth, Pt. 4, I, 212. 2 Scobell, I, 165 ff. The whole form of church government, as then established, may be found here. CONTROVERSIES REGARDING MARRIAGE 37 II. The Puritan Platform in regard to Marriage The above brief outline of the general Puritan move¬ ment will be sufficient to enable us to place the various reforms in regard to marriage in their proper historical setting. In looking more closely into the legislation and practice centering about this subject, it is necessary to consider not only the history of the Puritans, but also that of the other non-conformist bodies, in England, Scotland, the Continent, and America. Historians seem to have neglected this very important period in the development of the present-day conception of marriage, and have con¬ tented themselves with saying that civil marriage origi¬ nated in Holland and spread from there to England and America. The mistake here arises from a failure to distinguish between a legal marriage, which might be merely spousals de praesenti, and the “solemnization of matrimony” by the church, which was no more than an ecclesiastical bless¬ ing upon an already established union. The church, from the beginning of the Christian era on, had attempted to put the emphasis upon the solemnization, although it always recognized a privately contracted marriage as valid. Luther’s teachings, on the other hand, while retaining the church service as a beneficial custom, 1 threw the emphasis upon the previous contract, where in the light of actual law it belonged. It was doubtless the result of Luther’s teachings, passed on by Calvin, that two of the Netherland provinces, Holland and West Friesland, established civil marriage in 1580 upon gaining independence from Spain. 2 1 Luther drafted a model ceremony for use where desired, which was followed with variations in the chief church ordinances. 2 “There the law was ‘that those of any religion, after lawful and open publication, coming before the magistrates in the town-house, 38 ENGLISH DOMESTIC RELATIONS But this ceremony did not replace that of the church, as has been usually thought; it was merely a legal recogni¬ tion and sanction of the marriage contract, which up to this time had been performed in private, with or without witnesses, as spousals de praesenti. That the ecclesiastical solemnization continued to be practised in Holland, as an additional ceremony, is shown by the presence of the usual church service in the old Dutch liturgies 1 and is testified to by the Brownists , Confessions of Faith. 2 Furthermore, among the forms and ceremonies established by the National Synod of Dort in 1618-19 for all the reformed churches of the Netherlands, The Celebration of Marriage before the Church is printed for general use. 3 It is thus clear that in Holland the so-called civil marriage was no great innovation at all, but was merely the old private marriage, by means of spousals de praesenti, conducted according to legal form. That this explanation of the case, which is important both for itself and for its later bearing upon England and America, is the correct one, is further shown by the church service itself, in which the man and the woman are regarded and referred to as already married but “desire here openly to have your marriage-bond confirmed in the name of God or stadt-house, were to be by them orderly married, one to another. ’ ” Bacon, Genesis of New England Churches, p. 340. See also Bradford, History of Plymouth Plantation, I, 217. 1 See Bibles, liturgies, etc., published at Delft, 1582, and Leyden, 1589, under title, Biblia, dat is De gantsche Heylighe Schrift, etc., and also the comments on the English Reformed church in Holland, pp. 43-44 below. 2 This book is contained in An Apologie or Defense of .. . Brovvn- ists, 1604. Baillie, in his Dissvasive from the Errours of the time, p. 42, quotes this passage from it: “The Dutch Church at Amsterdam cele¬ brates mariage in the Church, as if it were a part of the Ecclesiastick Administration, while it is in the nature of it meerly civill.” 3 See A Catechisme of the Christian Religion, etc., trans. from the Dutch, p. 81. CONTROVERSIES REGARDING MARRIAGE 39 before his church.” 1 An interesting comment, which again supports my view, is made upon this ceremony in the ac¬ count of the Synod of Dort, published by order of the Synod of Walloon Churches, held in 1667: “Comme il se trouve que jusques a present on use par tout de deverses manieres touchant les Manages, & toutefois est convenable d’entretenir Uniformite en cest endroit, les Eglises continueront V Usage qu’elles on eu jusques a maintenant, conforme a la Parole de Dieu & aux predecentes Ordonnances Ecclesiastiques, jusques a ce que par le Magistrat Superieur (lequel on requerra promp- tement pour cest effect) eu soit establie, avec Vadvis des Min- istres, une Ordonnance generate, a laquelle ce Reglement Ecclesiastique se rapporte quand a ce point.” 2 In such form, civil and ecclesiastical, marriage continued to be celebrated in Holland throughout our period. In England, even in the established church, conditions were similar to those in Holland, except that the presence of civil authority was not required, and in public opinion, though not in either ecclesiastical or civil law, greater emphasis was laid upon the church ceremony. William Harrington, whose views were orthodox even to the point of including marriage among the sacraments, makes these points clear. Writing in 1528, he says: “It is to be knowen that man and woman dothe entre this holy ordre and sacramente of matrymony by expresse and free consente 1 Catechisme of the Christian Religion, p. 83. In putting the vows to the bridal couple, the minister is directed to say “to the married persons”: “N. doe you acknowledge here before God, and his Holy Church, that you have taken, and doe take to your lawfull wife N. here pres¬ ent,” etc. Note the tenses. Furthermore, there is no pronouncing of the couple to be “man and wife,” as this would have occurred, if at all, at the civil ceremony. 2 La Confession de Foy des Eglises Reformees du Pais-Bas , etc., p. 78. 40 ENGLISH DOMESTIC EELATIONS of bothe partyes / that is to say: when bothe the man and the woman dothe consente bothe in one tyme to be husbonde and wyfe/ and that consente doo shewe eyther to other by expresse wordes of the tyme presente, as by these wordes or other lyke / I take the to my wyfe / or I frome this tyme forwarde wyll haue the to my wyfe. . . . But and they vse wordes of the tyme to come . . . then it is noo matrymony. . . . “ Moreouer this consent which doth make matrymony ought to be expressed & shewed in open and in honest places afore & in the psence of honest and laufull wytnesses called specyally therfore, ii at ye leest / for & it be otherwyse yt is to say / yf ye man & woman or theyr proctours do make matrymony secretly by them selfe without any recorde or but with one wytnesse yt is called matry¬ mony cladestinat whiche for many causes is forboden by the lawe . . . notwithstondyng that matrymony is valeable and holdeth afore god. . . . “And when matrymony is thus laufully made / yet the man maye not possesse the woman as his wyfe / nor the woman the man as her husbonde . . . afore suche tyme as that matrymony be approued and solempnysed by oure mother holy chyrche / and yf they do in dede they synne deedly.” 1 Thus in England, as well as elsewhere, marriage by means of spousals de praesenti was recognized by both church and state, but the church had managed to become accredited as the proper authority for the solemnization of it. Never¬ theless, as this authority was self-assumed and as the sacramental character of marriage was repudiated in the Thirty-nine Articles of 1552, it had only the validity of tradition. That the civil authority should take charge of affairs matrimonial, does not seem to have been advocated in the first meeting of Puritan divines, in 1576. As yet the Re¬ formers were too much occupied with planning the mere 1 Harrington, Comendacions of matrymony , f. Aiii ff. For a fuller quotation from Harrington, see Appendix C, below. CONTROVERSIES REGARDING MARRIAGE 41 form of church government to give attention to the divi¬ sion of power between church and state, although they went as far as to determine that the classical assemblies should decide “doubts and difficulties touching the contract of marriage.” Cartwright’s Directory also omitted any men¬ tion of civil jurisdiction. His directions as to marriage itself are interesting as the first Puritan expression in Eng¬ land on the subject. “Let espousing goe before marriage. Let the words of espous¬ ing be of the present time, and without condition, and before sufficient witnesses on both sides. It is to be wished that the Minister or an Elder be present at the espousals, who having called upon God may admonish both parties of their duties. . . . “The Espousals being done in due order, let them not be dis¬ solved, though both parties should consent. Let the marriage be solemnized within two moneths after. Before the marriage let the promise be published three severall Sabbath daies; but first, let the parties espoused, with their parents or govenours desire the publishing thereof of the Minister and two Elders at the least, that they may be demanded of those things that are needfull, and let them require to see the instrument of the covenant of Mar¬ riage, or at least sufficient testimony of the Espousals.” 1 It is important to notice here the emphasis laid upon spousals and the insistence that they be de praesenti and before witnesses. In this we see the influence of Luther’s teachings in England even before they became established by law in Holland. From the appointment of Whitgift as Archbishop of Canterbury in 1583 to the fall of Laud in 1641, the Puritans were persecuted to such an extent and the publication of so-called seditious pamphlets was so rigorously suppressed that it is difficult to find much expression of opinion on the subjects of church government and marriage. Neverthe- 1 Cartwright, Directory, f. B3. 42 ENGLISH DOMESTIC RELATIONS less, on the latter topic I have found enough writing to be able to present a definite account of its theory and practice. William Perkins, in his Christian Oeconomie, 1590, gives the fullest discourse, of which the following are the most important passages: “Mariage is that, whereby the coniunction formerly begunne in the contract, is solemnely manifested, and brought to perfection. Mariage is consummate by three sorts of actions; one of the par¬ ents of the Bride and Bridegroome, the other of the Minister in publicke, the third of the persons coupled together. . . . “The second Action ... is the blessing and sanctification thereof, which is a solemne worke, whereby the Minister pronounc¬ ing the parties contracted to be man and wife before the whole congregation, commendeth them and their estate vnto God by solemn prayer. . . . “Now that this action is to be approued and vsed in the Church, appeares by these reasons. I. Mariage as it is a publicke action, so it is after a sort a spirituall and diuine ordinance, whereby it differeth from the contract: For the contract being meerely ciuill, as it standeth by consent of man, so by the same consent, it may bee broken and dissolued, but with mariage it is otherwise. II. Mar¬ riage is the Seminarie of the Church and Common-wealth. III. It was the practise of ye Primitive Church.” 1 As in the case of Cartwright’s Directory, it should be noted that the church ceremony is not regarded here as the actual marriage — that had already taken place in the spousals de praesenti — yet it is strongly recommended that the church should bless and solemnize the union. This attitude is more definitely expressed in a statement made 1 Perkins, op. cit., pp. 83, 94, 94, respectively. The Biblical author¬ ity cited by Perkins for making marriage an ecclesiastical affair is: (1) God said to Adam and Eve, “Increase and multiply” (Gen. II, 22); and (2) St. Paul said, “Let all things be done decently and in order ” (I Cor. XIV, 40). CONTROVERSIES REGARDING MARRIAGE 43 by John Paget 1 in a collection of letters entitled An Arrow against the Separation of the Brownists, published at Amster¬ dam in 1618. “For marriages/' says this writer, “we do not hold it as a thing of necessity that they should be cele¬ brated by Ministers in the church; we judge them lawful marriages that are made by the Magistrates, without Min¬ isters; but yet we hold it lawful, more convenient and comfortable, that they be accomplished in the church by Ministers, both for showing the duties of the persons mar¬ ried, and for obtaining a special blessing by the prayers of the congregation." 2 The writers who attack more directly the civil marriage of the Brownists take the same attitude. Thomas Edwards in his Antapologia: or, A Full Answer to the Apologeticall Narration , 3 4 asks, “Whether also, one of these Apologists, was not so farre gone in the principles of the new Church-way, as that he would not be married by Ministers, but deferred marriage till he came into Holland, where presently after his comming he was married, (not in the way of the Reformed churches there,) but by the Magistrates according to the way of the Brownists, as it is laid down in Robinsons Apologie.” 4 Another Puritan writer, Ephriam Paget, in his Heresiography , a book on the various non¬ conformist sects, describes the Brownists as being “as malevolent to the Dutch and French churches as to us," and among the reasons given for this antipathy is the fact that they celebrate marriage in the church. “Is not this a foule fault?" asks Paget ironically, “Is it not better to 1 This Paget is not included by Brook in his Lives of the Puritans, but there can be no doubt that he represents Puritan beliefs. 2 Hanbury, Historical Memorials, I, 334. 3 The Apologeticall Narration was written by several Brownists in defense of their doctrines. 4 Edwards, op. cit., p. 22. For account of Robinson’s Apologie, see below, p. 53, n. 1. 44 ENGLISH DOMESTIC RELATIONS be married in the Congregation with prayers and Gods blessing pronounced upon them by the minister, then to be contracted privately, and entered into a book as men do horses in Smithfield? ” 1 Summing up these opinions, we have clear and abundant evidence that the Puritans, while not condemning mar¬ riage by magistrates as unlawful, considered it “lawful, more convenient and comfortable” that it should be solem¬ nized by the church. III. The Position and Practice of the Independents From the passages cited above, it will readily be seen that the Brownists or Independents went much further in their emancipation from ecclesiastical jurisdiction in marital affairs than did the other reformed churches. 2 This inno¬ vation was originated by Brown himself, who probably developed it from the teachings of Luther — perhaps through Cartwright’s Directory — and from the practice of Holland. 3 It was first expressed by him in his book, The life and manners of true Christians , published at Middel- burg in 1582, the principles of which he and his assistant Richard Harding preached upon their return to England 1 Paget, op. cit., p. 50. 2 Historians and legal writers have failed entirely to realize this fact, namely, that the Brownists differed radically from the other reformed churches in their ideas of marriage. The point is, however, of extreme importance: from a historical standpoint, it explains the origin of the civil marriage of New England, and from a literary one, it throws considerable light upon Milton’s conception of marriage. These points are both demonstrated below. * Brown had been a disciple of Cartwright and “built his schism upon Cartwright’s principles” (Heylyn, p. 295). It is evident that Brown goes much further in his “schism” than did Cartwright. CONTROVERSIES REGARDING MARRIAGE 45 in 1584. In speaking of marriage, Brown makes no men¬ tion of the church at all. The important things connected with marriage he declares to be espousals and cohabita¬ tion. The chief points to be observed are set forth as follows: “Mariage is a lawfull ioyning and fellowship of the husbande and wife, as of two in one fleshe, by partaking the vse of eche others loue, bodie, and giftes, in one communion of dueties: and especiallie in generation and bringing vp children. . . . “The couenant of Mariage is an agreement or partaking of con¬ ditions, to hold the communion thereof, so long as death or lawfull separation and divorcemet doth not breake it. “There is also a couenant before mariage as by bethrothing, espousing and agreement of friends and kindred. “Bethrothing is a couenant betweene the parties to be married, whereby they giue their troth that they will and shall marrie together, except some laweful vnmeetnes and disliking eche of the other do hinder it in the meane time. “Espousing is the couenant betweene them, whereby they are pronounced before -witnesses, to giue them selues, and to be giuen eche to other to become husband and wife.” 1 This account, however, does not express definitely that marriage is a civil affair only and that the church has nothing to do with it, although such were clearly Brown’s views. But in 1587 we find these doctrines not only expressed but publicly proclaimed before the Court of High Commission by John Greenwood, a member of the Brownist sect. This was the first voice raised in England against marriage as 1 Brown, op. cit., secs. 169 and 171. This important book is occa¬ sionally mentioned by historians but seems to have escaped examina¬ tion, although Hanbury quotes a few definitions from it. (Hist. Mem., I, 19 ff.) In the passage above, Brown uses the term marriage to mean not the ceremony but the state, the term betrothing to mean spousals de futuro, and the term espousing to mean spousals de praesenti. 