Common Places, Part 2 · Chapter 10 · Section 1
MAtrimonie, wedlocke, In Iud. 8. verſe. 31. Of matrimonie.marriages, and wedding, doo ſignifie all one thing, and matrimonie (as it is in the firſt booke of the inſtitutes of Iuſtinian, when mention is made of the power of the father, & in the Digeſts, A definition of Matrimonie. Looke In 1. Sa. 18. 20.De ritu nuptiarum) is defined to be a coniunction of man and woman, an inſeparable conuerſation of life, and a communicating of the lawe of God and man. But this definition muſt be made perfect by the holie ſcriptures. Wherefore we muſt ſaie, that this coniunction of man and woman, was inſtituted by God, for the increaſing of children, for the taking awaie of whoredome, and that thereby the life of man might hauehave helpes and commodities. In this definition, no doubt but the coniunction of man and woman are in ſtéed of the matter. VntoUnto the forme apperteineth the inſeparable conuerſation of life; ſéeing with this mind and purpoſe man and wife muſt marrie togither. For although that copulation be ſeparated by adulterie; yet, when the matrimonie is contract, both man and wife ought to hauehave this in their mind: that being once ioined, they muſt abide and liue togither. This alſo belongeth vntounto the forme, that betwéene them two there be a communicating of the lawe of God, and of the lawe of man; ſith it behooueth that they ſhould he both of one religion, and that they communicate humane things one with an other. For the wife paſſeth into the familie of hir huſband, and is accounted one fleſh with hir huſband. Yea and the goods of both the wedded perſons, in all reſpects, be made common to the one & the other. Howbeit, the efficient cauſe of this ordinance was God himſelfe, euen from the beginning, who made a helper vntounto Adam. And the end (as we hauehave ſaid) is the procreation of children: for God ſaid; Increaſe and multiplie. Gen. 1, 28.But as touching the other end; namelie, for the auoiding of whordome, 1. Cor. 7, 2.Paule hath verie well and plainelie written, in the firſt to the Corinthians.
If thou wilt demand, whether bonds or writings are required for contracting of matrimonie, we may anſwer, They be not required: bicauſe the conſent of either parties is ſufficient, as may be perceiued in the Authentiks, and in the Code, where it is intreated of marriages. But that, Ierom.which Ierom writeth vntounto Oceanus, that thereby a wife is diſcerned from a concubine; bicauſe a wife muſt hauehave bonds, and a dowrie (which concubins had not) this I ſaie is not vniuerſallie to be receiued; for his ſaieng is to be extended vntounto that wife, which before was a concubine. As touching hir it was néedfull to hauehave bonds, that ſhe might no more be counted a concubine, and that the children, which ſhe alredie had, or afterward ſhould hauehave, might be legitimate. But a dowrie is not required of neceſſitie; bicauſe (as it is a common ſaieng) a dowrie hath not place without matrimonie: but matrimonie may conſiſt without a dowrie. For a dowrie is giuen for the eaſier ſuſteining of the burthen of matrimonie. The canons hauehave added, and that profitablie, that matrimonies ſhould not be contracted priuilie. Againſt ſecret marriages.For if the aſſent of the man and wife be ſecret, and without witneſſes, iudges can pronounce nothing of ſuch a matrimonie contracted. Wherefore, if their wils ſhould be changed, and after thoſe ſecret matrimonies, they ſhuld contract ſolemne and publike marriages; the firſt marriages giuegive place vntounto them, and the conſcience is kept both doubtfull, and alſo wounded.
Of hauing concubins.2 But to ſpeake of hauing of concubines, two things are to be conſidered; firſt, what the Romane lawes ordeined concerning the ſame; ſecondlie, in what ſort it was vſed among the Hebrues, or what is to be vnderſtood, when we read that the fathers had concubins. As concerning the firſt, the hauing of concubins was by the ciuill lawe a certeine kind of matrimonie: for a concubine was not a harlot proſtituted vntounto manie men; nor yet a harlot, which was kept togither with a lawfull wife. And how much ſhe differeth from a wife, it ſhall appéere by the definition of a concubine. The definition of concubine.For a concubine is ſhe, that hath the vſe of marriage with one that liueth ſole. But for that ſhe is not vnſeparable (inſomuch as they that are ſo ioined may eaſilie be ſeparated) therefore a concubine differeth far from a verie wife. Moreouer, the rites of the lawe are not communicated with hir: for a concubine paſſeth not into the familie of him, with whom ſhe is conuerſant; yea and their goods and faculties are not common togither. Neither are the children, borne of that coniunction, counted lawfull and iuſt heires; vnleſſe they be made legitimate by the benefit of the prince. Howbeit, it is by the Romane lawe forbidden that a man ſhould hauehave manie concubins at once. And it is prohibited to hauehave a concubine, togither with a wife. Moreouer, by the Romane lawes, ſuch cannot be counted as concubins, with whom rape may be committed; namelie, a frée borne virgine; and a widowe vnderunder 25. yéeres of age. For if a man hauehave carnall companie with them, either it ſhall be matrimonie, or elſe iudged whoordome. Yet neuertheleſſe, a widowe may be a concubine, if before witneſſes it be declared, that ſhe is taken, not for a wife, but for a concubine. And laſtlie, there can be no concubine, which may not become a wife: although not in that place where ſhe dwelleth, yet at the leaſtwiſe in another place. Which I therefore ſaie: bicauſe by the Romane lawe, it was not lawfull for the preſident to marrie a wife of that prouince where he gouerned: which neuertheleſſe he might hauehave as a concubine.
