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Daynes History of Marriage (Part 2)

I have really been enjoying the book More Wives than One by Kathryn Daynes, an associate professor of history at BYU.   In my previous post on the book, I mentioned that marriage wasn’t as regulated as it is today.  There were no marriage licenses, blood tests, or even ceremonies required.  If a couple said they were married, then courts ruled that they were.  That was all that was needed.  It seems that many of the marriage regulations we are familiar with today were influenced by the federal government’s efforts to stamp out Mormon polygamy.  Daynes gives a history of marriage starting on page 58.

Daynes writes,

The struggle between the church and state about who would control marriage has been a long one in the Western world.  By the end of the eleventh century, it was generally conceded that jurisdiction over decisions about what constituted a marriage resided with the bishop and his court.  In the two centuries that followed, the Roman Catholic church enunciated its beliefs about marriage and increasintly upheld the superiority of church practice over local usage.  Articulated in 1140 by the monk Gratian in his definitive Concodia discordantium canonum, these beliefs included the idea that the marital bond was indissoluble and that it was created by the free consent of the bride and groom.

Because the church wanted to make the formation of marriage effortless and easy, it followed Roman law, under which “marriage was virtually a formless transaction.”  The marriage was valid if the man and woman simply exchanged vows of marriage in the present, not future, tense.  As long as consent was given in the present tense, the church upheld the validity of the marriage even if there were no witnesses present, no clergy officiating, no specific form followed, or no consent given by parents.  Even consummation was not necessary if consent was given in the present tense.  Moreover, sexual intercourse after promises given in the future tense also created a valid marriage.  Certain impediments could, however, invalidate the marriage.  These included a previous commitment  by blood (consanguinity) or by marriage (affinity), and being impotent or too young.  With these exceptions, the church upheld the primacy of present consent between the couple over other considerations.  To be sure, the church discouraged the clandestine marriage such consent might foster, and the fourth Lateran Council in 1215 stipulated that couples planning to marry announce their intentions and prohibited priests from officiating secret ceremonies.10[Daynes footnotes many texts supporting this position.]

Although the church upheld the validity of secret, informal marriages, marriages usually were performed publicly and contracted in some ritual.  This was so not only because the church could punish couples marrying secretly even if it did not invalidate the marriages but also because secular courts retained jurisdiction over property.  Marriages without the consent of parents or lord could well result in the loss of an inheritance or succession to feudal lands.  Thus, while the church determined what constituted a marriage, it did not control all aspects of it.11

Two problems produced inherent tensions in this marriage system.  First, allowing secret, informal marriages created difficulties in knowing whether a prospective spouse was already married.  Second, jurisdiction over marriage resided mainly in the church, but civil courts asserted their authority over property rights created by marriage and by birth.  These inherent tensions helped produce a different set of beliefs about marriage during the Reformation.  Although marriage was a divine institution, according to Martin Luther in his Babylonian Captivity, it was not a sacrament, it did not impart grace, and it was not necessary for salvation.  Other reformers following Luther’s lead, and all reformed churches rejected the Catholic Church’s claim that marriage was a sacrament.  With that change in belief, control over marriage could be vested in civil rather than religious courts.  Reducing the clergy’s jurisdiction over moral life, Protestant governments on the Continent began requiring parental consent for minors to marry and mandating the presence of witnesses to validate a marriage.12  In response, the Catholic Church tightened regulations for marriage at the Council of Trent in 1563, requiring that the traditional exchange consent take place before witnesses, one of whom was the pastor.13

In England, however, the Reformation took a different path in regard to marriage.  Because elites found that ecclesiatical courts had adequately served their interests, reformation of the English church did not included abolition of these courts.  The Church of England was independent of the Roman Catholic church before the Council of Trent, so its requirement of witnesses and a pastor for a valid marriage had no force.  Clandestine marriages flourished; perhaps as many as 20 percent of marriages in England in the mid-eighteenth century were clandestine.  Not until 1753, with the passage of the Hardwicke Marriage Act, were such marriages curtailed.14

