Medieval marriages were multifaceted. In canon law marriage focused more on consent and autonomy than rules. Laws of marriage were not always followed, and different types of marriage could be experimented with. Weddings were often just as much social and opulent events as they were about the couple. Mock youth groups could prepare themselves for marriage through reinforcing its norms. The ease of canon law marriage was criticized and blamed for social problems, and in the early modern period the secular power gradually took more legal control of marriage as state power grew. In different European countries marriage was reconceptualized in connection to a secular force: whether it be the state, the covenant or the commonwealth. In time this would turn marriage into a secular independent institution and bring it in interesting new directions.
By the 16th century medieval canon law encountered obstacles, such as the difficulty of proving informal marriages, and the Roman law tradition of parental consent. In 1563 the Council of Trent passed the Tametsi decree on marriage, which required a parish priest and two witnesses to solemnize a marriage. The French strongly disagreed with Tametsi’s relative leniency and in response passed the Ordonnance of Blois in 1579. They made the promulgation of banns and parental consent conditions of a marriage’s validity. Priests marrying a minor without parental consent could be found guilty of rape and subjected to capital punishment. But the ordinance had to be amended by another one in 1639 that required parental consent to make the proclaimed banns valid. [1] Political thought trends saw marriage as “the foundation of families that make up republics”. The monarchy attempted to take the institution of marriage away from the church, while trying to avoid a direct confrontation with it.[2] The monarchy saw the reverence of children towards their parents as similar to that of subjects towards the sovereign.[3] The appel comme d’abus invalidated all the acts of the ecclesiastical judges which conflicted with royal opinion. The penalty was the confiscation of temporal revenues. The ecclesiastical courts were gradually sidelined, but French bishops supported the king’s marriage laws in the 17th century.[4] However, people were not so easily used to the idea of parental consent.[5] Ultimately France adopted a secular form of marriage in the 1804 Code Napoleon that nevertheless kept many of these previous ideas.[6]
Another sharp challenge to canon law marriage came to Protestants. Luther and Calvin felt that it violated the principle of fatherly authority in managing family affairs.[7] In most Protestant areas the secular courts took over the jurisdiction of marriage.[8] Ultimately, the Protestant institution of marriage moved in three directions. Anglicans left marriage law to church courts under royal and Parliamentary supervision, while Calvinists left it to local consistories and city councils and the Lutherans to the territorial prince or urban council.[9] The Protestants disagreed with the Catholic idea of marriage as a healing remedy and the Catholic elevation of a celibate life. Rather than a sacrament, they saw marriage as an independent social institution of the earthly kingdom, subject to the state which served as God’s vice-regent. Priestly marriages and divorce were allowed. Marriage and divorce were both public. Calvinists saw marriage as a covenantal association of the whole community, resembling the covenant between Yahweh and ancient Israel. The state had to enforce civil norms and the church had to teach spiritual norms. The only freedom in marriage was the mature selection of a spouse. Finally, Anglicanism combined the divine, social and covenantal aspects of marriage. A small commonwealth raised the child and taught them the obligations and norms of the wider society. At first, this was used to legitimise the hierarchy, with the father compared to the king as the supreme head of the church and the commonwealth. Later, the democratization of the commonwealth in the 17th century coincided with the idea of an equal marriage formed voluntarily by individuals in the state of nature. John Locke reconceptualized the marriage model. He denied the comparison between the political and domestic commonwealths and argued that the master of the family was equal to the mistress. Locke saw the first society as being formed between the husband and wife through a voluntary contract similar to that between the citizens of the commonwealth. The contract could be renegotiated but the couple should stay together long enough to raise the child. The state had a limited role in marriage, only interfering to enforce the contractual and natural rights and duties of each party. [10] Locke liberated the theology and politics of marriage. Thus, he kickstarted the development of the Anglo-American common law traditions of separating church and state regarding marriage.[11]
The reinterpretation of marriage in England also led to the opening of autonomous marriage laws for non-Protestant groups. The English church passed the Hardwicke Act in 1753 which invalidated most marriages not presided by an authorized Anglican clergyman.[12] Quakers and Jews were exempt from the statute.[13] For years non-Anglican Protestant opponents of the Marriage Act fought to repeal it. William Smith took a Bill to the commons in June 1819 allowing Dissenters to marry with a liturgy free of Trinitarian beliefs.[14] This Bill failed along with other similar ones from 1823 to 1827, but sympathy for their views mounted. There was unease with allowing all Dissenters to have their own marriages, and these ideas were seen as an attack on the established church. But the debate on marriage was broadened, opening the option of civil marriage. [15] In 1836, Lord John Russell proposed two bills: one allowed Dissenters to get married in a licensed Dissenting chapel or to have a civil marriage. Another related to the technicalities of getting a licence and certificate. Both bills finally passed, allowing the options of autonomous Dissenter marriages or civil marriages.[16]
The separation of marriage from canon law, the state control of marriage, and the new ideas regarding it ultimately moved the institution in many new directions. It became an institution within itself reimagined through the lens of different traditions and ideas. The intellectual traditions of the Renaissance, the Reformation and the Enlightenment strongly influenced marriage, as out of these movements came ideas about what marriage was, how it should function and its purpose. In turn, focusing on these intellectual movements’ ideas on marriage can show us many of their own important and key ideas.
Bibliography
Donahue Jr, Charles. “The Legal Background: European Marriage Law from the Sixteenth to the Nineteenth Century.” In Marriage in Europe, 1400-1800, edited by Silvana Seidel Menchi, 33-60. Toronto: University of Toronto Press, 2016.
Lefebvre-Teillard, Anne. “Marriage in France from the Sixteenth to the Eighteenth Century: Political and Juridical Aspects.” In Marriage in Europe, 1400-1800, ed. Silvana Seidel Menchi, 261-93. Toronto: University of Toronto Press, 2016.
Outhwaite, R.B. “The Process of Reform.” In Clandestine Marriage In England, 1500-1850, 145-68. London: Bloomsbury Publishing, 1995.
Witte Jr, John. “Church, State and Marriage: Four Early Modern Protestant Models.” Oxford Journal of Law and Religion 1, No. 1 (2012): 151-68.
[1] Charles Donahue Jr, “The Legal Background: European Marriage Law from the Sixteenth to the Nineteenth Century,” in Marriage in Europe, 1400-1800, ed. Silvana Seidel Menchi (Toronto: University of Toronto Press, 2016), 35-37.
[2] Anne Lefebvre-Teillard, “Marriage in France from the Sixteenth to the Eighteenth Century: Political and Juridical Aspects,” in Marriage in Europe, 1400-1800, ed. Silvana Seidel Menchi (Toronto: University of Toronto Press, 2016), 261.
[3] Ibid, 263.
[4] Ibid, 269-70.
[5] Ibid, 261.
[6] Donahue, “The Legal Background,” 38-39.
[7] Ibid, 36.
[8] Ibid, 43.
[9] John Witte, Jr, “Church, State and Marriage: Four Early Modern Protestant Models,” Oxford Journal of Law and Religion 1, No. 1 (2012): 151.
[10] Ibid, 154-63.
[11] Ibid, 165-66.
[12] Donahue, “The Legal Background,” 37.
[13] Ibid, 58.
[14] R.B. Outhwaite, “The Process of Reform.” In Clandestine Marriage In England, 1500-1850, (London: Bloomsbury Publishing, 1995), 149.
[15] Ibid, 159-60.
[16] Ibid, 163-65.
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