by E. J. Graff
The verba’s murkiness overflowed the court dockets. What happened when a man promised himself to one woman but then promised and bedded another: Was his first promise a marriage, making his second tryst adultery, or did the second’s consummation make it the marriage, eclipsing the first? What happened when a family lured another (wealthy) family’s adolescent son on a weekend outing that ended with the girl’s parents putting the two young people into a single bed for the evening, by candlelight “witnessing” the boy’s “vows.” Was he sacramentally bound by his sexual temptation, or could his parents have their tryst annulled? The questions stacked up for centuries; when it comes to marriage, it seems, there is no escape from lawyers.
How was such a mess to be cleaned up? While the working folk stumbled in and out of secret “precontracts,” the aristocracy and nobles constantly attacked the Church’s idea of marriage-by-consent. By the time it was instituted into canon law, the Church had already run into trouble with its concept that consent-makes-a-marriage—and so at the same time, the Church tried to control the damage by issuing requirements for a licit marriage. You had to post the banns, an announcement that a given couple was to be married, three weeks in a row—thus giving plenty of time for someone to come forward and object that, for instance, she was already contracted to John. You had to say vows in faciem Ecclesiae, before priest and people, either in front of or even inside a church. Both innovations were so disliked that they took centuries to be accepted, and their acceptance was uneven at that. The English middle and upper classes went to church fairly early; the Italians shrugged the demand off entirely, keeping their traditional family wedding procession from bride’s to groom’s house without so much as a wink at the priest. Everywhere folks kept the bawdy custom (strongly discouraged by the Church) of seeing the couple to bed, where they stood by with a raucous celebration and suggestive toasts, and then checked in a few hours later to see how the sex had gone. Sex, not the priest, was what married you.
The Church got very little cooperation in its attempts to turn marriage into a soberly witnessed event—in part because its decrees were toothless. Not just in the eyes of the community but even in the eyes of the Church, your marriage was still valid even when illicit—even if you hadn’t met marriage requirements like banns or public vows. Despite itself, the Church had created a new in-between marriage category: illicit but indissoluble marriages.
Most were no problem. One historian notes that in one fourteenth-century English town, “of 101 unions mentioned in the register, 89 were of this ‘irregular’ kind,” meaning private rather than public promises: few wound up in court. According to various records, up to one-third or one-half of European adults in the sixteenth century were officially unmarried. Yes, many of these were young unmarrieds, widows, or widowers—but others were cohabitants who believed that they, not any outside authority, made their companionship into a marriage. Writes one historian, “The real hurdle for the courts was the persistent idea that people could regulate marriage for themselves.”
But while most people might be quite content with their private vows, 70 percent of ecclesiastical court cases were over the verba problem: private marriage created public mess. And so what started as the Church’s championing of the individual spirit in defiance of clan control became an international scandal. Across Europe people didn’t know whether they were married or un-, what with engagements or annulments tied up in court for years; secret vows and seductions that might or might not be binding for life; priests paying annual fees for concubines who were not wives; and of course the proliferation of marriage taxes for dispensations, pronouncements, annulments, and what have you. And so in swept the Protestants, with their ferocious appetite for sexual order.
The reasons that on October 31, 1517 Luther pounded his theses in Wittenberg’s church door—and the reasons his protest caught fire across Europe, turning into wars both theological and bloody—are far beyond the scope of this book. But reforming the marriage rules was high up on the Protestant agenda. The Protestants considered their marriage reform to be urgent in part because marriage is both an intimate and a politically urgent act, framing most homes and lives: the religion that won the battle to define marriage had closer control of Europe’s souls—not to mention its finances. Unlike the old peasant or aristocratic societies, the rising merchant class needed order across families, borders, and seas. More and more people were trading (and marrying) beyond their old ten-mile radius. How could you run a family business if some pretender suddenly showed up and insisted he was your daughter’s husband and therefore had a lien on your possessions? Marriage had to be governed by something larger than one village’s communal memory—and something less costly than endless suits in ecclesiastical courts. The Protestants were sick of marriage ideals that—however spiritual in theory—caused nightmares in practice. Besides, they had ceased to believe that private consent was sacred. As one Protestant reformer wrote, “when two young people secretly and without the knowledge of their parents, in the disobedience and ignorance of youth, as if intoxicated, wantonly and deceitfully . . . join themselves together in marriage, who would not agree that such a union has been brought about by Satan and not by the Lord God?” The result: the Protestants ushered in a revolution in the very definition of marriage—from announced to pronounced, from privately made to publicly bestowed.
