SOURCE: " 'Lawful Deed': Consummation, Custom, and Law in All's Well That Ends Well," in Shakespeare Survey: An Annual Survey of Shakespearian Study and Production, Vol. 49, 1996, pp. 181-200.

[In the following essay, Mukherji studies the legal and contractual obligations of Renaissance marriage dramatized in Shakespeare's All's Well That Ends Well.]

Having wed Helena at the king of Rossillion's behest, Bertram, the king's ward, refuses to bed her and flies to Italy with her dower, leaving a conditional letter for her: 'When thou canst get the ring upon my finger, which never shall come off, and show me a child begotten of thy body that I am father to, then call me husband; but in such a "then" I write a "never" '(All's Well That Ends Well 3.2.57-60).¹

Bertram's marriage, overseen by king and priest, counts as a solemnized de praesenti union for all practical purposes. And as Henry Swinburne confirms in his Treatise of Spousals, 'Spousals de praesenti, though not consummate, be in truth and substance very Matrimony, and therefore perpetually indissoluble.' This treatise, written around 1600 but published in 1686, is the only systematic exposition of marriage laws and the first handbook of canon law to be written in England.² According to Swinburne, the use of long absence as a legal means for escape applied only to de futuro spousals.³

What, then, is Bertram resisting by refusing to sleep with Helena? What is the status of his apparently impossible condition? This moment in the action has been interpreted by critics as the transformation of a legal possibility into a 'Fairy-tale' one, Bertram's stipulation being read as a purely fantastic setting of tasks in the romance mode.⁴ But such readings fail to account for Helena's meeting of his terms as though they were an actual legal impediment, and her final securing of him in what is, effectively, a court of law. Bertram's instinctive belief that 'not bed[ding] her' somehow counteracts the effects of 'Wed[ding] her' (3.2.21-2) does not stem simply from his own wrong-headedness, but from factors actually present in contemporary English society.

My point of entry into the play's engagement with law will be marital consummation as it figures in Bertram's conduct and Helena's response. I will interpret the concept of consummation in terms of its contrasting roles in Christian marriage and Christian divorce. But the act of sex in the social experience of marriage confounds these two functions, even as it conflates law and customary ritual. Its peculiar status in the play will be shown to hinge on its legal function as evidence. The problems of evidentiary procedure in English church courts provide an important focus for the play's treatment of marriage law. The two main forms of evidence that I will look at are the exchange of rings and pregnancy. My analysis of the ambiguities of evidence will refer to larger theoretical issues of motive and intention that are legally unresolvable but particularly conducive to exploration in drama.

In reconstructing the relevant legal history, I shall use Swinburne's treatise, which I will refer to as Spousals. This represents an attempt to codify as well as interpret the law, since Swinburne was dealing with an area of legislation that was not only supposed to discipline and punish but also to provide moral guidance for social and personal behaviour. Spousals seeks to mediate between legal theory and practice, the written word and the spoken, the spoken word and the sign, all of which constituted marriage as social practice. I shall also be drawing upon a draft fragment, preserved in Durham, which follows the completed Treatise of Spousals in what seems to be the authorial manuscript. Entitled 'Of the signification of divers woordes importing Matrimonye, etc.', this is, I take it, the beginning of the second part of what Swinburne originally intended to be a three-part treatise on spousals, marriage and divorces. I will refer to it henceforth as Matrimony.⁵

My other group of primary materials consists of surviving records of spousal litigation from contemporary church courts, mainly Durham, Chester, Norwich and Canterbury. Together, these two sets of texts provide a comprehensive picture of law as human action, and the contradictions in such action are dramatized in Shakespeare's All's Well.

The clue to our understanding of the nature of Bertram's conduct lies in the status of sexual consummation in popular custom, which derived elements from the theology, rituals and attitudes surrounding marriage, and its relationship with law. Among the many factors that constituted the overall sense of the accomplishment of a marriage, consummation had a role of special interest and curious standing. Theologically, a sacramental symbolism and sanctity attached to it, as reflected in The Book of Common Prayer. 'For this cause shall a man . . . be joined unto his wife, and they two shall be one flesh. This mystery is great.'⁶

In law, however, intercourse was not strictly a factor in the formation of marriage in sixteenth-or early seventeenth-century England. The church, which was in charge of matrimonial litigation, held, from the twelfth century onwards, that present consent, and not the sexual act, makes a valid and completed marriage.⁷ This position was marked by Pope Alexander Ill's promulgation of consent as the basis of the institution, irrespective of either solemnization or consummation. In England, where the pre-Tridentine canon law of marriage survived the Reformation and did not change till 1753, informal or private contracts continued to have claim to legal recognition since consent was still the ultimate and sole criterion of validity. So, consummation was as irrelevant in 'Law' as solemnization; hence the frequent clubbing together of the two by contemporary writers such as Swinburne as well as by legal historians in our own times.⁸

But given the inevitable confusions, uncertainties, and difficulties of proving consent, unsolemnized marriages were increasingly disapproved of by state and church. Certain 'Legal effects'—property rights and benefits (Spousals, 15)—were made conditional upon solemnization, and Tudor and Early Stuart England floundered through the curious doubleness of a situation where validity and illicitness could coexist in the same union.⁹ There was tightening pressure from both Protestant and Catholic reformers to regularize marriage, and one of its manifestations was an effort to impress on people that ecclesiastical solemnization alone made sexual union licit.¹⁰ The denunciation of intercourse before or without the public ceremony implied, firstly, that solemnization was seen by many as being connected with, indeed, guaranteeing and sanctioning consummation. Secondly, it suggests the association of intercourse with the social acceptance of a lawful union. Even among legal thinkers, there were those who, as Swinburne writes in Matrimony (120-1), made a distinction between 'Matrimony initiate' or 'begunne' and matrimony 'consummate', between 'True' and 'perfect' marriage. 'This word Nuptiae, Marriages', he writes in Spousals, is not necessarily used to mean solely 'The Substance and indissoluble knot of Matrimony only, but doth often signifie the Rites and Ceremonies observed at the celebration of Matrimony' (Spousals, 8-9). It is in terms of a society where 'Rites and ceremonies' were an essential constituent of the customary view and practice of marriage that Bertram's holding out against 'The great prerogative and rite of love' (2.4.41) has to be understood.

However, though it could not normally constitute a marriage in itself, there were a few specific circumstances in which sexual consummation could have a legal function. When a spousal was contracted between infants or between minors, it could be ratified and made into an indissoluble knot by willing cohabitation after attainment of the age of consent.¹¹ Sexual relations could give de futuro spousals between adults the effect of de praesenti marriage; they could also turn conditional spousals into matrimony.

