Vomiting in the marital bed

Carolyn Steedman

• Road to Divorce, England 1530-1987 by Lawrence Stone
  Oxford, 460 pp, £19.99, October 1990, ISBN 0 19 822651 9
• Late Victorian Britain, 1875-1901 by J.F.C. Harrison
  Fontana, 265 pp, £5.99, September 1990, ISBN 0 00 686130 X

During the protracted legal upheaval of the Reformation in England, the law of marriage remained as it was before. For Roman Catholic Europe, the Council of Trent in 1563 ushered in a new strictness, and control of wedlock by the Church, but on this side of the Channel pre-Tridentine canon law remained the law of the land until the Marriage Act of 1753. An extraordinarily contradictory mishmash of ecclesiastical and common law governed the making of marriage in Early Modern England. There was contract marriage, a form originating in the 13th century, when Innocent III decreed that the free consent of both parties was the sole essence of marriage, so that a valid and binding union could be made by an exchange of words between a man and a woman (over the ages of 16 and 14 respectively) before God, in front of two witnesses, and expressed in the present tense. The hinge of many an early 18th-century novel is here explained: it was hard lines for a young woman who had not grasped the tense system of her native grammar, and who did not know that intention – vows expressed in the future tense – constituted no contract at all. Such marriages – where the tense was the right one – were recognised by ecclesiastical law, but carried no property rights in common law.