If a German couple wanted to get married today, they would have to consult the German Civil Code, the Bürgerliches Gesetzbuch or BGB, for information on how to do so.Footnote 1 From the BGB, they would learn that—provided that they are competent, more than 18 years of age, not related in a direct line or (half-) siblings, and not currently marriedFootnote 2 —they can get married before the Standesbeamter or civil registrar.Footnote 3 They would also learn that should they want a divorce in the future, any proceedings would have to be brought in the family court, which is a special division within the German civil courts of first instance,Footnote 4 and that the judge hearing their case would be required to consider whether their marriage has “failed”: a state of affairs that that judge would be legally compelled to presume if one or both of them wanted the divorce (and they had lived apart for a prescribed number of years).Footnote 5
There are two features to note. First, entering and terminating their marriage brings a couple into close contact with the state, as the framer of the applicable law and the legal entity behind the person (registrar/judge) who oversees the beginning and end of their marriage. Second, the law gives wide latitude to the partners' (or even the individual partner's) private choice. Provided that the parties comply with some formalities, there are few restrictions on whether they can get married and to whom; and divorce—if they are prepared to wait—is, basically, on unilateral demand.
A look at the marriage laws of other countries in the Western world would reveal formation and dissolution rules somewhat different from the German ones. If this couple were English, for example, they would be eligible to marry if they were both more than 16 years of age, not currently married, and not (step-Footnote 6 ) parent–child, grandparent–grandchild, brother–sister, uncle–niece, or aunt–nephew to each other.Footnote 7 However, the differences, as the foregoing example shows, would be largelyFootnote 8 in the details. The big picture would not change: that of state-authored and -administered rules, informed by secular principles, in particular the individualistic tenet that it is best for everyone concerned that a marriage in which at least one partner has emotionally outgrown the other partner be—more or less freely—dissoluble.
Given this state of affairs, it is easy to forget that things were once different. If this couple had gotten married 500 years ago, in 1516 instead of 2016, they would have found that marriage was considered a sacrament and that, as a consequence, all matters that essentially concerned the existence of the marriage bond, such as formation, impediments, and dissolution (but not the more mundane legal consequences of marriage, in particular the property and inheritance rights arising from itFootnote 9 ) were, legislatively and jurisdictionally, within the exclusive competence of the Catholic Church. They would also have found that the substantive content of (not all, but some of) the church's rules was derived from the vision of marriage contained in the Christian Bible.
This article examines what role the Reformation played in moving the law of marriage formation and dissolution from its early sixteenth century state (of church-authored and -administered rules, informed at least in part by the Bible) to the state that it is in today. This article is part of a larger project exploring the changes in the legal regulation of the marriage bond between the sixteenth and the late nineteenth century. In its broad outlines, this larger story is a story of secularization, a term with many levels of meaning.Footnote 10 Etymologically, the term derives from the Latin saeculum, which can mean a generation, age, or great span of time (e.g., in saecula saeculorum, 1 Timothy 1:17), but which can also mean, especially in ecclesiastical Latin, the secular “world” or “worldliness” (e.g. et nolite conformari huic saeculo, Romans 12:2).Footnote 11 Since the late nineteenth century, the term has been used as a descriptive and analytical tool in the social sciences.Footnote 12 There it has come to designate such a vast range of different processes and phenomenaFootnote 13 that its usefulness as a concept can only be maintained if “everyone who employs [… the term states] carefully his intended meaning.”Footnote 14
For the purposes of this article, I define secularization (in a fairly classic way) as the separation of the legal rules under which a society operates from the influence of religious institutions and religious values and norms.Footnote 15 This, to be clear, is something quite different from the development of a secular outlook among individuals.Footnote 16 Even in a legal regime that stands apart from church institutions and religiously motivated substantive norms, individuals might still be influenced by their religious faith, and this can have an effect on whether they are willing to use the law of divorce, for example.Footnote 17
The concept of secularization comprises two elements: first, a formal or institutional one, relating to the (declining) influence of religious institutions; and, second, a substantive one, relating to the (declining) influence of religious values and norms, both measured at the societal-legal rather than the individual level. On the institutional side, the important questions are: Do church or state institutions have legislative and jurisdictional competence over marriage,Footnote 18 and why do they have that competence?Footnote 19 On the substantive side, the key point is: Where does the formally competent authority derive its legislative vision for marriage from? In other words, are the rules of marriage formation and dissolution grounded in appeals to the Bible and “Christian” values? Or are they motivated by secular (utilitarian, traditionalist) considerations?
The basic question asked by this article—what did the Reformation do for the secularization of marriage?—may not seem particularly novel. It has been asked before. However, it has elicited surprisingly different, even contradictory answers. At one end of the scholarly spectrum, the answer has been that the Reformation led to a far-reaching secularization of marriage in the territories in which the new faith was received.Footnote 20 At the opposite end of the spectrum, the answer has been that the Reformation changed next to nothing.Footnote 21 This article seeks to refine existing knowledge by considering which of these two quite different answers (or perhaps both) is correct. Its point of departure is the realization that the “Reformation” and its effects were not the same everywhere, and that different countries might have had quite different experiences of marital secularization. However, to date, the impact of the Reformation on the development of marriage law in Protestant territories has not usually been studied comparatively. Such a comparative study is likely to be fruitful. It might reveal that both the “virtually everything” and the “virtually nothing” positions are correct, and that the apparent contradiction in previous scholarly accounts is simply the product of different national objects of study.
To test this hypothesis, this article charts the effect of the Reformation on the development of marriage law in two different localities, namely Protestant Germany (I mainly use Brandenburg-Prussia as my case in point) and England. This involves a look at what went before; that is, at the Catholic Church's canon law of marriage, which formed a ius commune of marriage formation and dissolution immediately before the Reformation (Section I). The impact of the Lutheran and English Reformations on this body of rules is then examined separately to see how these movements were different, both in their motives and in their effects (Sections II and III). The article concludes with my own assessment of what the Lutheran and English Reformations achieved for the secularization of marriage (Section IV). I argue that both the “virtually nothing” and the “virtually everything” positions are, to some extent, correct. However, I do not base this conclusion on a differentiation between different localities. Rather, I distinguish between short-term and longer-term effects. I argue that the Reformation did not have the immediate effect of doing much toward secularizing marriage in either country; but that its longer-term consequences in both, particularly in the realm of ideas, were quite profound. The Lutheran and English Reformations were not the proximate causes of the secularization of German and English marriage law; however, they were an important step in the causal chain of events. Although they did not secularize marriage law in and of themselves, they helped to create an environment in which, with some contributory streams, secular marriage law theories and, ultimately, more secular marriage law systems could develop.
I. Marriage Law Before the Reformation: The Cannon Law of Marriage of the Roman Catholic Church
On the eve of the Reformation, the common law of marriage in the West—in all matters that essentially concerned the existence of the marriage bond, such as formation, impediments, and dissolution—was the canon law of the Roman Catholic Church, which was enforced by a hierarchy of ecclesiastical tribunals with the Roman curia at its apex.Footnote 22 That all matters concerning the formation and dissolution of marriage should have been within the exclusive legislative and jurisdictional competence of the church in the early sixteenth century (as they had been since the high Middle Ages) was the result of two protractedFootnote 23 and almost certainly interlockingFootnote 24 developments, both of which came to a climax in the twelfth century (and did not come in for serious challenge until the early sixteenth). First, the church's distillation, fuelled by the Gregorian reform movement of the eleventh century and the revival of Roman- and canon-law studies in the early twelfth century, of an integrated system of canon law (including a comprehensive canon law of marriage) from a welter of diversified authorities of biblical, Roman, customary, and church origin, culminating in Gratian's Concordance of Discordant Canons (1140),Footnote 25 Gregory IX's Decretales (1234),Footnote 26 and, ultimately, the Corpus Iuris Canonici (ca. 1586);Footnote 27 and, second, the articulation, usually associated with Peter Lombard's Sentences (ca. 1155–58),Footnote 28 of a full sacramental theology of marriage as a union symbolizing the eternal union between Christ and the church and a channel of sanctifying grace. These twin developments supplied the later medieval church with both a sophisticated law of marriage (including a transnational hierarchy of tribunals), and a powerful ideological justification for regarding the marital bond, its legal regulation, and its adjudication as central concerns for the church to the exclusion of secular rivals.
In addition to gaining legislative and jurisdictional competence over marriage, the church began to impose its—religiously influenced—vision on the substance of marriage law. It did this by invoking the sacramental character of marriage and the concept of a ius divinum, or divine law.Footnote 29 The ius divinum was a higher-order law, intimately connected with the Bible,Footnote 30 which made some biblically based precepts binding on human marriage legislation. The church's marriage law—the canon law—did not just contain the (supra-positive) divine law of marriage. It also contained much of “purely human” manufacture, as there were many matters about which divine law was lacking or considered indifferent.
