Читать книгу A History of Matrimonial Institutions (Vol. 1-3) - George Elliott Howard - Страница 44

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In its practical results, therefore, the Reformation had little effect on law and theory as to the form of wedlock. For England it had no significance at all; and the same is true of Germany, except so far as Luther's view of the sponsalia may have found some expression in legislation and judicial decree. With respect to the nature of marriage the case is very different. The dogma of its sacramental character was abandoned throughout the Protestant world.[1214] In its place a new conception arose; and it is very instructive to trace the process of change in the mind of Luther himself.[1215] As late as 1519 he declares that "the marriage state is a sacrament," an outward "symbol of the greatest, holiest, noblest, most worthy thing that has ever existed or can exist: the union of the divine and human natures in Christ;"[1216] and this symbol he explains entirely in harmony with the "dogmatism of the Middle Ages, notably that of St. Thomas Aquinas, who sought the motive of marriage sacrament in legalization of the sensual impulse."[1217] In the very next year, however, and again in 1539, he expresses himself decisively against the ancient Catholic doctrine.[1218] Nevertheless in his various attempts to define the matrimonial state an apparent contradiction is presented which is hard to reconcile, and which is of great significance in the long struggle for the instituting of civil marriage. On the one hand, though not technically a sacrament, marriage is described as holy, a "most spiritual" status, "ordained and founded" by God himself. It is the source of domestic and public government, the foundation of human society, which without it would "fall to pieces."[1219] So holy is the state of matrimony, in Luther's conception, that he must perforce still use the term "sacrament" to convey his meaning.[1220] On the other hand, his writings contain passages of a very different tenor. "So many lands, so many customs, runs the common saying. Therefore since weddings and matrimony are a temporal business, it becomes us clerks and servants of the church to order or rule nothing therein, but to leave to each city and state its own usages and customs in this regard."[1221] Elsewhere, in words which anticipate the sentiment of Milton by a hundred years, he insists that "matrimonial questions do not touch the conscience, but belong to the temporal power," warning the clergy not to meddle with them unless commanded by that authority.[1222] Marriage, he emphatically declares, is a "temporal, worldly thing" which "does not concern the church."[1223]

Thus Luther provided the arsenal from which both the friends and the foes of civil marriage drew their weapons. His name, says Friedberg, became the "battle-cry," the "shield and mantle," of the contending factions; and while urging that Luther must be regarded as the champion of marriage as a "worldly thing," the same writer points out the two powerful motives which may in large measure account for this apparent contradiction.[1224] First, the evils growing out of the ecclesiastical jurisdiction in matrimonial causes were becoming an intolerable burden to Christendom; and only by denying the sacramental nature of marriage could the way be cleared for a transfer of that jurisdiction to the secular courts. Secondly, the abuses connected with sacerdotal celibacy were scarcely less threatening. The licentiousness of the clergy was "beyond belief." Many "bishops were at last content to convert the vows of celibacy into sources of revenue, suffering the clergy to live in concubinage in return for a yearly tax;"[1225] and yet the "ill preserved chastity of the priesthood was interpenetrated then as before by a profound contempt for the marriage state."[1226] Hence Luther proclaimed the natural and scriptural right of priests to marry; and rejecting the low ascetic ideal he laid stress on the purity and holiness of marriage as an institution ordained of heaven.[1227] But, after all, this doctrine is not so entirely out of harmony with the view that matrimony is a "worldly thing;" for with the Reformation a new conception of the temporal power arose. During the Middle Ages the contrast was not between church and state, as the latter is now understood; but between the "unholy world and the holy church." Hence the state, because it was comprehended under the conception of the world, "partook of its unholiness. The Reformation formulated the antithesis differently. It released the state from its shell of 'worldliness,' ascribed to it ethical tendencies, and made it the bearer of morality. Formerly the state was unholy, because it belonged to the world; now the world became ethical, because it fell within the sphere of the state, for the state itself was moral."[1228] Thus, in the sixteenth century, the conception of the "Christian state" and of the "Christian prince," to which Erasmus gave such fine expression, became thoroughly established.[1229] Theoretically church and state were kept apart; but practically they were united; for the idea of a "state church" no longer gave a shock to the religious sense. Accordingly the king as the Lord's anointed became the defender of the faith and the source of ecclesiastical authority.