46 ENGLISH DOMESTIC RELATIONS practised by the established church. 1 The following ques¬ tions and answers took place at Greenwood’s trial: “Q. What say you of marriage? Did you not marry one Bo- man and his wife in the Fleet? “G. No. Neither is marriage any part of the minister’s office. “Q. Who used prayer? “G. I think, that I used prayer, at that time. “Q. Who joined their hands together? “G. I know no such thing. They publicly acknowledged their consent before the assembly. “Winch. They make such marriages under a hedge. It hath been an order long received to marry by a minister. “G. There were many faithful witnesses of their mutual con¬ sent. And if it were not lawful, we have many ancient fathers, who, by your judgement, did amiss.” 2 The evidence of Brown and Greenwood, somewhat in¬ complete in itself, is fully substantiated by Robert Barrow in his book A Brief Discovery of the False Churches , pub¬ lished in 1590, 3 three years before he was executed along with 1 I do not take into account here the many objections which had been raised by the Puritans against ceremonial details in the orthodox marriage service. For notice of these, see Hooker, Ecclesiastical Polity (ed. Rhys), II, 391 ff., and notes there. 2 Brook, II, 35. It should be noted here that even the Bishop of Winchester acknowledges the validity of privately contracted mar¬ riages, although accomplished in the way he describes in the slang of the day. (Cf. Jaques’ speech to Touchstone, “And will you, being a man of your breeding, be married under a bush, like a beggar? Get you to church, and have a good priest, that can tell you what marriage is.” As You Like It, III, 3.) 3 This book also has been entirely neglected by students of marital affairs, although quotations from it occur in Hanbury (I, 39 ff.). I have been able to find only the reprint of 1707, the editor of which, says Hanbury, “destroyed all the raciness of the original.” CONTROVERSIES REGARDING MARRIAGE 47 Greenwood on the charge of writing seditious pamphlets. As this book gives the fullest expression I have found of the Independents’ principles in regard to marriage, I am led to quote from it at some length. Referring to “this so famous Church of England,” Barrow says: “Not to speak of their Orders or Injunctions which are Four times in the Year to be solemnly read, nor to repeat their Penance, with the bitter Curses and Comminations, their Lentfast; they have yet the Holy Ceremony of Marriage, solemnly kept in the Church (for the most part) upon the Lord’s-day: And an especial Composed Communion for the same. This Action is to be performed by the Priest, &c. who instructing the Parties to be joined in Wedlock what to say, and when to pray, &c. teacheth the Man to wed his Wife with a Ring, in the Name of the Father, of the Son, and of the Holy Ghost. . . . “But in the mean time, I would fain know of the most Learned among them all, either Foreigners or Natives, where they find in the Old or New Testament, That Marriage is an Ecclesiastical Ac¬ tion, belonging to the Worship of God in his Church, to be done by the Minister as part of his Office and Function, and that in the Church, with such a Set of Collects, Exhortations, Psalms, An¬ thems, and Blessings composed for that Purpose. ... I have always found it the Parents Office to provide Marriages for their Children, whilst they remain under their Charge and Government: And that the Parties themselves affianced and betrothed each other in the Fear of God and the presence of such Witnesses as were thought fit to be present, and that in their Parents or other pri¬ vate Houses, without being obliged to go to Church for an Ordi¬ nance and Action of the Second Table, and see not why they might not as well bring any other Civil Business as this into the Church, for few believe themselves to be rightly Married except it be done by a Priest, after the prescribed manner, and that also in the due Seasons. . . . though all these Ceremonies are not observed in all the Reformed Churches.” 1 1 Barrow, op. cit., p. 190 ff. 48 ENGLISH DOMESTIC RELATIONS The religious platform of the Brownists was officially drawn up in a Confession of Faith by the exiles in Holland in 1596 and published in 1598, 1 addressed “To the reuerend and learned me, Students of the holy Scripture, in the Christian Vniversities of Leyden in Holland, of Sanctan- drewes in Scotland, of Heidelberg, Geneva, and other like famous scholes of learning in the Low countries, Scotland, Germany, and France.” This book gives their general beliefs and their platform of church government, but is not detailed enough to be of assistance in the present study. But in their Third Petition to King James , their principles in regard to marriage are clearly expressed: “The Ministers aforesaid lawfully called by the Church where they are to administer ought to continue their functions according to Gods ordinance, and carefully to feed the flock of Christ com¬ mitted vnto them: Being not inioyned or suffred to beare civil offices withall, neither burthened with the execution of civil affaires, as the celebratio of Mariage, burying the dead, &c. which thinges belong as well to those without as within the Church.” 2 That the Independents continued this practice in England is shown by a passage from Rogers’ Matrimoniall Honovr in 1642. In discussing marriage by ministers, he says: “In the Scriptures, we see it was civilly carried, and dispatcht by the Elders at the gate: and now in some of the reformed 1 These dates are given in the prefaces contained in An Apologie or Defense of . . . Brownists, pp. 15 and 5 respectively. Baillie ( Dis¬ suasive , f. *46) gives the date 1602 for the publication of the Confession of Faith. This Confession is also contained in the Apologie. 2 Third Petition (contained in the Apologie), p. 54. Further evidence showing the opinion and practice of both the Independents and the Puritans may be found in Certain Letters (from exiles in Holland), 1602 (Hanbury, I, 144); A Confession of Certain Christians in England, 1616 (Hanbury, I, 300); Francis Johnson, A Christian Plea, 1617 (Hanbury, I, 319). See also the quotations from J. Paget, Edwards, and E. Paget, pp. 43-44, above, and those from Baillie and Robinson, pp. 52-53, below. CONTROVERSIES REGARDING MARRIAGE 49 Churches, we see its performed in like sort, officers being appointed to take their names, to booke them in a Record and so with a short ceremony to dismiss them.” 1 Finally, in 1653, Cromwell established civil marriage by law. IV. Continental, Scottish, and American Churches We have already seen that in Holland the state declared marriage a civil affair and insisted that the contract be made before a civil magistrate; we have also seen that the church continued to celebrate it by a solemnization of the vows previously made before the state. Calvin does not seem to have expressed himself in print on the question of the contract of matrimony; but from the fact that the Holland and Scottish churches, which emphasized the civil celebra¬ tion, took their discipline directly from the church of Geneva, it is clear that the church there also followed Luther’s principle of making the spousals the all-important element. This fact is borne out by the form of ceremony of the English church of Geneva, which was approved by Calvin himself. Instead of combining the forms for spousals de futuro and de praesenti with prayers and ceremonies by the minister, as is the case in the marriage service of the English Prayer Book of Edward VI, the Geneva reform liturgy, after pre¬ liminary exhortation and public inquiry as to impediments, simply requires the man to declare himself according to the following oath put by the minister: “You, N. shall protest here before God, and his holy Congrega¬ tion, that you have taken, and are now content to have N. here 1 Rogers, op. cit., p. 110. Any description of the civil ceremony approved by the Independents is lacking, but it would seem that it consisted merely of a few words spoken by the magistrate immediately after the public performance of spousals de praesenti. The ceremony, however, was clearly a civil procedure and not merely a form of pub¬ lic spousals. 50 ENGLISH DOMESTIC RELATIONS present to your lawfull wife, promising to keep her, to love and intreat her in all things according to the duty of a faithfull husband, forsaking all other during her life, and briefly, to live in a holy con¬ versation with her, keeping faith and truth in all points, according as the word of God and his holy Gospel doth command/’ 1 The points to be noted here are: first, there is no marrying or proclaiming of “man and wife” by the minister; second, there is nothing to the effect that “ God hath joined together ”; and third, the words on the part of the contracting couple are merely an acknowledgment that they have, before this time, taken one another as man and wife. These points contrast strongly with the orthodox ceremony of the Edward VI Prayer Book and later liturgies. Thus marriage at Geneva, like the one overseen by Greenwood in the Fleet prison, was merely a contract before witnesses, which the church might bless with its solemnization and prayers if the parties so desired. In Scotland to this day marriage may be made without any official intervention, by means of spousals de praesenti either with or without witnesses. This is both interesting and important, as it shows that although the Scotch Pres¬ byterian Church had a marriage ceremony in its liturgy, it nevertheless considered the actual marriage contract a private affair. In other words, the Romish influence in Scotland has never at any time been strong enough to make 1 The Forme of Prayers and administration of the Sacraments , p. 25. The woman, of course, makes a similar vow. Preceding the Form of Marriage in these liturgies, there is this note of direction: “After the banes or contract have been published three severall dayes in the con¬ gregation (to the intent that if any person have interest or title of either parties, they may have sufficient time to make their challenge) the parties assemble at the beginning of the Sermon, and the minister at time convenient saith as followeth.” Then comes the exhortation etc. as described above. Compare this ceremony with that of the early Dutch church, pp. 38-39 and note, above. CONTROVERSIES REGARDING MARRIAGE 51 secularly performed marriages in any sense clandestine. But the church did provide a ceremony for those who wished it and doubtless urged its use upon the people. Its form was taken over bodily in 1564, along with the rest of the service book, from the English church at Geneva, which has already been discussed. 1 The only other note that I find in regard to the Scottish ceremony is an item in the Second Book of Discipline , 2 1581, to the effect that among the duties of a minister “it belongs to him likewise, after lawful Proceeding in the matter by the Eldership, to solemnize Marriage betwixt them as are to be joined therein, and to pronounce the Blessing of the Lord upon them.” 3 In considering the Puritans of New England, we must bear in mind that they were of the Independent sect and shared the extreme views already discussed. It is well known that marriage in New England was a civil affair from the first, but the origin of this practice has not here¬ tofore been definitely determined. 4 From my demonstration of the practice of the Independents, together with the fact that it was the congregation of John Robinson, Brown’s leading disciple, which first emigrated to this country, it is fairly obvious that the early American civil marriage was a direct result of the principles and practice of the Inde¬ pendent Church, encouraged perhaps by the state laws of Holland. But as the point is here made for the first time, 1 This fact is stated on the title page of the Scottish book of liturgies, which may be found in The Confessions of Faith of the Church of Scot¬ land. John Knox (History of Reformation in Scotland, p. 333) states that the Church of Scotland sent an official reply in 1566 to the confes¬ sion of faith of the continental Reform churches to the effect that “they agreed in all points with those churches and differed in nothing from them” except in the keeping of certain festal days. 2 Contained in The Confessions. 3 Op. cit., p. 459. 4 Howard, II, 127 ff., devotes several pages to the different sup¬ posed causes of the New England civil marriage. 52 ENGLISH DOMESTIC RELATIONS it will be well to quote some further evidence in support of it. This evidence we find in contemporary pamphlets, by which we are able to set forth the whole course of events. Robert Baillie, writing in 1595. of the Independents, says: “For the marriage blessing, they applaud the Brownists Doctrin, they send it from the Church to the Town-house, making its solemnization the duty of the Magistrate; this is the constant practise of all in New England: the prime of the Independent Ministers now at London, have beene married by the Magistrate, and all that can be obtained of any of them, is to be content that a Minister in the name of the Magistrate and his Commissioner may solemnize that holy band.” 1 A passage from Ephriam Paget serves to continue the story. Speaking of the spread of the Brownist doctrines, he says: “The first man of note that held their opinions (as Mr. Edwards writeth) was one Mr. Robinson, who leaving Norwich male-content, became a rigid Brownist: but afterwards by some conference with learned men, he was brought to some moderation, and writ a book recanting some of his opinions. This man dying, 2 many of his congre¬ gation went from Leyden unto New England, and planted at new Plymouth, whither they carried Mr. Robinsons opinions, which spread far there: and by letters also and other meanes were conveighed into old England: and to this purpose he citeth a letter by Master Cottens.” 3 Finally, we have the expression of Robinson himself in his defense of the Brownists in 1619. “We cannot assent,” he says, 1 Baillie, Dissvasive, p. 115. See also Lechford, Plaine-dealing: or, Newes from New England, p. 39, which Baillie cites as his authority. 2 The writer is mistaken here. The Mayflower sailed before Robin¬ son’s death. 5 Paget, Heresiography, p. 69. The reference to “Mr. Edwards” is to Thomas Edwards, Answer to the Apologeticall Narration. “Master Cottens” is doubtless John Cotton. CONTROVERSIES REGARDING MARRIAGE 53 “to the receaved opinion and practice answerable in the Reformed Churches, by which Pastours thereof do cele¬ brate Marriage publiquely and by vertue of their office.” 1 The first marriage in New England was that of Edward Winslow and Susanna White in 1621, performed “accord¬ ing to the laudable custome of the Low-countries ... as being a civill thing.” 2 There is no reason to think that the church was not allowed to invoke a blessing upon this union, for even the Brownist Greenwood offered a prayer at the marriage in the Fleet; nevertheless the ceremony itself was a civil one. “Thus, in the first New England wedding, a precedent was given which has never yet been set aside, and which marked clearly the distinction between the jurisdiction of the civil power in ‘causes matrimonial’ and the legitimate jurisdiction of the church.” 3 The same kind of ceremony is recorded by Governor Winthrop at a wedding solemnized at Boston in 1647. The minister of the bride¬ groom’s church had been asked to preach, but the magis¬ trates objected to this and gave as one of their reasons that they “were not willing to bring in the English custom of ministers performing the solemnity of marriage, which sermons at such times might induce, but if any ministers were present, and would bestow a word of exhortation, etc., it was permitted.” 4 The practice recorded in these two 1 Robinson, Apologie , p. 40. This book was first published in Latin in 1619 under the title Apologia . . . quorundam Christianorum . . . dictorum Brownistorum. It was translated in 1625 under the title A iust and necessarie Apologie of certain Christians . . . called Brownists or Barrowists. It must not be confused with the anonymous Apologie or Defense of . . . Brovvnists, 1604. 2 This was Winslow’s second marriage. He was first married in Holland “before the magistrats in the Town or Stat house.” Bradford, History of Plymouth Plantation , I, 216 and n. 4. * Bacon, Genesis of New England Churches, p. 341. 4 Winthrop, History of New England, II, 382. 