The distinction between divine and merely ecclesiastical law was firmly established in principle; however, the line of demarcation was not always easy to draw.Footnote 31 For example, there was considerable uncertainty as to what extent the Old Testament incest prohibitions—which the canon law preserved and added to—were binding divine laws.Footnote 32 The only generally recognized restrictionsFootnote 33 imposed by the divine law related to the monogamous nature and the indissoluble character of marriage.Footnote 34 Both structural principles were powerfully reinforced by sacramental theology, which made the image of the eternal union between Christ and the one church (Ephesians 5:32) definitional for human marriage relationships.Footnote 35
The substantive canon law of marriage administered by the church and its courts, as one of its leading historians states, was “complicated;” however, its basic principles were “deceptively simple.”Footnote 36 Here I will briefly outline the rules as they existed from the early thirteenth until the early sixteenth century (whereas these centuries saw some development of the rules, the changes were slight, and, for present purposes, irrelevantFootnote 37 ).
Formation
Sacramental Christian marriage was between a man and a woman to the exclusion of all others—that is, heterosexual and monogamous—and its formation was ruled by the consent of the parties. According to Pope Alexander III's (1159–81) twelfth century rules,Footnote 38 absent impediments, words of present consent (per verba de praesenti) that were freely exchanged created a canonically valid marriage,Footnote 39 as did words of future consent (per verba de futuro) if followed by intercourse (which later doctrinal development interpreted as creating an irrebuttable presumption of present consent). Nothing else—neither copula, parental consent, publicity, nor church solemnization—was required for the marriage to be valid, although church councils, particularly the Fourth Lateran Council of 1215,Footnote 40 strongly encouraged the couple to draw upon witnesses and publicize through banns,Footnote 41 and indeed punished those who failed to comply.Footnote 42
Impediments
The church's “astonishingly individualistic”Footnote 43 stance on formation seems to place marriage squarely within the economy of contract. It is hardly surprising, therefore, that the late medieval canon law of marriage contained elements, not just of the modern law of marriage, but also of the modern law of contract. Therefore, the parties' consent would not create a valid marriage if it were affected by what Charles Donahue has termed “vices of consent;”Footnote 44 that is, if the parties were under age or if their reasoning were impaired by insanity, force, or fear or tainted by mistake (although the canon law would only accept mistakes of person and of status as vitiating consent),Footnote 45 or if one party were already married (impedimentum ligaminis or pre-contract), because Christian marriage, as has been mentioned, was by definition exclusive. The canons recognized that sometimes an absent spouse could be presumed dead, but by the thirteenth century, canonists insisted on absolute proof of death for remarriage to occur.Footnote 46
The contractual dimension did not, however, exhaust the church's view of marriage. In addition to being a consensual union, marriage, to the church, was a natural and sacramental entity,Footnote 47 and accordingly, the contractually based vices of consent were supplemented by a battery of physical and religious bars, which made the contracting of a canonically valid marriage harder than the lax formation rules may have led one to suppose.
As a natural union directed toward the procreation of offspring (proles) and the avoidance of fornication (fides), marriage was not open to those physically incapable of sexual intercourse,Footnote 48 or to those related by blood (consanguinity) or marriage (affinity)Footnote 49 up to the fourth degree,Footnote 50 by a legal or spiritual relationship (legal affinity, created by adoption, and spiritual affinity, existing in particular between godparent and godchild), or even by an (as yet unconsummated) contract to marry (public honesty).Footnote 51 Only a few of these impediments had a biblical warrant in the Mosaic Law, and, certainly by the late sixteenth century, it was questionable to what extent even those mentioned in Leviticus had the status of a binding divine law.Footnote 52 To the extent that the prohibition of intermarriage was a matter of human, rather than divine law, parties could be dispensed to marry (but papal dispensations came at a price).Footnote 53 The canon law also erected a number of religious or spiritual impediments,Footnote 54 annulling marriages between Christians and non-Christians (disparity of cult), by those in holy orders or under solemn vows of chastity (orders/vows),Footnote 55 and, in certain aggravated cases of adultery, marriages between an adulterer and his or her partner in crime (crime).Footnote 56 These impediments (or at least the sanction of nullity attaching to them) also did not have the status of divine law. They were, at least in theory, dispensable.Footnote 57
Divorce
Although it may not have been easy to contract a canonically valid marriage, it was even harder, in fact impossible, to end one during the lifetime of both spouses.Footnote 58 The canon law of marriage, basing itself on a plausible reading of a saying of Jesus about divorce in the synoptic gospels and on the sacramental quality of marriage,Footnote 59 allowed full “divorce”—that is, with a permission to remarry—only in a situation in which there was a (diriment) impediment to the marriage, in other words, in which the marriage was void ab initio. Although misleadingly termed divortium quoad vinculum, this remedy corresponded to what today we call an “annulment.”Footnote 60 Only divortium quoad thorum—what in modern terms we would call a judicial separation—was available on limited grounds, namely for adultery and heresy under classical canon law, to which cruelty was added by practice. A divortium quoad thorum allowed the couple to separate from bed and board, but it did not allow them to remarry. Moreover, the level of discord that had to be shown to warrant a separation and the standard of proof to which couples were held were quite high. As a result, separations do not seem to have been obtained on a large scale.Footnote 61
This, in brief, was the state of marriage law as the reformers found it. How was it impacted by the Reformation?
II. Marriage Law and the Lutheran Reformation
Luther's impact promised to be profound. He attacked both the sacramental theology and the Catholic Church's canon law of marriage. In 1520, he unequivocally denounced the view that marriage was a sacrament in his Babylonian Captivity of the Church, arguing that the Catholic Church had misread Ephesians 5:32 and had turned what the author had intended as a mere “outward allegory” into a sacrament conferring sanctifying grace.Footnote 62 Instead, Luther famously described marriage as “an external, worldly matter, like clothing and food, house and property”Footnote 63 and, within his two-kingdoms theory, which distinguishes between an earthly kingdom of creation governed by the state and its civil law and a heavenly kingdom of redemption governed by the Gospel,Footnote 64 he assigned marriage a place in the earthly kingdom, thus turning its regulation and adjudication over to the exclusive competence of the temporal prince, his officials, and his courts: “marriage is outside the church, is a civil matter, and therefore should belong to the government.”Footnote 65
The role of the church in marriage matters, according to Luther, was limited to pastoral counseling and the spreading of God's word and will for marriage and the family. All legal activity respecting marriage—lawmaking and court cases—was to be left to lawyers.Footnote 66 Luther was also sharply critical of the canon law of marriage (“the accursed papal law”Footnote 67 ), denouncing its distinction between de praesenti and de futuro promises (“pure tomfoolery with verbs”Footnote 68 ), its toleration of secret unions entered into without parental permission or witnesses (“this unseemly law concerning secret betrothals”Footnote 69 ), its luxuriant growth of impediments prefigured in neither natural law nor Scripture (“figments rather than impediments”Footnote 70 ), and its denial of full divorce, which he claimed was both unbiblical and productive of all manner of sexual sin.Footnote 71 Luther believed that divorce for adultery was sanctioned by the Bible, arguing that because death dissolved a marriage and because adultery carried a death sentence in the Law of Moses (Deuteronomy 22:22-24), it was “certain that adultery also [… dissolved] a marriage.” Moreover, as Luther saw it, Jesus had expressly exempted adultery when he forbade married people to divorce each other in Matthew 19:9. Hence, for Luther, it was clear that even a pious Christian could obtain a divorce and marry another if his spouse committed adultery.Footnote 72
However, Luther arguably went even further.Footnote 73 The Catholic Church, as has been mentioned, through its concept of a divine law and its sacramental theology of marriage, had sought to implement Jesus's teachings about marriage in the world and its legal order. Luther broke with this theocratic ideal.Footnote 74 Whereas contemporaneous Catholic thought treated the New Testament passages on the indissoluble character of marriage as divine laws that were binding on the human legislator,Footnote 75 Luther insisted that Jesus had not come as a legislator, but as an instructor of consciences, teaching an inward morality for all those who wanted to live as true Christians.Footnote 76 However, Luther did not think that the human legislator was absolved from all higher laws. He subordinated human laws to the inviolable creation order of God (“oeconomia…, e Deo creata in paradiso”), an institutional natural law that was written on the hearts of people.Footnote 77 Although Jesus's teachings might have contained aspects of this institutional natural law (and as such been binding on the human legislator), it does not seemFootnote 78 that Luther believed this to be the case with His teachings (in Matthew 5:31–32) restraining divorce.