If custom and ritual are major contributors to Bertram's perspective, these situations where intercourse has a proof-value form the other, more distinctly legal influence. Indeed, custom itself must have been conditioned by such legal associations. The witness depositions and the personal responses in contract suits of the period communicate a sense of how the specific legal functions of copulation led to a more general and undifferentiating notion of sex as being a factor that could make an otherwise uncertain match conclusive. In a Durham suit of 1570 for restitution of conjugal rights, cohabitation figures centrally in all the depositions. Isabel Walker's witness Richard Bell, keen to stress the validity of her marriage to William Walker and, thereby, her claims, says that they 'dwelte in house here in Durham togither, as man and wyfe by the space of one yere, or more'. On the other hand, William's witness emphasizes the finality of Isabel's marriage to her reportedly precontracted husband Robert Stathan; he deposes that 'He hath known . . . [them] . . . dwell to gyther in one house as man and wyfe, as this examínate and neighbours thereabouts dyd take ytt'.¹²

A different legal channel that influenced the way consummation was viewed proceeded from the laws regarding annulment, by which divorce could be obtained by proof of non-consummation in cases of pre-contract, duress, consanguinity, affinity or impotence. The divorce of Lady Frances Howard from the Earl of Essex came through in 1613 when her allegation of his incompetence was confirmed by his admission that 'He could never know his said wife'.¹³ The background to this law lies in the canonical tradition which associated indissolubility with the 'becoming one flesh' of married partners.¹⁴ The question whether a man who, after his betrothal, feels a call to enter religious life was free to do so was met by Pope Alexander III with the answer that he could first marry and then leave off to become a monk if he did not follow up the marriage with carnal coupling. His premise was that the Christian prohibition against putting asunder those whom God had joined applied only to incorporated couples; his precedent, St John's turning to religion from a virginal marriage. But this contradicted the fundamental canonical assumption that consent, not coitus, is the substance—a position he himself upheld. His circumvention of this problem is described by J. T. Noonan as resembling 'A legal trick, of a lawyer's way of satisfying contradictory purposes by keeping form and sacrificing substance, of nominally honoring the oath to marry while permitting the actual subversion of the oath.'¹⁵

One way of reconciling the canonical contradiction is to make, as canon law obviously did, a distinction between the model of Christian divorce, provided by St John, and the example of Christian marriage, provided by Mary and Joseph.¹⁶ The notion that mutual consent was the essence and physical union was the substance of marriage could thus be kept from a direct conflict and be channelled into two separate legal procedures. But this separation proved all too artificial in social practice. For consummation could function both as a constituent of marriage and as a sign of it. Originally, the constitutive function came into play mostly in clandestine or disputed marriages, while the signifying role was predominant in unions accomplished through the full formalities, being, as it were, an ultimate expression of the marriage. In a court of law, however, the two were easily conflated because in both capacities, the fact of consummation was required to establish certainties, to prove a status. Thus, in a Durham case of 1587, the doubts about the reality of the solemnized marriage of Sir Thomas Gray with Lady Catherine Neville arise because they have 'not cohabited continually'. That the marriage emerges as being viable and valid in court is due to the establishment of the fact that since a certain day they have 'nightly laid in one bed, as becometh man and wife'.¹⁷ Anne Yate and George Johnson of Cheshire go through a very different event—a plebeian trothplight match, possibly de futuro, contracted through a witnessed handfast, but unsolemnized. But in the legal dispute over it in 1562, as in the previous case, the deponents confirm the marriage with reference to sexual union, and the causal relation suggested by their phrasing indicates the inseparability of consummation as sign of status and as proof of contract. Oliver Foxe asserts that they were 'Reputid and taken for man and wief amonge their neighboures' 'For they did lye in one house, and nothinge betwix them but a broken wall and a paintid clothe'. Cecilia Key confirms, 'The neighboures . . . did take them as man and wief, in somuche that they have laine together in bed, and so vsed them selves as man and wief.¹⁸ Does the importance of consummation here derive from its status as the criterion of indissolubility in the divorce paradigm? Or, from its assimilation into the formalities of making a marriage, and so its association with solemnization instead of consent? It is impossible to tell. What one can perhaps tell is that the deponents did not pause to work out such distinctions before giving testimony.

Thoughts about marriage and related legal actions covered and intertwined the issues of formation and validation of matrimony, as well as of the making and unmaking of marriage. The status of sexual union continued to be a focus of some of the dualities in marriage law, and Bertram's refusal is both a response to, and an expression of this doubleness. On the one hand, Bertram is holding out against the one formality that is left him to resist, having been rushed through the paraphernalia of 'contract' and 'ceremony'. From this point of view it is a token non-completion of the ritual stages of marriage in society. Marital non-cohabitation did draw considerable social attention in early modern England, was on occasions a ground for presentment in court,¹⁹ and could even be disallowed by court decree.²⁰ A Yorkshire parochial presentment of 1568 states that 'They say all is well saving that John Pennye and his wif lyveth not to geither.²¹

But on the other hand, the resisted consummation is not, for Bertram, a mere external formality. Given that the legal validity of a marriage depended on mutual consent, he is exploiting the one remaining channel through which he can express his own consent or lack of it. Thus it comes to represent the substance of marriage, the indissolubility that it stands for in the canonical law of divorce. Here is a reconcilement of the apparently opposite standings of intercourse in the marriage and divorce paradigms that is less sophistical and more instinctive than the one offered by Alexander III. If the rationale behind granting importance to copulation is the idea that it expresses volition, the conflict is resolved. Especially in formally solemnized marriages like Bertram's, where the legally constituent elements are taken up in the self-generating momentum of ceremonies, the contract becomes more clearly an organized event than an expression of individual will; consequently, the post-legal stage of consummation becomes the clearer site of consent. 'I have wedded her, not bedded her, and sworn to make the "not" eternal', he writes to his mother, making a statement about the distinction, in his mind, between what has been achieved by legal form, and a voluntary and meaningful entry into the married state. The duality of the situation is further underlined by Bertram's language; the riddling and the cautious precision in his letters even while at one level he has committed himself—swearing 'To make the "not" eternal'—translates the sense of a lacuna written into the very language of the marriage ritual. The irony remains, of course, that Bertram's very defiance of law takes the form of an action prompted by legal instinct, neither custom nor social attitude being independent of law any more than law can function apart from these.

The transition of 'consummation' from its link with solemnization to its connection with intention is not peculiar to Bertram's psychology. Depositions from the period suggest that men and women did frequently associate the sexual act with 'consent'. The most telling example is that of Mawde Price alias Gregorie whose means of preventing her enforced and solemnized marriage to Henry Price from becoming real was to refuse to let him 'Have . . . his pleasure apon her', and instead, having regular sexual relations, and two children, with her precontracted husband, Randall Gregorie. This becomes the single focus of each of the depositions in this Chester case of 1562, and is clearly regarded by the witnesses as being directly related to consent. Alice Dood's phrasing actually identifies copulation and matrimonial intention; she says that Henry and Mawde did not 'cohabete voluntarle together, nor did consent together as man and wiff'. Matilda Broke's testimony reinforces this equation; 'verelie they neuer consented together'. To Henry Price himself, Mawde's resistance to sex is a sign of the non-reality of the marriage, and moves him finally to seek judicial annulment. Randall, the pre-contracted husband, considers Mawde's refusal to have 'carnali dole' with Henry a sure indication of her 'not [accepting] hym as her husband'.²²