54 ENGLISH DOMESTIC RELATIONS instances was first given legal authority in Massachusetts, in 1646, when a statute was passed providing “that no person whatsoever in this Jurisdiction shall joyne any persons together in Marriage, but the Magistrate, or such other as the General Court, or Court of Assistants shal Authorize. ,, 1 Commenting upon the New England marriage ceremony, Howard says: “The conception of wedlock which existed there from the beginning was identical with that which later found expression in the writings of Milton and the legislation of Cromwell.” 2 V. The English Church of the Commonwealth It is impossible to believe that these conditions in the churches of the continent, Scotland, and New England, together with the practice of the Independents in England itself, should not affect both English public opinion in gen¬ eral and the doctrines of the more conservative Reformed churches of England in regard to marriage. The separa¬ tion between the latter and those outside the mother country was much less than may be thought. There was constant intercourse and exchange of views among all parties, both by actual meeting of representatives and by letters to and fro. Among the tracts of the Thomason collection, are letters from one church to another asking advice and dis¬ cussing practices, pamphlets of all kinds on ecclesiastical questions of the day, petitions, protests, apologies, defenses, etc. Ministers and others even returned from the New England colonies and advocated the practices in vogue there. Edward Winslow, above mentioned, on a visit to England in 1634, openly defended the practice of civil marriage and was imprisoned in the Fleet for seventeen 1 Whitmore, Colonial Laws of Massachusetts, p. 172. * Howard, II, 127. CONTROVERSIES REGARDING MARRIAGE 55 weeks as a consequence. Despite the censorship of the press, a good deal of controversial writing by the adherents of the various sects got into print, but on account of the number and importance of other questions, there is little that throws any light upon the trend of public opinion on our subject. The tracts already cited, together with Winslow’s imprisonment, incline us to believe that the more conserva¬ tive reformers clung tenaciously to the ecclesiastical cere¬ mony, but at the same time they give evidence that this was done more for the sake of expediency than because marriage was thought to be essentially a religious affair. 1 John Donne probably expressed the general conservative point of view in saying, “As marriage is a civil contract, it must be done so in public, as that it may have the testimony of men; as marriage is a religious contract, it must be so done, as that it may have the benediction of the priest: in a marriage without testimony of men they cannot claim any benefit by the law; in a marriage without the bene¬ diction of the priest they cannot claim any benefit of the Church.” 2 On the other hand, it is certain from such testimony as that of Rogers and Baillie that among the Independents marriage was actually performed by the magistrate. 3 The result of all these influences upon the parliamentary assembly of divines was to effect a compromise by which it was “judged expedient that marriage be solemnized by a lawful minister,” but evidently from the phraseology used, a marriage made either privately or by magistrate was still deemed valid. This decision, drawn up by the assembly in 1643, was made law by act of Parliament on Jan. 3, 1645, 1 See especially the quotation from E. Paget, pp. 43-44, above. 2 Donne, Works , IV, 33. See also the preface to the marriage ser¬ vice in the Directory, p. 56, below. 3 See above, pp. 48, 52. 56 ENGLISH DOMESTIC RELATIONS and published in the Directory of Public Worship. The ceremony itself was adapted from that of the Scotch Pres¬ byterian church, which, as said above, came verbatim from the English Church at Geneva. A prefatory paragraph gives the authorized position of the Reformed churches on the subject: “Although Marriage be no Sacrament, nor peculiar to the Church of God, but common to mankinde, and of publique interest in every Commonwealth, yet because such as marry are to marry in the Lord, and have especiall need of Instruction, Direction, and Exhortation, from the Word of God, at their entring into such a new condition; and of the blessing of God upon them therein, we judge it expedient, that marriage be solemnized by a lawfull Minister of the Word, that he may accordingly councel them and pray for a blessing upon them.” 1 The ceremony itself consists of a short exhortation and instruction, the exchange of vows between the man and the woman, the pronunciation of them as “man and wife” by the minister, and a concluding prayer. Altogether the form is much shorter and much simpler than that of the Edward VI Prayer Book , towards which the Reformers were united in their objection. The vows, similar for both man and woman, followed these words: “I, N, doe take thee N. to be my married Wife, and doe, in the presence of God, and before this congregation, promise and cove¬ nant to be a loving and faithful Husband unto thee, untill God shall separate us by death.” 2 This ceremony acknowledges the office of the church to a greater extent than did the original one of Geneva, as ap¬ proved by the Synod of Dort in 1618, the chief difference being the minister’s pronouncing the couple “man and wife.” But it must not be supposed that the ancient custom 1 Scobell, I, 86. 2 Ibid., I, 87. CONTROVERSIES REGARDING MARRIAGE 57 of marriage by spousals de praesenti was given up; on the contrary, the omission of the first part of the existing ortho¬ dox ceremony from the new form, is evidence that it con¬ tinued to be used as the form for spousals. Furthermore, in legal circles, both civil and ecclesiastical, spousals de praesenti were still regarded as marriage and impeded any other union. We may infer from this and from Cromwell's marriage act eight years later that the conflict of authprity in the two methods of effecting matrimony still produced an un¬ satisfactory state of affairs; or, to put it differently, the particular conditions which previously had been a source of evils and entanglements in the ecclesiastical courts, re¬ mained unaltered. As a result, it was soon realized that marriage must be regarded as either entirely a civil or entirely an ecclesiastical affair, and that any combination of the two authorities was sure to be disastrous. The question before the English nation evidently was: Should the contract, or spousals de praesenti, already acknowledged as marriage itself, be considered as the authorized ceremony; or should the church be given com¬ plete authority to perform marriage, and some attempt be made to invalidate the force and permanency of the private contract? 1 For some reason, there seems to be little or no expression of opinion on this subject from the time the assembly deemed it expedient that marriage be an eccle¬ siastical office to the passage of the civil marriage act; but we may be sure, from the previously expressed sentiments 1 No one hitherto seems to have looked at the question in this way. The general impression among historians seems to be that Cromwell’s act flew in the face of all existing conditions and instituted an entirely new marriage process. I think I have demonstrated that such was not the case, especially as the church ceremony continued to be used in addition to the civil after the latter was established in 1653. 58 ENGLISH DOMESTIC RELATIONS of the Independents and from the readiness of Parliament to pass Cromwelhs act, that the subject continued to be debated with increasing tendency towards the more radical attitude. At any rate, the decision was finally reached to follow the teachings of the German Reformers and the Eng¬ lish Independents and the practice of Holland and New England, and to put all marital affairs into the hands of the state. That is, the power of the church was abolished, and spousals de praesenti performed before the civil magis¬ trate and in the presence of two witnesses, became the actual and authorized form of marriage. This was accomplished by an act of Parliament in 1653, according to which the ceremony consisted simply of the vows as set forth in the Directory , slightly changed in wording, without prayer or exhortation. The act concludes: “And it is further Enacted, That the Man and Woman having made sufficient proof of the Consent of their Parents or Guardians as aforesaid, and expressed their consent unto Marriage, in the maner and by the words aforesaid, before such Justice of the Peace in the presence of two or more credible Witnesses; The said Justice of the Peace may and shall declare the said Man and Woman to be from thenceforth Husband and Wife; and from and after such consent so expressed, and such declaration made, the same (as to the form of Marriage) shall be good and effectual in Law. And no other Marriage whatsoever within the Commonwealth of England after Sept. 29, 1653, shall be held or accompted a Marriage accord¬ ing to the Laws of England.” 1 My contention that this was not a revolutionary measure but merely a shifting of the emphasis from the ecclesiastical 1 Scobell, II, 236; also to be found in the newspapers of the time. Howard, I, 424 ff., makes a great deal of the stipulation in this act that marriages must be properly recorded in special parish registers. He seems to overlook the fact that this same clause was contained in the Directory eight years earlier. CONTROVERSIES REGARDING MARRIAGE 59 celebration to the private, is borne out by the lack of writing in opposition to the change 1 and by the continuation of the church ceremony as a blessing of God upon the contract civilly made, just as the Independents had consistently claimed it to be. Jeaffreson in his Brides and Bridals makes the statement that usually “the wedding was relig¬ iously solemnized in the church, after or before the per¬ formance of the purely civil affirmation in the magistrate’s parlour ... in accordance with the instructions of the Directory for Public Worship.” 2 There can be no doubt, however, that the civil marriage was condemned by the more orthodox clergy, especially those who still supported episcopacy, and by the political and religious enemies of Cromwell, who saw in the act only another unreasonable measure by a tyranical usurper. The act, nevertheless, had the support of the Independents at least, of whom Milton was the most prominent and the most powerful. 1 Of course, the censorship of the press might account for this to some extent. In looking through the Thomason tracts of the period, I find only one, aside from newspapers (which contain nothing of im¬ portance), that mentions the subject at all. This is a Letter from a Gentleman in the Country , which is chiefly a defense of the form used by the church and an expression of the writer’s failure to see any need for the new act. Howard, I, 432, n. 1, accepts Friedberg’s sug¬ gestion ( Eheschliessung , 328, n. 2) that the controversial literature on the subject may have been great, but observes that, if so, little has been preserved. In the Sutro collection (San Francisco) of thousands of pamphlets of the time, he was able to find only one, omitting news¬ papers, on this topic. Friedberg, he says, had a similar experience in the Berlin library. The British Museum, according to my experience, yields but one more, and that not controversial. It seems time, there¬ fore, to give up the idea that there was written controversy on the sub¬ ject, especially as Thomason is known to have obtained practically all tracts of any importance during this period for the Museum library. Of course, satirists took occasion to poke fun, but such writing may be disregarded here. For references to it, see Howard, I, 432-3. 2 Jeaffreson, II, 69. See also Howard, I, 419, n. 2. 60 ENGLISH DOMESTIC RELATIONS In his treatise The Likeliest Means to remove Hirelings out of the Church , published in 1659, he reasserts the position originally laid down by the Brownists, summarizes the history of ecclesiastical marriage, and upholds firmly Crom¬ well’s act: “As for marriages, that ministers should meddle with them, as not sanctified or legitimate, without their celebration, I find no ground in scripture either of precept or example. Likeliest it is . . . that in imitation of heathen priests, who were wont at nup- tuals to use many rites and ceremonies, and especially, judging it would be profitable, and the increase of their authority, not to be spectators only in business of such concernment to the life of man, they insinuated that marriage was not holy without their benediction, and for the better colour, made a sacrament; being of itself a civil ordinance, a household contract, a thing indifferent and free to the whole race of mankind, not as religious, but as men: best, indeed, undertaken to religious ends, and as the apostle saith, I Cor. vii, ‘ in the Lord.’ Yet not therefore invalid or unholy without a minister and his pretended necessary hallowing, more than any other act, enterprise, or contract of civil life, which ought all to be done in the Lord and to his glory: all which, no less than marriage, were by the cunning of priests heretofore, as material to their profit, transacted at the altar. Our divines deny it to be a sacrament; yet retain the celebration, till prudently a late parliament recov¬ ered the civil liberty of marriage from their encroachment, and transferred the ratifying and registering thereof from the canonical shop to the proper cognizance of civil magistrates.” 1 1 Milton, Prose Works, III, 370. Notice that it is the “ratifying and registering” on which Milton lays emphasis, following out the theory that marriage itself was a private affair, “a household contract.” CHAPTER III THE ATTEMPTED REFORM OF DIVORCE I. Legal Situation When England under Henry VIII broke away from the Church of Rome, the canon laws of Catholicism in regard to divorce remained in operation; indeed, the English Protestant church never has drawn up a code of laws to supersede them. The first movement towards any actual reform of the Roman Catholic doctrines or church govern¬ ment was the appointment of a committee, in accordance with the act of 25 Henry VIII, ca. 19 (1534), to draw up a new platform for the ecclesiastical doctrine and discipline of England. In the meantime, however, it was provided that “suche canons constitucions ordynaunces and Synodals provynciall being allredy made, which be not contraryant nor repugnant to the lawes statutes and customes of this Realme nor to the damage or hurte of the Kynges preroga- tyve Royall, shall mowe styll be used and executed.” 1 The loose terms herein contained were never more fully defined; and the evil practices in divorce cases, which con¬ tinued unabated pending the action of the committee, led to the King’s wholesale attempt in 1540 to stop divorces and separations altogether, except in cases of marriage within the forbidden degrees. Previous to this date, Strype tells us, divorces, or rather annulments of marriage, “ might¬ ily prevailed. . . . For it was ordinary to annuli marriage and divorce man and wife on some pretext of precontract.” 2 1 Statutes of the Realm, III, 461. 2 Strype, Memorials of Cranmer, I, 114. 61 62 ENGLISH DOMESTIC RELATIONS The preamble to the famous act of 1540, known as 32 Hen. VIII, ca. 38, is very instructive in regard to the conditions of the time, and expresses practically the same opinions concerning ecclesiastical jurisdiction over marital affairs as were later proclaimed in Parliament in 1607 and by Milton in his pamphlet of 1659; 1 but it is too long to quote in full. It may be abbreviated as follows: “Whereas heretofore the usurped power of the Bishop of Rome hathe alwayes entangled and troubled the mere jurisdiction and legal power of this Realme of England and also unquietid muche the subjectis of the same ... by making that unlaufull whiche by Goddis wourde is laufull bothe in mariages and other thinges; . . . mariages have been brought into suche uncertainty thereby that no mariage coulde be so surely knytt and bounden but it shulde lye in either of the parties power and arbitre ... to prove a precon- tracte a kynnerede an alliance or a carnall knowledge to defeate the same. ... Be it therefore enacted . . . [that] . . . suche mariages being contracte and solemnised in the face of the churche and consumate with bodily knowledge . . . shalbe . . . taken to be lauful good juste and indissoluble, . . . notwithstanding any precontracte . . . not consumate with bodily knowledge . . . [or] . . . any dispensation prescription lawe or other thinge . . . And that no reservation or prohibition, Goddis law except, shall trouble or impeche anny mariage without the Leviticall degrees.” 2 The church, however, maintained its former power on the ground that the phrase “God’s law excepted” applied to all marriages made in the face of the recognized eccle¬ siastical impediments, and that any such contract was void ab initio. Thus the entire act was made of no effect in actual application. Of conditions following this attempt to curtail the power of the church, T. E. says: “This Statute, though it seemed to be made vpon good and great considera- 1 See Strype, Memorials of Cranmer, I, 30, 57. 2 Statutes , III, 792. THE ATTEMPTED REFORM OF DIVORCE 63 tions, (because precontracts too too slenderly proued, and sometime but onely surmized, helped the Romish oppres¬ sion . . .) yet many did after the making of it, very disso¬ lutely come from their first vowes, . . . slipperily leauing their former Contracts.” 