Читать книгу A History of Matrimonial Institutions (Vol. 1-3) - George Elliott Howard - Страница 47

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It was not until the middle of the seventeenth century that the ideas of the early German[1280] Reformation relating to the temporal nature of marriage gained ascendancy in England, and then only for the brief period of the Commonwealth. Yet the civil-marriage act of 1653 is of extraordinary historical interest, not only as an example of the statesmanship of Cromwell, so often anticipating the reforms of our own age, but especially as being mainly the result of the revolt of the Puritans, more particularly of the Independents, against the unnatural union of church and state produced by the compromise of the sixteenth century, and of their intense hatred of the formalism and ceremonial of the "Romanizing" party in the established church. The act is of special significance for our present purpose, since it reveals the conceptions which shaped the matrimonial laws of New England. Paradoxical as it may at first glance appear, it cannot be doubted that the first establishment of obligatory civil marriage in England owes its origin chiefly to the desire of an intensely religious party to separate all things worldly from the functions of the clergy and the church.[1281] True, a foreign people, closely related by blood and speech, with whom England had long had intimate relations and to whom the Puritans were drawn through sympathy with their heroic resistance to ecclesiastical oppression, had already provided a model, which may have had a certain influence. For in the Netherlands, on April 1, 1580, after the independence from Spain had been declared, the provinces of Holland and West Friesland had established a civil-marriage form, permissively even for the members of the Reformed church; and in principle this was adopted by the States General for the United Provinces in 1656, three years after the appearance of the English statute under consideration.[1282]

Familiar as many Englishmen probably were with Dutch institutions,[1283] and close as had been the relations of Dutch and English Puritans,[1284] so important an event as the introduction of civil marriage can hardly be due primarily to imitation. Though Holland may have provided a model, it must be essentially the product of English religious history. Already in the reign of Elizabeth there are signs of discontent with the established ritual and with the quasi-sacramental character of marriage as conceived by the Anglican clergy. Especially obnoxious to the Protestant non-conformists, as appears from the well-known controversy between Whitgift and Thomas Cartwright, leader of the English Presbyterian party, are the use of the ring, the "worshipping" of the bride by the bridegroom, requiring the newly married pair to partake of the communion, and certain customs popularly connected with the wedding celebration, but not enjoined by the liturgy. "As for matrimony," runs a passage in the celebrated Admonition to the Parliament, published in 1572, "that also hath corruptions, too many. It was wont to be counted a sacrament; and therefore they use yet a sacramental sign, to which they attribute the virtue of wedlock, I mean the wedding-ring, which they foully abuse and dally withal, in taking it up and laying it down: in putting it on they abuse the name of the Trinity, they make the new-married man, according to the popish form, to make an idol of his wife, saying 'with this ring I thee wed, with my body I thee worship,' etc. And because in popery no holy action may be done without a mass, they enjoin the married persons to receive the communion (as they do their bishops and priests when they are made), etc. Other petty things out of the book we speak not of, as that women, contrary to the rule of the apostle, come, and are suffered to come, bareheaded, with bagpipes and fiddlers before them, to disturb the congregation, and that they must come in at the great door of the church, else all is marred [with divers other heathenish toys in sundry countries, as carrying of wheat-sheaves on their heads, and casting of corn, with a number of such like, whereby they make rather a May-game of marriage than a holy institution of God]."[1285]