In his exegetical sermon on The Fifth Chapter of St. Matthew, Luther restricted the application of Jesus's exhortation not to divorce except for adultery to those “who lay claim to the name ʽChristian,ʼ” pointing out that “Christ is not functioning here as a lawyer or governor, to set down or prescribe any regulations for outward conduct; but He is functioning as a preacher, to instruct consciences about using the divorce law properly, rather than wickedly and capriciously, contrary to God's commandment.” And Luther expressly gave the secular legislator—who, as Luther well knew, ruled over good and bad Christians alike—the freedom to set a significantly lower (legal) standard. Because “people are as evil as they are,” he remarked, “any other way of governing is impossible. Frequently something must be tolerated even though it is not a good thing to do, to prevent something even worse from happening.”Footnote 79 In short, Luther separated Christ's teachings on divorce from human laws, treating the former as a spiritual lex perfectionis, binding on the true Christian in the internal forum, and the latter as a rudimentary external order that might depart from God's word to prevent greater evil. Lutheran thought would, therefore, seem to imply an institutionally and substantively thoroughly secular system, with both marriage legislation and marriage adjudication in the hands of state authorities who were largely free to rule not by the Gospel, but by reason and common sense.
However, the Lutheran position was complicated by the fact that Luther, at the same time that he denied its sacramental quality, wanted to raise marriage from the “awful disrepute”Footnote 80 into which it had fallen under the Catholic Church's celibate ideal, that is, the church's distinct preference, going back to the church fathers and ultimately Saint Paul, for a life of solitary spiritual contemplation over marriage. This celibate ideal had assumed tangible form in the requirement—enforced through the impediments of orders and vows—that ordained servants of God forego marriage as a condition of ecclesiastical service.Footnote 81 It was also reflected in the church's disapproval of all second marriages, even those that occurred after the death of one's spouse.Footnote 82
Luther did not accept this Catholic hierarchy, which placed celibacy at the top, forbade marriage to the clergy, and discouraged remarriage. He wanted to affirm the good of marriage against the patristic and medieval teaching. Therefore, Luther (probably motivated, in part, by his acceptance of clerical marriageFootnote 83 ) eulogized marriage as “a divine institution,”Footnote 84 a sacred calling instituted by God as the foundation of the family, the noblest and most essential of the three estates (household, church, and state) that God had ordained for the governance of the earthly kingdom.Footnote 85 Although, as Dieter Schwab has pointed out, this spiritual language, for Luther, carried no legal implications and was irrelevant to the attribution of legal authority over marriage,Footnote 86 it was open to misreading by jurists trained in the canon law and accustomed to treating spiritual and temporal as terms with legal significance.Footnote 87 Early reformers, such as the jurist-theologian Philipp Melanchthon (1497–1560), still shared Luther's vision.Footnote 88 However, later Protestant jurisprudence began to neglect the Lutheran distinction between marriage as a temporal concern and as a spiritual estate, and to accord to temporal, earthly marriage a spiritual character.Footnote 89 In the seventeenth century, the conception of marriage as a causa mixta, a part civil, part ecclesiastical entity, became dominant.Footnote 90
Luther's denial of the church's jurisdictional competence, his—at least at firstFootnote 91 —wholesale rejection of the canon law (he famously staged a public bonfire into which he heaved papal-law booksFootnote 92 ), and his almost equally dim view of Roman law, led to a legal vacuum, which made the creation of a new court system and a new law of marriage a matter of urgency. The need to avert impending chaos (in particular, the need to stop the growing practice of self-divorceFootnote 93 ) combined with Luther's equivocal stress on the spiritual dimensions of marriage to favor a (partial) continuation of the old order and blunted Luther's reformist purpose.
Marriage Jurisdiction
Luther's idea had been to adjudicate matrimonial causes in the civil courts: “[c]ontroversies and court cases [respecting marriage] we leave to lawyers.”Footnote 94 Practice (and theory after LutherFootnote 95 ), however, took a different turn. In the early stages of the Reformation, priests were pressed into service, not only as Lutheran counselors, but in a blatantly judicial function.Footnote 96 When this stopgap measure was replaced by a more permanent solution, the choice fell on the establishment of consistories; that is, special courts for matrimonial and other ecclesiastical causes that were part of the state judicial system, but—as a visible manifestation of the growing conception of marriage as a causa mixta—composed of a mixed staff of theologians and jurists.Footnote 97 The Mark Brandenburg provides a typical example. Its Kirchenordnung of 1540, enacted by the elector and margrave Joachim II (1505–71), enjoins priests to refer matrimonial causes to the “ordentlichen consistoria,”Footnote 98 and consistories, composed of lay and clerical officials, were certainly in operation at Cölln on the Spree and in Stendal (Altmark) by the mid-sixteenth century.Footnote 99
Marriage Law
Lutheran thought made the temporal prince responsible for the substance of marriage law, and German princes who joined the Reformation rose to the challenge. However, the abiding conception of marriage as, at least in part, a “spiritual” matter, proved influential here as well. Whereas it did not so much affect whether the territorial prince took it upon himself to regulate marriage, it did affect how and in what spirit he did so.Footnote 100 Therefore, in 1540, Joachim II of Brandenburg was driven to justify his legislative activity with dilatoriness on the part of the emperor and Christian councils:Footnote 101 given their lack of progress, he felt called on, as a “christlich churfurst,” charged with the spiritual welfare (“heil, trost und seligkeit”) of his subjects, to step into the breach and, with the assistance of God-fearing prelates and councilors (“gottforchtiger…prelate und rethe”) to promulgate a Christian church ordinance.Footnote 102 This, as Sehling has noted, established a link with the right to self-help already exercised by territorial princes prior to the Reformation, when those primarily responsible (pope or bishops) failed to act.Footnote 103
Although later enactments were less apologetic about the assertion of legislative power that they implied,Footnote 104 territorial princes of the sixteenth and seventeenth centuries continued to regard themselves as God's vice-regents, charged with the task of enacting laws that conformed to God's will. When dealing with marriage matters, they typically chose the form of Ehe-, Kirchen- and Konsistorialordnungen in preference to the more “worldly” Land- and Stadtrechte and Polizeiordnungen,Footnote 105 and they relied on leading theologians at the drafting stage. The work on the Visitations- und Consistorialordnung enacted by Joachim II's successor, the Elector Johann Georg (1525–96), in 1573, for example, was performed by the Lutheran theologians Andreas Musculus and Georg Coelestin (the latter chiefly known today as the editor of Luther's letters).
Moreover, in the later sixteenth and seventeenth centuries, Protestant jurists and theologians began to insist that human laws must not conflict with the Gospel.Footnote 106 This gradually led to the formation of a Protestant marriage law and legislation that was rooted in (the Protestant interpretation of) the Bible. In particular, in the area of divorce, there was a tendency to treat the New Testament passages on marriage and its dissolution as a binding guide for the human legislator. For example, The Lutheran dogmatician Johann Gerhard (1582–1637), whom his contemporaries regarded as the greatest theologian of his time,Footnote 107 insisted that the secular ruler neither could nor should allow divorce for other reasons than those that had been sanctioned by Christ.Footnote 108 According to Gerhard, Jesus's teachings were an authoritative interpretation of the prima institutio of marriage in Paradise,Footnote 109 a (binding) elaboration of the natural law. Gerhard's view was powerfully echoed by other seventeenth century Lutherans such as the theologian Michael Havemann (1597–1672) and the jurists Benedict Carpzov (1595–1666) and Johann Karl Naeve (1650–1714).Footnote 110 In the century after Luther, Protestant thought in Germany therefore drew near to a position that, as Dieter Schwab has argued,Footnote 111 seemed to be more in line with Calvinism, which places a special emphasis on the realization of Christian values within the world,Footnote 112 than with Luther's original purpose.
Sixteenth and seventeenth century Protestant territories and towns lacked the resources to provide a comprehensive codification of marriage. They usually confined themselves to settling the more hotly disputed points in areas where Protestant doctrine departed from Catholic doctrine. For example, Joachim II's Kirchenordnung of 1540Footnote 113 picks up on the points of controversy, although it fails to deal with them adequately. It contains an exhortation for children to obtain parental consent before marriage (but does not specify the consequences of noncompliance—nullity?—beyond a threat of divine retribution); a rudimentary law of impediments (it is only clear that the impediment of holy orders is gone); and an even more rudimentary law of divorce (consisting in a wholesale reference to the ius divinum). The Visitations- und Consistorialordnung of 1573,Footnote 114 which remained the chief enactment on marriage law in Brandenburg-PrussiaFootnote 115 until the late seventeenth century,Footnote 116 contains a more satisfactoryFootnote 117 treatment of consent and publicity requirements, impediments, and divorce. Some of its provisions will be discussed subsequently.