1 Meanwhile the committee of thirty-two, provided for in the act of 25 Hen. VIII, ca. 19, was at work. According to Milton, it was composed of “divines and lawyers, of whom Cranmer, the archbishop, Peter Martyr, and Walter Haddon (not without the assist¬ ance of sir John Cheeke . . . ) were the chief.” 2 The Reformatio Legum Ecclesiasticarum, as the decisions of this committee were called, shows clearly the influence of Luther’s teachings and of German practices. The former were followed implicitly in the abolition of separation a mensa et thoro and in the establishment of actual divorce with permission for the innocent party to remarry for the causes of desertion, adultery, and other ill usages, in prac¬ tical accordance with the Zurich marriage ordinance of 1525. 3 Furthermore, husband and wife were put upon equal footing in divorce suits. In regard to the impediments and the annulment of marriage, the King’s committee expressed itself much more definitely than did the German Reformers, who rather shirked the whole situation; but in their recom¬ mendations thereupon they harked back to the Romish canons, and except for one or two details, suggested no changes in the existing conditions. The Reformatio Legum is important only in showing the attitude of the public leaders of the day, for Henry died before he could force it through Parliament, and it was defeated under Edward 1 T. E., Lawes Resolvtions of Womens Rights, Bk. II, sec. xxix. 2 Milton, Prose Works, II, 237. Milton is mistaken in saying (ibid.) that the committee was appointed by Edward VI. 3 See above, p. 12, n. 3. 64 ENGLISH DOMESTIC RELATIONS VI by the House of Commons. 1 Thus the old Catholic regime with all its abuses continued. Strype says that at this time annulment and divorce were frequent. “Noble¬ men would very frequently put away their wives and marry others if they like another woman better or were like to ob¬ tain wealth by her. And they would sometimes pretend their wives to be false to their beds and so be divorced and marry again such as they pleased.” 2 From this time on to Cromwell’s day, actual conditions remained unchanged. The decree of 32 Hen. VIII, ca. 38, was repealed and repassed alternately until the Star Chamber finally established it permanently in 1601, but it seems 1 That the bill was defeated by the Commons without ever reach¬ ing the Lords, is illuminating in showing how little the Reformation had as yet actually touched English public opinion. 2 Quoted by Kitchin, A History of Divorce, p. 177. Kitchin adds: “Thus the Earl of Pembroke divorced his first wife and married a daughter of Sir Philip Sidney.” He is badly mixed here. Sidney had but one daughter, and she married the Earl of Rutland. Pembroke’s first marriage, however, was annulled, after which he did marry again; his second wife died, and he then married Mary Sidney, the famous sister of the poet. The case of Mary Queen of Scots and Bothwell is still more inter¬ esting. In the first place, Bothwell got Mary’s husband out of the way by murdering him (thus making any later marriage with Mary illegal). Then he was divorced from his wife in a Protestant court on the ground that he was an adulterer. But since he was not the innocent party in the divorce, the Protestant minister, Mr. Craig, refused to marry him to the Queen; nor would a Catholic priest perform the marriage, since that church did not allow remarriage after such a divorce. To obviate this predicament, an annulment of his former marriage was obtained from a Catholic court, especially appointed by Mary, on the ground of alleged affinity, which could be maintained only by admitting or invent¬ ing a former illicit connection with one of his wife’s relatives. After this, a bishop was found to perform the marriage with Mary. Later, Bothwell’s divorced wife married the Earl of Sutherland. See also the statement of Bunny, p. 83, below. The divorce and re¬ marriage of Lady Essex (Frances Howard) is another case in point here. THE ATTEMPTED REFORM OF DIVORCE 65 to have had no effect whatever at any time, as the church was able to escape its provisions through the loophole of “God’s law excepted.” 1 Edward VI showed his approval of the views of the German Reformers by bringing Fagius and Bucer over to Cambridge as professors of Hebrew and Divinity respectively; 2 but his beliefs, whatever they were, took no more active form, except for the repealing of the above law of Henry VIII. These two elements, the Romish practices and the principles of the German Reformation, continued as the grounds of contention in matrimonial affairs throughout our period, and indeed, they continue to the present day. The followers of the Catholic Church as well as those Protestants who clung to prelatical epis¬ copacy, upheld the Roman practices; whereas the Puritans and the various sects which split off from them, not only upheld the principles of the German Reformers, particularly in their platform of divorce (with remarriage for the inno¬ cent party) for adultery and desertion, but also opposed the whole Roman theory of ecclesiastical jurisdiction in marital affairs. The efforts of these dissenting sects, how¬ ever, have never been of sufficient weight in England to overthrow the influence of Rome except momentarily, and to this day the old impediments, the narrowness of the grounds for divorce, and the discrimination against the woman, are upheld to a greater extent in England than in any other Protestant country. 1 This exception was perfectly well recognized in legal circles. Coke says on the point: “There be also other divorces [beside those for con¬ sanguinity and affinity] which declare the marriage to be void, as divorce causa frigitatis, where the party hath perpetuam impotentiam gen- erationis, &c, and causa metus, sive duritiae, also causa impubertatis: these marriages are said to be prohibited by God’s law, otherwise the statute of 32H8 would extend to them.” Institutes, Pt. II, p. 687. 2 Milton is mistaken in saying ( Prose Works, II, 72) that Fagius was professor of Divinity. 66 ENGLISH DOMESTIC RELATIONS So far we have concerned ourselves only with legislation. Almost as important is the jurisdiction thereupon, especially as the principles of separation, divorce, and annulment, and the grounds for such suits, varied greatly among the different churches, as will be shown more fully later on. There can be no doubt that the proper and usual way to conduct any divorce proceedings was by means of the church courts, of which there were five recognized grades: (1) Archdeacon’s, held by an archdeacon or his representative; (2) Consistory, held by cathedral officers, the bishop’s chancellor or commissionary acting as judge; (3) Court of Arches, at London and York only, which handled appeals from Consistory courts; (4) Court of Delegates, or com¬ missioners appointed by the sovereign, which handled appeals from the Courts of Arches; (5) Court of High Commissions for “all manner of jurisdiction, privileges, and preeminences touching any spiritual or ecclesiastical jurisdiction within the realms of England and Ireland.” Besides these, there were other local courts, “some of them mere shops for the sale of ‘ dispensations, licenses, faculties, and other remnants of the papal extortions.’” 1 It was to these “mere shops” that people of meager circumstances went for divorce. Indeed, from the repeated references to “the minister,” it seems as if questions were often de¬ cided and divorces granted by the parish priest alone. 2 Certainly among the Puritans, if their cases were sub¬ mitted to legal jurisdiction of any kind, divorces for adultery or desertion, after 1603, must have been granted by a single minister or some sort of local magistrate or informal assembly, since the established church did not grant divorces on these grounds. Enough has been said elsewhere to show the corruption of the ecclesiastical courts in periods previous to the one under consideration here and the advantage 1 Bacon, p. 77. 2 E. g., see quotation from Perkins, p. 80, n. 4, below. THE ATTEMPTED REFORM OF DIVORCE 67 taken of these conditions by those who could afford it financially. That this state of affairs had not improved is abundantly shown by contemporary practices and com¬ ment. John Cotton, who spoke from experience, says, “The ecclesiastical courts are like the courts of the high-priests and pharisees, which Solomon, by a spirit of prophesy, styleth, dens of lions , and mountains of leopards. Those who have had to do with them have found them to be markets of the sins of the people, the cages of unclean¬ ness, the forgers of extortion, the tabernacles of bribery, and contrary to the end of civil government.” 1 The jurisdiction of the ecclesiastical courts in divorce affairs, as has been shown, was of early origin, but with the coming of the Reformation and the conception of marriage as a civil affair and not a sacrament, we find a new concep¬ tion of divorce arising also. This is that marriage is dis¬ solved ipso facto, without any jurisdiction whatever, by the mere existence of causes recognized as proper grounds for its dissolution. The case here, as investigated up to date, is stated by Howard as follows: “The researches of Stolzel have clearly established that in the beginning the reformers returned to the principle of self-divorce prevailing among the ancient Romans and Hebrews, and accepted by some of the early church councils. . . . When an adequate cause exists, a marriage is thereby dissolved in favor of the innocent person without any magisterial authority whatsoever. If in cer¬ tain cases, in order to establish the existence of the grounds of dis¬ solution, any action is needful, it is regarded as extra-judicial; and when gradually such informal proceedings have grown into an orderly process dealing directly with the question of divorce, this process concludes with a decree; not that the marriage is thereby dissolved, but that it has already been dissolved in consequence of the grounds now established. . . . Luther and other Protestant 1 Brook, III, 155. 68 ENGLISH DOMESTIC RELATIONS leaders accepted the theory just explained that a marriage is ‘broken’ or dissolved when a proper cause intervenes; and if without exception they insisted that the married persons should not separate themselves, but appeal to public authority, they had in mind, as Luther plainly shows, the establishment of the fact of wedlock already broken in order, where it was desired, to grant the permission of marrying again.” 1 Although this conception of the possibility and practice of private divorce, followed by civil sanction, after something the same manner as the Hebrew practice, seems to be generally admitted as having existed to some extent in Ger¬ many, no one has as yet traced its course in England. Whether the similar condition, which actually did exist in England, took its source from the German Reformation, or whether private divorce had continued unbroken]y in some measure from early times down, which seems unlikely, is hardly worth debating here. At any rate, we find exactly the same attitude existing in England as that just described of Germany. Hooper, after speaking of the causes of divorce, says, “The persons may by the authority of God’s word and the ministry of the magistrates 2 be separated.” 3 Whately in the beginning of the next century says, “Now if it shall fall out, that either of the married persons shall frowardly and peruersely withdraw themselves from this matrimonial 1 societie (which fault is termed desertion), the person thus 1 Howard, II, 69. There is a reference to this practice of self-divorce in Bullinger’s Christen state of Matrimonye, f. lxxvii, which by urging a regular proceeding upon the persons concerned, supports Howard’s remarks. “Though they be persuaded to haue lawfull occasions of divorcemet/ yet they may not be iudges in their awne causes/ nor take ought here in had by their awne authoryte/ but let their matter come before their ordinate Judge.” 2 The word magistrates always refers to civil rather than ecclesiasti¬ cal officers. * Hooper, Early Writings , p. 379. THE ATTEMPTED REFORM OF DIVORCE 69 offending, hath so farre violated the couenant of marriage, that . . . the bond of matrimony is dissolued, and the other party so truly and totally loosed from it, that (after an orderly proceeding with the Church and Magistrate in that behalf) it shall be no sinne for him or her to make a new contract with another person.” 1 The decree granted by the civil or ecclesiastical court to permit the second marriage, had the effect, unintentional or not, of granting the previous divorce; so that to this extent any such private divorce differed from the old He¬ brew practice. There is, nevertheless, evidence that the ancient practice of private divorce existed during our whole period, especially among the Independents. 2 Becon, in his Homily against Whoredom , has this passage: “Of this vice cometh a great part of the divorces, which now-a-days be so commonly accustomed and used by men’s private author¬ ity, to the . . . breach of the . . . bond of matrimony.” 3 In 1552, the use of such private divorce was deemed to be of sufficient prevalence to warrant its being mentioned and condemned in the Reformatio Legum. John Knox reports a private divorce with remarriage in Scotland in 1560, which though opposed by the magistrates was upheld by 1 Whately, Bride-bush , p. 25. See also the doctrine of the Puritans as drawn by their assembly, p. 88, below. 2 This practice among the Independents has been hinted at before, but never has any real evidence been brought to bear on the subject by either historian or legal writer. Inderwick comes the nearest of any to making a definite statement, in saying, “The Jewish law, to which they much adhered, provided for and regulated divorces.” ( The Interregnum , p. 46.) It is well known that the Jews in England con¬ tinued their old practice of private divorce. Their laxity in this respect, says Inderwick, “wasfound in 1655 to be one of the strongest arguments against their proposed admission to the rights of citizenship.” (Ibid.) 3 Becon, op. dt. (pub. in Catechism, etc. by Parker So.), p. 647. This homily was included in the official book of homilies published by authority in 1547. 70 ENGLISH DOMESTIC RELATIONS public opinion. 1 At the other end of our period, John Paget, writing to Ainsworth, a leader of some of the Inde¬ pendent churches, objects to the practice of that sect “that you also allow Divorces among yourselves, without author¬ ity of the magistrates.” 2 At about the same time, Bur- roughes, in his lectures on Hosea, refers to the custom as then current: “It is true when a man putts away his wife for whoredom and giveth her a bill of divorce, he will never take her again.” 3 Milton not only recognizes the practice but even makes the defense of it one of the principal points in his Doctrine and Discipline of Divorce . 4 Finally, Baillie, in 1645, commenting upon the Brownists, says, “As their mariage is private, so likewise must their Divorces, without cognizance either of Magistrate or Minister”; and of the Independents, he says, “Concerning Divorces, some of them goe farre beyond any of the Brownists: not to speak of Mr. Milton, ... for I doe not know certainely whether this man professeth Independency (albeit all the Heretics here, whereof ever I heard, avow themselves Independ¬ ents).” 6 Scattered as this evidence may seem, it is quite sufficient to establish the fact that divorce by private author¬ ity, without recourse to either magistrate or ecclesiastic, was practised throughout the whole of the period we are studying. II. The Puritan-Anglican Controversy on Divorce The controversy between the Puritans and the Church of England in regard to divorce, from the time of the Ref¬ ormation to Cromwell’s civil marriage act, ran somewhat 1 Knox, History of Reformation in Scotland, p. 241. 2 Hanbury, I, 333. 8 Burroughes, Exposition of Hosea, p. 228. 4 See below, pp. 96-97. 6 Baillie, Dissvasive, p. 116; also in Hanbury, III, 146. THE ATTEMPTED REFORM OF DIVORCE 71 the same course as did that over the celebration of marriage, with which it is more or less connected. The controversy over the divorce of Henry VIII, which began in 1527, was the chief factor in precipitating the whole question; but as divorce matters had already been the subject of much dis¬ cussion and some legislation among the Reformers in Ger¬ many, the King’s affair can not be regarded as the entire cause of the dispute in England. Nevertheless, it brought to a head an illness of the church and state which otherwise might have increased and spread for some years to come. Yet the attention directed to the question at this time was, after all, but momentary, and after the immediate issue had been settled to the King’s advantage, — if to no one else’s — and he himself had made a desultory attempt to better conditions by means of the act of 1540, excitement died down and the first chapter of the controversy was over. How far this chapter was a cause of the second and in many ways more important one, it is difficult to say. After the King’s death, writing on the subject became directed more to the general field of divorce matters and less to the specific case of Henry and Catherine. One finds occasional references in the later books to the royal affair, but they are too few to argue from. 1 The most we can say, perhaps, is that the King’s case, by bringing the subject into public discussion, stimulated thought and controversy upon it, which in the wider issue uncovered, soon lost sight of the particular instance. In this development we find no books on divorce alone until the question of remarriage arose, along towards 1600. 