Swinburne stresses the legal weight of 'voluntary Cohabitation' in converting child-marriages into 'True substantial Matrimony' and draws attention to the similarity of this criterion to the one that turns de futuro spousals into marriages. He goes on then to distinguish 'Other more feeble Conjectures of kissings, . . . etc.' from those that 'Are evident and urgent, and equivalent to the presumption of Carnal copulation' because it is required 'That this Consent, whereby Spousals are turned into Matrimony, do appear evidenter, evidently' (Spousals, 40-1). Talking of conditional contracts, he says that if the parties know each other carnally 'before the event of the condition', they are 'deemed to . . . yield their mutual Consents to Contract and Consummate pure and perfect Matrimony' (121). Swinburne, we must remember, was a legal practitioner, familiar with custom as well as legal theory. It is significant that his explicit association of consent with consummation is made problematic, if not contradicted, by his resorting to the law of presumption elsewhere. Discussing complicated conditional spousals, he prescribes the 'Favourable Presumption' that 'Is to be preferred in all doubtful Cases' regarding the purpose of any sexual involvement that may have followed (219). If a man bound upon oath to marry one of three sisters lies with any one of them, 'He is presumed to have made choice of her as his Wife' (221). The difficulty of ensuring that this presumption is also the truth of intention arises most clearly in the marshalling of proof. The law of evidence, for all its safeguards against getting the intention wrong, can, more than any other legal endeavour, make 'consummation' an absolute tool, disjoined from its motive. So Swinburne says, 'Spousals do become Matrimony by carnal knowledge, albeit the Man were constrained, through fear of death to know the Woman' (226).²³ The process by which Bertram's condition is met in All's Well dramatizes the way in which the contradiction in Swinburne, which is also a contradiction in law, is produced by the peculiar demands of 'evidence'. This is paradoxical, given that the theoretical importance of sex in marriage law was based so largely on the belief that it could be, potentially, the surest proof of consent.

This is not the only way in which Bertram's instinctive 'use' of law rebounds on him. When, desperate not to let the marriage materialize, but powerless, as a ward, to prove duress, he resolves to 'End ere [he] [does] begin' (2.5.26), he is making a mental demarcation between public ritual and a private counterpart in consummation. Neither Helena nor anyone else has doubts about what law vouches to be hers (2.4.41-2; 2.5.79-82). What Bertram denies is the relationship that the contract is presumed to guarantee. He is reclaiming sexual union for the sphere of the personal from the sphere of legal validation. But he does not simply protest through inaction; he further makes consummation the condition for a fuller acknowledgement of the marriage. By himself positing sex as an evidence for Helena to establish the rights of love, he forfeits his rights to a personal scale of criteria. As Helena sets about to realize his condition, consummation becomes more public than ever, and more sharply distinguished from personal consent, by the very virtue of being used as proof, and hence being required 'To appear evidenter' in a legal space.

These reversions are the subject of the following section which will also make clear how Helena emerges as a defendant seeking to validate her marriage, while Bertram corresponds to the unenthusiastic party fumblingly attempting a sort of annulment. Seen within this structure, Bertram's preoccupation with non-consummation is entirely appropriate, and fulfils the legal expectation of a divorce suit. Helena's attainment and use of carnal union is equally appropriate to her own legal purpose. The meeting of the two 'causes' demonstrates schematically the coming together of sign and proof, of formation and validation, and with these, of the principles of union and those of annulment in the practised legality of marriage.

The process by which Helena earns the right to be acknowledged by Bertram as his wife is quasi-legal, but by the time it is completed, it looks like a proper legal validation. That is largely because this development is crossed with another, truly legal pattern of events consisting of the interaction between Bertram and Diana, leading to an actual trial where Bertram has to defend himself against Diana's claim of marriage and her allegation of marital disacknowledgement. These legal events, of course, are instrumental to the successful accomplishment of Helena's project, and stems from the plan to use Diana to set the stage for the bed-trick.²⁴ A Shakespearian creation, Diana stands at the intersection of the legal and the quasi-legal structures, and represents the inextricability of the one from the other. The Bertram-Diana part of the play illuminates the nature of Helena's use of evidence by exploring the ambiguities of proof in a more clear-cut legal framework.

The relationship between Bertram's condition and its fulfilment is also one between a promise and its performance, terms and their enactment, and so, between word and deed. In contract law, a bond, the common device to secure contractual settlements, was finalized by using a 'deed'—the term describing a document under seal. By the beginning of the seventeenth century, the notion of contract had already begun to extend from its original sense of 'A transaction . . . which transferred property or generated a debt' to include the modern sense of a consensual pact, an exchange of promise between individuals—a meaning formerly borne by the word 'covenant'.²⁵ Such agreements being transient events, the 'deed' is what made them concrete and gave them legal validity.

An examination of the principle underlying this importance of the 'deed', however, reveals its origins in evidentiary problems. In medieval town courts, a contract that had not been observed could be proved by the oath of the plaintiff. This inevitably began to be felt as inadequate: the very need of proof in this matter was prompted by an awareness of the elusive and indeterminate nature of words. This is what led to law's sharp distinction between mere words on the one hand and action or deeds on the other. By 1321 it was legally prescribed that 'The only acceptable evidence of a covenant in the royal courts was a deed'.²⁶ In its original sense of an exchange of property, a contract had to be executed in order to be effected—there was no notion of sueing an unperformed contract. When its sense expanded, the function of performance was taken on by the act of sealing the document of contract in front of witnesses—something done, and hence a deed. From this, its original meaning in law, the word 'deed' came to be applied by transference to the product of the event—the document itself. Thus, a deed was both what made a contract in the legal sense, and what proved it. As well as being often signified by gestures such as a handclasp, it was itself a sign of the agreement.

The particular relevance of the word-deed hierarchy in marriage law is brought out through the liaison between Diana and Bertram. Persistent in his efforts at overcoming Diana's maidenly resistance, Bertram remonstrates, 'How have I sworn!' (4.2.21). Diana retaliates immediately that his oaths 'Are words and poor conditions', and insists on a seal. This is not simply a metaphorical way of disputing Bertram's sincerity but a legal argument; an attempt to steer Bertram's private declarations into a contract that can be proved later in a legal event which, as she knows and he does not, has already been planned.

The explicit use of terms from contract law in connection with professed commitments of love dramatizes an actual link between spousal and contract litigation. Actions against breach of faith that came up as part of the church courts' bulk of marriage litigation were allied in principle to common law actions for breach of contract. Besides, there actually existed a common law action for breach of promise of marriage.²⁷ Likewise, contract suits formed a sizeable portion of the church courts' business in the sixteenth and seventeenth centuries, and the practice of settling for cash was comparable to the common law action.²⁸ The law of contract, after all, is essentially the 'Law of obligations', as Baker puts it, one that 'governs those expectations of good faith which arise out of particular transactions between individual persons'.²⁹ This is exactly the issue in many spousal cases surviving from Tudor and Stuart times. Baker goes on to explain that this type of obligation could be dealt with either in terms of 'The right to performance of the contract or of the wrong of breaking the contract and thereby causing loss'. Helena's performance and validation of a conditional contract in the shape of Bertram's letter, and Diana's sueing Bertram for denying marital obligation dramatize these two complementary processes. The demarcation of the spheres of common law and canon law, thus, is among the several polarities that the play breaks down, in representing overlapping spheres of social experience.

When Diana expresses her misgivings about the 'unsealed' nature of a verbal promise, Bertram's reply supplies the possible nature of the deed that can seal it—

Change it, change it.
Be not so holy-cruel . . .
Stand no more off,
But give thyself unto my sick desires.

(4.2.32-6)

It is the act of sex, tacitly agreed upon thereafter, that Diana refers to when she talks of the need to 'Token to the future our past deeds' (64). It is this, again, that Helena has in mind when she anticipates the 'Lawful deed' planned for the night.

The marriage contract in Renaissance England can be seen as having consisted of a word component—the expression of present and mutual consent, and a deed component—the physical act of consummation. Like the written document in contract law, then, sexual intercourse is, potentially, what will clinch the private and unwitnessed agreement between Bertram and Diana as well as provide the evidence which Diana cynically suggests will be needed; it will draw his unsealed words into a legal 'deed' and ratify the verbal contract of espousal by performance.