Still, inevitably, gaps remained. To fill these, jurists and judges could, theoretically, draw on two pre-existing bodies of law: Roman law, in particular in its Christianized Justinian version, or canon law (Germanic marriage law had not yet received much scholarly attention and was not a viable option). Despite Luther's attack on the canon law, Protestant jurists, in the main, became advocates for the restoration of the canon law in Protestant lands.Footnote 118 Professorial and court opinions of the sixteenth and seventeenth centuries drew heavily on canon-law sources.Footnote 119 The first systematic work on marriage produced by Protestant jurisprudence, the Tractatus Matrimonialium Causarum by Melchior Kling (1504–71), a friend of Luther's and his colleague at Wittenberg, is essentially a canon-law textbook that discountenances all authorities for the resolution of marriage cases except the canon law and the New Testament.Footnote 120 (Indeed, the work uncomfortably opposed Kling to Luther as regarded marriage matters, a fact that made itself felt even during Luther's final days at Eisleben.Footnote 121 )
Although clearly an adherent of the new faith, Kling states in his preface that he has based his text on the canon law (“Sum autem in hoc scripto Ius Canonicum secutus”Footnote 122 ), and he also explains why. Although there might be other laws (he lists customary law before and after Moses, Mosaic Law, the New Testament, and Roman lawFootnote 123 ), these—except the New Testament—are wholly inappropriate for his day and age. First, they do not cover many cases (in particular, Mosaic Law does not have much to say about marriage beyond listing certain prohibited degrees); and, second and more importantly, they are wholly repugnant to the Bible, in particular Jesus's teachings on marriage in the New Testament. After all, customary law before and after Moses allowed marriage to one's own sister—a clear violation of Leviticus 18—and polygamy (even marriage to two sisters at once, another violation of Leviticus 18); and Mosaic Law had a liberal divorce law that Jesus expressly condemned in Matthew 19. Roman law, too, allowed many things inimical to the Gospel, such as concubinage, which Scripture considers a mortal sin, and divorce on liberal grounds.Footnote 124 Kling, therefore, preferred to start with the canon law, “which has been received and retained in the Empire to this day,”Footnote 125 and to amend and emend it as the New Testament and Protestant doctrine required (although, in the end, there was little he changedFootnote 126 ).
Gap-filling by canon law was also the practice of choice of the church and consistorial ordinances of the period. Brandenburg's 1540 Kirchenordnung, for example, supplemented its skimpy regulation of marital impediments with a reference to the canon law, “pending further comparison.”Footnote 127 And the Visitations- und Konsistorialordnung of 1573 enjoined the consistories to uphold the traditional canon laws used in matrimonial cases up until now, as modified by the ordinance.Footnote 128 Still, this general upholding of the canon law should not blind one to the fact that the justification for its application had changed. The canon laws persisted, not by papal authority, but as the laws received and retained (“receptae & retentae”Footnote 129 ) as the laws of the land, anciently submitted to and re-enacted (in church ordinances) by temporal rulers, and adopted by legal scholars because of their innate force and quality,Footnote 130 superior to all the various sources (ancient customs, Mosaic Law, and Roman law) that had been processed and partially appropriated in their making. In other words, the continued application of the canon law rested on consuetudo and usus, temporal sanction, and scholarly reception. The canon law was a valuable and systematized “Christian and equitable”Footnote 131 source of law that had to be shorn of its papal excrescences, but could not simply be discarded.
When the dust of the Lutheran Reformation had settled, the substantive law of marriage in Brandenburg-Prussia had assumed the following form (and, as John Witte has remarked, the pattern was typical throughout Protestant GermanyFootnote 132 ).
Formation
Protestant marriage law retained consent (not copula) as the essence of marriage, but it did introduce some innovations. Luther's rejection of the canon-law distinction between future and present consent as semantically confusing and scripturally unwarranted and his proposal to regard any words of consent not expressly conditional as words of present consent constituting a binding marriageFootnote 133 became, after some resistance,Footnote 134 the general Protestant doctrine and practice.Footnote 135 Although this might have made it even easier to find oneself in an ill-considered match, Protestant marriage law's other innovations in this area acted as a curb on matrimonial rashness. The reformers' chief critique of the old formation rules was that they neglected the role of the family and the wider community in marriage formation and promoted clandestine unions, or, in the derogatory German term, Winkelehen. Because he regarded marriage as a divinely instituted public estate, Luther called for formation to be a public act, requiring the consent of father, mother, or those standing in loco parentis, Footnote 136 and the presence of two or three witnesses who could testify to the existence of the marriage.Footnote 137 For the requirement of parental consent, Luther found a clear mandate in Scripture (in the Fourth Commandment enjoining children to honor their parents),Footnote 138 but he also drew on natural law, the ancient canons, and Roman law as well as on reason and natural common sense for justification.Footnote 139 The need for witnesses was perhaps a little harder to justify from ScriptureFootnote 140 (although making marriages more visible was clearly preferable from the point of view of social utility, by making it more difficult for a disaffected spouse to deny the existence of the marriage, to set up the impediment of precontract or to enter into a subsequent bigamous union).
The requirement of parental consent was almost uniformly accepted in sixteenth century Germany.Footnote 141 The Mark Brandenburg's Visitations- und Consistorialordnung of 1573, for example—invoking the Fourth Commandment, the quality of marriage as a public estate, and utility—required the consent of both parentsFootnote 142 (in this respect following Scripture rather than the Roman law, which stipulated paternal consent alone) and, in the absence of parents, the consent of “next friends” and guardians, on pain of nullity.Footnote 143 The 1573 ordinance, like Roman law, limited the consent requirement to children in power (“Personen, so unter ihrer Eltern Blutsfreunde oder Vormunden gehorsam unnd gewalt noch sein”Footnote 144 ). An amendment introduced in 1694 by the Renovirte Constitution, von Verlöbniß und Ehe-Sachen, however, adopted the unadulterated spirit of the Fourth Commandment, and applied the consent requirement to all children, irrespective of their age (with a limited exception for children who already maintained a separate establishment, in particular widows and widowers).Footnote 145 The 1694 ordinance also dropped the earlier rule that the lack of parental consent would be purged by copula.Footnote 146 Protestant marriage law was, however, far from sanctioning unlimited parental rule over the matrimonial choices of children: children clearly had a right of veto and they could challenge their parents' refusal to consent to an unexceptionable union in the consistories.Footnote 147
The legal position on the issue of witnesses was far less clear (perhaps in part a reflection of the fact that there was no clear Scriptural warrant for requiring themFootnote 148 ): church ordinances in the various German territories either required no witnesses at all, required witnesses only in default of parents, or required both parental consent and witnesses.Footnote 149 The 1573 Brandenburg ordinance, for example, required two or three honorable witnesses on either side in default of parents or guardians, and attached the sanction of nullity.Footnote 150 According to Hartwig Dieterich, it was the only ordinance expressly to void unwitnessed spousals.Footnote 151
Impediments
Because the reformers regarded marriage as a highly desirable estate and a necessary remedy against sexual sin (continence being considered a rare giftFootnote 152 ), they believed that it should be widely available. Accordingly, although they retained the old vices of consent,Footnote 153 they swept away many of the traditional physical and spiritual impediments to marriage. Restrictions on those related by blood, family, legal, and spiritual ties were curtailed to what was clearly demanded by God and nature, leading to a more biblically based law of physical impediments. (Luther's repeated proposals for adopting only the slender group of impediments expressly laid down in LeviticusFootnote 154 did not win out, in no small measure because the Mosaic list, which did not even outlaw unions between father and daughter, was considered incompleteFootnote 155 ). The impediment of permanent impotence was retained,Footnote 156 consanguinity and affinity were usually limited to the third or second degree (and made indispensable to the extent that they survived),Footnote 157 and the impediments of public honesty as well as legal and spiritual affinity were discarded.Footnote 158
The reformers also relaxed the impedimentum ligaminis, in that they no longer insisted on absolute proof of death for a remarriage to occur. The 1573 Brandenburg ordinance, for example, allowed a spouse who had no certain knowledge of his or her missing partner's death to apply to the consistory after a 5-year waiting period. The consistory would publish an open edict requiring the missing spouse to return; if the spouse did not return by a certain date, the applicant spouse would be granted permission to remarry.Footnote 159 The reformers also rejected the old spiritual impediments of order, vows, and disparity of cult, as these had been built on the Catholic Church's celibate ideal (orders/vows), and on its sacramental theology of marriage (disparity of cult).Footnote 160 The 1573 Brandenburg ordinance, for example, emphasized that the clergy were not excluded from marriage, because God approved of the married state, and it gave the wives and children of clerics the same legal rights as the families of lay persons.Footnote 161 Luther himself would also have done away with the impediment of crime,Footnote 162 but this position does not seem to have found a unanimous following in practice. Most jurists and court decisions seem to have clung to the canon law, in some cases even widening the scope of the impedimentum criminis to encompass simple (and not, as in canon law, only aggravatedFootnote 163 ) cases of adultery, thus drawing close to (what they took to beFootnote 164 ) the Roman-law position.Footnote 165
Divorce
Finally, Protestant marriage law rejected the Catholic Church's doctrine of divorce; that is, the view that the marriage bond once validly established could not be severed during the lifetime of both spouses, and that “divorce,” accordingly, meant only separation from bed and board. Luther argued that the term divortium, as used in Scripture, meant dissolution of the marriage bond, not simply separation, and that Christ had sanctioned divorce in some circumstances, as was clear from the “except” clauses in Matthew 5:32 and 19:9, and in Saint Paul's ruling in 1 Corinthians 7:15.Footnote 166
Protestant jurists, theologians, and legislators alike unanimously accepted the Lutheran doctrine of “full” divorce (giving the innocent partner the right to remarry). However, as has been discussed, Protestant thought after Luther tendedFootnote 167 to treat the Gospel passages as laws to be rigidly imposed and observed. Accordingly, most church ordinances, the 1573 Brandenburg ordinance among them,Footnote 168 only recognized adultery and malicious desertion as legitimate grounds for divorce,Footnote 169 and even these limited grounds were hedged around by further restrictions.