2 What expression there was, is to be found in books on domestic life, in tracts on the doctrine and government of the church, and in the Parliamentary debates on the subject of the reform of the ecclesiastical courts. The domestic books cannot be said to be written in the spirit of controversy; they are rather merely the expression of 1 E. g., see below, p. 114, n. 1. 2 See below, p. 81 ff. 72 ENGLISH DOMESTIC RELATIONS individual standards and opinions, without much consid¬ eration of what any one else thought on the subject. On the whole, all the writers of these books advocate much the same principles, with one important exception. This is the stand made by the Puritans for divorce after the manner of the German Reformers, with permission for the offended person to remarry, instead of the separation a mensa et thoro, which continued to be maintained by the Church of England. The views of the Church of England differed in no way in regard to divorce affairs from those of the Church of Rome; for, as Fuller said, the secession of the former from the jurisdiction of the latter “touched not the least finger of Popery.” These views had already been set forth, for the first time in English, before Henry VIIPs marital troubles existed outside of what he was pleased to call his conscience; and as they remained the accepted principles of the Church of England, it is perhaps worth while to state them briefly once again as put forth in this book, the Co - mendacious of matrymony, by William Harrington, in 1528. 1 For divorce, he says, there is but one cause: if before carnalis copula one of the married persons goes over to a heretical religion and will not return. Separation is admitted if one of the couple is adulterous. The impediments to mar¬ riage are given in full by Harrington, and here we find the same confusion that we noted above between those which impede marriage but do not annul it and those which render it absolutely null and void ab initio, some of the causes being included in both lists. 2 1 It must be remembered that the interpretation of these principles was in the hands of the ecclesiastical courts, and on account of the cor¬ ruption therein, the application of them was by no means consistent. 2 See above, p. 8 ff. and notes. Harrington’s book is the only one in English, either original or translation, that gives a list of impediments in anything like complete form. Although the most important book of THE ATTEMPTED RExDRM OF DIVORCE 73 In Protestant writings, we find less discussion of the annul¬ ment of marriage through impediments and more attention to the granting of divorce for adultery, desertion, and other causes. Bullinger, in his book The Christen state of Matri- all that I have seen, so far as definite information is concerned (giving more than all others put together), it seems to have been completely overlooked by all previous investigators, both legal and otherwise. The impediments, as here given, are worth quoting. They may be sum¬ marized: I. Impediments preventing marriage, but not annulling it if already made: 1. Forbidden seasons of the year. 2. Inhibition or prohibition by the church. 3. Precontract. 4. Vow of chastity, previously made by either party. 5. Incest (i.e. adultery with any of betrothed’s relations within four degrees). 6. Murder (committed in order to marry a certain person impedes such marriage). 7. Ravishment of another’s wife. 8. Christening one’s own child (impedes any second marriage). 9. The murder of a priest. 10. A solemn penance previously undergone. 11. The woman’s being a nun. II. Impediments preventing marriage and annulling it if made: 1. Wrong person (i.e. through mistaken identity, trickery, etc.) 2. An existing marriage on the part of either. 3. Solemn vow of chastity previously made. 4. Cognition: a. Carnal (i.e. consanguinity or affinity within four degrees). b. Contract or carnal knowledge (preventing marriage with any one within four degrees of the other party involved). c. Spiritual (existing between persons joined by common par¬ ticipation in the baptism or confirmation of a child and also between the children of the same). 5. Adultery (preventing subsequent marriage with party involved). 6. Murder (as in above list). 74 ENGLISH DOMESTIC RELATIONS monye, confines his remarks on the impediments to a treat¬ ment of the degrees of consanguinity and affinity, and discusses divorce in an entirely different part of the work. Here the Reformation ideas are advocated in liberal form, divorce being allowed for whoredom, adultery, murder, and poisonings. The author further remarks, “They therfore that in no case wyll helpe the oppressed persone / ner in anye wyse permytte diuorce to be made / do euen as the Pharisies / whych by reason of [following] the commaud- ment of the Sabboth after the lettre / suffred men to be destroyed and to peryshe.” 1 Bishop Hooper, the first real Puritan to express himself on the subject, in his Declaration of the Ten Command¬ ments, 1550, follows the German ideas in allowing divorce for adultery, and goes a step further than his English con¬ temporaries in putting the man and the woman on the same footing in all matrimonial matters. 2 In the latter attitude he was supported by the committee which drew up the Reformatio Legum and later by some of the more important Puritan writers, Perkins, Whately, and Milton for example. But at the time, there was no agreement on this topic, and Hooper’s opinions had evidently met with strong opposition 7. Difference of religion (no marriage to be made with Jew, Turk, Saracen, or such other). 8. The man’s being a priest. 9. Impotency ) But if either of these develop after the marriage, 10. Madness f “there is no remedy.” Interesting points to be noted about these lists are: (1) Impedi¬ ments 4, 5, and 6 of the first list occur again as 3, 46, and 6 of the sec¬ ond. (2) Precontract, which according to all other authorities annulled marriage (unless defuturo only), does not occur in the second list. Har¬ rington is certainly wrong here. (3) If 4, 5, and 6 of list two had been strictly observed during the following century, many of the plots of the drama of the time would have been knocked on the head at the outset. 1 Bullinger, op. cit., f. lxxvii 6. 2 Hooper, Early Writings , cap. X. THE ATTEMPTED REFORM OF DIVORCE 75 from his associates, since he takes particular pains to refute their arguments and justify his own position. His treatise, bring a part of his discussion of the seventh commandment, does not touch upon other causes for divorce, although it seems to suggest that such exist, and makes no mention of the impediments. Becon, writing in about 1562, says that Christians may put away their wives for no fault either of body or mind “adultery only excepted.” 1 He does not discuss the impediments at all, but attacks the English Church at length for not allowing remarriage after separa¬ tion. After quoting many of the church fathers on this point, he reviews carefully the opinions of the writers shortly before him, considering in some detail those of Erasmus, Luther, Bucer, Melancthon, Bullinger, Peter Martyr (“that precious pearl and maruelous marguerite”), Musculus, Calvin, Sacarius, and Brentinus, all of whom agree in allow¬ ing the innocent party to remarry. Puritan expression after this allows divorce (with remarriage of the innocent party) consistently for adultery, usually for desertion, and sometimes for the other causes originated by Luther. Henry Smith, in 1591, is perhaps the least lenient of them all, declaring bluntly, “The disease of marriage is adultery, and the medi¬ cine heerof is Diuorcement.” He continues: “If they might be seperated for discord, some would make a comodotie of strife; but nowe they are not best to be contentius, for this Law will holde their noses together, til wearines make them leaue strugling, like two spaniels which are coupled in a chain, at last they learne to goe together, because they may not goe a sunder.” 2 Meanwhile the established church was holding fast to its 1 Becon, Boke of Matrimony, Worckes, Pt. I, f. DCxxviii. 2 Smith, A Preparative to Mariage, pp. 90-91. Smith is known to have inclined strongly towards orthodoxy, but he was opposed to at¬ tempting to force it upon others. 76 ENGLISH DOMESTIC RELATIONS old principles and practices under the favor of Elizabeth and the protection of the High Commission Court. Di¬ vorce with permission to remarry was still refused, although in actual practice little attention was paid to this prohibi¬ tion once a separation was obtained. 1 The church courts, nominally under the power of the statute law but in reality subservient only to the High Commission Court, which was controlled by Whitgift, continued to annul marriage on the ground of impediments, real or fictitious, and to grant separations a mensa et thoro, which were quickly put into practice by the plaintiffs as actual divorces. In this condi¬ tion of affairs, it became apparent to the Puritans that as long as the church courts existed in their present status, there could be no reform in the administration not only of divorce matters but of tythes, wills, and marriage contracts as well, all of which were being discussed equally with divorce. Thus it was that from this time on, the opposi¬ tion of the Puritans was directed more towards the funda¬ mental evil of ecclesiastical jurisdiction than towards any one of the interests that suffered therefrom. We have already seen that as early as the middle of the century prelatical episcopacy had been attacked by Hooper and Bucer, and that the Puritan ideas for church govern¬ ment were given final and definite form by the assembly of divines in 1576. 2 Here we find the first platform for divorce proceedings, in the provision that the local classes should decide “ doubts and difficulties touching the contract of marriage.” This seems to be the only definite statement — and it is far enough from being satisfactory — as to the intended jurisdiction in matrimonial affairs. In 1582, Robert Brown reopened the agitation in his book The life and manners of true Christians , by upholding the civil magistrates over the prelates; and by means of his writing and preaching started the Independents’ move- 1 See below, pp. 83, 87, n. 1. 2 See above, p. 29 ff. THE ATTEMPTED REFORM OF DIVORCE 77 ment against all ecclesiastical jurisdiction in matrimonial as well as other affairs. 1 Of the church under the control of the bishops, he says: “O, churche without eyes. For thy light is shutt vp at the Bish¬ ops Beneplacitu. Art thou the church of Christe, when thy starres be not in his hande, but the fystes of thy Bishoppes doo pull them downe from thee? Yet is this church of Englande the pillar and ground of trueth. For the Bishops overryde it. They are the trueth and it is the ground. It is the Beast and they are the Ryders. It stoupeth as an Asse for them to get vp. The whippe of their spirituall Courtes, and the Spurres of their lawes, and the Bridle of their power, do make it carie them.” 2 In the third section of the book, Brown describes the proper government by church and state. “ Church gouenors are persons receyuing their authoritie & office of God, for the guiding of his people the church, receyued and called thereto, by due consent and agreement of the Church.” Continu¬ ing, he says, “Ciuill Magistrates are persons authorised of God, and receyued by the consent or choyse of the people, whether officers or subiectes, or by birth & succession also, to make and execute lawes by publick agreement, to rule the common wealth in all outwarde iustice, & to maintaine the right, welfare, & honour thereof, with outwarde power, bodily punishmens, and ciuill forcing of men.” The bishops, 1 In the preface of Brown’s book, there is an extended and confused discussion of pastors, bishops, and magistrates, under the title Of Reformation without tarying for anie. In this, bishops and magistrates are classed together, as if both were opposed to reforms, but this is merely the result of Brown’s impatience at the failure of Parliament, fettered by the multiplicity of ecclesiastical affairs, to move as rapidly as h^ desired. The treatise is an excellent example of the confusion in popular minds of the authority of the parish priests, the civil magis¬ trates, and the bishops’ courts. 2 Brown, An Order for Studying the Scriptures (contained in The life and manners), f. G3 b. 78 ENGLISH DOMESTIC RELATIONS whom he calls heathen, he says, “shift and thrust them¬ selves into Church gouernment as Antichristes . . . [and] . . . into ciuil gouernment as Tyrantes.” 1 Whether Cartwright took his ideas on the judgment of matrimonial causes from Brown or held similar ones pre¬ viously, we cannot say; but in his Reply to the Answer, in c. 1573, 2 he puts Brown’s general principles concerning the power of the temporal magistrates as to marriage and divorce legislation into definite expression. He says: “Another thing is that in these courts (which they call spiritual) they take the knowledge of matters which are mere civil, 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 divorces, of wills and testaments, with divers other such like things. For, although it appertain to the church and govenors 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.” 3 Whitgift replied to this that there was no distinction between the civil and the ecclesiastical jurisdiction since both were executed by the Queen and emanated from her supreme power. This statement exhibits the true state of affairs, in which the church hid the scandal of its courts behind Elizabeth’s skirts and took refuge in the favor she showed Whitgift and the prelates. 1 Brown, Life and manners , art. 117. 2 In 1572, Cartwright wrote an Admonition to Parliament , in which he objected to some of the details of the marriage ceremony. Whitgift’s Answer to the Admonition led Cartwright to go into the subject more fully, as above. 3 Cartwright, see Whitgift, Works, III, 267. THE ATTEMPTED REFORM OF DIVORCE 79 In the last decade of the century, there was any amount of pamphlet writing on the different religious questions of the day. Of all this, the Marprelate tracts have become the best known on account of their humorous and semi¬ literary character, which assured them a large number of readers; but there were also a great many less known books and tracts of the period by such men as Barrow, Perkins, Studley, Pye, Bradshaw, and others, who were opposed by an equal number on the bishops’ side, the most important of whom was the great Hooker. By this time, the debate between Puritanism and the established church embraced the three large subjects of cermonials, doctrines, and church government; so that among so many disputed principles and practices, we find little reference to our particular sub¬ ject. Hooker’s Laws of Ecclesiastical Polity is the most exhaustive work in the whole period, but in continuing the Whitgift-Cartwright controversy on church government and jurisdiction, the writer uses such general arguments and illustrations that we get no further definite information on actual practices. Divorce is not mentioned at all, it being a detail too small to be considered, according to the scheme of the book. There was, however, one important work which is val¬ uable in giving concrete expression to much that was in the air. This is the Christian Oeconomie of William Perkins, a writer mentioned by Milton in his first divorce tract. The book was originally written in Latin in 1590 and was trans¬ lated into English by Thomas Pickering in 1609. On the question of the nullification of marriage through some pre¬ viously existing impediment, Perkins gives us more informa¬ tion than does any other Puritan writer. It is evident from what he says that the usual impediments were still in opera¬ tion, and, in theory at least, were not opposed by the Re¬ formed churches. In regard to divorce, he disagrees with 80 ENGLISH DOMESTIC RELATIONS the old Catholic principle that allowed it in the case of a man’s entering holy orders, 1 but on the other hand, upholds in their broadest form the general Puritan grounds for grant¬ ing it. These may be divided into four classes: (1) deser¬ tion, “when one of the married folkes, vpon a wilfull, and obstinate mind of their owne head, departeth from the other, without a iust, and necessary cause”; (2) malicious deal¬ ing, “when dwelling together, they require of each other intolerable conditions”; (3) long absence, opinions differ¬ ing as to the extent of time; (4) adultery. 