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.
Available to this élite (and to an increasing number of the middling sort) before the Divorce Act of 1857 was the private deed of separation: there was judicial separation (but litigation in open court was vastly expensive of money and emotion, and this option was used by very few), and divorce by Act of Parliament – ‘an escape hatch exclusively confined to a handful of wealthy males’. For the poorer sort there was the theatre of collusion in wife sales (a handful of such reported cases – at their peak, between 1820 and 1830, there were only 50 – has exercised a mighty fascination over generations of commentators including modern historians); and in the last four hundred years, Stone suggests, an unknown number of men of the poorer sort have just walked out. The divorce proposals of the 1850s (which culminated in the Act of 1857) did not come about because of the situation of these men nor the plight of the women they left behind, and Stone puts paid to the common historical assumption that divorce was forced on the political agenda of the mid-19th century by major changes in the economic condition of the labouring poor. Rather, it is quite clear that we should look to a new set of assumptions about the possibility of married women owning property, and the protection of that property after separation, as well as to the triumph of secularism in English public life. The century of divorce law reform which followed saw the end of marital fault, divorce by mutual consent, and now the English courts routinely process 150,000 divorces a year. The divorce rate for manual workers is four times greater than it is for professional couples.
J.F.C. Harrison, in his elegant and economical account of Late Victorian Britain, reminds us of George Hewins’s grandfather, described in Angela Hewins’s The Dillen (1981), one of Stratford-upon-Avon’s abject poor, remarking around the turn of the century, that ‘there’s one law for them and one law for us, allus was and allus will be while they’s makin’ ‘em, stands to reason. Some day ... us’ll make the laws.’ They don’t of course: but divorce in Late Modern times in England costs practically nothing and is the one item of legal procedure to which working-class people have open access. It is not Stone’s business to ask what it tells us about modern society that divorce has become a central component of working-class culture.
The story Stone tells is an extremely important one, with the potential, as he claims in his introduction, to help us to recapture ‘the history of changes in mentalités in England in the Early Modern period, how these changes have affected and been affected by legislation, and how the public have contrived to twist the law for their own purpose’. On this point, Harrison gives us the response of an Edwardian working-class woman to yet another social investigator shuddering with pity at the conditions of which she was a victim. ‘I am afraid I cannot tell you very much,’ she says, ‘because I worked too hard to think how we lived.’
Stone’s handful of landed élite (and as the 18th century passed, monied bourgeois) couples, who did what they could with the existing law to put each other asunder, were, however, in a position to think about how they lived, and about the social and affective meaning of the body they wished to separate themselves from (and, indeed, about the meaning of their own body). The legal processes involved in separation and what passed for divorce demanded that arguments be constructed on these matters, and that statements be made and written down.
These legal processes recorded the evidence of men much more than they did of women. For instance, in actions for Criminal Conversation women were not permitted to defend themselves in court. (Criminal Conversation was initially the means by which a husband might claim compensation for a lover’s adulterous access to his wife’s body, but as the 18th century passed, it became a necessary prerequisite for divorce by Act of Parliament.) Nevertheless, there would seem to exist here an extraordinary richness of evidence about both men’s and women’s sexuality and affective life, valuable to the historian precisely because the people concerned were asked to stand back and reflect on these matters. Stone is among the first to tap the ecclesiastical court records in a systematic way. Here, practice followed Roman law, with every item of evidence, every deposition, every question asked, written down.
Mentalité is a very elusive thing, however, when there are no stories told. The reader needs to know that this big book is intended only to give an account of the legal developments underlying a history of marriage and divorce in English society, and that in the future ‘two ancillary volumes will contain a series of selected case-studies. The first volume, Uncertain Unions, tells stories about the making of marriage before 1753; and the second, Broken Lives, tells stories about the breaking of marriage before 1857.’ Road to Divorce is usefully understood, then, as the structural and legal underpinning of the account Stone gave us, in The Family, Sex and Marriage (1977), of the growth of affective individualism within families, and of the turning of men and women towards each other and their children, from the late 17th century onwards, as a primary source of meaning and satisfaction in life. But it is difficult to see how it will be used by those students of the family and household, and those taking courses in cultural history who have so successfully learned from that account of 1977, and who will be the consistent and enduring audience for the new book. What looks like a helpful signposting in chapter division and sub-division actually makes for much repetition, and it is extremely difficult indeed to extract from it a linear account of legal change and provision.