The 1573 Brandenburg ordinance provides a typical example. It treats divorce, even for adultery, as an (unpalatable) last resort, available only when the (distinctly preferable) reconciliation of the parties has failed; it sanctions divorce on the grounds of desertion only after “one or four years' absence”Footnote 170 without cause, after assiduous attempts by the deserted spouse to win back the deserter, with due notice, and on proof of good and continent conduct throughout by the abandoned party; and although it permits remarriage to the innocent spouse, it stipulates for such remarriages to be modest and quiet affairs, without banns or church ceremony,Footnote 171 and “without all the usual public pomp and circumstance, so that everyone may see that this is not a free, but a less-than-ideal solution to help the innocent partner.”Footnote 172 Research on actual practice suggests that divorces in Protestant Germany were rare.Footnote 173
III. Marriage Law and the English Reformation
England underwent its “Reformation” at approximately the same time as the German territories did, beginning with the sixteenth century Henrician Reformation (1529–36) and consolidating under Elizabeth I (1558–1603) and the early Stuarts at the beginning of the seventeenth century. The English Reformation was, however, very different from the Lutheran one, both in its motivation and in its effects.
The Lutheran Reformation was the product of theological convictions. It was catalyzed by a religious reformer's revolt against a visible hierarchical church and enthusiastically responded to by a number of German princes (who stood to gain from it in their struggle against the pope and the emperor). The English Reformation, on the other hand, was primarily a political movement, triggered by Henry VIII's (1509–47) desire to end his marriage with Catherine of Aragon.Footnote 174 There is little reason to suppose that without Henry's wish to be rid of Catherine (and free for Anne Boleyn) Tudor England would have followed in the wake of Protestant German territories and thrown off its allegiance to the Church of Rome. Although early sixteenth century England—no more than other European territories—was no stranger to smoldering anticlericalism and opposition to ecclesiastical abuses, the English popular reaction to Luther and his proposals was more muted than the response of the German nobility and peasantry.Footnote 175 More importantly, Lutheran thought failed to attract the support of the English secular ruler, Henry VIII, who, far from joining the Protestant bandwagon, penned a book in defense of the seven sacraments, which refuted Luther's attack on Catholic sacramental theology (including the sacramental theology of marriage), and so pleased the pope that he issued a special bull that declared that the book had been written with the help of the Holy Spirit, granted an indulgence to everyone who would read it, and bestowed upon its author the title “Defender of the Faith.”Footnote 176
It was not until the later 1520s that matters were complicated by Henry's desire for a canon-law divortium quoad vinculum; that is, an annulment, of his marriage to Catherine, on the grounds that, as Catherine was the widow of Henry's deceased brother Arthur, Henry's marriage to her was in fact barred by the impediment of affinity. Legally, Henry's case for annulment was not a particularly strong one. The marriage had proceeded under a papal dispensation. A case could have been made that the wrong dispensation was issued (that is, one from the impediment of affinity, rather than from the impediment of public honesty, although the latter would have been the correct dispensation, if, as Catherine claimed, her marriage to Henry's brother had never been consummated). However, this potentially winning argument was not pursued.Footnote 177
Instead, Henry tried to argue that the dispensation was invalid in that the prohibition on marrying one's dead brother's wife was a mandate of the ius divinum and, therefore, beyond the scope of the pope's dispensing power. However, as has been discussed, the Old Testament incest prohibitions were not generally regarded as possessing the character of binding divine laws, and there was ample canon-law precedent for the kind of dispensation that Henry had received. Moreover, even those canonists who agreed with Henry on the unwaivable nature of the prohibition exempted cases in which the brother had died without issue, citing Deuteronomy 25:5. Henry's case was squarely caught by that exception.Footnote 178 Henry's case for annulment was also not a particularly strong one politically, because Pope Clement VII had just surrendered to Catherine's nephew, the Holy Roman Emperor Charles V, who had sacked Rome and whom it would be injudicious for the pope to alienate by ill-treatment of the emperor's aunt.
In the end, nothing remained for Henry, determined as he was to shake off his conjugal bonds, but to shake off papal authority over the kings of England itself. Fortified by reformist tracts and a collection of ancient sources, which suggested that in the past English kings had known no earthly superior,Footnote 179 Henry came to regard himself as a ruler exercising supreme authority over both church and state in England. In a flurry of legislative activity, Henry and his Parliament declared Henry to be the supreme head of the English church; made the enactment of all future canons and constitutions of the church dependent on the king's assent and license; and provided for ecclesiastical cases, expressly including cases of matrimony and divorces, to be finally adjudicated in English courts, stopping all appeals to Rome.Footnote 180
However, Henry was no reformer. As Melanchthon observed in 1535, Henry's concern was with his various marital affairs rather than with reforming the church (or even the canon law of marriage).Footnote 181 Henry believed in “Catholicism without the pope”Footnote 182 and hoped that he could have his reformation without changing one iota of Christian belief.Footnote 183 Accordingly, he tinkered with the canon law only where his matrimonial choices required.Footnote 184 And although the Act for the Submission of the Clergy (1534)Footnote 185 gave the king authority to appoint a thirty-two member commission—composed of sixteen members of the upper and lower houses of Parliament and an equal number of representatives of the clergy—to examine and prune the existing canons and constitutions of the English church, nothing much was done,Footnote 186 a scenario that had been envisaged in the legislation. The same statute that provided for the reform commission specified that until the commission could act, the existing edifice of canon law was to remain in force, at least insofar as was consistent with the laws and customs of the realm and not prejudicial to the king's prerogative. In his final years, Henry might have come personally to a more Protestant stance under the influence of Archbishop Cranmer.Footnote 187 However, marriage had not officially ceased to be a sacrament in England even at the time of Henry's death.Footnote 188
Following Henry's death in 1547, the pendulum swung back and forth under Henry's Protestant son, the child-king Edward VI (1547–53) and Henry's Catholic daughter Mary I (1553–58). Under Edward VI, Protestantism was established for the first time in England. In the early years of the English Reformation under Henry VIII, the people working for reform had still been looking to Wittenberg. However, during Edward's reign, Calvinistic ideas gained a large following in England.Footnote 189 Thomas Cranmer, the Archbishop of Canterbury, invited some leading Franco-Swiss Protestants, notably Peter Martyr and Martin Bucer (both from Strasbourg),Footnote 190 to come to England and join the English Reformation. Martyr and Bucer went on to hold positions as Regius professors of divinity at Oxford and Cambridge, respectively. They appear to have affected the views of Cranmer, and historians have shown that they exerted an influence on the reforms undertaken (or envisaged) during Edward's reign.Footnote 191
Cranmer's (Calvinist) Books of Common Prayer (1549, 1552) introduced systematic liturgical reform. Edward's reign also envisaged doctrinal changes, in particular the abandonment of the sacramental character of marriage, in the Forty-Two Articles of Faith of 1552 (which were never put into action because of the king's untimely death). Although the canon law of marriage was not changed under Edward (beyond the introduction of clerical marriage in 1549Footnote 192 ), there were proposals to reform it that would have been far reaching. The draft Reformatio Legum Ecclesiasticarum (1553),Footnote 193 although preserving ecclesiastical jurisdiction in marriage cases, would have recast the substance of marriage law along Continental reformist lines. It would have annulled clandestine unions, in particular those without parental consent, abolished divortium quoad mensa et thoro, and introduced full divorce on fairly expansive grounds (adultery, desertion,Footnote 194 deadly hostility, and prolonged ill-treatment). However, all hopes of passing the Reformatio died with Edward.Footnote 195 His half-sister Mary wished to be reconciled with Rome. Under her rule, the Henrician and Edwardian innovations were repealed,Footnote 196 and marriage in England was returned to the doctrinal, liturgical, and legal position that it had occupied in 1529.Footnote 197
The pendulum finally came to rest in the center, with Henry's daughter Elizabeth I, who vowed to restore “religion as her father left it.”Footnote 198 The Elizabethan settlement was a theologically Calvinist compromise that combined (a more moderate version of) the liturgical and doctrinal innovations of Edward VI's reign with an almost wholesale continuation of the traditional church system, jurisdiction, and canon law. The Uniformity Act (1559)Footnote 199 reintroduced a substantively Protestant Book of Common Prayer,Footnote 200 and the Thirty-Nine Articles of Religion (1563–71) denied the sacramental quality of marriage.Footnote 201 The Supremacy Act (1559),Footnote 202 however, which re-established royal supremacy over the English church independent of Parliament, re-enacted Henry's Act in Restraint of AppealsFootnote 203 and his Act for the Submission of the Clergy,Footnote 204 and in so doing, affirmed both ecclesiastical jurisdiction over marriage and a virtually unmodified canon law. Moreover, although the sacramental character of marriage was now denied, the Book of Common Prayer of 1559 continued to emphasize its character as “holy matrimony,” which signified the mystical union between Christ and his church.Footnote 205 In fact, the matrimonial service in the Elizabethan prayer book, with some minor changes in wording, followed the UseFootnote 206 of Sarum, which had been the predominant form of liturgy in the pre-Reformation English church.Footnote 207
After engineering this compromise, Elizabeth fought back all attempts by Parliament to encroach on her right, established by the Supremacy Act, to legislate for the church without Parliamentary intervention.Footnote 208 She was determined to maintain exclusive royal control over the church, and she evidently believed that the existing law (enforced by a domesticated bench of bishops) offered her a better chance of doing so than the plans mooted by Puritan reformers.Footnote 209 Elizabeth's politics of continuity were carried forward by her successor James I (1603–25), who, as James VI of Scotland, had experienced Presbyterian innovations at first hand and was understandably not keen on repeating the experiment in England.Footnote 210 He regarded the existing church system as the natural ally of an absolutist monarchy (“No Bishop, no King”Footnote 211 ), and, accordingly, strove to preserve it.