2 In all cases, according to Perkins, there should be no discrimination of sex. “Now in requiring of a diuorce,” he says, “there is an equall right and power in both parties, so as the woman may require it as well as the man. . . . The reason is, because they are equally bound each to other, . . . prouided alwaie, that the man is to maintaine his superioritie, and the woman to obserue that modes tie which beseemeth her towards the man.” 3 In regard to the relations of church and state in causes matrimonial, it seems as if either authority could use disciplinary measures, that the church granted divorce, and that either church or magistrate might grant permission to remarry; but the discussion of these points is not full enough to show clearly either the practices of the day or the writer’s views upon them. 4 For a treatment of the Puritan attitude of this time in 1 This was the logical outcome of the Puritan principle that a min¬ ister was in no way forbidden to marry, which was directly opposed to the orthodox doctrine. 2 Perkins, op. tit., p. 101 ff. 3 Ibid., p. 120. 4 After discussing the case of desertion (ibid., p. 105), he says: After publike and solemne declaration made, the Minister vpon such desertion, may pronounce the mariage to be dissolued.” THE ATTEMPTED REFORM OF DIVORCE 81 regard to church and state rights, we may turn to William Bradshaw’s English Puritanisme, published in 1605. What he says here needs no comment. I quote only the most significant passages: “All Ecclesiasticall actions invented & deuised by man, are vtterlie to bee excluded out of the exercises of religion.” “No Pastor ought to exercise or accept any Civill publique Iurisdictio & authorise, but ought to be wholly imployed in spirit- uall Offices & duties . . . And that those Civill Magistrats weake their owne Supremacy that shall suffer any Ecclesiasticall Pastor to exercise any civill Iurisdictio within their Realmes, Dominios, or Seigniories.” “The spirituall keyes of the Church ... are not to be put to this vse, to lock vp the Crownes, Swords or Scepters, of Princes & ciuill States, or the ciuill Rightes prerogatiues and immvnities, of ciuill subiects in the things of this Life.” “The Civill Magistrate . . . hath and ought to haue Supreae power over all the Churches within his Dominions, in all causes whatsoever.” 1 On the smaller question of divorce itself, the opposing parties came to blows, so to speak, in the last decade of the century. Since the Puritans admitted the validity of the old impediments, with certain modifications, the question of marriage after divorce — that is whether the separation should be merely a mensa et thoro or divorce in the modern sense of the term — now became the chief ground of debate. The ensuing controversy found expression in the more general marriage books, as already mentioned, and in ser¬ mons, as is shown by those of Bunny and Dove; 2 but does 1 Bradshaw, op. tit., pp. 1, 17, 25, 32, respectively. A full synopsis of this book is given in Neal, II, 55 ff. 2 Bunny, in the preface to Of Divorce, written in 1595, mentions three sermons in which he opposed remarriage after divorce. Dove, in a sermon preached at St. Paul’s Cross in 1601 and published the same year under the title Of Divorcement, takes a similar attitude. 82 ENGLISH DOMESTIC RELATIONS not seem to have been a field for special writing in England, despite the books of Bucer and Beza, 1 until Cardinal Bel- larmino of Capua reopened the subject by a Latin pamphlet upholding the old Catholic attitude. 2 In 1597, John Rai- nolds, in his Defense of the Reformed Churches , etc., replied in English both to Bellarmino’s treatise and to “an English pamphlet of nameless author.” This work was not pub¬ lished, however, until 1609, after the writer’s death, because the Archbishop of Canterbury “thought it not meet to be printed, as containing dangerous doctrine, and breeding sundrie inconveniences, if any weary of wife or husband might, by committing adulterie procure freedome of mary- ing whom they list.” 3 The “nameless author” mentioned by Rainolds may have been John Howson, who published a “third treatise” in 1602, entitled Uxore dismissa propter Fornicationem aliam non licet superinducere. 4 This was answered by Thomas Pye first in English and then in Latin in 1603. 5 Howson’s treatise was republished in 1606 to¬ gether with an anonymous Tractatus modestus et Christianus im‘defense of Howson contra reprehensiones T. Pyi . 6 In 1 Bucer, De Regno Christi, 1557; Beza, Tractatio de repudiis et divor- tiis, 1569. 2 I have not been able to locate this tract nor to discover any further information concerning it. It is merely mentioned by Rainolds. 3 From the letter to Pye (see below, n. 6). 4 On the other hand, were Howson the “nameless author,” we should expect Ramons’ tract to have been written in Latin, since Howson’s was, instead of in English. 6 This tract by Pye does not seem to be extant in either version. Watt mentions an Epistola ad Jo. Howsonum contra novum ejus Dog¬ ma de Divortiis Judaeorum, which may be the one in question, but I have not been able to locate it. 6 The edition of 1606, entitled Uxore dismissa, etc., contains, beside the two treatises mentioned, a letter from Rainolds to Pye, which is valuable for its information concerning dates etc., and also one from Gentilis to Howson, in Latin, in which the writer gives his judgment THE ATTEMPTED REFORM OF DIVORCE 83 1610, Edmund Bunny published his Of Divorce, etc., written in 1595, in which he supports the opposition of the estab¬ lished church to remarriage. In the “ Advertisement to the Reader,” Bunny gives some interesting sidelights on the times. Of the controversy in hand, he says that it was one “as wherein divers of great learning have already dealt,” but he does not mention any by name. He says also that the practice of divorce and remarriage was by no means unusual. A few years before the writing of the treatise, there had been “of one family (but indeed, one of the great¬ est in those parts) or therevnto appertaining, about fowre several persons, and those of some note besides, who had the so gotten divorce, & were married againe. And besides those (who, it may be, had else where mo fellowes also, than that heady course any waie deserved) an other there was of more speciall reckoning tha they, who so got divorce against his wife also, & married an other.” 1 Speaking of a treatise on the opposite side of the question, he says: “True it is, that many of the learned haue beene, and yet are, of that opinion, & accordingly haue interpreted, and yet doe, such Scriptures as they haue conceived to apper¬ tain therevnto: but it is as true withal, that as many of the learned againe, if not far mo, haue beene, and are, of other opinion, and haue otherwise vnderstoode, & yet doe, those Scriptures aforesaid.” 2 It is not worth while to go into the arguments produced by the opponents in this controversy to support their re¬ spective beliefs. The basis of contention, as one sees from Bunny’s remarks, was, as usual, Scriptural interpretation and patriarchal authority. The subheading of Rainolds’ of Pye’s book. In the note to the reader preceding this letter, there is mentioned a reply to Pye by Dove, entitled Doctoris Pyi impium dog - ma. This also seems to be non-extant. 1 Bunny, op. cit., “Advertisement,” If 2. 2 Ibid., H 9. 84 ENGLISH DOMESTIC RELATIONS treatise against Bellarmino, if the opponent’s name were changed to suit each occasion, represents the substance of the argument in all cases: “how he depraveth Scriptures, misalleageth fathers, and abuseth reasons, to the pervert¬ ing of the truth of God and poisoning of his Churche with errour.” The attention drawn to the question of remar¬ riage by this controversy resulted, in 1603, in the passage of a new canon, to the effect that “parties shall not marry during the lifetime of both and parties must give good and sufficient security that they will not break this agreement.” 1 This canon, however, had little or no effect in preventing remarriage, for as Godolphin points out, by forfeiting the security, one satisfied the law and was free to do what he liked. 2 III. The Final Deadlock At this point, about 1610, and upon these propositions, — the general one of church government and the particular one of divorce in its various aspects — the Puritan reformers and the bishops of the established church stood face to face, hurling ineffective arguments back and forth until the fall of Laud in 1641. During this time, the contention was more for power than for principles, as both sides realized that the establishment of the latter depended upon the possession of the former. While Laud controlled the courts and exercised a censorship over the press, there was little printed expression of opinion; but from the close of his power until Parliament itself censored the press in 1643, controversy ran wild. 3 I have before me one pile of books labeled “Prynne and Opponents,” another “Saltmarsh vs. Ley, etc.,” and another “Smectymuun Controversy,” and 1 Canon 107. a See below, p. 87, n. 1. a Of course, there was unlicensed printing before and after this period of two years, but not very much; nor were the publications so definitely upon controverted topics. THE ATTEMPTED REFORM OF DIVORCE 85 I could lay my hands on many more; but all these must be passed over with the comment that they simply continue the debate of civil and ecclesiastical authority and have very little to say on the subject we are following. 1 In 1642, there was passed an act “for the utter abolishing and taking away of all archbishops, bishops, their chancellors, com¬ missaries . . . together with their names, titles, jurisdic¬ tions, offices, and functions, and the having or using of any jurisdiction or power.” This act ended, officially at least, the authority of the bishops until the Restoration. For the final opposing opinions and the actual practice of divorce in this period, we must refer once more to the domestic books. Here we find that there is no change on the part of the established church, but that the Puritans have gone even further than previously from the old Catholic ideas, in narrowing the grounds for the nullification of mar¬ riage, and have departed from the more liberal principles of the German Reformation, by narrowing the grounds for divorce. For the latter, they admit only adultery and desertion, and for nullification, only the Levitical degrees of relationship. The stand in regard to nullification was due, perhaps, to the fact that the Star Chamber in 1601 had reestablished the law of 32 Hen. VIII, ca. 38, by which the impediments to marriage were limited to those expressed in “God’s law.” 2 1 The reader should not get the impression that church govern¬ ment and matrimonial jurisdiction were equally the leading issues of the day. By 1642, church government was probably the chief subject in the field of controversy; next to this came questions of doctrine. Marriage and divorce were minor points in the discussion of the former of these topics; and one might read far into the writing of the time with¬ out finding mention of either, as is evidenced by the fact that many of the books and pamphlets discussed above have not been previously examined. * See above, p. 62. 86 ENGLISH DOMESTIC RELATIONS We have already examined, at least briefly, the controversy waged over the question of divorce versus separation. Our more general conduct books continue the same arguments, neither side yielding ground. The second edition of Whately’s Bride-bush , in 1623, seems to be the last Puritan book before the censorship of the press to uphold these principles in full. 1 Here, in addition to the subject of adultery, the two recognized forms of desertion — actual departure from the home and refusal of the marriage right — are discussed at some length, and divorce with remarriage is allowed in either case, no distinction in regard to sex being made. 2 Although the Puritans narrowed the grounds for the nullification of marriage, the established church clung to the Catholic practices. Milton says on this point: “It [marriage] was thought so sacramental that no adultery or desertion could dissolve it; and this is the sense of the canon courts in England to this day, but in no other re¬ formed church”; again, “Divorce for adultery and deser¬ tion, as all churches agree but England, not only separates, but nullifies, and extinguishes the relation itself of matri¬ mony”; and again, “We know it [marriage] dissoluable for adultery and for desertion by the verdict of all reformed churches.” 3 The Answer to the Doctrine and Discipline, citing Coke as authority, gives for the nullification of marriage causa precontracts, causa frigitatis or impotentiae , 4 and causa minoris aetatis or impubertatis. 5 Separation a 1 Gouge’s Domestical Duties, c. 1626, allows divorce for adultery and for desertion due to difference of religious beliefs, but it does not treat either very fully. 2 Whately, op. dt., chaps. 1 and 2. 3 Milton, Prose Works, I, 344, and II, 133, 141, respectively. 4 Frigidity and impotency are synonymous terms as here used. It was this that Milton referred to as “natural frigidity.” 6 Op. dt., p. 2 ff. The Levitical degrees seem to be taken for granted. Although the causes here cited were doubtless those most often plead, THE ATTEMPTED REFORM OF DIVORCE 87 mensa et thoro continued to be granted by the established church for certain causes, 1 and in the case of the desertion of a Christian husband by a heretical wife, remarriage was allowed. Thomas Ridley, writing in 1607, says, “The causes whereupon Divorces grow, are Adultery, deadly hatred one toward an other, intolerable cruelty, neemesse of kindred and affinitie in degrees forbidden, impotencie on the one side or the other.’ 7 2 Godolphin, writing in 1678, exhibits practically the same state of affairs, and adds, “Touching the kinds and effects of Divorce, whether Divorce a vinculo Matrimonii or separation a Mensa & Thori, with the causes thereof; the Divines and Lawyers are of different Opinions, and each of these divided among themselves.” 3 Opposed to this confusion of impediments, separation, divorce, and whatnot, as administered or misadministered, by the established church courts, we may set the clear-cut it is evident from legal treatises of the time that all the earlier ones were still in operation. 1 This separation was the door of opportunity to all who wished to obtain an actual divorce, as the terms of it failed to prevent re¬ marriage. The canons of 1603 attempted to put a stop to its abuse by requiring security against remarriage, but this did not help matters. Godolphin, in his Repertorium Canonicum, p. 495, gives the foFowing legal opinion on the point: “By enjoyning such security to be given, and such Bonds to be taken, This seems to be a Penal Canon, viz. pecuniarily Penal; whoever therefore breaks the Law incurrs the penalty, and whoever suffers the penalty, doth answer and satisfie the Law, which before he had infring’d.” 2 Ridley, A Viewe of Civile and Ecclesiasticall Law, p. 11. Ridley makes no attempt to distinguish between the different kinds of divorce, and for this reason his information is of little help to us. On p. 72, he includes “by consent” among the means of obtaining a divorce. I have found “mutual consent” mentioned in several books; it is usu¬ ally spoken of as not a proper cause for divorce, which together with Ridley’s statement seems to indicate that divorce of some kind was sometimes obtained on this ground. 3 Godolphin, Repertorium Canonicum, p. 501. 88 ENGLISH DOMESTIC RELATIONS and definite statements of the Puritan divines as drawn up by their assembly in c. 1643 and published in 1651: “Marriage ought not to be within the degrees of consanguinity or affinity forbidden in the word, nor can such incestuous marriages ever be made lawful by any law of man or consent of parties. . . . “Adultery, or fornication being committed after a contract being detected before marriage, giveth just occasion to the innocent party to dissolve the contract; in the case of adultery after marriage, it is lawful for the innocent party to sue out a divorce, and after the divorce, to marry another as if the offending party was dead. “Nothing but adultery or such wilful desertion as can no way be remedied, by the Church or Civil Magistrate, is cause sufficient of dissolving the bond of marriage, wherein a publike, and orderly course of proceeding, is to be observed, and the persons concerned in it not left to their own wills, and discretion in their own case ” 1 But aside from books of a strictly domestic nature, there were many others which treated of marriage, woman, and family life from every angle and in every style. These were popular books, too, both those which were somewhat literary and amusing and those which were purely utilitarian and dry. Moreover, debates were still raging, both in and out of print, on practically every question that the previous century had raised. In our particular field, we find the pros and cons of remarriage after divorce, the marriage of the clergy, marriages made without the parents’ consent, the legal status of children in cases of divorced parents, and even “whether a man may beat his wife.” If we add to the books here suggested all those of purely literary and religious character, as well as the many marriage ser¬ mons, by men like Hall, Gataker, Whately, and Donne, we may get some idea of the quagmire in which human nature, imprisoned by text, dogma, and precedent, yet ever and anon breaking forth into license and sin, was strug- 1 The Late Assembly of Divines Confession of Faith , p. 263. THE ATTEMPTED REFORM OF DIVORCE 89 gling for life and the pursuit of happiness. “When I remem¬ ber,says Milton, “the little that our Saviour could prevail about this doctrine of charity against the crabbed textuists of his time, I make no wonder, but rest confident, that whoso prefers either matrimony or other ordinance before the good of man and the plain exegence of charity, let him profess papist, or protestant, or what he will, he is no better than a pharisee and understands not the gospell.” 