In his Answer to the Admonition Whitgift denies that the ring is looked upon as a "sacramental sign," and admits that "it is not material" whether it "be used or not;" while he quotes with approval Bucer's opinion[1286] that the "ceremony is very profitable, if the people be made to understand what is thereby signified, as that the ring and other things, first laid upon the book, and afterward by the minister given to the bridegroom to be delivered to the bride, do signify that we ought to offer all that we have to God before we use them, and to acknowledge that we receive them at his hand to be used to his glory. The putting of the ring upon the fourth finger of the woman's left hand, to which, as it is said there cometh a sinew or string from the heart, doth signify that the heart of the wife ought to be united to her husband; and the roundness of the ring doth signify that the wife ought to be joined to her husband with a perpetual band of love, as the ring itself is without end." Cartwright in his Reply declares that "if it be M. Bucer's judgment which is alleged here for the ring, I see that sometimes Homer sleepeth. For, first of all, I have shewed that it is not lawful to institute new signs and sacraments. And, then, it is dangerous to do it, especially in this which confirmeth the false and popish opinion of a sacrament." Next he ridicules Bucer for his "fond allegories" touching the ring, and thinks that having "the minister to preach upon these toys" savoureth not of his learning and sharpness of judgment.[1287] Whitgift, however, further defends the practice on the score of "convenience" and because it is "void of all manner of superstition."[1288] Moreover, he sustains the requirement of communion, again quoting Bucer in its favor; accuses Cartwright of weak argument and of trying to make "schism in the church" by bringing forward popular customs, "mere trifles" not sanctioned by the "book" which is the real object of his attack; and rightly points out that "worship" implies not idolatry, since it signifies merely to "honor" and not to "adore" according to the more modern devotional sense.[1289] Indeed, it is historically instructive that already in the sixteenth century the original meaning of "worship" should have passed out of common use.

But the attack of the sixteenth-century reformers was not directed solely against the ceremonies and phrases of the marriage ritual. A bold step was taken toward civil marriage when resistance was made to ecclesiastical jurisdiction in matrimonial causes on the ground that these belong to the temporal judge. On this subject Cartwright has a characteristic passage, disclosing his usual ignorance of history and his confusion of mind—of which Whitgift does not fail to take advantage—but nevertheless revealing plainly enough the new ideas which more and more came to the front during the Puritan revolution. "Another thing," he says, "is that in these courts (which they call spiritual) they take the knowledge of matters which are mere civil, thereby not only perverting the order which God hath appointed in severing the civil causes from the ecclesiastical, but justling also with the civil magistrate, and thrusting him from the jurisdiction which appertaineth unto him, as the causes of the contracts of marriage, of divorce, of wills and testaments, with divers other such like things. For, although it appertain to the church and the gouvernors thereof to shew out of the word of God which is a lawful contract or just cause of divorce, and so forth, yet the judicial determination and definitive sentences of all these do appertain unto the civil magistrate. Hereunto may be added, that all their punishments almost are penalties of money, which can by no means appertain to the church, but is a thing merely civil."[1290]

So far as England is concerned, to assign the unfortunate "severing the civil causes from the ecclesiastical" under William the Conqueror to the "order which God hath appointed" may seem to the historical student a trifle bold; and Whitgift may well retort, if "'it pertain to the church to declare what is a lawful contract, and which be the just causes of divorce,' by what reason can you prove 'that the judicial determination and definitive sentence of those matters doth pertain to the civil magistrate only'? For is not he most meet to judge in these causes which best understandeth them?" But Whitgift himself undoubtedly begs the question when he advances the counter-statement that the civil magistrate already has authority in ecclesiastical cases, since "all jurisdiction that any court in England hath or doth exercise, be it civil or ecclesiastical," is "executed in her majesty's name and right," and comes "from her as supreme governor," so that in effect "we" make no "such distinction betwixt civil and ecclesiastical causes as the pope and you do;"[1291] for this very blending of church and state under the "defender of the faith" is really the root of the whole matter in controversy. Yet Cartwright represents a good cause, however lame his defense of it may be. Again returning to the charge, in effect he attacks the notorious character[1292] of the spiritual courts themselves, referring to the "unfitness of those which are chief officers" in them; for "the most" of these officials, he affirms, "are either papists, or bribers, or drunkards (I know what I write), or epicures, and such as live of benefices and prebends in England and in Ireland, doing nothing of those things which appertain unto them."[1293] Dilatory action in matrimonial causes was a standing grievance against the spiritual courts; and many "lamentable complaints and petitions" for redress, especially in cases where "summary hearing and speedy relief" are necessary, were addressed to the privy council. For this reason, in 1613, complaints from wives alleging desertion, cruel treatment, or "breach of the bonds of holy wedlock" on the part of their husbands were relegated to the High Commission for settlement.[1294]