The Hardwicke Act was not passed until long after the American colonies had begun developing their own marriage laws.  New England drew on the Reformation’s ideas about civil government’s control over marriage.  Magistrates, not ministers, performed marriages there until 1686, when the Crown established its control over New England after revoking those colonies’ charters.  In the South, the Church of England was the established church, but without bishops or ecclesiastical courts, civil regulation of marriages was uncontested.  A variety of churches proliferated throughout the middle and southern colonies, and the marriages performed by the rites of those churches were recognized.15  With diverse religious traditions and peoples, the idea that free consent of the couple in the present tense created a valid marriage passed into the common law.

These developments, along with the movement away from government involvement prevalent in early ninetheenth-century America, elevated consent of the couple over public control of matrimony.  Unlike colonial or contemporary English interpretations of the common law, American nineteenth-century courts generally validated secret and informal marriages.16  By midcentury in the United States, the opinion of James Kent, the most influential legal commentator of his time, was accepted by all but a minority of courts:  “No pecular ceremonies are requisite by the common law to valid celebration of the marriage.  The consent of the parties is all that is required.”17  This rule was explicitly applied to Utah in 1885, when its supreme court ruled, “The marriage is complete when there is a full, free and mutual consent of the contracting parties.  They may enter into the marriage relation secretly, and the fact may be unknown to all save the man and woman… [A] couple may meet on the highway at any time in the day or night and there contract a valid marriage…[n]o particular form or ceremony being essential, and no witness being required.”18  Thus, no specific form for solemnizing a marriage was necessary to make it valid, as long as both bride and groom consented to the marriage.19  Nor were witnesses required.  Not until 1888 did the law in Utah mandate that two witnesses sign the marriage certificate.  That law also declared that marriages not solemnized by an authorized person were void, thus nullifying common law marriages.20

This explains the more cavalier marriage performed by the bishop that I related  in my previous post about Fred Cox and Lucy.  I have found it interesting that Utah divorce laws were as liberal as the marriage laws, and I plan a future post on that topic.  I have found 19th century beliefs about romantic love strange as well.  Daynes says that consent was the most important aspect of marriage, and says that romantic love was downplayed by all groups during this time period.  From page 64,

Believing the religious aspect of marriage was most crucial, Mormons downplayed the role of romantic love.  In 1853, Orson Pratt wrote that love was not “such as is often described in novels, which acts irresistibly, forcing all the other powers of the mind into subjection.”  Charles C. Rich was even more pointed in his criticism of romantic love in 1877:  “When a person is love struck, there is no reason in them.  We should never be struck very bad.”37

This nineteenth-century view of romantic love that set the couple apart from the community and tended to displace God was hardly compatible with Mormon beliefs.  “Never love you wives one hair’s beadth further than they adorn the Gospel,” Brigham Young preached.  “Never love them so but that you can leave them at a moment’s warning without shedding a tear.”39  Love was supposed to be guided by and subordinated to religous purposes.

To be sure, love was crucial to marriage.  “No woman should be united in marriage with a man unless she have some love for him,” Orson Pratt wrote, but he added, “Any woman who loves righteousness can and does love a man who works righteousness; and she can, but cultivating this love, be happy in his society, as a friend and as a brother; and if she were united to him in marriage, she could love him as a husband;”

Daynes talks about how consent is critical to the Mormon marriage ceremony, and compares these ceremonies to common law.  From page 65,

Although free consent was crucial, under the common law no particular form of ceremony was required, nor was public notification of the marriage.  The early nineteenth-century republican ethos combined with the social conditions in America to weaken state regulation.44  As an 1816 Pennsylvania court decision stated, “We have no established church.  A certificate of the bishop, therefore is out of the question.  We have no law compelling the keeping of a register by all persons who perform the marriage ceremony.  Our marriages are celebrated sometimes by clergymen, sometimes by justices of the peace and sometimes before witnesses without the intervention of clergymen or justices…Many marriages take place in parts of our country but thinly settled.  To hold a woman, therefore, to proof of her actual marriage might be productive of great inconvenience, without any advantage.”45  As this judgment indicates, registration of marriages was not compulsory.  Americans were averse to state intervention into private affairs, which is what registration of marriages meant to many.46

