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ENGLISH DOMESTIC
RELATIONS 1487-1653 A STUDY OF MATRIMONY AND FAMILY LIFE IN THEORY AND PRACTICE AS REVEALED BY THE LITERATURE, LAW, AND HISTORY OF THE PERIOD BY CHILTON LATHAM POWELL INSTBUCTOR IN THE JOHNS HOPKINS UNIVBESITT Submitted nsf Partial Fulfilment of the Requibbments. FOB the Degeee of
Doctob of Philosophy, in the Faculty op Philosophy, Columbla Univebsity
COLUMBIA UNIVERSITY PRESS
1917 All rights reserved Copyright, 1917
By Columbia University Pkess Printed from type, March, 1917
PREFACE The present work was undertaken in the belief that con- siderable knowledge
of any particular subject could be gained by examining not only the
literature centering around it but also whatever other expression of fact
or opinion might exist in connection with it during the period under con-
sideration. The subject of my investigation here is that of domestic
relations in England, including both the con- tract of marriage (its making
and breaking) and the sub- sequent life of the family. The period involved
extends from the first appearance of the subject in English writing up to
its first great crisis, a height of clear thinking and vigorous expression
on which Milton and Cromwell stand alone. Although it has been necessary to
thus limit the work in regard to time and place, an effort has been main-
tained to make the field of investigation within these limits as all-
inclusive as possible. I cannot fairly claim to be entering terra incognita in this study. Legal
writers have already covered the field as thoroughly as available material
from legal sources has allowed them to go; historians have also done
something, though not a great deal, in tracing the development of the
different marriage ceremonies during the period; and stu- dents of
literature have made a few blind thrusts here and there whenever they found
their heroes, like Milton, step- ping aside from the fields of the
imagination to discuss a "business of such concernment to the life of man."
No one, however, has used all possible sources of information - history,
law, literature, and actual practice - to concen- trate research from
different angles upon all the interests involved; and since the information
hitherto discovered, except in the legal field, is scant to the point of
being neg- ligible, it is only by using all available sources and com-
bining the results thus gained that the actual conditions of the period may
be set forth and the contemporary literature on the subject properly
understood.
As is suggested above, the field of literature (using the term broadly to
include all kinds of writing) has been almost entirely neglected in
connection with the present subject. For this reason, we may expect to find
it, as an expression of current thought and practice, the most profitable
source of information, particularly such works as may be eliminated from
the stricter limits of Uterature on the ground of being utiUtarian rather
than artistic. On the legal and eccle- siastical status of matrimony, the
conditions and opinions of the day are to be found principally in tracts,
controversial and otherwise the Thomason collection being especially
valuable, in confessions and defenses of faith, and occa- sionally, as a
side issue, in books on domestic life. It is only when a writer turns aside
from controverted subjects and aims to present his conception of ideal
family life that we meet with books of any length or anything like a series
of works that we may class together as a type or genre. The demonstration
of such a series, developing from the beginning of the English Reformation
up to the days of the Commonwealth and running parallel to legal and eccle-
siastical agitation in the same field, is perhaps the most important
contribution of the present study to the history of literature; but from a
wider point of view, its contribu- tions to the history of law and practice
in church and state as well as its assemblage of legal and historical
material not elsewhere so available, may be thought to be of equal moment.
Attention should also be called to the first two appendices, which on
account of their growth under investi- gation had to be removed from the
main body of the book. The first presents the only existing account of the
English writings on the divorce suit of Henry VIII, correcting many
bibliographical errors previously made and discussing sev- eral important
books hitherto practically unknown (e.g. those of John Fisher) ; and the
second attempts to overthrow altogether the present conception of Milton's
early married life and the supposed cause of his tracts on divorce. Although this book was undertaken upon my own in- itiative and has been
worked out according to my own ideas, I am indebted to others for
incidental assistance. To Professor Charles William Wallace, of the
University of Nebraska, I wish to express my gratitude for his ever ready
kindness in helping me with bibliographical work at the British Museum. To
Professors Ashley H. Thorn- dike, Jefferson B. Fletcher, George Philip
Krapp, and Munroe Smith, of Columbia University, and to Rev. Dr. J. G.
Dangar, Prebendary of Exeter Cathedral, I am also duly grateful for
valuable suggestions on certain details. Professor Smith's final approval
of my investigation may be taken as a guarantee of its accuracy in points
of law. Finally, I take this opportunity of expressing my appre- ciation of
the privileges kindly extended to me by the following institutions, where
my studies were carried on - the British Museum, the Bodleian Library,
Oxford, the Ubraries of Christ College and St. John's College, Cam- bridge,
the University of Edinburgh Library, the Peabody Institute, Baltimore, and
the Bar Library of Baltimore.