The identification of the promissory and sexual components of a spousal pact with the verbal and the performative respectively, and of these, in turn, with the initial and legalizing aspects of a contract, was an element in the contemporary perception of the legality of marriage. This comes across in such court records as Matilde Price's personal response in the case of Price v. Price discussed earlier:³⁰ 'necque habuit carnalem copulam cum dicto Henrico, nec quia ex parte sua necque ratificauit hoc matrimonium re aut verbo . . .' [(she) neither had carnal copulation with the said Henry, nor on her part ratified this marriage by word or fact]. This is a case where the validation of an unsolemnized precontract and the invalidation of a solemnized marriage turn on the establishment of the fact of non-consummation in the latter; where verba becomes entirely secondary as the dispute in court diverts all attention to the superior ratifying power of res, which in this instance is 'carnal copulation'.³¹ One of the meanings of the word 'Ratify' in the sixteenth century was in fact 'To consummate' (OED, sense 3).

The 'deed' that is accomplished in All's Well through Diana's intervention, however, ratifies Bertram's earlier conditional contract with Helena, not his present one with Diana. It is the bed-trick in which all three senses of 'deed'—action, sealed contract and copulation—come together. The instrumentality of the sub-plot for the main plot, and their analogical relation highlight the fact that their distinctness is symptomatic of deeper divisions within the legal action in the main plot. One of the demonstrable instruments of the interlacing of plots is the pair of rings set in circulation by Diana. In serving this function, the rings as tokens of marriage and of intercourse alternate between two configurations in their relation to 'deed'.

While Bertram suggests sex as the seal called for by Diana, Diana demands his ring. This is the first ring to draw the audience's attention. Bertram's giving of it is analogous to a deed or to the signing of a 'deed', either of which can be a seal on an agreement. This takes us right back to Swinburne's discussion of the role of the verbal formula. It is in asserting the assumed function of words in making a marriage that Swinburne is faced with their potential inadequacy, even treacherousness. He does ultimately hold up the validity of the de praesenti formula, but in the very process of confirmation, he has to concede that

mortal man cannot otherwise judge of Mens meanings, than by their sayings for the Tongue is the Messenger of the heart; and although it sometimes deliver a false message, yet doth the Law accept it for true, when as the Contrary doth not lawfully appear.

(Spousals, 87)

As court records show, the contracting parties were the least likely, especially at the moment of spousal, to be verbally precise, and not sure to be conversant with legal formulae; the witnesses were often uneducated and were mostly reliant on memory. Moreover, spousal disputes brought to court frequently involved secret contracts, with no witnesses to testify.

It is in recognition of such inadequacies or unavailability of the 'Word' as evidence that Swinburne offers the exchange of rings as a possible solution (Spousals, 86). Moreover, he grants the ring a special position among the non-verbal signs that take on a demonstrative or validating function—deserving to be spoken of 'before all other signs' (207).³² The giving and receiving of a ring was, indeed, one of the commonest gestures invested with special matrimonial significance in the period. The surviving depositions convey a vivid sense of why rings had such a hold on the popular imagination and how the imperatives of certain actual situations harnessed their symbolic importance to a legal one.³³

Typically, rings assumed the greatest legal significance in settling disputes concerning unwitnessed and unsolemnized contracts, where material proofs were often the only available evidence.³⁴ In the case of Thomas Allen v. Alice Howling of Norfolk (1562), the determining factor is a 'Ring of gould'. In her personal response to Thomas's claim of matrimonial rights, Alice denies her alleged receipt of this ring 'In the waye of matrimony'. But her attempt at freeing herself is thwarted by John Smith and William Walker, who testify, in almost identical terms, that Thomas gave and Alice accepted the ring as an acknowledged token of present marriage.³⁵

The popularly perceived value of ring-giving as a symbolic and integral ceremony in a matrimonial context derived, paradoxically, from its traditional association with solemnized weddings in facie ecclesiae; thus it almost lent a semblance of formality to clandestine marriages. The formalizing and mnemonic qualities of the ring come together in George Haydock's deposition about the runaway Sothworth couple of Chester (1565): 'What wordes were spoken betwene the parties, he certenlie cannot declare, biecause he did not marke them well'; what he does remember, though, is that 'gold and silver was put on the boke' and 'A ringe [was] put on her finger'.³⁶

In Southern dioceses too, the Puritan challenge does not seem to have revolutionized custom.³⁷ In the Canterbury case of Wanderton v. Wild (1582), the ring clinches a contract—much in the manner prescribed by the pre-Reformation order of matrimony³⁸—and gives a de futuro spousal the sanctity of present marriage, at least in the eyes of the deponents. After the parties uttered words of pledge to each other which, predictably, 'He remembreth not', Michael Haell, a witness to the contract, said to them, 'If you receaue any such thing as you pretend conclude the matter as it myght to be done els I will not medie in it.' 'Then the said Wanderton took the said Agnes by the handes', and they uttered what was, roughly, the formula of a de futuro contract. 'Then they losed ther handes, and Wanderton gaue her a Ring gelt saying to her take this as a token that you have confessed and I the like to you, you to be my wife and I to be your husband [ . . . ] and she receaued the same Ring thankfully' (176). Haell's claim is that they are well and truly married.³⁹ This bears out the popular currency, in some places at least, of the legal provision set out but qualified as being practically unsound by Swinburne—that in spousals de futuro, 'When as on[e] and above the words, there is an Accumulation of some Act joyned therewithal . . . For example: . . . the Man delivereth to the Woman a Ring, . . . hereby the Contract is presumed Matrimonial' (Spousals, 71). The delivery of a ring here has the status of an act or deed.

This is the function made to serve by Bertram's 'subarration' to Diana, which, in conjunction with his words, would technically count as a promise of marriage:

Here, take my ring.
My house, mine honour, yea my life be thine,
And I'Ll be bid by thee.

(4.5.52-4)

We have, here, not only an evocation of the familiar situation of a private contract, and its characteristic method of establishing a formal context, but also the associated possibility of later dispute already present in the inception.

What Diana engineers, however, is an exchange of rings. This accords an altogether more complex set of values to the rings by the time they resurface together at the end, to constitute the comic and legal resolutions. While the course of Bertram's ring gets deflected from its original path through the introduction of Diana, a new ring is imported by her dark promise to Bertram:

And on your finger in the night I'Ll put
Another ring that, what in time proceeds,
May token to the future our past deeds.

(4.2.62-4)

In its promised exchange with the first ring, it has already become associated with Diana's virginity—'Mine honour's such a ring. / My chastity's the jewel of our house' (4.2.46-7). This is the jewel Diana pledges in return for Bertram's family jewel. In deed, though, it is Helena's chastity that is going to be its operative but invisible counterpart. The bawdy sense is reinforced by the verbal echo of Bertram's letter to Helena which posited, by linguistic juxtaposition, a cause-and-effect relationship between getting the 'Ring upon [his] finger' and showing 'A child begotten of [her] body' (3.2.57-9).