1 As Milton says, the pamphleteers and writers of domestic books who touch upon the subject of matrimony, with a few exceptions, argue as if they were trying to settle a hypo¬ thetical question rather than to remedy a burning evil in their own midst. But at the time that the assembly of divines was about to struggle with the problem, two writers, from different walks of life and from opposing sects, entered the field to discuss the situation as it actually existed and from the point of view of living needs instead of that of Hebrew history and Roman Catholic interpretation of the Scriptures. 2 These were Daniel Rogers, an orthodox divine, 1 Milton, Prose Works , I, 340. 2 One of the most important books of the time, De Jure naturali et Gentium, from the pen of the learned John Selden, written in Latin with frequent quotations from Greek, Hebrew, Assyrian, and other lan¬ guages, and mentioned by Milton in his first divorce tract, can hardly be included among our books on divorce, because, as the title indicates, it is concerned not with English conditions but with primitive cus¬ toms and ancient laws. These do, to a certain extent, uphold Milton’s views, as he fervently asserts; but the argument “as it was in the beginning, is now, and ever shall be” is scarcely tenable. On account of the importance of the book, I quote the most important passage on the subject of divorce: “Nequi enim separari aut dividi nequibant conjuges , seu Matrimonium dirimi, nisi ex singulari aliqua legis permissione, seu repudii causa; neque communis consensus (quo ex veteri Jure Caesareo distrahi Matri- monia sdmus) necessarius erat, ut dirimiretur. Neque individua did potuit vitae consuetudo quae aequo Jure a marito pluribus communica - 90 ENGLISH DOMESTIC RELATIONS and John Milton, an Independent layman. The similarity of their views seems to be mere coincidence, but the causes of it were identical — existing conditions. Rogers in his domestic book Matrimoniall Honovr, in 1642, appealed to human nature in general by portraying the honor and beauty of the marriage state as it should exist; Milton in his Doc¬ trine and Discipline of Divorce , in 1643, appealed to Parlia¬ ment and the assembly in particular by portraying the evils and hideousness of marriage as it too often did exist. Of the former, we may stop here only for a quotation, in which we may see Milton’s ideas of compatibility of mind in husband and wife, expressed from a different point of view, in a chapter on “Consent.” “Love being the noble groundworke, this [consent] the sweet building upon the former foundation: both making up marriage, to grow to an happy frame and building, which who so behold, can no other judge, but that those parties are well met, and dwell commodiously. . . . “This then is the point, that both married persons ought studi¬ ously to maintaine this grace of mutuall consent, as a maine peece of that, which must maintaine the honour of their marriage. . . . batur. Quemadmodum vero ex veteri Jure Caesareo distrahabantur Matri- monia, alia quidem consentiente utraque parte, pactis causam, sicut utriqui (ut verba sunt Justinianii ) placuerit, gubernantibus, alia vero per occasionem rationabilem quae etiam Bona gratia vocabantur, alia citra omnem causam, alia quoque cum causa rationabili (cui libertati sanctiones tarn Caesareae etiam quam Pontificiae haud parum derogarunt ) ita ex Jure Naturali ab ipsis rerum primordiis communi citra ullam omnino causam ea distrahi fas fuisse volunt Magistri. Idque pro libitu tarn uxoris quam viri, quod etiam, ex praescriptis aliquot causis, Jure Caesareo olim permissum est. Adeo ut pactum matrimoniale heic non aliud haberetur quam Sociorum contractus, qui eo usque stabilis manet dum in eodem consensu utrinque per server atur, & renunciante societati alterutro solvitur. Ita, sive viro sive uxore matrimonio renuntiante, solutum aiunt fuisse contractum, velut divortio plane legitimo.” Op. cit., Lib. V, cap. vii, p. 567. THE ATTEMPTED REFORM OF DIVORCE 91 “Oh, thou sweet amiablenesse and concord, what may not be said of thee? Thou art the offspring of God, the fruite of Redemp¬ tion, the breath of the spirit: Thou art the compound of contraries, the harmony of discords, the order of Creation, the soule of the world: without which, the vast body thereof would soone dissolve it selve by her owne burden, as wearisome to it selfe, and fall in sunder by peacemeale from each other.” 1 So far Rogers is speaking in general, but further on he be¬ comes more particular and strikes upon the very element which Milton emphasizes most of all. “This consent must be in the speech and language of them both: Its true generally, but in this point specially, That speech is the discoverer of the mind: Looke what the abundance of the heart is, that will vent it selfe at the mouth. . . . Yea, the speech of each to other should bee (without flattery) as the glasse, to be¬ hold each other in. As face answers to face in the water, so doth man accomodate himselfe to his friend (saith Salomon), how much more the husband and wife to each other? They should even resemble each others frame and temper (in the Lord) with all ingenuity. As the beames do represent the Sun, in her heat and light: so should the sweet carriage of the wife, argue the body which gives her influence, even her husbands virtues.” 2 This is far prettier and more dignified than Milton’s treat¬ ment of the same subject, though it lacks the force of the latter’s sound and fury. But Rogers goes no further; he merely exhibits and eulogizes the qualities which go to make a successful marriage and leaves the subject there. Of divorce he has nothing to say. Milton chose the psychological moment to hurl his “ doc¬ trine of freedom” in divorce matters at the head, or heads, of the English nation, which was fairly wallowing in the slough of despond over the questions of church, state, and personal liberty. The official overthrow of the bishops took 1 Rogers, op. cit., p. 184 ff. 2 Ibid., p. 189. 92 ENGLISH DOMESTIC RELATIONS place in 1642, but the bill effecting it did not take the power of jurisdiction from the church, and the bishops did not lose the name and dignity of office until 1646. “In this interval,” says Neal, “there was properly no established form of government, the clergy being permitted ... to govern their parishes according to their discretion.” 1 On June 12, 1643, the famous assembly was appointed for the consideration “of all things necessary for the peace and government of the church.” This assembly convened on July 1, and within a month of this date, Milton’s tract The Doctrine and Discipline and Divorce appeared. 2 Before the assembly had time to get more than well started, Milton brought out a second edition of the tract dedicated “to the Parliament with the Assembly.” 3 The dedication con¬ tains a strong appeal to those in power to take some action to remedy the marital evils of the time. “You it concerns chiefly, worthies of parliament! on whom as on our deliverers, all our grievances and cares, by merit of your emi¬ nence and fortitude, are divolved. ... Ye have, now, doubtless, by the favour and appointment of God, ye have now in your hands a great and populous nation to reform; from what corruption, what blindness in religion, ye know well; in what a degenerate and 1 Neal, II, 503. 2 Thomason’s date of Aug. 1, 1643, seems to be now pretty gener¬ ally accepted, despite Philips’ statement that the tract was first con¬ ceived about Michelmas of that year. In Appendix B, below, I discuss this matter of date in full. In the same place, I attempt to overthrow Philips’ further statement, and all later theories built upon it, that the tract was written because Milton himself wished to obtain a divorce from his wife. 3 The second edition appeared [Feb. 2], 1644. It differs greatly in size and general make-up from the first. It is one-third longer, is divided into books and chapters, contains references to authorities not men¬ tioned before, and is prefaced by the dedication mentioned above. My remarks, however, except where noted, apply to both editions. THE ATTEMPTED REFORM OF DIVORCE 93 fallen spirit from the apprehension of native liberty, and true manliness, I am sure ye find; with what unbounded license rushing to whoredoms and adulteries, needs not long inquiry.” 1 Milton’s tract is too well known to need any detailed analysis here, but as several of the issues of the period cul¬ minated in it, it is necessary to look for a moment at the more important doctrines advocated. Although Perkins is the only previous writer mentioned in the first edition of the tract, it is certain that Milton was familiar with the general arguments on all sides of the question and with the conditions which led to the stagnant and corrupt state of marital society and jurisdiction thereupon. The Doc¬ trine and Discipline was and still is considered revolutionary; but the truth is that it does not contain a single point which was not either previously advocated or actually in practice, although certain principles are emphasized more than they had been before. The one usually taken as Milton’s chief contribution to the controversy is the famous proposition that “indisposition, unfitness, or contrariety of mind, arising ih nature unchangeable, hindering and ever likely to hinder the main benefits of conjugal society, which are happiness and peace,” should be recognized as a just and sufficient cause for divorce. That this principle was already current is shown by Erasmus’ mention of U disidium animorum” among the impediments to marriage; 2 by the gloss made by the Reform divines on Deut. 24, 1, in their Annotations of the Books of the Old and New Testament, where it is stated that to the usual causes of divorce “are added by some, barrennesse, madnesse, stubbornnesse, reproachfull insolence toward her husband, which is an uncleannesse of the minde, or any other thing which dispose him rather to loath them 1 Milton, Prose Works , I, 336. 2 See above, p. 9, n. 2. 94 ENGLISH DOMESTIC RELATIONS than to love her; ” 1 and by the comments of Perkins and Ridley already quoted. 2 There can be no doubt, however, that such “uncleanness of the mind” had never before been boldly proclaimed. Nevertheless, as a ground for divorce, it was but a logical result of the Puritan attitude towards mar¬ riage, according to which matrimony was instituted for the mutual blessing and benefit of husband and wife instead of for the procreation of children and the avoidance of sin, as the older writers upheld. 3 This idea of marriage as a conjugal so¬ ciety of happiness and peace rather than a “prescribed satis¬ faction for irrational heat,” to use Milton’s phrase, is indeed the basis of the whole treatise, and every argument, whether in support of the new doctrine or in opposition to the old, takes its source from this conception. The Puritan writers before Milton had tended towards emphasizing mental and spiritual satisfaction in marriage rather than mere physical, but they failed to see the fallacy of their position in allowing divorce for only adultery and desertion. This Milton points out. “Among Christian writers touching matri¬ mony,” he says, “there be three chief ends thereof agreed on: godly society, next civil, and thirdly, that of the mar¬ riage-bed. Of these the first in name be the highest and most excellent, no baptized man can deny; . . . but he who affirms adultery to be the highest breach, affirms the bed to be the highest of marriage, which is in truth a gross and boorish opinion, how common soever.” 4 1 This work is entered in the Stationers’ Register Oct. 31, 1643. This is, of course, after the publication of Milton’s tract, but it cannot be supposed that such a voluminous work — two large tomes — could have been accomplished in the time between the two dates. There is a possibility that the note may have been inserted in consequence of Milton’s argument, but this is unlikely, especially as the authors of the Annotations had no sympathy with his religious principles. 2 See above, pp. 80, 87. 3 For a full discussion of this difference in attitude towards mar¬ riage, see below, p. 119 ff. 4 Milton, Prose Works , I, 367. THE ATTEMPTED REFORM OF DIVORCE 95 Since the practices of church and state were, as I have shown, in a complete muddle in regard to divorce jurisdic¬ tion, Milton wastes no time in attacking existing condi¬ tions, but instead uses their contradictions and corruptions as a foil for the new doctrine he has to advance. In this way they are mentioned continually, — no distinction being made between those of the old Catholic canons and those of the recent Puritan agitation — but they are always subordinated to the main issue of the tract, which is con¬ structive rather than destructive. Milton’s whole attitude towards the canon law is shown in the heading of his third chapter, “The ignorance and iniquity of the Canon Law, providing for the right of the body in marriage, but nothing for the wrongs and grievances of the mind.” Again, of the evil and confusion of the time in affairs matrimonial, he says, “All of which we can refer justly to no other cause but canon law and her adherents.” Of the old separation a mensa et thoro, he remarks in passing, “And this I observe that our divines do generally condemn separation of bed and board, without the liberty of second choice.” 1 Di¬ vorce for “spiritual adultery,” “which is so much contro¬ verted,” he admits, as of course he would have to for the sake of consistency at least. Divorce for plotting by one party against the life of the other, to which “the canon law and divines consent,” he admits also. In regard to the im¬ pediments annulling marriage, he expresses himself only to oppose the emphasis laid by canon law upon sexual im- potency. Except in insisting upon divorce for incompatibility of tem¬ per, to apply the modern phrase, Milton does not go beyond the views of the more radical Puritan writers in any respect. As we have already seen, the two chief points where these differed from orthodox doctrine, were the equality of man 1 Milton, Prose Works, II, 54. 96 ENGLISH DOMESTIC RELATIONS and woman in divorce suits, which had been advocated by the more liberal thinkers ever since the Reformation, and the practice of self-divorce, which I have been at some pains to show continued to be used to date among the Independents. On the first of these points, Milton goes into neither detail nor argument, but the subtitle of his tract, describing it as restoring divorce “to the good of both sexes,” shows clearly that he meant to place husband and wife upon the same looting before the law, although he writes entirely from the man's point of view. 1 Indeed, this was one of the objec¬ tions raised against the tract by the anonymous answer, in which the reader is instructed to take notice “that all his Arguments, to prove a man may put away his wife for disagreement of minde or disposition, except it be his Argu¬ ment from Deu. 24. 1. they prove as effectually, that the Wife may sue a Divorce from her Husband upon the same grounds.” 2 The second point, that of private divorce, is given considerable attention towards the end of the tract. It was quite evident to Milton, as it must be to us, that the logical outcome of the long dispute between church and state rights and of the abolition of the ecclesiastical courts, was the restoration of jurisdiction in marital affairs to the civil authority. But, although the Independents and other 1 Nevertheless, Milton runs into inconsistencies on the subject of women’s rights in divorce matters. Despite the fact that in general he upholds the Puritan doctrine of equal rights for both sexes, he evi¬ dently discriminates against the wife in saying that “the absolute and final hindering of divorce cannot belong to any civil or earthly power, against the will and consent of both parties, or of the husband alone.” (Prose Works, II, 53.) On the other hand, in translating Bucer’s book, he passes over Chapter XXXIV, entitled “That it is lawful for a wife to leave an adulterer” with the remark that “this is generally granted, and therefore excuses me the writing out.” But certainly his proposed private divorce either by consent of both parties or by that of the husband alone, discriminates against the wife. 2 Answer to the Doctrine and Discipline, p. 13. THE ATTEMPTED REFORM OF DIVORCE 97 non-conformists favored such restoration of power to the civil courts in the case of most of the matters involved, they differed from their more orthodox brethren in persistently upholding that marriage and everything pertaining thereto was entirely a personal and private affair, with which neither church nor state had anything to do except to witness the event. We have already noted Milton’s statement in regard to marriage. 