But adding to the powers of the "Ecclesiastical Star Chamber" would scarcely be regarded by the Puritans as even a satisfactory palliation for such a grievance. The policy of the Stuarts tended swiftly to mold their opinions into organized resistance; and the marriage question became at last one of the cardinal issues in the reform program. Thus in the "Millenary Petition" of 1603 the Puritan ministers, while objecting to the "cross in baptism," the "cap and surplice," profanation of the Lord's day, "double-beneficed men," "popish opinions," and "longsomeness of service," pray also for the reversal of "divers popish canons," such "as the restraint of marriage at certain times;" for greater caution in granting "licenses for marriage without banns;" and for the correction of "divers terms of priests and absolution and some other used, with the ring in marriage, and other such like in the book."[1295] On the other hand, if the Puritan loathed the so-called "popish" tendencies of the established church, as these became more and more pronounced under the rule of Laud, both the Puritan and the Anglican united in merciless persecution of the adherents of Rome. The act of 1606, "to prevent and avoid dangers which may grow by Popish recusants," is one of the most barbarous of those which for ages disgraced the English statute book. By this law a "popish recusant convict," or a man whose wife alone is convicted of recusancy, is forbidden to "exercise any public office in the commonwealth," except "such husband himself and his children ... above the age of nine years abiding with him and his servants in household shall once every month at the least, not having any reasonable excuse to the contrary, repair to some church or chapel" of the establishment and "there hear divine service;" and unless, with his children and servants of meet age, he receives the sacrament of the Lord's Supper when required by law, and "bring up his children in the true religion." Every married woman convicted of recusancy, her husband not being so convicted, who shall not "conform herself ... by the space of one whole year next before the death of her said husband, shall forfeit to the King's Majesty ... the issues and profits of two parts of her jointure and two parts of her dower, ... and also be disabled to be executrix or administratrix" of her husband, "and to have ... any part of his goods and chattels." Any child[1296] sent abroad without the king's license, to prevent his "good education in England or for any other cause," may have "no benefit by any gift, conveyance, descent, devise or otherwise of any lands ... goods or chattels," until he reach the age of eighteen or more, when, as a condition of recovering his property, he must take an iron-clad oath of allegiance[1297] and partake of the sacrament. In the meantime—and here a broad way was opened up for fraud and wickedness—all the rights mentioned are to pass to the "next of kin which shall be no Popish recusant." Moreover, this infamous statute imposes harsh penalties upon every recusant who shall hereafter be "married otherwise than according to the orders of the Church of England by a minister lawfully authorized." The man is "utterly disabled to have any estate of freehold in any the lands ... of his wife as a tenant by curtesy of England," or in case she have no lands he must forfeit a hundred pounds. The woman is not only disabled from claiming her dower or jointure, but is also denied her "widow's estate and frank-bank in any customary lands whereof her husband died seized," as well as any part of her husband's goods "by virtue of any custom." Should a child be born to them, it must within a month be baptized in open church according to Anglican rites, under penalty of one hundred pounds for refusal.[1298] In all other essential features during the first two Stuart reigns the law of espousals and marriage remained the same as during the age of Elizabeth.[1299] After Laud gained control there was a strong tendency to accent those parts of the nuptial ceremonial which gave offense to the Puritans.[1300] The civil war brought all this to an end; and "on January 3, 1644-5, a few days before the execution of Archbishop Laud, the Directory was by a solemn ordinance substituted for the Book of Common Prayer." But the form prescribed in the latter remained valid, "although the celebrant was liable to a fine of £5 for not using the form inserted in the Directory of Public Worship. Still many people clung to the ancient service, and amongst others Stephen Marshall the Preacher, who had a chief hand in compiling the Directory, deliberately made use of the Prayer Book in marrying his own daughter, when he paid down to the churchwardens the legal fine which he had incurred."[1301]