With no law regulating marriage, Utah also had no registration system outside the church.  After a sealing ceremony, a scribe was supposed to enter the date of the marriage as well as the names of the witnesses.47  The record was not public, however.  In the 1880s, when the U.S. commissioner of labor compiled statistics on marriage and divorce in America, he could not obtain even the number of marriages performed by church officials.  Nor are these records available to scholars.49

Daynes continues this discussion in Chapter 4.  On page 67,

Unreliable public records made it difficult for many couples to substantiate their marriages, but American courts accepted into common law the rule that a marriage could be presumed from the cohabitation, reputation, and acknowledgment of the couple.1  On the whole, midcentury law in America encouraged marriage.  Because most judges required no particular form of ceremony or a record of it to presume a marriage or a record of it to resume a marriage, they put the weight of the law behind those living as husband and wife.  Moreover, both Georgia and Pennsylvania passed laws stating that marriage was encouraged.  In Utah, marriage was encouraged not only by the continual preaching from teh pulpit but also by the lack of legal barriers to it.

Although the Utah legislature enacted no laws legalizing plural marriage, it did pass a measure stating, “No laws nor part of laws shall be read, argued, cited, or adopted in any court, during any trial, except those enacted by the Governor and Legislative Assembly of the Territory, and those passed by the Congress of the United States when applicable; and no report, decision, or doing of any court shall be read, argued, cited, or adopted as precendent in any other trial.”4  Because precendent is the basis for the common law, this measure disallowed the authority of the common law in the territory.  Since the common law prohibited bigamy, rejection of common law at least tacitly was in force was in considerable dispute because of the judicial decisions made by non-Mormon judges.

Except for permitting plural marriage, Mormon practice was generally congruent with the contemporary common law in its lack of restrictions on marriage.  Following Roman law, under common law the age of discretion, the age at which a valid marriage could be contracted was twelve for females and fourteen for males.  A marriage contracted by an individual under age seven was a complete nullity.  Although individuals could contract a marriage between age seven and the age of discretion, they could also disaffirm the marriage at any time before reaching the age of discretion.  Such disaffirmation could be either private or public, that is with or without a judicial decree declaring the marriage invalid.5  Although under common law parental control continued until the child turned twenty-one, most American judges gave greater weight to the sanctity of marriage than to parental disapproval.  Judges in the United States often rendered legislation raising the age for marriage ineffective by treating such laws as advisory, not compulsory. In Utah, if any restrictions on age prevailed, they were common-law ages of discretion, until 1888 when those ages were incorporated into the Act Regulating Marriage.  Only in 1897 were the ages raised to fourteen for females and sixteen for males.6

The next few paragraphs are incredibly interesting in describing some early Mormon marriage practices, but I want to state a few more facts in relation to Congress.  From page 86,

This de facto recognition of plural wives changes as Congress stepped up its campaign against polygamy in the 1880s.  Polygamy, along with those consanguineous marriages that many considered incestuous, had become symbols of family crisis in America.  Reformers ralled behind legislation requiring marriage licenses, raising the statutory age of marriage, banning marriages between blood relatives, and curtailing plural wives’ ability to inherit from their husbands.  Even the courts began to soften their support for informal matrimony amid the reformers’ fears of free love and “rampant Mormonism.”  Polygamy, a “prime instigator” of the social climate that produced these reforms, became one of the first targets for change.107

During the 1880s, the federal government dismanted the entire system the Mormons put in place in the 1850s to protect plural marriage.  Not only were the polygamous families excluded from inheriting from intestate estates, but also Congress passed laws regulating marriage and mandating registration of marriages.  By enforcing these laws, by taking the selection of judges out of the hands of Mormons, and by attacking the church itself, the federal government was also able to curtail the church’s influence over the civil courts and to diminish the ecclesiastical courts’ control over family issues.