There are stories in Road to Divorce, of course, introduced in a seemingly arbitrary way, to illustrate ‘the ferocity of some husbands’ and ‘the passive endurance of so many abused wives in the 18th century’. So many upper-class husbands seem to vomit in the marital bed (and over some very costly bed-linen) in the course of these pages that I thought at first the writer had been transfixed with horror at Mary Wollstonecraft’s disgusted account of ‘personal intimacy without affection’ in Maria, Or, The Wrongs of Woman (1798), and used the figure of Mr Venables, always ‘drunk to bed’, as a means of primary historical reconstruction. Like Maria herself, ‘I think I now see him lolling in an armchair in a dirty powdering gown, soiled linen, ungartered stockings, and tangled hair, yawning and stretching himself.’ There are much nastier sights than the parade of drunken husbands in Road to Divorce, the horror increased by their shocking appearance in page upon page of legal history. Is an account of a Leicestershire woman’s labia sewn together by her madly jealous husband before he set off for market in 1737 substantially different from the titillation of those modern accounts which purport to expose the extent of child-abuse?
These sudden shockers serve Stone in two ways: they allow him to make a good-guy’s acknowledgment of the dreary catalogue of victimology that some modern women’s history has produced, and at the same time to evade the historical responsibility of dealing with the complex questions of subjectivity and social organisation – of mentalité – that the woman’s part of this story conveys. ‘Men,’ he observes, retreating to sociobiology by way of historical explanation, ‘have a widespread tendency to be intensely jealous of any rival for the sexual favours of their wife’; and then (for sociobiology is extraordinarily contradictory on the topic of male sexuality, and so is the historian who uses it) he remarks that for men, ‘there is evidence to suggest that the extreme if brief intensity of the purely physical pleasure of sex makes it easier to achieve with little or no emotional commitment.’ Where does the jealousy come from, if no emotion is involved? Above all, he suggests that we need to get to grips with the ‘huge economic, legal and moral consequences of the biological fact that a woman can become pregnant from a sexual encounter, but a man cannot.’
The men in Road to Divorce may be presented through the filter of modern notions like these: but it seems to me that as far as the women go, Stone has bought an entirely contemporary version of events and feelings. The women in this book are creatures of late 18th and early 19th-century fantasy and wishfulfilment – the proto-domestic saints born in men’s minds and out of counter-revolutionary reaction to events in France after 1792 – much more than they are products of historical reconstruction. In his account, they possess maternal rather than sexual bodies, and they are victims – Stone seems not to reckon with the thought that they, too, may have felt intense and terrible sexual jealousy, but were scarcely in a position to do anything about it.
Stone discusses the mental and behavioural revolution which has advanced us from the position where ‘a married woman was the nearest approximation in a free society to a slave,’ where ‘her person, her property both real and personal, her earnings and her children all passed on marriage into the absolute control of her husband.’ But this is not history, not an exercise of analysis on the texts as given, but a mere reiteration – in this case, of those ‘protests by women about unequal legal treatment and the double sexual standard’ (like Wollstonecraft’s Maria) which, Stone says, ‘had been steadily increasing in volume and intellectual coherence’ through the late 18th century. The heroine of Samuel Richardson’s Pamela of 1740 had a better understanding of the fertile conjunction in married women between legal nothingness and affective significance. ‘My soul,’ she said, ‘is of equal importance with the soul of a princess, though in quality I am but upon a foot with the meanest slave.’ Pamela is one of the poorer sort, about to make a fictional marriage into the Bedfordshire gentry, so as an example she is not perfect. But her assertion concerns the social and cultural meaning of the history of women and marriage and divorce in the 18th century: that while civil and ecclesiastical law might see women in their married state as analogous to slaves, both theology and the framing assumptions of everyday Christianity told them (and their husbands) that they were creatures of spiritual significance, quite equal to the gross beings who beat them up and ruined the bedlinen.