The overall impact of the English Reformation on the church courts' marital jurisdiction and the traditional canon law of marriage can best be gauged by looking at the two chief documents on marriage dating from the Elizabethan and the Jacobean periods: A Treatise of Spousals, or Matrimonial Contracts, a standard textbook—roughly comparable to Melchior Kling's Tractatus Matrimonialium Causarum—written during Elizabeth's reign (but not published until a century later) by Henry Swinburne (1554–1624), an advocate (and ultimately a judge) in the ecclesiastical courts at York;Footnote 212 and the statements concerning marriage contained in the Jacobean Constitutions and Canons Ecclesiastical of 1604.Footnote 213 The Jacobean Canons provided the fullest statement of the English church's administrative and disciplinary regulations since the break with Rome (although such modifications as they introduced frequently had precursors in earlier Elizabethan canons). They would remain the chief legislative pronouncement on marriage until Lord Hardwicke's Marriage Act of the mid-eighteenth century.
Marriage Jurisdiction
Jurisdictionally, in marriage cases, the English Reformation only removed the right to appeal to Rome. As the headship of the English church was transferred from pope to king, appeals, formerly to the pope's curia, would now lie to the king's High Court of Delegates (which was an ad hoc tribunal composed of ecclesiastical and temporal lawyers).Footnote 214 Marriage cases continued to be dealt with in the ecclesiastical tribunals,Footnote 215 as they had been prior to the Reformation, and secular courts, when faced with questions in which the validity of marriage was a preliminary issue (which might happen in property cases), would refer that matter to the ecclesiastical courts.Footnote 216 The only curtailment of ecclesiastical jurisdiction over marriage consisted in the fact that the common-law courts began to issue writs of prohibition, enjoining the proceedings in the ecclesiastical courts, where an annulment was sought after the death of one or both of the spouses.Footnote 217 The justification for this was, apparently, that the only effect of a posthumous declaration of nullity would be to bastardize and disinherit the issue. This, however, would exceed the spiritual courts' duty to act pro salute animae.Footnote 218
As in Protestant Germany, the Reformation did have an effect on staffing. Although, according to Brian Outhwaite, even in the later Middle Ages the judges, proctors, and registrars practicing in the church courts had not always been clerics, but sometimes products of the universities, trained in the canon law,Footnote 219 the Reformation sped up this process toward laicization. Following Henry VIII's suppression of the teaching of canon law in the universities and a 1545 Act making laymen and doctors of the civil law eligible for appointment,Footnote 220 judges in the ecclesiastical courts tended increasingly to be lay lawyers.Footnote 221
Marriage Law
Along with ecclesiastical jurisdiction in marriage cases, post-Reformation England preserved most of the pre-Reformation canon law.Footnote 222 Henry Swinburne's Treatise of Spousals is full of references to leading indigenous and foreign medieval canonists such as Hostiensis, Panormitanus, Henry Boich, and William Lyndwood. He even cites some post-Reformation Catholic canon lawyers such as the Spanish late scholastic Covarruvias, an indication that he regarded himself as standing in an unbroken canonist tradition. Roman law and ancient customs are generally territories into which Swinburne declares that “I will not wade,”Footnote 223 and although he acknowledges Protestant jurists such as Schneidewin, Kling, and Oldendorp—a fact that shows him well aware of the full panoply of continental juristic conversation about marriage—he usually disagrees with them.Footnote 224
Formation
Post-Reformation England preserved Pope Alexander III's twelfth century formation rules wholesale. Until the mid-eighteenth century, it clung to the position that “present and perfect Consent [or future consent followed by copula …] alone maketh Matrimony, without either Publick Solemnization or Carnal Copulation; for neither is the one, nor the other of the Essence of Matrimony, but Consent only,”Footnote 225 leading to the paradoxical position that a central plank of the medieval Catholic canon law of marriage survived in post-Reformation England much longer than it did in the Catholic Church itself. (The Catholic Church discarded Alexander's rules at the Council of Trent [1545–63] and henceforth required the presence of a priest and two additional witnesses for validity.) Clandestine unions that flouted the Book of Common Prayer's vision of proper marriage formation (that is, that marriages should be preceded by banns or license, should take place in a church or chapel at the place where one of the parties lived, between 8 am and noon, during permissible seasons, and, in the case of parties under the age of 21, with parental consent), were frowned upon (just as they had been by the Catholic Church).
The Canons of 1604 threatened ministers who celebrated matrimony without due observation of the Prayer Book rules with 3 years' suspension;Footnote 226 during the Elizabethan reign, disciplinary action was regularly taken against laymen who were present at, or witnessed, such marriages;Footnote 227 sex between the marital partners was forbidden on pain of church penance until they had solemnized their union in church;Footnote 228 and the common-law courts—since at least the time of BractonFootnote 229 —had consistently denied the important property consequences of marriage (that is, application of the spousal-unity doctrine, giving the husband property in the wife's goods and depriving the wife of her contractual and testamentaryFootnote 230 capacity; dower rights), as well as the inheritance rights of issue to marriages that had not been celebrated in facie ecclesiae.Footnote 231 Although English marriage law therefore “by an indirect route…approached the result of the Council of Trent's decree,”Footnote 232 and the innovations of the Lutheran reformers, it signally stopped short of making either publicity or parental consent a requirement for the validity of marriage.Footnote 233
Impediments
The English Reformation did produce one major change. At the time of the Reformation, the opportunity was taken to erect a simpler law of impediments more nearly based on Scripture. The innovations in this field strongly resembled those of the Lutherans. A marriage would be voided by the traditional vices of consent and by an attenuated array of physical bars. Impotence, consanguinity, and affinity were retained, with consanguinity and affinity cut down to the degrees illustrativelyFootnote 234 set out in Leviticus and clarified by a table published by Archbishop Parker in 1563.Footnote 235 The impediments of legal and spiritual affinity and public honesty were discarded.Footnote 236 The religious impediments (orders, vows, crime, and disparity of cult), too, fell with the Reformation.Footnote 237 However, clerical marriage remained controversial in England until the seventeenth century.Footnote 238
Unlike the Lutheran reformers, the English did not relax the impedimentum ligaminis. As in pre-Reformation times, the spouses of missing persons could safely remarry only if they had absolute proof of their partners' death. Although the 1603 Bigamy Act,Footnote 239 which added to the traditional church sanctions by making bigamy a temporal crime punishable by death, exempted cases in which the remarriage occurred after the offender's spouse had been missing for 7 years (s. 2), the statute was not read to allow such remarriages. Rather, the civilians read it to remove only the death penalty,Footnote 240 holding that “‘in other respects the ius commune [… was] still in force.ʼˮFootnote 241
Divorce
Post-Reformation England retained the classical canon-law doctrine of divorce. Its church courts continued to grant a divorce from the bond of matrimony (quoad vinculum) only if the putative marriage had been void from the beginning by reason of a diriment impediment. There was no right of remarriage of either party after a judicial separation for adultery, heresy, or cruelty, a fact unequivocally spelt out by the Canons of 1604.Footnote 242 Ecclesiastical judges began to include express prohibitions of second marriages in formal sentences of separation (the 1604 Canons even exhorted them, on pain of suspension from office, to require the parties to post bonds not to remarryFootnote 243 ), and they consciously avoided the misleading word “divorce” in their separation orders.Footnote 244 With the traditional canon-law escape route from an unhappy marriage; that is, annulment for a diriment impediment, narrowed by an attenuated array of marital bars, the overall effect of the English Reformation was, if anything, to tighten rather than to slacken the bonds of matrimony.Footnote 245
IV. Marriage and the Reformation: An Assessment
When assessing the importance of the Lutheran and the English Reformations for the secularization of marriage, it is helpful to distinguish between their immediate and tangible consequences (that is, the legal effects I detailed in Sections II and III) and their wider, largely intellectual and hence less “visible” implications.