Depending on the region and jurisdiction, what the Protestants usually required were a priest, several witnesses, a public ceremony, parental consent up to age twenty-one or twenty-five or so, even a register of all births, deaths, and marriages. Yes, the Protestants still believed that the moment of marriage was when the two said their vows. But that moment was no longer a mystical sacrament, a concept the Protestants ridiculed openly. Rather, the Protestants insisted, marriage was—by definition—a secular status conferred by an outside authority. No Protestant group had the power to control that public recognition, or was prepared to spend a thousand years building that power. So they handed off marriage to their running mates for power, the rising nation-states. In 1525 Zurich flatly denied that private vows were valid, instead insisting that a marriage legally required at least “two pious, honorable, and incontestable witnesses.” In 1537 Augsburg and Nuremberg started fining or jailing those who “mingled themselves sexually” before the church ceremony, while clergy living with concubines had to marry or separate. By 1563, stung by Protestant criticism, even the Catholic Council of Trent caught the wave—and declared that any marriage that had not been performed publicly, in front of the parish priest, was invalid. So there!
Small and sensible as those rules may now sound, the change was revolutionary. For the first time in history, individuals and families no longer had the power to say who was married. And the real winners in this marriage battle—the nation-states—didn’t hold back as much as religious authorities might have in using their power over marriage. Rather, they quite enthusiastically took up marriage regulation, control, and even surveillance. The French king, outraged that the Catholic Church did not invalidate clandestine marriages, in 1579 set the legal age of marriage without parental consent at twenty-five for women and thirty for men. The longer the states had power over marriage, the more widely they were tempted to use that power. In 1739, Prussian states forbade noblemen to marry peasants, artisans to marry before completing apprenticeships, students to marry before graduation, and cripples or blind persons to marry at all. The French revolutionaries, like all revolutionaries, saw changing marriage as a way to break down the old order, made mandatory a civil ceremony and registration, and officially decreed that the State married you—not you yourselves, and certainly not God. Private power was banished, replaced by the state. As historian Nancy Cott writes, “one of the principal means that the state can use to prove its social existence—to announce its sovereignty and its hold on the populace— is its authority over marriage.”
The marriage revolution took a lot longer in the English-speaking countries.
England’s established church had merely fired the pope without much changing Catholic marriage theology. Unlike the Continental Protestants, the Anglicans kept the idea that private vows were the sacrament that created a marriage: if you said you were married, married you were. Writes historian Lawrence Stone, “England was full of people like Robert Davies of Northwich and Elizabeth Madson of Whitegate ‘who say they are married together, but ’tis not known whether nor how nor when they were married.’ ” Of course, people had been marrying for millennia without official recognition—but not in the brave, mobile, urbanizing new world of capitalism. Now that the village and ecclesiastical systems had collapsed, the newly organizing state had to pick up the business of tracking contracts, fiscal or marital. With neither local community supervision nor proper bureaucratic records, British marriage was a disaster zone. Comments Stone, “The judges were exasperated by having to deal with cases of inheritance, bigamy, incest, etc. in which the evidence was nothing better than a grubby private marriage register kept by some down-at-heel clerk or shifty woman in an alehouse in the Fleet, and full of false erasures, insertions, and back-dating.”
Why couldn’t Britain just pass a law that regularized marriage? Easy to say, but not so easy to do in a democratic system. Trying to change civil laws about marriage—that institution that touches everybody’s family, spiritual, emotional, financial, and public lives—gets everybody pretty darn touchy. There were some venal concerns, such as who got to keep all those licensing fees, and whether there would still be enough marriage litigation to keep certain barristers in business. But the really controversial questions had to do with the definition of marriage—such as whether it was a public and secular institution that the state had the right to regulate, or whether it was a sacrament privately administered and acknowledged only afterwards. The Anglican bishops who sat in the House of Lords were particularly worried about whether it could possibly be moral for the secular state to invalidate a marriage that two people—and presumably therefore God—had brought into being. The various bills that attempted to order the public institution of marriage “aroused strong passions” and “debates were extremely long and bitter; one of the debates in the Commons . . . lasted until half past three in the morning.”
After a century or so, they managed it. In 1753, the powerful Lord Hardwicke forced members to sit through endless sessions during fetid August heat until they agreed on and passed some basic marriage regulations: licensing, public and daylight ceremonies, registries signed and dated by spouses and witnesses, parental consent up to age twenty-one. Anything else was to be annulled and ferociously punished; ministers who performed clandestine marriages or falsified marriage registries could be transported to the colonies or executed. (The Quakers, who refused to take public vows, and the Jews, those resident foreigners with their own peculiar laws, were exempted and allowed to run their own marriages.) Finally, in England as on the Continent, the definition of marriage had been transformed from a private sacrament to a publicly authorized contract.
Things were a little less simple on the other side of the Atlantic, in the British colonies, where the definition of marriage varied from region to region. The Puritan colonies had, like their Protestant brethren, outlawed the scandal of clandestine marriages, while the Southern colonies had marriage laws as messy and uncertain as mother England’s. But by the nineteenth century, the courts decided that private marriage was a necessity, not a scandal, and invented an entirely new form, “common-law marriage,” even when they had to overrule existing statutes to do so. According to influential nineteenth-century judges, Americans were so mobile and scattered around the frontier that if you acted as if you were married, or said that you were married, then you were married—in life and in court. Faced with the dilemma of widows who said they had been married but could show no proof, one judge in 1809 ruled that times had changed and that upholding private promises would be better than defying them. A host of judges followed, using the new “common-law” invention. Some legislatures joined in, as when an 1843 Indiana statute insisted that “no particular form of ceremony shall be necessary, except that the parties shall declare . . . that they take each other as husband and wife.” Cohabitation, anyone?