Out of these contradictions, among women of the gentry class in particular and the more comfortable middling sort of the later 18th century, was a modern subjectivity born. It is for this reason that Wollstonecraft can depict Mr Venables as all of a horrid piece: unlike Maria, he has no inside, no sensibility, no gradations of knowing and feeling. Yet Maria is also a fictional illustration of the horrors to which Stone alludes: her baby is torn from her while she is still breastfeeding, she is imprisoned in a madhouse so that her husband can have easier access to her marriage portion, and she does indeed say (not in court, for this is an action for Criminal Conversation and she is not allowed to speak, but in a paper she writes to be read out there) that ‘I yet submitted to the rigid laws which enslave women, and obeyed the man whom I could no longer love.’
It was changes in male sexuality, Stone argues, the replacement of the culture of machismo with the culture of litigation, from about 1670 onwards, that shifted violated honour from the husband to the wife, thus elevating the idea of property to a central position in political ideology and legal practice. But we are not put in a position to assess the rise and fall of woman as an owned thing in the 18th century, and the reason for this is that some other little bundles of property do not enter the argument. There are very few children in Road to Divorce, though there is a good discussion of the problem of child custody and the developments in sentiment that permitted the idea of maternal love as legal evidence. Stone suggests that an erosion of patriarchy made a first breach in the total authority that upper-class men had enjoyed over their children. Under the Child Custody Act of 1839 it became possible for the Court of Chancery to transfer custody of children under seven to a divorced wife. But children, as property and pleasure (and as that means of reflecting on the self, and of finding the self utterly absorbing to its owner, that Family, Sex and Marriage delineated) are not present in the argument here.
Stone has asked the question that historians are paid to ask: how did we get to be the way we are? ‘Divorce,’ he says, ‘is now as central to our culture and experience as death and taxes.’ He reminds us that nowadays marriages last about as long as they did in the late 17th century, but with the decree absolute delivered by the postman rather than the Grim Reaper. But the comparison is a historically improper one, particularly if we are to believe that we can use history to recapture lost states of mind, and thereby understand more of our own. For there is nothing in modern times to mediate the difficulties of those thousands upon thousands of children who will, next Monday, write in their school newsbooks: ‘On Saturday I saw my dad. We went down McDonalds. I met my new mum.’ Divorce is a much harder thing than death: no comfort to be found in the abstract figures of the fairy tales, who continually rehearse the replacement of one parent by a witch or an ogre; no simple knowledge that a parent is in a better place; but rather the incomprehensible consciousness that the world has been turned upside down because an adult wanted sexual access to a new body – a mentalité that awaits its historian.
Road to Divorce does not employ culture as a concept, does not deal with that area where patterns of life, half-conscious beliefs, unknown qualities of mind, are articulated in community and in conflict with others – in a society – so that the meaning of a life and a way of living shared by many come together in the historian’s analysis. In this way, J.F.C. Harrison’s Late Victorian Britain gives direct structural and emotional access to the experience of a late 19th-century élite, a squirearchy, the comfortable sort, who had the time and space to think about their situation, the things they owned, and to ritualise that knowledge. It was a knowledge formalised in great ignorance of the great fact of labouring life, which was that ‘the business of making a living ... was for thousands ... the central experience of life.’ Perhaps Fontana will now be able to reissue Geoffrey Best’s Mid-Victorian Britain and Harrison’s own The Early Victorians, both published in 1971. Twenty years is too long to wait for the end of any story.