With the triumph of Cromwell the hour had come for realization of the new ideals. The act of 1653, though marking the end of a century of religious controversy in which not a little of bigotry and fanaticism on both sides is mingled, and though passed by the much-abused "Barebone's Parliament,"[1302] is nevertheless a measure wise and clear, resting on principles which two centuries and a half of subsequent history have fully sanctioned. For, like so much of the legislation and experimentation of the period, it is anticipatory of the best reforms of the present age. With remarkable clearness and brevity, but with adequate fulness of detail, the form of celebration, the exercise of matrimonial jurisdiction, and the machinery of administration are provided for.[1303]

An obligatory civil ceremony before a justice of the peace is prescribed. After due publication of banns, with a proper certificate thereof obtained from the parish register, the persons to be married are to come before "some justice of peace within and of the same county, city, or town corporate" where publication was made. If either of them is under the age of twenty-one, "sufficient proof of the consent of their parents or guardians" must be presented. The magistrate is required to "examine by witness upon oath, or otherwise ... concerning the truth of the certificate, and due performance of all the premises;" and he is also to take cognizance of any "exceptions" to the marriage "made or arising." If "no reasonable cause to the contrary" appear, "the marriage shall proceed in this manner: The man to be married, taking the woman to be married by the hand, shall plainly and distinctly pronounce these words:

'I A. B. do here in the presence of God the Searcher of all Hearts, take thee C. D. for my wedded wife; and do also in the presence of God, and before these witnesses, promise to be unto thee a Loving and Faithful Husband.'" The woman in like manner taking the man by the hand accepts him for her husband, promising to be his "Loving, Faithful, and Obedient Wife."

The ceremony thus consists merely in the expression of mutual consent, accompanied by the interlocking of hands, the old handfasting; but the use of the ring is not permitted.[1304] All legal requirements being satisfied, the justice pronounces the parties husband and wife; and their simple declaration, as above given, is to be taken "as to the form of marriage" to be "good and effective in law; and no other marriage whatsoever within the Commonwealth," after September 29, 1653, "shall be held or accompted a marriage according to the Laws of England."[1305] But this restriction was omitted when the act was confirmed in 1656.[1306]

In thorough harmony with the doctrine that marriage is a "worldly thing" is the provision of this act depriving the clergy of jurisdiction in matrimonial causes and placing it in the hands of the justices of the peace. It is provided that all "matters and controversies touching contracts and marriages, and the lawfulness and unlawfulness thereof; and all exceptions against contracts and marriages, and the distribution of forfeiture within this act, shall be in the power, and referred to the determination of the justices of peace in each county, city, or town corporate, at the general quarter sessions," or to such "other persons" as the "parliament shall hereafter appoint." All offenses against the act committed on or beyond the sea are in like manner to be tried in the places where the offenders are taken. Jurisdiction in cases of divorce is not, however, mentioned in this act; nor was any provision made for the trial of such causes during the Commonwealth. Indeed, a strong religious prejudice still survived against divorce, even among the Independents. "Thus," says Mr. Inderwick, "while on the one hand they treated marriage as a civil contract, on the other they gave to it all the inviolability of a sacrament, an inconsistency which is, however, to be found in many other acts of this period. The Jewish law, to which they much adhered, provided for and regulated divorces. They were recognized by most Protestant communities, and Milton, oppressed by his own domestic difficulties, had written powerfully on the subject, but through all the minutes of the various parliaments and councils of state I find, what I conceive to be somewhat surprising, no trace of any proposal to introduce into England any system of divorce. And, indeed, the prejudice against divorce appears to have been so strong that the laxity of the Jews in this respect was found in 1655 to be one of the strongest arguments against their proposed admission to the rights of citizenship."[1307] Nor is there any clear provision for the determination of cases of separation and alimony; although the consistory and other ecclesiastical courts having been abolished, these questions in practice were managed by "delegates appointed by the Commissioners of the Great Seal[1308] or by justices of the peace in quarter sessions—a course which would seem to have been the reasonable outcome" of the civil marriage act.[1309] On similar grounds the county justices probably dealt with "matrimonial squabbles," though in one case at least the intervention of the Council of State was sought.[1310]