Bertram's language is deliberately rendered ambiguous by Shakespeare to suggest an unmistakeable sexual meaning; 'The ring . . . which never shall come off (3.2.57-8), with its multiple suggestion of a spousal ring with its eternal associations, Bertram's heirloom and the yet uncracked ring of Helena's virginity. It was, in Painter, far more clearly and singly the specific ornament belonging to Beltramo: 'I do purpose to dwell with her, when she shal have this ring (meaning a ring which he wore) vpon her finger, and a sonne in her armes begotten by mee.'⁴⁰ The change from 'Her finger' to 'My finger' and from 'This ring' to 'The ring . . . which never shall come off not only permits but invites a sexualized reading, and strengthens the syntactical link between the two conditions. It is this metaphorical connection that is taken up by Helena and literalized during the bed-trick.

The literal and bawdy meanings of 'Ring' in Bertram's statement of his first condition are, however, taken apart and met separately, even as Helena's agency is divided between herself and Diana. Thus, the actual ring on Bertram's finger that Helena has to get in spite of his resolution that it 'never shall come off (3.2.-58) has already been obtained by Diana. But while its procurement was meant to be a proof of Helena's cohabitation with Bertram, it becomes an alleged token of his marriage to Diana in the scene of arbitration, and a confessed token of his supposed sexual deeds with her. Meanwhile, Helena's pregnancy takes on the role of signifying his actual 'deed' with Helena. This splitting of functions foregrounds the separation between the woman Bertram thinks he sleeps with, and the woman he actually penetrates. His ring gets reconnected with Helena's conception only at the very end, a connection that is explicitly underlined by Helena's words:

There is your ring.
And, look you, here's your letter. This it says:
'When from my finger you can get this ring,
And are by me with child', et cetera. This is done.

(5.3.312-15)

This is at once a realization and restatement of the implied connection between ring and sex in Bertram's letter, and a reuniting of divided agencies in the figure of Helena—a covering up of the many divisions through which her husband has had to be 'doubly won'.

Meanwhile, the second ring, the actual jewel that Helena has put on Bertram's finger 'In the night', spotted by Lafew as Helena's and by the king as his own gift to her, is defined ultimately as a proof that Bertram 'Husbanded [Helena's] bed at Florence', since it is clear that 'This ring was . . . hers' (5.3.126-7). Part of the raison-d'être of this ring is its necessary role of providing additional support for Helena's claim of Bertram's paternity of her yet unborn child. Without this token of intercourse between Helena and Bertram, it would be less clear that Helena's conception followed from Bertram's night of pleasure in Florence.

Thus, if the first ring was initially analogous to the action or 'deed' that seals an oral contract, its later use as a sign of Bertram's supposed activities with Diana, and the use of the other ring as a seal and token of his actual congress with Helena, point to yet another relation between ring and deed in the play. 'Deeds', as what the rings, with their spousal and sexual associations, will help make evident, becomes clearly the act or acts of sex. Originally posited as a more reliable expression of intention than words, 'deeds' have now themselves become something to be proved; they, no less than words, are signs to be interpreted.

The special position given to rings by Swinburne and their centrality in the popular perception of marital obligations are borne out by their importance in the final episode. A scene of reconcilation and spousal negotiation quickly darkens into one of arraignment, as the 'Amorous token for fair Maudlin' (5.3.69) is recognized by the king as the 'Token' by which he would have relieved Helena, and as Bertram stakes all on it:

If you shall prove
This ring was ever hers, you shall as easy
Prove that I husbanded her bed in Florence

(125-7)

The trial structure of this scene is officially established upon the delivery of Diana's letter. Stating with legal precision her claim of marriage, and clearly setting out the charge against Bertram, this letter takes the place of a libel which is defined by Henry Consett as 'A Writing which containeth the action' in his account of the practice of the church courts in Renaissance England. Here, of course,⁴¹ the court is presided over by the king, instead of a doctor of law, but the royal presence itself is another factor which defines the legality of the space in the disclosure scene.⁴² Diana's very phrasing—'And a poor maid is undone' (141-8)—evokes the ambience of the sex-related litigation of the church courts—recalling numerous pleas by women claiming to be used, deceived or abandoned. The legal situation gets wholly formalized with the king's declaration of his suspicion and the countess's call for 'justice' (152-6).

In this set-up, the rings become the exhibita or material objects produced in court to support allegations. Diana's presentation of the first ring—the one given her by Bertram—is clearly accorded a higher truth value than other forms of evidence such as witness testimony. When Bertram casts aspersions on Parolles's personal credibility, the king points out, 'She hath that ring of yours' (212).

The terms in which the characters respond to the rings suggest at least one of the reasons behind their evidentiary impact. The entire drama around the first ring starts when it catches the king's eye—'For mine eye, / While I was speaking, oft was fastened to 'T' (82-3). Bertram's denial that it ever was Helena's is met with the Countess's assertion, 'Son, on my life / I have seen her wear it' and is corroborated by Lafew's 'I am sure I saw her wear it' (90-2). One remembers depositions like Christabell Andro's, who recounts the contract between William Headley and Agnes Smith, as well as registers its reality entirely in terms of images—'she . . . sawe the parties contract and gyve ther faith and trewth to gither . . . ; and the said William gave the said Agnes one pair of glowes and a bowed grote, and she gave unto . . . William one gold ring'.⁴³

It is the impact of 'Ocular proof' that Diana exploits when she presents this ring dramatically in court—' . . . O behold this ring' (5.3.194). The Countess immediately notes, 'He blushes and 'Tis hit' (198). But Diana has hit the mark in more senses than one. Everyone else in the assembly reacts as much as Bertram does, and the Countess declares at this point, 'That ring's a thousand proofs.' (202) As Swinburne puts it, 'Not to be, and not to appear, is all one in Construction of Law' (Spousals, 181). The function of proof, therefore is to make the truth apparent or visible. Enargaeia was defined by Aristotle as an exercise which represents an object before the eyes of the viewers, and the Latin word for enargaeia, suggestively, is evidentia.44

Significantly, however, most of the deponents one encounters do not—and cannot—actually reproduce the incident or the facts they are seeking to ascertain. Rather, they attempt to narrate them vividly. Evidence, thus, involves an exercise in re-presentation and hence, inevitably, a metonymic relation between the truth sought to be proved, and the sign that is meant to evoke it. Even exhibits—be they letters, handkerchiefs, deeds or rings—are legal tokens. The way they make things evident is by symbolically or associatively evoking an entire situation before the eyes of the judge. The necessary translocation involved in evidentiary practice is dictated by the fact that the action or the intention to be proved cannot literally be shown in court, and yet has to be somehow made apparent. The inadequacies and ambiguities of this process gain a specially concise focus in the context of marriage law in which the crucial events and factors to be established were usually private acts and utterances, and very often the specific act of sex. All's Well's dramatization of this area of law highlights a condition common to the theatre and the church courts. Both are faced with the task of often having to represent and legislate a realm removed from the public space of the stage or the court. Both, therefore, have to devise their own enargaeic modes to show what must necessarily be absent from this space but what is, at the same time, central to their motives of representation. The ring, here, inscribes this phenomenon, by virtue of its metaphoric valencies and its role as a 'Monumental' token (4.3.18). Legally as well as theatrically it bodies forth what must lie outside the limits of representation.