Early nineteenth-century American marriage, in other words, was made by the couple themselves, and recognized only afterward by law. Not vows, not registration, but behavior made a marriage: as one South Carolina chancellor insisted, “it is the agreement itself, not the form in which it is couched which constitutes the contract.” When one woman tried to deprive her dead brother’s widow of his estate because there’d been no wedding or registration, a New York court ruled for the widow: “Society would not be safe for a moment, in this, the most sacred of its relations, if an open and public cohabitation as man and wife for ten years, continued with all the conventional usages of married life, and followed by the procreation of children, could be overturned.” The judge’s wording is entertaining, since this is precisely the view that today makes the family-values people shudder: cohabitation is sacred, and gets all the legal benefits of marriage, simply because you treat each other as married?
And the family-values folks of the era did shudder. By the 1870s a marriage reform movement erupted, part of what one historian has called a “moral panic.” Publicity, formal ceremonies, registration—all the things made unnecessary by the very existence of common-law marriage—were demanded by organizations such as the National League for the Protection of the Family. Common-law marriage, one writer thought, was “suspiciously near the borderland of illicit intercourse.” Some courts kept honoring the claims of long-established couples even if they had no formalities behind them. But by the nineteenth century’s end, for the most part marriage in the United States had also become a public, state-regulated status—bestowed by a central authority, hedged by registries, licenses, fees, and witnesses.
So had the Protestants and the nation-states won a complete triumph over the marriage rules, sweeping all competitors off the field? Perhaps—for awhile. But just as state power over marriage peaked in the nineteenth century, there came an upswelling of civil disobedience against externally imposed marriage rules. Just when every civilized Victorian had come to believe that the regulation of marriage and family life was not merely essential to State order but had always and would always exist, that publicly bestowed marriage was the only kind of marriage, there arose a romantically rebellious movement insisting that individual spirits, and not the family, church, or state, are what create and legitimate each marriage. “Free love”—the idea that the heart made its own marriages, that any law enforcing or policing it was a spiritual travesty—swept not just the poor folks who had long ducked church or state marriage regulation, but the educated classes.
One needn’t be a Marxist to see how easily “free love” could bubble up from the contradictions within the industrializing democracies. On the one hand, the capitalist states needed and glorified the individual and his (yes, his) imagination and conscience, freed from parental control to run the new economy. On the other hand, as a kind of seatbelt against the new economy’s rollercoaster of social change—as if controlling marriage were more important than controlling laissez faire robber barons—those states were strapping people more tightly into marriage than ever before. Some couldn’t stand the contradiction.
The Victorian free-lovers were fierce moralists, taking seriously the romantic rhetoric on which they’d been raised. Because they believed that the heart makes and unmakes marriages, they insisted that marriage law actually worsened and coarsened spouses, enforcing sin by keeping them legally bound once they disliked each other—and, not coincidentally, legally turning women into helpless maidservants and men into tyrants. Their fervent theories often came from painful conflict with state-enforced marriage. In the 1840s, for instance, when Mary Gove Nichols fled a husband who beat her, she also lost the legal battle to contact her children, as was common for wives who rebelled against the vow to
obey. And so when she and her new “husband” Thomas Nichols—husband in life, though not in law—described the situation of a modern wife, their list of legal facts was illumined by her experience:
Married, she becomes his property, and may become his victim, his slave. She must live where he wishes her to live; she must submit to his embraces, however loathsome; she must bear his children, whether she wish to do so, or not; her property, her liberty, her comfort, her person, her life, are all in his power. He will probably be punished for an outright murder by poison or steel, but there are many ways of killing, which she has no power to resist. The subject of his caprices, the victim of his lusts, starved in her sympathies . . . this human being has but one duty, and that is obedience.
The free-lovers took the radical idea at the heart of Catholic marriage theology—the idea that mutual consent is the sacrament—to its logical limit, insisting that “what the law calls fornication, when it is the union of mutual love, may be the holiest action two human beings can engage in . . . as it is sanctified by a mutual sentiment and attraction to which no law or ceremony can impart any additional sanction.” And they went farther, insisting, “It is marriage, and the license which it gives, which debauches, enervates, degrades, and pollutes society!”
You can imagine the socially shocking consequences. As the notorious free-lover, feminist, spiritualist, and general hell-raiser Victoria Woodhull thundered from her pulpits, “Who will dare say that love should not be a precedent to marriage? But when this is affirmed, the legitimate corollary is not seen: that, since marriage should not begin without love it should cease when love is gone.” Wives should be able to say no when their husbands wanted sex; marriages should dissolve when affection failed; husbands and wives should be equal in private and in law; and no imprimatur should be needed for sexual relations beside the heart and God. In other words, once the pendulum had swung so sharply toward an understanding of marriage as a publicly bestowed status, the free-lovers wanted to define it again as an internal state. And now, back to the verba!