On the other hand, the act of 1653 grants authority to the justices in cases of the marriage of minors through fraud or forcible abduction. According to Inderwick, the attempt to check this abuse was entirely novel. The Commonwealth, he says, "interfered in a manner[1311] hitherto unknown for the protection of women from those forcible abductions and marriages which were but too common under the former and later reigns of the Stuarts. Fraudulent marriages, induced by needy men or intriguing women, formed the common staple of the plays and interludes which the puritans so heartily condemned. In these comedies, while the unhappy father or deluded guardian was not infrequently the subject of mirth or of contempt, the lucky intriguer was made the hero of the play. From this species of offense, carried from the play-house into private life,[1312] the middle class peculiarly suffered, and while the wealthy merchant or the prosperous tradesman had to endure as best he might the entrapping of his daughter or the abduction of his ward, the gay cavalier or dashing spark who carried her off was the lion of the hour. Of this phase of society the puritan party had long and loudly proclaimed their horror and detestation, and the Commonwealth was not long installed before an occasion arose which enabled them to give practical effect to their expressed opinions." This was the case of the forcible abduction of Jane Pickering, "who was the only daughter and heiress of Sir Thomas Pickering, knight and baronet, deceased." While "walking in Greenwich Park with her maids in October of 1649, she was seized by one Joseph Walsh and his companions" and transported to Flanders; "after which Walsh asserted a marriage to have taken place between them and was prepared to claim his pecuniary rights as her husband." The Council of State took speedy action. The lady was eventually brought back to England. Under authority of an act of Parliament,[1313] the case was tried in 1651 by a special court consisting of delegates appointed by the Lords Commissioners of the Great Seal; "and it is to be presumed that she had judgment in her favour, and her marriage set aside;" for subsequently an "indictment of felony was found against Walsh and his companions."[1314] Accordingly the marriage act declares that if anyone by violence or fraud steal or cause to be stolen any person under the age of twenty-one years, "with intent to marry the said person," the offender shall forfeit his whole estate, one-half to the Commonwealth and one-half to the aggrieved, and besides "suffer strict and close imprisonment, and be kept to hard labor ... during life." Severe punishment likewise is prescribed for those aiding or abetting the crime; and any guardian or overseer who shall abuse his trust "by seducing, selling, or otherwise wilfully" promoting the marriage of his ward with another without such ward's free consent "shall forfeit double the portion which of right" belongs to the child.[1315]

The change in matrimonial jurisdiction effected by this measure of the Commonwealth has a twofold significance. Not only is judicial authority thus vested in civil rather than spiritual tribunals; but it is placed in the hands of local judges. It is an illustration of the democratic or decentralizing tendency which marks the legislation of the seventeenth-century Puritans on both sides of the Atlantic. It was, moreover, natural that the county magistrates should be vested with these new functions. In the exercise of their general peace authority they had already performed duties not wholly dissimilar to some of those called for under the act. In certain instances, before as well as after the reign of Cromwell, one may be surprised to find the justices exercising a sort of jurisdiction in cases of alleged breach of promise. "Forasmuch," declare the magistrates of Devon in 1626, "as it hath apeared unto this court that Bridget Howsley of Langton, spinster, liveth idly and lewdly at home, not betaking herself to any honest course of life, and hath lately falsely and scandalously accused" a certain man of Honiton, "challenging a promise of marriage from him, which tended much to his disgrace, and that she is a continual brawler and sower of strife and debate between neighbors;" therefore it is ordered that the said Bridget "be forthwith committed to the House of Correction there to be set on work and remain for the space of six whole months," and thereafter until she find good sureties or a "master that will take her into service."[1316] Here the justices may have acted merely as peace officers, though it is plain that as a precedent their sentence is far-reaching in its consequences. As late as 1835 we find the magistrates at Exeter, following the principle of the Roman law, "obliging a faithless swain to return a damsel's watch, and the latter to return half the value of a broach" which he had given her.[1317]