This is part of the larger problem of an uneasy relation between intentionality and legal truths revealed by adventitious proofs. When the king confronts Bertram with the evident truth that Diana 'Hath that ring of [his]', what Bertram denies in self-defence is not the fact that he gave it to her, nor indeed the implied fact of intercourse, but the matrimonial intention that is assumed and alleged to have informed both these acts (5.3.213-22). Exactly this argument is given by many defendants in debates over love tokens, especially rings, in disputed contract suits from the period. Alice Cotton of Canterbury says she received Thomas Baxter's gifts as 'Mere gift* and not 'In . . . waie of marriage' (1574).⁴⁵ What comes closest to Bertram's disclaimer is perhaps John Smith's distinction between the use of tokens for a sexual contract and for a marital one in his personal response against Christian Grimsdiche's libel in a Chester trothplight case of 1562: 'beynge askid, for what intent' he gave her tokens, 'He sais, because he had, and wold have, to do with her, & knew her Carnally; & not for that he wold mary her'.⁴⁶ Such disputes highlight the difficulty of assessing the intention of the giver through the perception of the receiver and of others. From their position of privilege over the spectators or the judge at a law court, a theatre audience would have seen enough of Bertram and heard enough from him by the time he is brought to trial, to be clearly struck by the fallacy of a 'Reasonable inference' of 'Wedlock' from the fact of Diana's possession of his ring.

The 'second' ring—the one that has travelled from the king to Bertram via Helena and Diana respectively, to surface in court as a proposed gift for Maudlin—turns out to be no less dubious a proof of intercourse and identity than the first ring is of spousal subarration. It is, of course, established that this ring was Helena's at one time, something that Bertram was confident could never be proved; but law's natural conclusion from this contingency, that Bertram 'Husbanded her bed in Florence', completely eschews the question of intention in applying the formula for a valid marriage. Bertram thinks he sleeps with Diana, and if that act is to seal any marriage, it is his with her—as indeed it legally would—since the 'news' of Helena's death, arriving before the bed-trick, has met the stipulation of Bertram's de futuro spousal to Diana (4.2.72-3). The fact that he is 'quit' (5.3.301) is due to an arbitrary separation of fact and meant truth in the 'deed of darkness' in Florence.

The connection between this legal fiction and evidentiary law's reliance on what is visible is something Swinburne's Spousals is aware of: 'For proof is not of the Essence of Matrimony' (Spousals, 87).⁴⁷ But 'Although . . . he which is the searcher of the heart doth well know their deceit and defect of mutual Consent', yet the 'judgement of Mortal man' must pronounce them married since 'The contrary doth not lawfully appear' (85). Hence such paradoxes as 'This deceit so lawful' 'Where both not sin, and yet a sinful fact' (All's Well, 3.7.38, 47). Hence, too, the irony that though 'not bedding but consent makes marriages' (Matrimony, 120), it is the bedding that, in this instance, proves it. The darkness and the silence that are the conditions for the bed-trick come to stand for the limits to the vision of the mortal judge, for what cannot be made evident either visually or by narration in a temporal court of law. Bertram's conditional pledge of love—'If she, my liege, can make me know this clearly'—touches precisely on the discomfort surrounding the knowledge law brings, but it is immediately forestalled by Helena's assertion—'If it appear not plain and prove untrue . . . ' (All's Well, 5.3.317-19). Helena's answer, in collapsing the gap between cognition and legal certification, articulates the rules that operate in the world of the play, as in law.

The Swinburnian unease around error and the inadequacy of law to accommodate its moral implications lies at the core of the bed-trick. In Matrimony, he states clearly and unproblematically that marriage contracted by those who 'doe not consent . . . for that they be . . . seduced by Error mistaking one person for another' 'Is of no moment or effect in Lawe' since matrimony must be a 'coniunction of . . . myndes' (121-2). But where the issue is not mere definition but ascertainment of status in the case of a complex human situation, law and its agents have to face a dilemma. Thus, the bed-trick cannot be 'Lawful meaning in a lawful act', since the act is joint, and involves two meanings.⁴⁸

The bed-trick is a fictional situation that singles out a potential for fiction in law itself, by which the difference between the singleness of fact and the plurality of truth is collapsed, and a status is presumed. Its likeness to a legal fiction is highlighted by the mendacious means it adopts to achieve an ostensibly ethical end. It is no surprise that Helena, law's most self-aware user, should embody some of the dualities that the play's movement, largely through her energies, seeks to harmonize. To claim the honour that is hers, she has to 'steal' it surreptitiously (2.5.81) by becoming, as it were, a 'girl' of Italy, to make Bertram 'captive' to her service (2.1.21-2). The law trick that is the specific instrument of Helena's design turns on a logic familiar to a Renaissance English audience, but it acquires a specific status by being used in the context of subtle and strategic double-dealing by the heroine at her most 'Machiavellian' in the very land of plots and policies.⁴⁹

But Helena's Italianate plotting does not ultimately create a simply negative sense of unsavoury cunning; nor is law reduced to a sceptic's quarry. Her character is in many senses Machiavellian in a positive way, and, paradoxically, her use of law and its particular literary location, even while they demystify law, result in a configuring of it as a peculiarly human and contingent measure. Her very first soliloquy (1.1.78-97) signals a transition in her attitude to fate, from passive resignation to a belief in the space it allows for individual enterprise—'The fated sky gives us free scope.' The only hindrance to exploiting such 'scope'—a concept akin to Machiavelli's occasione —is our 'slow designs'.⁵⁰ Her tough-minded confidence in possibilities and the expedient and inventive effort with which she sets about to achieve these brings her in line with the prudent protagonists—often heroines—of the novellae, whose industria is usually their main capital.⁵¹

The dual associations gathered by law in the course of the play lend the ending its distinctively mixed flavour. After the rapid escalation of legal dangers and implications in the final scene, Helena's spectacular entry must seem a relief in the immediate context, indeed some sort of a salvation. Back in Rossillion, Helena has shed her Italian character, and apparently displaces the world of sexual intrigue and precise legal wrangles as she steps into Diana's place to take over the limelight. She is not to be seen as one of those 'clamorous and impudent' women litigants that the likes of Lord Keeper Egerton and Chancery counsel Anthony Benn were, at the time, denouncing and attempting to keep out of the courts.⁵² As in the bed-trick, so here, the status of an event is transformed by the replacement of one woman by the other: the lustful defiling of the 'pitchy night' and its legal and obligatory consequences are taken on by the Bertram-Diana sub-plot, while the central relationship of the play is strategically cleansed of its more degrading associations, and prepared for the 'Renown' of the 'end'.

The moment that registers this change is when Helena and Bertram are brought to face each other for the first time in the scene, through Bertram's voluntary interposition. In response to the king's wonder at what seems to him an apparition—'Is'T real that I see?'—Helena says,

No, my good lord,
'Tis but the shadow of a wife you see,
The name and not the thing.

(5.3.308-10)

Even as the teasing, paradoxical mode of speech gets sublimated here into a medium that brings romance to the verge of anagnorisis, Bertram remonstrates, 'Both, both. O, pardon!' (310). If the bed-trick was the symbolic moment of the split between meaning and action, 'The name' and 'The thing', the present exchange between Bertram and Helena marks, no matter how fleetingly, the healing of these divisions in an act of forgiveness. An appropriate atmosphere is provided by Helena's self-presentation, aided by Diana, which creates an aura of miracle heightened by the regenerative associations of pregnancy. This sense of the wondrous is the main constituent of the romance mode which acts here as an equivalent of the social rituals that transform marriage from a contract into a mystery.