And if thou wilt demand, Whether the Roman lawe allowed of concubins.whether the Romane lawe allowed concubines? I will anſwer, that they did abſolutelie allow of them, bicauſe they did not condemne the hauing of concubins, as a thing vnlawfull; ſo that it were vſed in ſuch ſort as I hauehave ſaid. Yet indirectlie it reprooueth that coniunction, when as it ſuffereth not the children borne of concubins, to be lawfull and iuſt heires, vnleſſe ſhe at the length of a concubine ſhould become his wife; or vnleſſe it be by the authoritie of the prince. Howbeit, we muſt vnderſtand, that the children of a concubine were admitted vntounto a certeine ſmall portion of inheritance; but yet, not to a like and equall portion with the legitimate: yea and the children borne of a concubine, were not in the iuriſdiction of the father. But when of a concubine ſhe was made a wife, then it was neceſſarie, that there ſhould be tables of matrimonie. If we will reteine the Romane lawe, a handmaiden cannot be made a concubine; ſéeing by that lawe a handmaiden could not be made a wife. For the coniunction of a frée man with a handmaiden, the Romane lawes called Contubernium, a kind of fellowſhip: neither did they account it for a iuſt matrimonie. Howbeit, by handmaidens the Romans vnderſtood not hired ſeruants, but ſuch as they had bought. Which I therfore ſpeake, bicauſe our hired handmaidens be frée perſons: ſo as it is lawfull to contract iuſt matrimonie with them.
3 But now let vsus conſider the lawe of the Hebrues, Looke vponupon Gen 16. at the end, and 25. at the beginning.and what is to be thought of the concubins of the fathers. In verie déed they were wiues, although oftentimes they were handmaidens: as Agar, Bala, Zilpa, and the concubins of Gedeon. In the plea of court, and as touching the ciuill affaires of the places, in the which thoſe fathers dwelt, it ſéemeth that frée men might not enter matrimonie with them: and therfore perhaps in the holie ſcriptures they were called concubins. But yet before GOD, that is, by the lawe of matrimonie inſtituted by him, they were wiues. Wherefore in the booke of Geneſis, Gen. 16, 3.Agar, which is called a concubine, is called a wife alſo. So then there were two differences betwéene the Hebrue lawes, and the Romane lawes; bicauſe with them, the hauing of concubines was no matrimonie, but with the Iewes it was matrimonie before God: although perhaps in the court of plea, and in ciuill reaſon, bicauſe of the ſeruile condition of the woman, ſhe was not acknowledged for a wife. Further, héerein they differ; bicauſe the Iewes had handmaidens to their concubines: and the ſame was not lawfull to the Romans, if we followe that lawe, that ſhe ſhould be a concubine, which may be made a wife; ſéeing the Romane lawes counted not that for matrimonie, which was contracted with a handmaiden.
Neuertheleſſe, this ciuill lawe was not in Ieroms time reteined in the empire of Rome; either bicauſe the eccleſiaſticall lawes had mitigated it, Ierom.or elſe for ſome other cauſe. For in an epiſtle vntounto Oceanus, he ſpeaketh of certeine, which had their handmaidens in ſtéed of wiues, and forbare the name of a wife, bicauſe they would auoid burthens and charges: who notwithſtanding, if they became rich, made their handmaidens wiues. But we muſt further conſider, that where concubines ſéeme to be allowed and permitted in the decrées, the ſame ſhould be vnderſtood of thoſe, which are in verie déed wiues: although by the Romane lawes, and in place of pleading, they were counted concubines; bicauſe that woman was not ſolemnelie married, notwithſtanding that there was betwéene them a mutuall conſent of matrimonie. This, which I hauehave alledged, is read in the 34. diſtinction, in the chapter Is qui & Chriſtiano. Whereof the firſt is the decrée of the Councell of Toledo: the other is the teſtimonie of Iſidorus, in his book De diſtantia noui & veteris teſtamenti. But when in the decrées there is mention made of concubins, Looke In Gen. 16. at the end, and 21. at the beginning.which in verie déed are not wiues; they are generallie prohibited: and that is, when either partie will not alwaie dwell togither, nor yet acknowledge one an other as man and wife.