In no respect is the essential "modernness" of Cromwell's marriage act more strikingly shown than in its provisions to secure publicity, with a safe and perfect record. Nothing so wise and practical in this regard was again seen in England until the law of 1836. It is provided that in each parish a register of marriages, births, and deaths shall be elected for three years by the contributors to the poor rate. The register is to be an "able and honest person," such "as shall be sworn and approved" by a justice of the peace, who is to enter the fact of election and qualification in the register book of the parish;[1318] and he is removable either by the justice or by the parish with the justice's consent. A "Book of good Vellum or Parchment" is to be provided by each parish, in which it is the duty of the register to enter all marriages, births, and burials of "all sorts of people."[1319]

Careful provision is also made for the publication of banns. All marriages must be announced either for three successive Sundays in church, or at the pleasure of the parties, during the same interval, in the market-place[1320] "next to the said church or chappel." Before the publication the parties must file with the register a written statement of their names and places of residence, together with those of their parents or guardians; and these facts are then included in the notice. The register also enters the fact of publication and all objections brought forward against the marriage, with the names of those objecting. After publication the persons to be married are to obtain the register's certificate of the fact and proceed to a justice of the peace. As already seen, they must also find witnesses, give evidence of the consent of parents or guardians, and cause to be confirmed by oath, or otherwise in the discretion of the magistrate, the genuineness of the certificate. After the ceremony, if desired by the parties, the officiating justice is required to give them a certificate of the solemnization properly signed by himself and the witnesses; and this certificate, if produced, shall be recorded by the clerk of the peace in each county in a book of parchment provided for the purpose.[1321] The register of the parish is to "attend the said justice" to "subscribe the entry of every such marriage."

Nor did the system so well planned exist merely upon paper. The plain men chosen to the office of register did their work well, though they were sneered at as "mere laymen," and though they sometimes substitute rather harsh English for the worse Latin of their clerical predecessors. Greater publicity and more orderly records were secured during the Commonwealth than existed before it or after the Restoration. "It has been frequently asserted by writers on this subject," remarks Burn, a thoroughly competent judge, "that the registers during the time of Oliver Cromwell, were very badly kept;" but, on the contrary, "they were unusually well kept" where "a lay register was appointed according to the act of parliament." Such deficiencies as exist, he suggests, may result either from the destruction of the records or from neglect to turn them over at the Restoration or when the lay registers entered upon their functions.[1322] Waters agrees with Burn;[1323] and an examination of the published parish registers entirely confirms this view.[1324] It is hard, therefore, to understand the following curious statement by a contemporary writer who is clearly no admirer of Cromwell.[1325] Referring to certain "bills of mortality" for Romsey in Hampshire and Tiverton in Devonshire,[1326] he remarks "that in the years 1648 and 1649, being the time when the people of England did most resent the horrid Parricide of his late Sacred Majesty, ... there were but nine weddings ... in the same places, when there were ordinarily between 30 and 40 per Annum; and but 16, when there were ordinarily ... between 50 and 60. And it may also be observed that something of this black murther appeared in the years 1643 and 1644 when the Civil war was at the highest, but the contrary [in the] years 1654, 1655, etc., to prevent the new way of Marriage then imposed upon the people." Just how the increase in the number of weddings recorded in the years 1654-58 may be explained as due to a desire "to prevent the new way of Marriage," we are not informed. It cannot be inferred that people hurried to get married in anticipation of the new law, for it was put in force the next month after its passage; nor that through zeal they married more rapidly according to the Book of Common Prayer, in defiance of the new civil forms, although in some cases the religious celebration may have been still employed. But it is useless to speculate as to the sense of the passage. The statistical tables for the two parishes submitted by this writer afford very strong evidence that the apparent increase in the number of weddings is mainly due to the fact that the records were better kept. It will be noticed that there is a corresponding rise in the number of christenings and burials; and this fact can scarcely be accounted for by assuming that people hastened to get born or to die through opposition to an ordinance of the Barebone's Parliament. After the Restoration there is a decided falling off in the registration.