With Luther's teachings regarding the nature of marriage the German Protestant leaders were mainly agreed.[1230] In his reaction against celibacy and asceticism, however, he went to an extreme where all could not follow him. There were doubtless many persons attached to the new doctrines who were inclined to tolerate or sanction concubinage and even polygamy.[1231] But the "double marriage" of the landgrave of Hesse, which was sanctioned by Luther, Melanchthon, and Bucer, created a scandal for which the majority were not willing to be held responsible. Indeed, from the tone of the decision of Luther and his colleagues it seems clear that they were conscious of treading on dangerous ground.[1232] Regarding another important point the Reformers were not entirely in harmony. The abuses arising in the complex law relating to forbidden degrees and the other canonical impediments, it was felt, ought to be remedied. But there was much divergence of opinion as to the "exact content of the reform needed and even as to the principle which ought to be followed. Should simply a return be made to the Mosaic or to the Roman law?" Or should the canon law be retained with certain modifications?[1233] All were agreed that the hindrance of spiritual kinship must be absolutely abandoned; and there was a tendency to allow intermarriage within the third degree of affinity and consanguinity.[1234] But there was much diversity in legislation and judicial practice, the rules of the Levitical code being followed with varied interpretations.[1235] By the old Protestant law and doctrine, as well as by the rule of the mother church, disparitas cultus, or difference of religious faith, was regarded as an impediment to wedlock. Marriages between Christians and non-Christians were positively forbidden.[1236] In like spirit, unions between adherents of different Christian confessions were either entirely prohibited or else severely discouraged.[1237] Such intolerance was sure to produce the natural bitter fruit; and the controversy over these "mixed marriages" has perpetuated itself to our own times.[1238]

In England as well as in Germany the law and judicature of the church rested on the sanction of the state.[1239] This is the fundamental fact in the history of the English revolt from Rome. But, owing to the peculiar circumstances of that revolt, the investiture of the king with the headship of the church was very unfortunate. Henry VIII. clung to the old doctrines. A stumbling-block was thus placed in the way of intellectual and spiritual progress which in the end cost a second revolution to remove. The effects of this unlucky settlement are plainly discernible in the ecclesiastical conception of marriage. If the teachings of the fathers of the English church[1240] be examined for the period between the death of Wolsey and the death of Elizabeth, it will be found that they are less bold, showing more of the spirit of compromise with the mediæval doctrines, than are those of Luther and his immediate followers on the continent. Not a single clear voice, apparently, is raised for civil marriage. Technically matrimony as a sacrament is rejected by all,[1241] though its sacramental nature was first definitely denied by the church in the Thirty-nine Articles of 1552.[1242] It is, however, something more than a mere civil status. It is, declares Fulke, "nothing else but a devilish slander to say that we 'esteem it but in respect of the flesh, or for a civil contract.'"[1243] Tyndale calls matrimony "a similitude of the kingdom of heaven;"[1244] and in general it is held to be a holy institution, "ordained by God himself in Paradise."[1245] It represents the union of Christ and the church;[1246] and it is "pure," "dignified," and "honorable" for all men.[1247] Hence the natural and scriptural right of priests to marry is vindicated;[1248] and, following St. Paul, the forbidding of them to marry is called a "doctrine of devils."[1249]

Still the new teaching did not at once find expression in the law of the land. Under its influence, at the beginning of the Reformation, some of the clergy, notably Archbishop Cranmer, married; but Henry VIII. tenaciously clung to the doctrine of clerical celibacy and issued several proclamations against the marriage of priests.[1250] Thus in 1535 "his majestie understanding that a few number of this his realme being priests, as well religious as other, have taken wives, and married themselves," and not wishing the "generalitie of the clergy" to follow their example, doth command all such priests "as have attempted marriages" or shall "hereafter presumptuously proceed in the same, that they nor any of them shall minister any sacrament or other ministry mysticall, nor have any office, dignity, cure, privilege, profitt or commoditye heretofore accustomed, and belonging to the clergie of this realme, but shall utterly after such marriages be expelled and deprived from the same, and be had and reputed as lay persons, to all purposes and intents. And that such as shall after this proclamation ... take wives, and be married, shall run in his grace's indignation, and suffer further punishment and imprisonment at his grace's will and pleasure."[1251] Proclamations[1252] of like nature were later enacted; and finally the six-articles law of 1539 provided that all marriages or matrimonial contracts, made by priests or between a man and a woman either of whom has vowed chastity, before or during "this present parliament," shall "be utterly void and of none effect;" while any future transgression is to be punished as felony.[1253] Nevertheless Cranmer was allowed to retain his wife; and through his influence the penalties prescribed by the six-articles act were somewhat modified in 1540.[1254]