I had no idea that the Mormon practice of polygamy led to many of the regulations of marriage practices today.  Were you aware of this?

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15 comments on “Daynes History of Marriage (Part 2)

  1. “I had no idea that the Mormon practice of polygamy led to many of the regulations of marriage practices today. Were you aware of this?”

    I wasn’t aware of that either. Makes you wonder what the gene pool of the western US would look like today if the gov’t hadn’t regulated marriage. Perhaps it would be similar to the FLDS today, who apparently have a high rate of babies born with genetic disorders? I personally find it hard to believe that the Manifesto would have ever come were it not for external forces.

  2. Maybe God wanted the government to get into the business of actively regulating marriage, but as it showed no inclination to do so, he needed a provocation to get its interest. Thus, he commanded Mormons to practice polygamy and force the government to intervene, which it did. Once the deed was done, God commanded the Mormons to get on board with the new system and forget about polygamy, which had served its purpose. And everything was fine for over 100 years until those danged homosexuals came along and started insisting that government regulate marriage incorrectly.

    Not that I believe any of that, but it would seem to be a plausible implication of the facts Daynes presents.

  3. To me, a lot of these historical facts shed some light on the differing social matters of the day, which we often don’t understand today. Often the picture is painted that the government’s agenda was hate and devil-inspired evil deeds to thwart the work of God from going forward. However, it seems plausible to me they were just people drafting laws to better society like they were doing for prohibition of alcohol, and ridding the country of slavery, and other social issues, marriage and family being one of them. Sometimes I just think it is told from mormon historical perspectives as if there was the church vs the church of the devil…and the government was “out to get us” … when actually, it was just people of other faiths that could see the dangers of underage girls being married off to older men, or the dangers of genetic disorders. Politics and laws from Washington are usually multi-factioned and not usually all coming out of a united effort to target one group of people. It just doesn’t work that way.

    #2: Last Lemming: “everything was fine for over 100 years until those danged homosexuals came along and started insisting that government regulate marriage incorrectly.”
    Isnt’ it interesting how the church has changed from “Don’t tell us what we can and can’t do with our marriage practices” to “Marriage is sanctioned between one man and one woman and the government should write that in the constitution”?

  4. MH: Many of these things Daynes talks about regarding what constituted marriage in the past are interesting. Elder Oaks has said, in defending marriage:
    “Let’s not forget that for thousands of years the institution of marriage has been between a man and a woman. Until quite recently, in a limited number of countries, there has been no such thing as a marriage between persons of the same gender. Suddenly we are faced with the claim that thousands of years of human experience should be set aside because we should not discriminate in relation to the institution of marriage. When that claim is made, the burden of proving that this step will not undo the wisdom and stability of millennia of experience lies on those who would make the change.”

    Oaks makes it sound like it has never changed throughout history…it has always been an instituted and accepted thing…but Daynes makes it sound like it has been debated on how to properly do it for a long time, so it may not be as straight forward as Oaks alludes. Perhaps the idea that it was never accepted as homosexual marriage in the past could be the point, but it has also never been a thing that governments have licensed and sanctioned in the past.

  5. This discussion also has something to tell us about institutions of marriage that are impacting the Western nations when we come into contact with other cultures. Sharia law is based on a different balance in the authority of religious and civil courts over family matters, and in Israel, there is a major issue over “civil unions” — which in that context often means allowing heterosexual marriages to be performed by other than an ORTHODOX rabbi.

  6. FD, I thought you might find this topic interesting. I agree that external forces played the most significant role in the Manifesto.

    Last Lemming, I knew someone would introduce gay marriage into this conversation–it was inevitable.

    Heber, the Republican Party was founded just prior to the Civil War. It’s purpose was to rid the country of the “twin relics of barbarism: slavery and polygamy.” I find it so ironic that Mormons have embraced the Republican party, and blacks have embraced the Democratic party. Certainly, no good Mormon voted for a Republican in the decades following the Manifesto, because it was pretty clear that the Republicans were “out to get us”, at least as far as polygamy and theocracy were concerned. (The Democrats weren’t as aggressive about it.) It certainly is quite a turnabout that the Mormons were once pariahs, and are now firmly entrenched with Conservative Christians on the marriage debate.