The great success of this early attempt at reform in matrimonial administration cannot, however, be thoroughly appreciated unless one reflects that throughout the ages the matter of registration had been shamefully neglected and the record books recklessly destroyed. Their custody being "frequently committed to ignorant parish clerks, who had no idea of their utility beyond their being occasionally the means of putting a shilling into their pockets for furnishing extracts;" and "at other times being under the superintendence of an incumbent, either forgetful, careless, or negligent, the result has necessarily been that many registers are miserably defective."[1327] This judgment applies to the times following the Commonwealth as well as to the period falling between 1538 and the act of 1653.[1328]

Many specimens of the marriage records of the Commonwealth have been discovered, representing each phase of procedure.[1329] Of these the following entry of the marriage of Oliver Cromwell's daughter, taken by Waters from the register of St. Martin's in the Fields, may serve as an example:

"These are to certifie whom it may concerne, that according to a late Act of Parliament ... Publication was made in the publique meeting place, in the Parish Church of the parish of Martins in the Fields in the county of Middlesex, upon three several Lord's Days, at the close of the morning exercise, namely, upon the XXV. day of October MDCLVII., as alsoe upon the I. and VIII. day of November following, of a marriage agreed upon between the Honorable Robert Rich of Andrew's Holborn, and the Right Honorable the Lady Frances Cromwell, of Martins in the Fields, in the county of Middlesex. All which was fully performed according to the Act without exception.

"In witness whereof I have hereunto set my hand the IX. day of November, MDCLVII.

William Williams,

Register of the Parish of Martins in the Fields."

Then follows this entry "in the hand of Henry Scobell" who was doubtless the officiating magistrate:[1330]

"Married, XI. Novemb., MDCLVII, in the presence of His Highness the Lord Protector, the Right Honble. the Earls of Warwick and Newport, Robert Lord Birch, the Lord Strickland, and many other."[1331]

Sometimes the entries are fuller in details, and more ingenious in orthography. Here is one from the register of "Inglebye iuxta Grenhow":

"George Middleton of the Parish of Carleton husbandmā, son of William Middleton of the same parish husbandman & Isabell Easebie of Green-howe in the parish of Inglebye spinster daughter of Isabell Easbie of the said Greenhowe; having agreed to be married did deliver to me Williā Boweston of Inglebie aforesaid parish Register of the said Inglebie their names sirnames additions and places of aboade, & the same of their parents likewise in writeing upon the 19th of ffebruarie 1654. which was published in the publick meeting place of the said Inglebye commonly called the Church or chappell upon the 25th of februarie and the 4th & 11th of March 1654 at the Close of the morning exercise by me William Boweston Register.