Under Edward VI. the doctrine of the Reformation gained a victory. The six-articles law was repealed in 1547.[1255] In the same year the lower house of convocation prayed "that all provisions against clerical marriages might be set aside and all vows of chastity pronounced void."[1256] Accordingly by 2 and 3 Edward VI. (1548), c. 21, the obstacles to such unions were formally swept away on grounds of expediency; though the act sanctions the ancient prejudice by declaring that "it were not only better for the estimation of priests, and other ministers in the Church of God, to live chaste, sole, and separate from the company of women and the bond of marriage, but also thereby they might the better intend to the administration of the gospel, and be less intricated and troubled with the charge of household, being free and unburdened from the care and cost of finding wife and children, and that it were most to be wished that they would willingly endeavour themselves to a perpetual chastity."[1257] This clause was explained by the act of 5 and 6 Edward VI. (1551-52), c. 12, "as meaning not simply that the marriages in question were exempt from punishment, but that they were good and lawful marriages, the offspring of which were legitimate and could inherit in the usual way, and that priests might be tenants by courtesy on the death of their wives, and wives endowable of their lands."[1258]

After the accession of Mary, a royal ordinance again prescribed celibacy as the condition of holding priestly office.[1259] The matrimonial laws of Edward's reign were repealed;[1260] and it is significant of Elizabeth's conservative position on religious questions that those enactments were not restored on her coming to power. She was shocked at the marriage of priests and was very reluctant to sanction it by statute. "The Queen's majesty," writes Sandys to Parker in 1559, "will wink at it but not stablish it by law, which is nothing else but to bastard our children;"[1261] and two years later, according to Cecil, "her majesty continueth very evil affected to the state of matrimony in the clergy. And if [I] were not therein very stiff," she "would utterly and openly condemn and forbid it."[1262] Yet already by her first Injunctions, 1559, she had grudgingly given her consent to clerical marriage, though it was hampered by severe conditions. "It is thought therefore very necessary, that no manner of priest or deacon shall hereafter take to his wife any manner of woman without the advice and allowance first had upon good examination by the bishop of the same diocese, and two justices of the peace of the same shire, dwelling next to the place, where the same woman hath made her most abode before her marriage; nor without the good will of the parents of the said woman, if she have any living, or two of the next of her kinsfolk, or, for lack of knowledge of such, of her master or mistress, where she serveth." If "any shall do otherwise," he is forbidden to administer either the "word" or the "sacraments," and is declared incapable of "any ecclesiastical benefice." The marriage of a bishop is allowed only on approval of the "metropolitan of the province" and of "such commissioners" as the queen may appoint; while the master, dean, or head of a college must obtain the consent of those to whom the right of visitation belongs, who shall provide that the marriage "tend not to the hindrance of their house."[1263] Two years later "the queen further ordained that, upon pain of forfeiting his office, no head or member of any college or cathedral church should have his wife or other woman within the precincts,"[1264] and "in the thirty-nine articles of 1563 the marriage of the clergy was recognized as permissible."[1265] Still throughout the reign of Elizabeth, apparently, clerical marriages continued to be resisted; for "in the Millenary Petition addressed by the Puritans to James I. at his accession, among other requests was one for the restoration of the laws of Edward VI. as to the marriage of priests.[1266] That restoration and, consequently, the repeal of the obstructing act of Mary were accomplished" in 1603.[1267]

In fact, the primitive ascetic ideal was by no means utterly extinct among the Protestant theologians of the Tudor period. Some, like Latimer, Fulke, and Hutchinson, insist that matrimony is inferior to virginity;[1268] and very generally it is still held to be ordained of heaven, especially as a "remedy" for sin, though more worthy motives are admitted. According to Bradford, God "has made womankind, and ordained the state of matrimony," "not only for the help and community of man, but also for a remedy of man's infirmity."[1269] Bullinger assigns the usual three reasons "for which God hath ordained marriage for men to embrace." The "first cause why wedlock was instituted is man's commodity, that thereby the life of man might be the pleasanter and more commodious; for Adam seemed not to live half happily nor sweetly enough, unless he had a wife to join himself unto; which wife is not in the scriptures called an impediment or necessary evil, as certain poets and beastly men who hated women have foolishly jangled."[1270] The "second cause is the begetting of children for the preservation of mankind;" and the third is to provide a safeguard against the weakness of the flesh.[1271]

Thus the change effected by the religious revolution in the conception of marriage, highly important as it was from a speculative point of view, was not destined to bear its proper fruit until after many days. In Germany, after a time, the bolder and more liberal teachings of Luther were generally ignored; so that by the middle of the seventeenth century the reactionary theories which had then gained ascendency were substantially in harmony with the ideas of the English clergy. In both countries the ecclesiastical courts still continued to try matrimonial causes in the spirit of the canon law; and more and more, as the new churches grew in power and became conservative, did the theological view of the nature of marriage approach the ancient dogma. "According to the canon law, the church claimed matrimonial jurisdiction because marriage was a sacrament; by the Protestants marriage was made almost a sacrament because the church exercised matrimonial jurisdiction."[1272] Not until the full triumph of civil marriage in the nineteenth century were the logical results of the new doctrines at last attained.