The Reformation's Immediate Consequences
Taking a bird's-eye view, the most dramatic shift in the triangular relationship among spouses, church, and state brought about by the Reformation—in both its Lutheran and its English versions—is on what I have termed “the institutional side.” The Reformation unequivocally made the temporal ruler, rather than the pope, the ultimate locus of jurisdictional and legislative authority over marriage.Footnote 246 This shift appears dramatic. It is, however, a shift that even Catholic countries proved capable of under the influence of seventeenth century regalist doctrine.Footnote 247 Moreover, the ascription of exclusive jurisdictional and legislative competence over marriage to the secular sphere did not have the effect of removing marriage from church influence, either jurisdictionally or substantively.
As has been discussed, England preserved ecclesiastical jurisdiction in matrimonial causes wholesale (there was more lay involvement, but, at least according to some medievalists,Footnote 248 this laicizing and professionalizing move had been underway since pre-Reformation times), and Brandenburg-Prussia's consistories, with their mixed membership of clerics and laymen, reflected a similar reluctance to incorporate marriage within the secular court system. What is true of marriage jurisdiction was also true of marriage legislation. In both Prussia and England, the new marriage laws did not take the form of downright secular enactments. Rather, marriage was dealt with in Kirchen- and Konsistorialordnungen and in ecclesiastical canons, respectively, and the drafting was usually masterminded by clerics. Perhaps as a result, large planks of the traditional canon law survived.
This is not to deny that substantive marriage law, more so in Brandenburg-Prussia than in England, did change, but was this substantive change really a change toward greater secularization? I shall look at the innovations in turn.
Brandenburg-Prussia abandoned the canon-law rule—laid down by Pope Alexander III—that marriage was formed by the spouses' present consent alone. But it is already difficult to see that Alexander's twelfth century formation rules were somehow “nonsecular” or “spiritual” rules. Although an argument can be made that the doctrine of formation by consent alone was intimately connected to the Catholic Church's sacramental theology of marriage (in that “a theology that sees in marriage a sign of the mutual yearning of the soul for God and of God for the soul would tend to emphasize…the element of choice in marriage, and would tend to exclude the choice of anyone else”Footnote 249 ), the “consent-alone” doctrine was also the rule of some secular societies, such as the Roman one at the beginning of the Christian era,Footnote 250 and it was a rule that would later be abandoned by the Catholic Church itself (significantly, without the church at the same time abandoning the sacramental theology of marriage).Footnote 251 Arguably, the chief effect of Christianity and of sacramental theology on marriage formation had been not that spousal consent became the only requirement for a valid marriage, but that it became a necessary one. The church classed the absence and the vices of consent (e.g., force, fear) as marital impediments resting on divine lawFootnote 252 and, therefore, put a stop to a custom of the pre-Christian Germanic peoples that an older generation of legal historians has called Kaufehe or bride purchase.Footnote 253 Alexander III may have adopted his “consent-only” rule for the pragmatic reason that he had no real choice.Footnote 254 The institutional setting of the church in Alexander's time was precarious, as both exclusive jurisdiction and intimate involvement of the church in marriage cases were relatively recent innovations. Accordingly, “[a]ny attempt to impose a common form of marriage ceremony on the universal Church of this time would probably have been doomed to failure, and such a failure could well have meant the loss of jurisdiction.”Footnote 255 These prudential considerations having largely lost their force by the time of the Council of Trent, the Catholic Church began to require more than consent and insisted upon the presence of a priest and two witnesses for a valid marriage.
More importantly, it is difficult to see that the Lutheran innovations were more secular than the formation rules they replaced. The requirement of parental consent had a clear warrant in the Fourth Commandment, and whereas the scriptural argument was not the only one the reformers advanced, it was certainly a central one. The requirement of witnesses was perhaps less easy to confirm with Scripture (which did not, however, stop the Catholic Church from demanding witnesses by the Council of Trent's Decree Tametsi), and witnesses were accordingly not uniformly required in Protestant Germany. Brandenburg-Prussia, as has been discussed, appears to have been the only territory expressly to invalidate unwitnessed spousals.
The canon law of marital impediments, although arguably more scripturally based than the formation rules, was attacked and reformed precisely because it went beyond what could be backed up by Scripture. The aim and effect of the Lutheran and English reforms in this area was to adopt a more biblically based law of impediments, pruned of unwarranted and, in the truest sense of the word, “dispensable” obstacles, which, in Luther's caustic phrase, seemed “to have sprung into existence for the sole purpose of serving…as snares for taking money and as nets for catching souls.”Footnote 256
Finally, the introduction of full divorce in Lutheran territories, although representing a major break with canon-law tradition, was biblically based, resting on a different theological interpretation of the except clauses in Matthew 5:32 and 19:9. Lutheran thought took these limitations literally as meaning that under some circumstances, of which adultery was one, divorce with subsequent remarriage by the innocent spouse was scripturally permissible. It is true that Luther himself seems to have gone further, by treating the Gospel teachings as a spiritual lex perfectionis that bound the pious Christian, but not the secular legislator. However, this distinction was not maintained in later Protestant thought and legal practice. Rather, as has been discussed, Protestant theologians and jurists in the century after Luther tended to treat the Gospel passages as divine decrees to be rigidly observed, and most church ordinances, the Brandenburg-Prussian ones among them,Footnote 257 recognized only adultery and desertion as legitimate grounds for divorce. The divorce law introduced in Protestant German territories, therefore, seems no more secular, substantively, than the canon-law doctrine of marital indissolubility that it replaced.
What remains is that the “architect” behind marriage law and behind continued church involvement in marital jurisdiction in post-Reformation Lutheran Germany and in England was the secular ruler. Scripturally based innovations, the canon law, and ecclesiastical jurisdiction were introduced or retained, as the case may be, on the temporal ruler's orders or because of that ruler's (express or tacit) assent. Marriage law and marriage jurisdiction therefore seem, ultimately, “state-derived” and, therefore, by implication, secular.
This appearance is deceptive, however. For a start, the continued institutional involvement of the church was arguably not grounded in a secular principle, to wit: the temporal ruler's unconstrained choice, at least not exclusively (although administrative convenience may, admittedly, have played a role). In Germany, there was a strong notion that marriage was a causa mixta, and a plausible argument can be made that this notion actually mandated the state to cooperate with the church in regulating marriage.
More importantly, the Reformation did not liberate the temporal ruler from Christian maxims in substantive dealings with marriage. Luther certainly did not invite the secular prince to devise a marriage law in conflict with the New Testament teachingsFootnote 258 (although I argue that he would have allowed him to). And according to his collaborator and intellectual leader of the Reformation Philipp Melanchthon, the function of the Protestant state was to propagate the Christian faith.Footnote 259 As has been discussed, sixteenth and early seventeenth century Lutheran princes regarded themselves as Christian rulers who were bound to fulfill their Melanchthonian mission.