Bai/itmore, Md.
June, 1916. C. L. P. CONTENTS CHAPTER PAOE I. INTRODUCTION I. The Laws op Marriage 1 II. Practice and Customs op Mabeiage 13 II. CONTROVERSIES REGARDING MARRIAGE I. Historical Situation 28 II. The Puritan Platform in regard to Mabeiage 37 III. The Position and Practice op the Indepen- dents 44 IV. Continental, Scottish, and American Churches 49
V. The English Church of the Commonwealth.. 54 III. THE ATTEMPTED REFORM OF DIVORCE I. Legal Situation 61 ! II. The Puritan - Anglican Contbovbrst on 1 Divorce 70 V III. The Final Deadlock 84 IV. THE DOMESTIC CONDUCT BOOK I. The Type and its Origin 101 II. Puritan and Romish Attitudes towards Marriage 119 III. Later Domestic Books 129 IV. The Domestic Book as Literature 139 V. CONTEMPORARY ATTITUDES TOWARDS WOMAN I. Ecclesiastical 147 II. Domestic and Courtly 152 III. Commendation and Sattbe 160 IV. Historical and General View 169 VI. WIDER RANGES OF DOMESTIC LITERATURE I. More General Conduct Books 179 II. Domestic Drama 192 APPENDICES A. English Writing on the Divobce of Henby VIII AND Catherine 207 B. Date and Occasion op Milton's First Divorce Tract 225 C. Directions for Matrimont prom Harrington's Book 232 D. Contents of Ttpical Domestic Books 234 BIBLIOGRAPHIES I. Early Books op Domestic Relations etc 243 II. Books on Henry VIII's Divorce 252 HI. Later Books of Rbpbrence 254 INDEX 257 ENGLISH
DOMESTIC EELATIONS 1487-1653 CHAPTER I
INTRODUCTION I. The Laws of Maebiage 1 A brief but sufBcient statement of the development of the legal
history of marriage, including the principal points of Roman canon
law, may be foimd in an article by Munroe Smith in the Universal
Cyclopedia under the heading of Marriage. The best statement of the
canon law of marriage is in Esmein, Le Mariage en droit canonigue.
For the Roman canon law of marriage and divorce, see Coudert, Mar-
riage and Divorce Laws in Europe; for the relations of Roman canon
law to English law, see Maitland, Roman Canon Law in the Church of
England; for English ecclesiastical law, as modified by the Reforma-
tion and subsequent practice of ecclesiastical courts, see Phillimore,
Ecclesiastical Law of the Church of England (Pt. Ill, ch. VII). An excel-
lent book for the lay reader on the development of marriage and related
subjects, from a broader and less legal point of view than the above
works, is Howard, History of Matrimonial Institutions, which contains
copious notes and the best existing bibliographies on the general sub-
ject. The only early legal work imknown to Howard which I have
found, is Ridley, A Viewe of Civile and Ecclesiasticall Law (published
in 1607); but in addition to this, practically all the books discussed in
my second, third, and fourth chapters below are here examined for the
first time in connection with the subject of marriage. Other useful
works are mentioned in the notes to the present chapter. 1 i ENGLISH DOMESTIC RELATIONS The legal aspects of marriage, in regard to both the orig- inal contract
and the resultant relations of husband and wife, have been pretty
thoroughly treated in books of law,* but it is necessary to have the
principal facts involved immediately before us. Although in the early
stages of the development of the Aryan races, marriage was regarded as a
religious affair, and although one of the earliest forms of Roman marriage
was of a religious nature, the only ele- ment required by the later Roman
law to estabUsh the vahdity of a marriage was the consent of the
contracting parties. Tj^.,,.Qu"istian,,iihurch, from it§. firs±_aKganization, made a
consistenJi,-and. iacreasing eff«rtto_.gaift.4;satEpl of matrimonial
affairs; Jjij,t_,ftIthough by the beginning^f^the thirteenth century itJiad
almost.,cQmplete-power..QisjJboth marriage and divorce, it still recognized
a .piiKaMj^con- tracted marriage, made, by mutual _^ypws only,^as.,jjalid,
and was unable to stop altogether the,.. pxaciiaa, of ^aisate divorce. The
c(m §tJMam..j£,>marriage J^ by j ^
the Council of Florence inl439 - a conception that had
been slowly maturing for centuries - was the obvious
device to explain and perpetuate the doctrine of eccle-
siastical jurisdiction;
but not