Yet the transition is not seamless. Even while status is attained, the contractual basis of marriage is not let out of sight. The particular instrument for sustaining this awareness is the continued and insistent mooring of the scene in the details of marriage law. Helena's achievement is to have foiled Bertram's attempt at seeking a divorce by establishing the fact of cohabitation: this is the specific significance of her staking 'deadly divorce' on the indisputability of the proofs of having met his terms (320). Thus, in the indistinct but comprehensive area covered between the two, both the marriage and the divorce paradigms behind their 'Legal' actions get taken up and pursued till the end of the play where, finally, they are tied together.

Sex having been in All's Well the very site of a radical absence of volition, its centrality to the sacramental notion of indissoluble matrimony, which ostensibly contributes to the magic of the final reunion, extends the paradox of the earlier action. Swinburne's explanation of why 'Marriage is that great Mystery' is germane to what the pregnant wife's appearance relies on for its 'Miraculous' impact: 'By Marriage the Man and the Woman are made one Flesh, so they are not by Spousals.' it is in the absence of such a union that he declares 'Spousals' to be 'utterly destitute of . . . mystical effect: And . . . Marriage is greater than Spousals . . .' (Spousals, 16). In All's Well, 'Making one flesh' is in a sense what turns a spousal into matrimony, but the mystery around the incorporation of man and wife is at least partly replaced by consummation as an instrument of law and custom.

As the external symbol and visible outcome of this incorporation, Helena's pregnancy plays a crucial role in foregrounding the contractual basis of the revalidated union. While its procreational and promissory implications introduce a sense of romance quickenings, the function it serves in the resolution of the plot is legal. It is framed as an Ocular proof of the sexual consummation stipulated in Bertram's letter: 'One that's dead is quick—/ And now behold the meaning!' (5.3.305-6).⁵³ This is in many senses a scene of remarriage—a familiar scenario, where the fact of intercourse acts as the single validating seal that at once proves and forms matrimony. Bridal pregnancy by itself was common enough in Elizabethan England;⁵⁴ and though prenuptial fornication was a punishable offence, in practice, judicial attitudes to it varied according to local custom, and were often quite tolerant where honourable intentions were clear or marriage had already followed.⁵⁵ But the remarriage in All's Well takes place not in church but in a virtual court. The visual resonances of a pregnant woman turning up in open court would evoke associations of incontinence and fornication—charges often spurred by illicit pregnancy. 'Pregnancies', Ralph Houlbrooke asserts, 'Always figured prominently among the presentments made'; and, as he further puts it, 'Rather more women than men were normally presented, because a pregnant woman was bound to be more conspicuous than her partner'.⁵⁶ As far as Bertram's conscious intention defines the deed that Helena's pregnancy proceeds from, the result is indeed symptomatic of the typical situation; only, it is transformed here by Helena's intention and her triumphant use of 'Occasion'. What lends the legal connection of the scene its specific dubiousness is the combination of the marital and the evidentiary purposes behind Helena's action. As often in disputed suits of this kind, what is still at stake, implicitly, is Bertram's agency in the conception. In Shakespeare's time, determination of paternal identity was a troubling legal issue.⁵⁷ We have Swinburne's own pronouncement on the matter, in his discussion of why 'Wedlock [is] called Matrimonye rather than Patrimonye': 'The mother is alwaies more certein than the father and truthe is stronger than opinion' (Matrimony, 118).

It is interesting to note one of Shakespeare's modifications of this source story. In Painter—as in Boccaccio—Giletta was 'brought a bedde of twoo sonnes, which were very like vnto their father . . .' . She enters Beltramo's banquet not pregnant but with these two, their resemblance to their father being posited and accepted as manifest evidence of paternity, strengthening the implication of her possession of his ring: 'For beholde, here in myne armes, not onely one sonne begotten by thee, but twayne, and likewise thy Ryng. . . . the Counte hearing this, was greatly astonned, and knewe the Ryng, and the children also, they were so like hym.'⁵⁸ If Shakespeare had left this episode unchanged, he would still have had the opportunity to evoke legal associations, for facial similarity has been known to have been a factor in establishing the father's identity in church courts.⁵⁹ But pregnancy as a presence in court was potentially more scandalous because there was an unavoidable uncertainty surrounding paternity and, by implication, a potential for the use of pregnancy for manipulation. It was not unknown for women to claim marital rights by offering their conception as proof of cohabitation. The motives could be various—as Martin Ingram puts it, women resorting to law to pressurize men into marriage could be 'naive, scheming, or . . . desperate'.⁶⁰ Among them, pregnant women not only had a stronger incentive but were 'In a better moral position to attempt coercion' than others.⁶¹ They were also likely to receive local backing, not least owning to a concern about the threat of bastardy to the poor rates.⁶² In the Salisbury case of Diar v. Rogers (1609), Henry Rogers is said to have promised that 'yf he did beget the said Alice with childe, that he would marry with her'. The witnesses for the manifestly pregnant plaintiff Alice Diar keep harping on the obligation that her conception has placed him under; as Alice Tante (?) puts it, it is 'In the respect of the said Henry Roger's faythfull promise [that] the said Alice offered her selffe to be begotten with child by . . . Henry'.⁶³ Even unconfirmed claims of pregnancy could create enormous pressure and a climate of opinion hard to cope with.⁶⁴ Not only can such a situation, irrespective of the truth or spirit of the alleged promise, be conducive to enforcement; the pressures incumbent on the defendant of such a suit are even known to have tempted women to have 'deliberately sought to become pregnant to induce the man to marry her'.⁶⁵ Such is the lingering sense of uncertainty that Bertram articulates, when he takes a faltering step back from his spontaneous 'Both, both. O pardon!' to qualify his acceptance of the situation:

If she, my liege, can make me know this clearly
I'Ll love her dearly, ever ever dearly.

(5.3.317-18)

In a play where comic law operates through actual legal means, and recognition is arrived at through a trial, the incertitude surrounding the legal knowledge undercuts the absolute nature of the anagnoristic moment. This marriage, for all that the providential emplotment of Helena's 'course' suggests, is made not in heaven but in the bawdy court. Where the king is overwhelmed into a typical romance reaction (307—9), the audience would be aware that the inevitable outcome of the discovery has as much to do with legal logic, by which the church court arbiter would probably order Bertram to take her back and live with her as married people should.⁶⁶

As ever, though, it is in the figure of Helena, the employer of the legal tricks for the 'Miraculous' ending, that the comic energy of the play as well as its use of law acquires a more complex status than mere stratagem can lay claim to. In her, policy and genuineness, simulation and sincerity, power and powerlessness have been inextricably compounded from the very beginning: 'I do affect a sorrow indeed, but I have it too' (1.1.51). It is this spirit that she infuses into the final scene. When she appears in court, big with child, her condition—betokening the triumph of her initiative—becomes a means for the strategic adoption of a traditional image of the obedient wife whose pleasure lies in being acted upon by her husband, a calculated evocation of domestic sanctities, so 'That man [can] be at woman's command, and yet no hurt done!'⁶⁷ Yet, as with the women 'Who', in the words of The lawes resolutions of women's rights (1632), could 'shift it well enough' in the legal world of early modern England,⁶⁸ this is not simply a camouflaging of Helena's agency. It is also a pointer to her real vulnerability and, in an odd sense, passivity in the emotional transaction contained in the quasi-legal one. When she says, 'O, my good lord, when I was like this maid / I found you wondrous kind', her utterance is a gentle reminder to us that her active plotting has had to be executed through a virtual loss of identity in the act of sex; its humour lies in her acknowledged sexual enjoyment of even this imperfect emotional experience (5.3.311-12). As far as she is concerned, the seamier aspects of what has passed are not simplemindedly forgotten but deliberately put behind: 'This is done', she says, after curtailing her recitation of Bertram's conditional letter with a significant 'et cetera' (315). Peter Hall's 1992 production, appropriately, made Helena tear up the letter—which is also the contract—as she spoke these words.