The Reformation also did not do away with the notion of a higher-order law, which predetermined the permissible content of human marriage legislation, at least in part. Although Luther treated the Gospel as a spiritual lex perfectionis, which did not absolutely bind the secular government, even he did not completely absolve the temporal ruler from the observance of all higher laws. As we have seen, Luther acknowledged the existence of an institutional natural law, although it is open to interpretation how much of a restriction this law imposed for him. As the German Reformation acquired an increasingly theocratic inflection over the course of the sixteenth and seventeenth centuries, the articulation of the limits the divine law imposed on the temporal ruler's legislative powers, especially in the area of divorce, became more and more pronounced. In a strange historical dialectic, the Lutheran Reformation may therefore be said to have led, not so much to a secularization of the spiritual sphere, as to what Harold Berman has described as a “spiritualization of the role of secular authorities [… and] of secular law;”Footnote 260 that is, to a scripturally based marriage law guaranteed and guarded by the territorial prince. Gerhard Dilcher has claimed, in my opinion persuasively, that the aftermath of the Lutheran Reformation represented the time of the most perfect hegemony of a spiritual law of marriage.Footnote 261
One might even make the—at first sight paradoxical—argument that post-Reformation marriage law in England, although it retained ecclesiastical jurisdiction over marriage wholesale and almost all of the traditional canon law of marriage, was perhaps more secular, more baldly state-derived than its German counterpart. The English Reformation had, at least initially, been driven more by political desires and less by theological convictions. As a result, the continued application of traditional canon-law norms in England formally depended, not on whether these could be squared with Scripture as interpreted in the light of Protestant (or more specifically Calvinist) doctrine as was the case in Lutheran Germany, but on whether they had been in force at the time of the Reformation, were not prejudicial to the king's prerogative, and were not repugnant to the laws and statutes of the English realm.Footnote 262
Likewise, the justification adduced for retaining ecclesiastical jurisdiction in matrimonial causes was not so much that marriage belonged in the ecclesiastical forum because of its (part-) spiritual character, but simply that “by the kinges Ecclesiasticall lawes [… these cases were to be] determined in the kinges Ecclesiasticall courtes.”Footnote 263 Finally, according to John Witte, post-Reformation England adopted a new rationale for maintaining the traditional canon law of marriage that was—at least in part—political. Witte has argued that Anglican thought replaced the Catholic sacramental model with a commonwealth model of marriage that regarded the traditional structure of the domestic commonwealth as “the best guarantee of order within the broader commonwealths of church and state.ˮFootnote 264
Of course, not too much should be made of these differences. The first two may be merely linguistic. Prussian rulers grew more assertive about their assumption of legislative authority as time wore on, just as post-Reformation English rulers, in particular in the Book of Common Prayer, continued to emphasize the spiritual dimensions of marriage,Footnote 265 and the commonwealth model's conceptual link between the family and the polity was hardly unique to early modern England.Footnote 266 Moreover, as Witte notes, the commonwealth model was not a secular one, but “rooted in the Bible and natural law.”Footnote 267 For all of these reasons, I do not wish to make the case that the English Reformation secularized English marriage law. All I am suggesting is that, perhaps because the English Reformation was, at least in its inception, less of a religious movement than the Lutheran one, its formulation of the Christian duties of, and limitations on, the secular ruler with regard to marriage may have been a little less clear.
In sum, although they denied the sacramental quality of marriage (and the legislative and jurisdictional claims of the church that flowed from it), the reformers upheld the spiritual dimensions of marriage, the Christian duties of the temporal prince, and the existence of a higher-order divine law. As a result, in neither Germany nor England, did the immediate practical outcome of the Reformation constitute a major advance toward secularization, either institutionally or substantively. On the institutional side, church officials continued to be heavily involved in marriage legislation and adjudication and their continued involvement was not founded on an exclusively secular principle. On the substantive side, the law of marriage continued to be shaped by theological teachings, which functioned as both a legislative vision and a higher-order law. For all the differences between church and state control over marriage, this was still a decidedly Christian world, with both England and Germany maintaining and enforcing oft stringent, religiously inspired establishments.
The Reformation's Wider Implications
The Reformation did not just lead to the break-up of a unitary Christian conception and law of marriage. It shattered the unity of Christendom and replaced it with a plethora of options in terms of religious ideology, faith, and practice. Luther's example allowed other, more radical, reformers (such as Calvin and Zwingli as well as Baptist and Anabaptist prophets) to come forward. The embattled Catholic Church, for its part, inaugurated a “Counter-Reformation” at the Council of Trent (1545–63), which restated the central tenets of the Roman Catholic faith and rejected all compromise with the Protestants. As a result, absolutist religious beliefs confronted each other, and Europe was plunged into what has been described as “the greatest intellectual and spiritual crisis it had experienced since the Christianization of the Roman Empire.”Footnote 268
The first fruit of this crisis of uncertainty was religious fanaticism. “Internal doubts could only be appeased by the most ferocious treatment of those who disagreed.”Footnote 269 As religion became an ingredient in all social and political controversies, political struggles tended to expand into civil, religious, and, ultimately, international wars. Accordingly, in history books, the chapter on “The Reformation” is followed by that on “The Wars of Religion” and, finally, that on “The Thirty Years' War (1618–48),” which began as a rebellion of a privileged group for both political and religious reasons, widened into a struggle between the emperor and the estates of the Holy Roman Empire, and eventually involved nearly all European powers, although the Protestant–Catholic antagonism remained the basic determinant.Footnote 270 Similarly, in the genesis of the English Civil War (1642–51), political causes—Charles I's (1625–49) high-handed neglect of Parliament and unpopular attempts to raise money—combined with religious grievances to produce an ultimately explosive and murderous mixture.
The second, more remote fruit of the Reformation-induced crisis of uncertainty was a deep longing for an end to religious strife and a return to order. Politically, the Peace of Westphalia (1648) concluded the Thirty Years' War and established a new constitutional framework for the Holy Roman Empire. The Treaty guaranteed the three main Christian denominations (Catholicism, Lutheranism, Calvinism) the same legal status and reaffirmed the territorial prince's right, already recognized by the Peace of Augsburg (1555), to determine the public practice of religion within his territory (with dissidents protected by a ius emigrandi). In other words, the Peace of Westphalia established a new political system for central Europe that was based upon the concept of “confessionalized” sovereign states. “Western Christendom was transformed from a society of plural secular polities within a single ecclesiastical state into a society of plural Christian confessions, each identified politically with one or more particular secular states.”Footnote 271
The seventeenth century search for stability and harmony, which found political expression in the Peace of Westphalia, made itself felt in the intellectual domain as well. Although the intellectual link between the Reformation and secularization is perhaps not as strong and immediate as has been claimed by the historian C. John Sommerville, who contends that Protestantism led to dissent, which led to relativism, and, ultimately, to atheism,Footnote 272 the aftermath of the Reformation certainly did prove uniquely fertile ground for attempts to replace appeals to divisive religious principles, to an (unprovable) “natural” moral order dictated by God, and to tradition with a pan-European nonconfessional basis of social harmony and political order grounded in reason and empirical proof. Argumentative resort to established (religious) authorities and received opinion was eroded. Nothing but “solid reason” would do to legitimate the current (or desirable future) state of political and social organization. A man such as Thomas Hobbes, eager to convince his fellow English of the “rightness” of absolute monarchy, disdained to appeal to God, the Bible, the ancients or tradition: “although,” he wrote, “these do hold forth monarchy as the more eminent to us, yet because they do so by examples and testimonies, and not by solid reason, we will pass them over.”Footnote 273
As political and legal thinkers of the century after the Reformation began to reconsider the legitimacy and the terms of all human relationships—from relationships between individuals, to those between the governed and their governors, and, ultimately, to those between sovereign states—along rational lines, it was inevitable that marriage, as a basic human relationship, should be caught up in the debate, and it was perhaps equally inevitable that it should be transformed by it. A number of seventeenth and early eighteenth century writers (John Locke, Samuel von Pufendorf, and Christian Thomasius, to name but three) developed natural-law accounts of marriage that were “modern” in the sense that they were cognitively separate from the Bible.Footnote 274
As they began to think about marriage on the basis of reason alone, divorced—an apt word—from any specifically religious ideas, these authors found that what had previously been immutable fixtures (such as monogamy and limited dissolubility) were in fact matters on the necessity of which human reason could not finally pronounce. Before long, jurists, particularly on the German-speaking Continent, were not just cognitively separating reason and the Bible, but denying the binding quality of biblical teachings altogether.Footnote 275 This basically eliminated all supra-positive guidelines for (and binding limits on) human marriage legislation. Secular rulers were left, at least potentially, with considerably more control over marriage than they had had before the Reformation (even in Catholic lands, if to a lesser extent). It was some time before Prussian rulers acted on this newfound freedom,Footnote 276 and even longer before English rulers did.Footnote 277 However, in both countries, the state would eventually extend its reach beyond the property consequences of marriage, which it had controlled since before the Reformation. It would reclaim control of the entire marital relation, and it would refashion all aspects of it.