1 His platform for divorce is quite con¬ sistent with this in its opposition to both civil and eccle¬ siastical jurisdiction. In concluding his argument on this point, he says, “ Shall then the disposal of that power return again to the master of family? Wherefore not, since God there put it, and the presumptuous Canon there bereft it? This only must be provided, that the ancient manner be observed in the presence of the minister and other grave selected Elders.” 2 With The Doctrine and Discipline, the long controversy culminated. The advanced doctrines of the most advanced thinker of the time, as herein expressed, were received, on the whole, as the crabbed textuists and the carnally minded people of that day would naturally be expected to receive them, the attitude of the former being as exasperating as that of the latter is disgusting. Although Milton says that the tract was “held by some of the best among reformed writers [to be] without scandal or refutement, though now thought new and dangerous by some of our Gnostics,” and that others thought it had “of reason in it to a suffi¬ ciency,” 3 there can be no doubt that the general church¬ going public was both scandalized and incensed, at least by the doctrine or divorce for “indisposition, unfitness, or contrariety of mind.” The tract was answered by an 1 See above, p. 60. 2 Milton, Prose Works, II, 61. 3 Ibid., II, 112, 115. 98 ENGLISH DOMESTIC RELATIONS anonymous writer from the orthodox standpoint in 1644, 1 2 was stigmatized in a sermon before Pariiament as wicked and deserving to be burnt, and was condemned, along with certain others, by Featley as advocating “most damnable doctrines.’ 7 2 The most authoritative opinion expressed against it was that subscribed to and published, in 1647, by certain ministers of London under the title of A Testimony to the Truth of Jesus Christ, in which they declare their “de¬ testation and abhorence” of Milton’s divorce for “indis¬ position, unfitness, or contrariety of mind.” 3 It may be worthy of mention that in this tract neither his principle of equal rights for man and woman nor his advocacy of private divorce is criticized, and a marginal note directs the reader to “peruse the whole book.” Meanwhile Milton had come to his own defense by trans¬ lating passages from the second book of Bucer’s De Regno Christi in 1644, 4 which expressed the extreme liberal views of the German Reformers, but did not touch upon the sub¬ ject of private divorce or go quite far enough generally to justify Milton altogether in saying, “I hope this will excuse me with the mere Englishman to be a forger of new and loose opinions.” In the following year, he published his Tetrachordon, in which he follows the suggestion of some of his friendly critics and discusses at length the “four chief places in Scripture concerning nullities in marriage.” In 1 An Answer to a Book , Intituled, The Doctrine and Discipline of Divorce. This Answer is directed against the first edition of Milton’s tract only, and replies merely to the first part of that. The principle of private divorce is therefore not mentioned. 2 Featley, The Dippers dipt, f. B2 b. 3 Op. cit., p. 19. In the same paragraph, the ministers condemn also the doctrine expressed in Little Nonsuch, a slight and none too serious tract, anonymously published in 1646, which advocated the marriage of kin, after the example of the first people upon earth. 4 Under the title of The Judgment of Martin Bucer, etc. THE ATTEMPTED REFORM OF DIVORCE 99 this tract he takes every opportunity to reiterate and amplify the principles of his Doctrine and Discipline for divorce on mental rather than physical grounds. In the same year, 1645, he replied to the “nameless author” above mentioned, in a short tract called Colasteron, but this work adds nothing of interest to the controversy. What were the actual conditions of divorce legislation and jurisdiction from this time to the Restoration, it is impos¬ sible to determine accurately. The writer of the Answer to Milton’s tract, quoting Coke as authority, defines divorce as a “sentence pronounced by an Ecclesiasticall Judge, whereby a man and woman formerly married, are separated or parted”; 1 but as already noted, it does not seem pos¬ sible that the church or any of its officers could have held court for divorce cases at this time. Private divorce doubt¬ less existed to some extent among the Independents, and among others the word of the local pastor may have been deemed sufficient. Cromwell’s act of 1653 was the first official expression of any kind during this period. Despite Milton’s efforts to have divorce by private act established as the recognized legal method, Cromwell wisely decided to steer a more conservative course and to put the matter into the hands of the civil magistrates; but though this act appoints officials to decide cases, it gives no intimation of what were the acknowledged grounds — if, indeed, any existed — for their decisions. The bill reads: “That the hearing and determining of all matters and contro¬ versies touching Contracts and Marriages, and the lawfulness and unlawfulness thereof; and all Exceptions against Contracts and Marriages, and the Distribution of Forfeitures within this Act, shall be in the power, and referred to the Determination of the Jus¬ tices of the Peace, in each County, City or Town Corporate, at the General Quarter Sessions; or of such other persons to hear and determine the same, as Parliament shall hereafter appoint.” 2 1 Op . dt., p. 2. 2 Scobell, II, 238. 100 ENGLISH DOMESTIC RELATIONS Although nothing seems to have been done to form a legal and authoritative code of rules or principles on which such controversies and exceptions might be based, the appointment of the justices of the peace as judges in these matters was a long step in advance. But, of course, the Restoration overturned all this, and conditions reverted to those of the early part of the century, except for the fact that by 1700 divorce by special act of Parliament became possible to the wealthy. Since then England has muddled along in her usual way, and even the reforms of 1857, the first since Cromwell's time, left divorce affairs in a state that can hardly be thought satisfactory. CHAPTER IV THE DOMESTIC CONDUCT BOOK I. The Type and its Origin The origin of the domestic conduct book in England cannot be accurately determined. Priority for native writ¬ ing in this field may be claimed on the evidence of Wiclif’s brief treatise (if indeed Wiclif wrote it x ) entitled Of Weddid Men and Wifis and of Here Children also, but as this was not printed until the nineteenth century, it is difficult to say whether or not it had any influence in the establishment of the genre, which did not take place for a hundred years after Wiclifs death. At this time, the first books were of foreign origin, although earlier interest in domestic affairs is evidenced in England by writing on morals, manners, and so forth, especially in books for the instruction of children, and was doubtless one of the causes for the translation of continental works. But after the establishment of the type, English writers soon entered the field, and although foreign books continued to be translated, the continuation and development of the writing of books concerning domestic affairs may be said to have been almost entirely a native product. In its most complete form, a book of this type contained four principal subjects: (1) discussion of the marriage state from religious and secular standpoints, (2) the legal elements involved in contracting matrimony, (3) mutual relations of husband and wife, (4) the govern- 1 It is ascribed to Wiclif on the ground of its presence in a volume which Archbishop Parker, in the sixteenth century, believed to contain only tracts of Wiclif’s composition. No other evidence on the question seems available. 101 102 ENGLISH DOMESTIC RELATIONS ment of the family, including housekeeping, the upbringing of children, the management of servants, and general house¬ hold economics. The ultimate sources of all these books were the New Testament (especially the teachings of St. Paul), the classics, and the church fathers. Wiclif’s treatise, but twelve pages long in its present form, is divided into five chapters, which may be summarized: (1) the two kinds of marriage ( i.e . that of God and his church and that of man and woman), (2) the domestic ele¬ ments in human wedlock, (3) the common duties of husband and wife, (4) the relations of parents and children, (5) duties and dangers in family life. The book lacks any discus¬ sion of the contract and ceremony of marriage, the grounds of divorce or annulment, and the care of the house and servants. Similarly, no one of the first group of domestic books presents a complete model for the type; hence the selection and combination of the important features of earlier works were the particular contributions of sixteenth century English writers and their foreign contemporaries from whom they translated, to the development of the genre. The latter, taken altogether, covered practically all of the different elements of the field, and in two cases at least 1 seem to have set the form for the English writers. Among the very earliest books printed in England, we find the first on the family. This is Caxton’s Boke of Good Manners, translated from the French of Jaques LeGrand in 1487 and republished at least four times before the century was out. The treatise, 118 folio pages in all, is divided into five books, which contain general instruction, or moraliza- tion, on the life of man and on his various professions. The first is on the seven virtues and some of the corresponding vices; the second on church people and clerks; the third on the lords temporal; the fourth on “thestate of the 1 LeGrand’s and Bullinger’s. THE DOMESTIC CONDUCT BOOK 103 comynalte and of the people”; the fifth on the transitory- character of life and the coming of death. Of these, the fourth alone concerns us, and of it, only certain chapters. It runs to twenty-six pages; the chapter on matrimony is but three, and those on household affairs but a little more than one each. The complete contents are as follows: I. Of Rychemen and how they ought to gloryfye in theyr ry chesses. II. Of the state of pouerte whyche ought to be agreable. III. Of the state of olde age wherin a ma ou5t to be vertuous. IV. Of the state of yonge peple & how they shold gouerne them. V. Of the state of maryage. & how it ou5t to be mayntened. VI. How wymmen ought to be gouerned. VII. How virginite & maydenhede ou3t to be maynteyned. VIII. Of thestate of wymmen wydowes. IX. How seruautes ou5t to be mayntened in theyr seruyce. X. How they that ben of euyl lyf dyen ylle. XI. How fader and moder ought to teche theyr chyldren. XII. How chyldren owen obeyssauce & honour to their parents. XIII. Of thestate of marchaunts. XIV. Of thestate of pylgryms. XV. How dedely synnes desyren deth. Here we find eight chapters whose subjects have place in practically all later domestic books and which indeed form the greater part of them. These are the fourth, fifth, sixth, seventh, eighth, ninth, eleventh, and twelfth. It is evident that the arrangement of subject matter here is very poor; nevertheless, the substance, though briefly expressed, and the treatment also, is typical of this whole species of book. The fifth chapter is the most important one for us. On account of the rarity of the book and the importance of its subject and style, I am led to quote from it at some length. The passage below contains all that is essential. 104 ENGLISH DOMESTIC RELATIONS “Mariage is ordeyned for to haue lygnage. and for to loue eche other. And therfor thappostle seynt poul in his fythe chapitre ad- monesteth the wedded men sayeng ye men loue your wyues as Jhus Cryste loueth his chyrche. And to this purpoos valere in his iiij boke the v chapytre recyteth how a man named graceus lonyd 1 his wyf named Corneylle so moche that he wold deye for to gete helthe of his wyf. he recounteth also how Cuplacius herd saye that his wyf was deed. And thene he smote hym self in the breste with a knyf and requyred to be with her. ... 2 Semblably also the wymmen owen to loue theyr husbondes/ And herof we haue example as val¬ ere recounteth in his boke aforfaid. how Julia the doughter of Cezar seeyng the Robe of hir husbond spotted wyth blood was soo troubled that for sorowe and henynes/ her chyld that she had within her bely was destroyed. . . . After he recyteth of the doughter of Cathon named Porcia seeyng her husboud brutus to be slayn/ she demaunded a knyf to slee her self also/ And by cause that none wold delyue to her no knyf. she toke brennyng cooles. and put them in her monthe & ete them don in suche wyse that she deyde by a right marueyllo 9 manere. ... 2 And it is good to knowe how in mariage after the doctours. thre thynges ought to be/ that is to wete fayth. loyalte/ lygnage & sacrament/ By fayth and loyalte is gyuen to understode that neyther of the parties maryed ought not to trespace with his body but to kepe it to his partye/ For as thapostle saith in his fyrst 'epystle to the Corynthyeus/ the body of the man is bylongyng to the wyf. And the body of the wyf to the man. that is to understonde in mariage/ And as seynt Ambrose saith in his exameron. god made eue of the syde of Adam/ in signefy...nce that in mariage a man and woman ought to be all one body one self thyng. And me semeth that the partye that forfayteth his maryage/ dooth a yenst the lawe of nature/ For the storke hath suche forfayture in abhomynacon of storkes to flee hym or her that so forfayteth. lyke as Alexander recouteth in his boke of nature of byrdes. And me semeth it is a grete abhomynacion to see in many maryages so lytyl fayth and loyalte as now is. But I byleue that one of the causes emonge the 1 Evidently a misprint for louyd. Confusion of n and u often occurs in the book. 2 Other stories omitted. THE DOMESTIC CONDUCT BOOK 105 other is. that the maryage be not duely maad. but for ihoney. or other euyl cause Thene it is noo merueylle that the maryage contynue not well syth the begynuyng therfor the kynge lygurgis wolde and ordeyued in his Royame that the virgynes and maydens shold be wedded without to haue gold or syluer to thende that the maryage shold not be made of couetyse. lyke as pompeus recyteth in his iij boke/ And valere in his vij boke the first chaytre recyteth how one demanded somtym of a phylosopher named themystodes how and to whome he shold marye his doughter. that is to wete to a poure man or to a ryche. The whiche ansuerde. that he ought not to demande pouerte ne richesse. but the bounte and the vertues of the ma. More ouer in maryage ther lyeth right grete aduys. and not onely for parantage but also for to Mayntene it/ And to this purpoos speketh Theophraste dystyple of Arystotle/ in his boke that he made of maryage * in whiche he saith. that a ma ought more to beholde the bounte of the woman than the beaulte. and yf thou demande whiche is better to take a fayr woman or a foule he ansuerde. that it is an hard thyng to kepe a fayr woman the whiche many men desyre. And it is a grete payne to loue the foule one whiche many despyse. alleway yf she be good the goodnesse shal kepe her beaulte. And yf she be not fayr. it is none hard thyng to loue her that is of right good wyll. for naturally & resonably more ought the bounte to be praysed than the beaulte. Moreouer in maryage is moche to be suffred. singulerly yf bothe parties be not wyse. For men ben ofte suspecyonno? of theyr wyues/ Ther- fore ought a woman to be symple and good. & not onely of her body, but also of her maynten and maners/ For in spekying. in beholdyng. ne in conuersace she ought not doo ony thyng. by whiche ony other myght thynke or Juge in her ony euyll. . . . The men also that purpose to marye oughten to aduyse and beholde the condycon of her that thay desyre to haue to wyf. But many ben deceyued by cause they take them in the age of xij yere or ther aboute. and thene what they be/ noman may wete ne knowe. For as the comyn prouerbe saith/ how seeth a chylde. seeth no thyng./ Also in maryeng hym self, one ought to here many speke For loue and carnal affeccyon blyndeth the understondyng. and maketh a man fauourable to Juge. whan he is surprysed of suche 106 ENGLISH DOMESTIC RELATIONS loue. therfore a ma ought to byleve more another than hym self.” i The chapters on women, servants, parents, and chil¬ dren, although short, formulate the nature of the instruction found in all later books on family affairs. The woman should fear and obey her husband and should not wear gaudy clothes or attempt to improve her complexion. “A woman ought to haue resonably two condicohs. that is to wyte/ shame of repreef/ and drede of disobeyeng of her partye. . . . Semblably ben they that poppe them self & make them to seme fayr for to brynge other to synne/ And it is grete merueylle how they presume to deffeate and altere that whiche god hath made/ & moche lewde is the woman the whiche weneth to mak