It was not until the Counter-Reformation that the Church first ordained that a wedding must be conducted in the presence of a priest, and by this time England had left the Roman communion. Any man could marry any woman, within the laws of consanguinity, and provided neither was already married, by a simple declaration of intention. This process was known as spousals, and effected a valid marriage, even if performed without oath or witness. (191) This was clearly understood in Shakespeare’s time, as we can tell from the scene in Twelfth Night, where Olivia asks the priest to say what has passed between Viola (supposedly a boy) and herself The priest replies, not that he has married them but that they have made
A contract of eternal bond of love,
Confirm’d by mutual joinder of your hands,
Attested by the holy close of lips,
Strengthen’d by interchangements of your rings;
And all the ceremony of this compact
Seal’d in my function, by my testimony . .
It was considered very desirable to have witnesses, in case of any future dispute, but their absence did not invalidate the marriage. It was usual to follow such spousals by going to church and saying a Bride Mass, and so it became the practice to perform the spousals at the church door, supported by one’s friends, before entering for the Mass. As Chaucer’s Wife of Bath tells us, “Husbondes at churche dore have I had five.” It was only in the tenth century that the priest took to supervising the marriage at the door, and not until the sixteenth that it became obligatory to conduct the whole of the ceremony inside the church. (133) In the form of marriage used in England, the break between the two parts of the ceremony, the actual marriage in the presence of witnesses, and subsequent blessing of the marriage by God, can be clearly seen, but in the corresponding U.S. service the part after the break is now omitted.
The Church, it must be made clear, distinguished between an illegal marriage and an invalid marriage. To enter into spousals without a priest was illegal, and called for penalties but it was still a valid marriage. An illegal marriage might also lead to difficulties in the inheritance of property.
The form of spousals just described was known as spousals ‘de praesenti‘. It was also possible to perform spousals ‘de futuro‘, by promising to take someone as spouse at some future date: whence the present practice of announcing one’s engagement. The legal age for marriage was fourteen in the case of males, twelve in the case of girls, but the Church performed marriages on children much younger, even on infants in arms. For instance, the youngest marriage in the Chester records is one between John Somerford, aged three, and Jane Brerton, aged two; the point of these early marriages was frequently to prevent an estate reverting to the crown under feudal law. For the marriage of those under seven, parental consent was necessary. But all such marriages could be declared void when the legal age was reached, provided copulation had not taken place. Conversely, copulation was also what converted spousals, technically, to marriage, and penalties were imposed if it occurred before church blessing had been given. (172) (This point was controversial, as I shall explain later.)