Vomiting in the marital bed
- 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.
Then there was clandestine marriage, performed by ‘some sort of clergyman’, using the words from the Book of Common Prayer, a ceremony which, however shabby it might be, was recognised by canon law and common law, was written in a register, and carried full property rights. There was church marriage, the ideal as far as the propertied classes were concerned, with partners selected by parents, financial arrangements settled, and vows exchanged in the public space of the church, before many witnesses. What the Marriage Act of 1753 did was to strengthen the power of such wealthy parents by nullifying any marriage made without consent by a minor – that is, by suppressing clandestine marriage. Much later, and as the result of quite different forces of secularisation in early 19th-century England, marriage by a public registrar was instituted. Lawrence Stone describes this enactment of 1837 as setting up a two-track system of marriage in England, but with marriages performed by a registrar remaining remarkably unpopular, at least the first time around. Only in the 1970s did the proportion of civil marriages reach 50 per cent.
Road to Divorce announces itself as an account of putting asunder, but it is of course, as it has to be, equally concerned with (and devotes a very large number of pages to) what Stone calls ‘the process of coming together’ over the last three hundred years: the rituals of courtship, the ways of being married, the commonplaces of what is exotically here called concubinage (surely only a legal term after the late 17th century?) but which means only a very large (but unknown) number of abject poor living together, for whom property was not an issue, as they possessed none at all anyway. Property, in this account, is the point of both marriage and divorce, and that is why Stone quite properly draws constant attention to the way in which the legal developments he narrates concern a very, very small number of people who have lived in this society since Early Modern times.
As an institution marriage created an economic partnership, an alliance between families: ‘it acted as the most important vehicle for the transfer of property, far more important than purchase and sale.’ The road to divorce which is treated here is a legal one (neglect of the law, Stone writes, has been ‘one of the worst deficiencies in historiography in all fields of inquiry over the last forty years’) and one that only England’s élite trod, and which they trod in a different way from their Continental peers, for after the Reformation, England was the only Protestant country without some form of legalised divorce.