"And the said George Middleton & Isabell Easbie expressed their consēt unto Marriage by the words of the Act before George Marwood Esquire one of the Justices of the peace of the Countie of York & were by the said Justice declared to be husband & wife the 13th of March 1654

Geo: Marwood."[1332]

Each of the two documents just presented, it will be noticed, consists of two parts: the certificate of the register to the magistrate; and the magistrate's entry in the register book after the ceremony has been performed. The following is an example of the marriage certificate which by the act the justice is to deliver to the parties, when required, to be filed by them with the county clerk of the peace, if they see fit:

"Fforasmuch as I, having received a certificatt of the date of the xiij of this month, under the hand and seale of Owen Perkins, Gent., Register of the consolidated Churches of Mathry, that Publicacon was made of an intencon of marriage three lord's days thenbefore in the said parish Church between Phillip Harry and Ann Harry, if not anything objected to the contrary, These are therefore at the desire of the Said parties to certify all whome it may concern, that according to the Act of Parliament for marriages, the Said Phillip and Anne this present day came before me, and taking each other by the hand did plainly and distinctly pronounce the words in the said Acte mencōēd to be pronounced by them, And thereupon, according to the said Acte, I pronounce them to be husband and wife. Given under my hand and seale the ffourteenth day of July, 1655

Thomas Davis."[1333]

The law of 1653, it thus appears, constitutes a singularly important episode in the social and religious history of England. It remained in force, with a modification in 1656, during the seven years preceding the fall of the Commonwealth, and called forth the fierce opposition and hatred of the royalist party. It was ridiculed by the pamphleteer[1334] and satirized by the poet.[1335] Every provision drew forth a sneer. Marriage is made a "traffic" because published in the market-place; "matrimony and hanging" join hands before the same justice; and the "lay register" comes in for his full share of abuse. "Levellers and phanaticks," sadly complains one writer, "blush not at their own rushing into other men's offices,—a bold but witless Justice of y^e Peace, makes his neighbouring ministers cyphers, whilst he forceth y^e King's subjects (quite against the graine) to elect and he to confirm a mere layman in the office of Parish Register—Proh pudor fronti enim, nulla fides."[1336] The recorder of Cirencester in Gloucestershire charges the lack of entries for several years to the account of the act passed by the "Rump," the "said Parliament ... consisting of Anabaptists and Independents;"[1337] while in 1659, the clerical register of Christ's Church, Hants, spitefully declares that "maryinge by justices, election of registers by Parishioners, and the use of ruling elders, first came into fashion in the time of rebellion, under that monster of nature and bludy tyrant, Oliver Cromwell."[1338]

On the other hand the principles of this measure found a mighty champion in Milton, in whose writings, says Friedberg, the religious tendencies of his party were molded almost into a "scientific system."[1339] The following extract from "The likeliest means to remove Hirelings out of the Church" is interesting as epitomizing the views of the Independents, showing that they were grounded upon the fundamental principles of Old English custom:

"As for marriages, that ministers should meddle with them, as not sanctified or legitimate without their celebration, I find no ground in scripture either of precept or example. Likeliest it is (which our Selden hath well observed l. II, c. 58, ux. Eb.) that in imitation of heathen priests, who were wont at nuptials to use many rites and ceremonies, and especially, judging it would be profitable, and the increase of their authority, not to be spectators only in business of such concernment to the life of man, they insinuated that marriage was not holy without their benediction, and for the better colour, made it a sacrament; being of itself a civil ordinance, a house hold contract, a thing indifferent and free to the whole race of mankind, not as religious, but as men: best, indeed, undertaken to religious ends, and, as the apostle saith, I Cor. VII., 'in the Lord.' Yet not therefore invalid or unholy without a minister and his pretended necessary hallowing, more than any other act, enterprise, or contract of civil life, which ought all to be done also in the Lord and to his glory: all which, no less than marriage, were by the cunning of priests heretofore, as material to their profit, transacted at the altar. Our divines deny it to be a sacrament; yet retained the celebration, till prudently a late parliament recovered the civil liberty of marriage from their encroachment, and transferred the ratifying and registering thereof from the canonical shop to the proper cognizance of civil magistrates."[1340]

After the Restoration, though not expressly repealed, the act of Cromwell was at once superseded by the laws in force before the Revolution. The more revengeful faction of the royalists even strove to have all marriages contracted under the act made null and void. But a proposition so monstrous could not prevail; and a statute legalizing civil marriages was passed during the first year of Charles II.[1341]