    I can see how you would interpret Oaks words as you do. While there was certainly much less regulation of marriage in the centuries leading up to the anti-polygamy raids, I think the essence of Oaks words are true. I have heard that Michael Quinn has tried to make the case that early church leaders such as Joseph Smith didn’t have a problem with homosexuals in the church, but in light of my studies on early Black Mormons, it is pretty clear to me that Joseph and Brigham did not condone inter-racial marriage. Brigham said that inter-racial couples deserved death on the spot. As such, I don’t find Quinn’s claims credible that homosexual relations would have been acceptable to early church leaders. It seems to me that sexual relations without marriage were contemptable to early church leaders, as were homosexual relations. The Bible certainly has many significant prohibitions and condemnations on gay relationships.

    Despite the lack of marriage regulations, I can’t think of any society in which homosexual relations were encouraged. The closest group I can think of is Sodom and Gomorrah, and it is hard to tell if those cities actually would have practiced what we would consider gay marriage. The Bible has clear problems with the homosexual relations, and even atheist governments like Communism and Nazism don’t tolerate homosexual relationships. So, in that respect, I think that when Oaks states that “for thousands of years the institution of marriage has been between a man and a woman…there has been no such thing as a marriage between persons of the same gender”, he is on pretty solid footing to make such a claim. Daynes talks of the lack of regulations in marriage, but I don’t think what she says can be construed as showing acceptance of gay marriage at any time in history.

    What is interesting to me is the fact that there has always been tension between government and religion on the definition and authority to define marriage. I am sympathetic with the position that gay couples want property and inheritance rights bestowed upon them, just as heterosexual couples. I guess I’m more comfortable with the idea of civil unions.

    From Daynes history, it seems that religion has always played the primary role in defining marriage. I was shocked to learn that marriage over the centuries did not require a special ceremony, though it seems clear to me that religion has always had a preference to include a ritual ceremony to establish a marriage. As I look at this history, it seems that “common law” to establish marriage has been much more prevalent than a ceremonial marriage. As we read the Bible, it seems that Jacob, Moses, and Abraham’s marriages were more like “common law”, than a Biblical sealing ceremony as Mormons are taught.

    I like the sealing ceremony, and I’m comfortable that it is a modern revelation, rather than an ancient biblical practice that was restored through Joseph Smith. I know Mormons say that “Families are Forever”, and make a big deal about having children sealed to parents. However, it seems to me that the sealing ordinance is really a “couples” ordinance, rather than a “family” ordinance. While sealing children to parents is nice, it seems to me that according to D&C 132, the importance of sealing is not children to parents, but husband to wife. A child may be sealed to a parent, but really, a person must be sealed to a spouse in order to achieve exaltation. Sometimes I think Mormons place more emphasis than is necessary on sealing children to parents.

  7. I agree with Heber that the blame on the gov’t is misplaced. I think we’ve seen something similar now with the FLDS. A lot of people were upset about the raid, that it was violating their civil rights, etc, but I just cannot for the life of me understand how any responsible gov’t could have turned a blind eye and a deaf ear to the accusations of child rape and abuse going on there. They maybe went about it the wrong way by raiding the complex in dramatic fashion, but I think that the FLDS probably did what they could to hamper the investigation. And I’m sure that they regard the gov’t as “the devil now,” especially those young kids who didn’t understand anything except that they came to take him away from his mother for a few weeks.

    I’m curious about Quinn’s claims, but haven’t read the book. I find it very difficult to believe that JS or any of the others ever sanctioned homosexual relationships. But what’s this business about JS and BY wanting to seal priesthood holders to each other? I’ve read snippets of that around different places, but I’m not really sure what to make of it. Can anyone shed more light on that?

  8. I can’t remember which book I was reading (probably “Great Basin Kingdom”), but there were some really liberal adoptive sealings. For example, John D Lee (of MMM fame) was sealed as a son to Brigham Young, despite the fact that Lee was older than Young. There was a belief that (1) the more people you had sealed to you, the better your exaltation was (2) if you were sealed to a prophet, it was better for your personal salvation. These sealings were definitely adoptive in nature, not homosexual. I can look into this in more detail if you would like. Certainly Brigham had some strong words against homosexual, as well as heterosexual relations outside of marriage, so I think it is impossible to view these relationships as anything but adoptive.

  9. Those adoptive sealings would be a great topic for a future post (hint hint). 🙂

  10. MH: Is there a pretty good amount of evidence that Joseph Smith’s multiple wives were more than “adoptive” sealings?

  11. FD, I checked about 4 books, and saw an off the cuff remark by Quinn that Lee was sealed as an adoptive son of Brigham Young, but I couldn’t find the details on adoptive sealings. I’ll keep looking and see if I can post something on it. I can’t remember which book it was in.

    Heber, there is very conclusive evidence that Joseph’s wives were sealed to him as wife, not some sort of adoption. Joseph was sealed to 27-33 wives (depending on who is counting.) There is one unusual sealing that I discussed in my post on Early Black Mormons.

    Jane Manning James, (a free black) joined the church in Buffalo, NY in the 1830’s, and then walked the entire distance from there to Nauvoo. She received poor reception by Nauvoo saints (“with much rebuff”), but Joseph Smith was very welcoming and hospitable. He offered to adopt her as a child into the Smith household. She declined because she didn’t understand the implications.

    Margaret Young speculates that if she had accepted, it is likely that she would have received temple ordinances as part of the Smith family. Brigham Young and other church leaders declined to let her receive temple ordinances. After Young’s death, she appealed to John Taylor to recieve her temple ordinances, but was again denied. After she died herself, she was sealed posthumously to Joseph as a servant, so I guess this was a sort of “adoptive” sealing to Joseph as well.

    She finally got her wish after Pres Kimball’s revelation lifting the ban. Her temple work was completed shortly after the revelation in 1978.

  12. According to Wikipedia: “Church leadership subsequently revoked her temple ordinances and blessings on August 22, 1895, due to her “negro blood”. But reinstated the sealing — along with her servant status — in 1902 (Bathsheba Smith acting as proxy).”

    Interesting that it happened already in 1902. As far as the policy was concerned, I don’t think anything had really changed between 1895 and 1902.

  13. Thanks for the info about Wikipedia–I wasn’t aware of that. The video about her life is only $1 (shipping $4.25) from Deseret Book, so I just purchased it. I’m sure it will make an interesting future post.

  14. @MH:

    I enjoy your blog a lot but on one historical point here you are way off base. Despite popular belief to the contrary, the Bible does not condemn homosexuality in nearly the ways you think. There is simply too much scholarship and published material to repeat here and which refutes your claims on that point, but let me assure you that you’re simply repeating popular myths, not actual fact.

    Joseph Smith himself said that the sin of Sodom was inhospitality and rejecting the prophets, NOT homosexuality. Ezekiel said the same. The notion that it was homosexuality was concocted by a handful of Catholic prelates centuries afterward. Again, there is solid history to confirm this. If you read the words of the story carefully you’ll see they do not inevitably lead to your conclusion. Furthermore, the Joseph Smith Translation says the men of Sodom were after Lot’s daughters as much as his two guests. So homosexuality per se was simply not a factor; the issue was abuse and rejection of the Lord’s messengers.

    There is plenty more like this to confirm that all other Biblical verses popularly used to condemn homosexuality do not in fact mean what most people think. Normally you are pretty thorough and you think things through, but on this one you dropped the ball. Please do some objective research before you state such things again. You’ll find this matter is not nearly as settled scripturally as you believe.

  15. Jay, we’ll agree to disagree here. I’m comfortable with my position. I’m not interested in a Bible bash, but I can point to many scriptures in support of my position. I’d rather keep the focus on Daynes research here.

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