Through her, then, law is finally felt to acquire a more positive value than merely being a sceptical alternative to either the vera philosophia or the perfect science that it was considered to be in some of the most prominent humanist traditions of jurisprudence. It emerges, rather, as an art of the probable, that involves prudence rather than wisdom—a perspective that was actually emerging in the Renaissance, questioning the more idealistic view of law.⁶⁹ Law is not in itself a transformative principle, but a pragmatic means of working through the essentially contingent human condition towards achievements that are necessarily provisional. It is for the individual to renounce and go beyond the legal devices to build on the possibilities made available to her by them. Over and above the obvious irony of the play's title, there is a sense in which it is felt to encapsulate the peculiar and hard-bought wisdom of the play. All one can begin with, in a sense, is this 'end'. This is not a romance, like Pericles or The Winter's Tale, where the children have been born and the regeneration has visibly begun. Helena's pregnancy, among its other expressive functions, suggests the play's projecting of fulfilments in the future. To take up the possibilities afforded by legal means is what the function of romance is posited as. Nor need the value of law necessarily lie in the discovery or assertion of certitudes; probability itself can be its gift to the human condition, and indeed a positive step towards knowledge. The king's words, as he accepts Helena's offer of her improbable 'Medical' services, capture a perspective which the play ultimately invites the audience to accommodate:

Notes

¹ Though I use the Oxford Shakespeare, I retain the traditional name for the heroine. I should like to thank Ben Griffin for assistance with references.

² Henry Swinburne, A Treatise of Spousals, or Matrimonial Contracts, ed. Randolph Trumbach (London, 1985) (hereafter, Spousals).

³ For influential examples of the critical opinion that Bertram's resistance is a legal escape route, see M. L. Ranald, 'The Betrothals of All's Well That Ends Well', Huntington Library Quarterly, 26 (1962-3), 179-92; p. 186, and Howard Cole, The All's Well' Story From Boccaccio to Shakespeare (Urbana, 1981) (hereafter, Cole), passim. Enforcement could be a ground for nullification, but only if it was raised by a party in court; Bertram's failure to do so at the relevant moment suggests the impracticality of this provision in a situation of authority and dependence. The one technically permissible objection a ward could raise—that against disparagement—is brought up by him but not sustained. On wardship, see Joel Hurstfield, The Queen's Wards: Wardship and Marriage under Elizabeth I (London, 1958).

⁴ See Madeleine Doran, Endeavors of Art: A Study of Form in Elizabethan Drama (Madison, 1954), pp. 251-2, and W. W. Lawrence, Shakespeare's Problem Comedies (New York, 1960), pp. 32-77.

⁵ Durham University Library, Palace Green, Mickleton and Spearman Manuscript 4, fol. 115-24. I am indebted to Sheila Doyle of the Durham University Law Library for drawing my attention to this manuscript volume.

⁶The Book of Common Prayer 1559: The Elizabethan Prayer Book, ed. by John E. Booty (Charlottesville, 1976), p. 297. Though, by this time, both the reformers and the bishops were clear that scripture did not provide sanction for the sacramental status of marriage, its desacramentalization remained largely a matter of theological definition in England. To prevent it from being divested of dignity and solemnity in popular perception—an effect that was distinctly possible, and would threaten exactly the regularization sought by the reformers—the service was made to stress that marriage was a 'Holy ordinance', and further, was coupled with the receiving of Holy Communion, at the same time as the sacramental language and claim were dropped. This was enough to preserve the sacramental sanctity of marriage for the common people, who did not pause to work out the technical distinctions of the reformers. See Eric Joseph Carlson, Marriage and the English Reformation (Oxford, 1994) (hereafter, Carlson), pp. 36-49.

⁷ On church courts, see Ralph Houlbrooke, Church Courts and the People during the English Reformation 1520-1570 (Oxford, 1979) (hereafter, Houlbrooke). For accounts focusing on marriage litigation, see Martin Ingram, Church Courts, Sex and Marriage in England 1570-1640 (Cambridge, 1987) (hereafter, Ingram); R. H. Helmholz, Marriage Litigation in Medieval England (Cambridge, 1974) (hereafter Helmholz); and Carlson, pp. 142-180.

⁸ See, for example, Helmholz, p. 27; Martin Ingram, 'Spousal Litigation in the English Ecclesiastical Courts, c. 1350-1640' in R. B. Outhwaite, ed., Marriage and Society: Studies in the Social History of Marriage (London, 1981) (hereafter, Ingram, 'Spousal'), pp. 35-57; pp. 37, 45; Spousals, p. 14.

⁹ See G. E. Howard, The History of Matrimonial Institutions chiefly in England and the United States (Chicago, 1904), 3 vols., vol. 1, p. 339. The interplay of attitudes to Claudio and Juliet's sexual involvement in Measure for Measure turns exactly on this duality. For an incisive exposition of this point, see A. D. Nuttall's 'Measure for Measure: The bed-trick' in Nuttall, The Stoic in Love (London, 1989), pp. 41-8.

¹⁰ See James A. Brundage, Law, Sex and Christian Society in Medieval Europe (Chicago, 1987), pp. 551-74.

¹¹ See Spousals, pp. 21, 36-41; Sir Edward Coke, The First Institute of the Lawes of England (London, 1628), section 104.

¹² James Raine, Depositions and other Ecclesiastical Proceedings from the Courts of Durham, extending from 1311 to the Reign of Elizabeth (London, 1845) (hereafter, Raine), pp. 218-26.

¹³ See J. O. Halliwell, ed., The Autobiography and Correspondence of Sir Simonds D 'Ewes (London, 1845), vol. 1, pp. 87-9.

¹⁴ See James A. Coriden, The Indissolubility Added to Christian Marriage by Consummation: A Historical Study from the End of the Patristic Period to the Death of Pope Innocent HI (Rome, 1961), pp. 7-23.

¹⁵ J. T. Noonan, Power to Dissolve: Lawyers and Marriages in the Courts of the Roman Curia (Cambridge, Massachusetts, 1972), p. 80.

¹⁶ For Swinburne's reference to the marriage of Mary and Joseph as the authority behind the notion that 'carnali knowledge' is not essential for 'perfect matrimony', see Matrimony, p. 120.

¹⁷ Raine, pp. 322-6.

¹⁸ Furnivall, Child-Marriages, Divorces, and Ratifications, &c. In the Diocese of Chester, A.D. 1561-6 (London, 1897) (hereafter, Furnivall), p. 58.

¹⁹ See, for example, the 1623 case against John Cocke of Tillington and his wife, cited in P. Hair, ed., Before the Bawdy Court: Selections from church courts and other records relating to the correction of moral offences in England, Scotland and New England, 1300-1800 (London, 1972) (hereafter, Hair), p. 107, or the Yorkshire presentment cited in n. 21 below.

²⁰ See E. D. Stone and B. Cozens-Hardy, eds., Norwich Consistory Court Depositions 1499-1512 and 1518-1530, Norfolk Record Society 10 (1938) (hereafter, Stone and Cozens-Hardy), no. 90.

²¹ See T. M. Fallow, 'Some Elizabethan Visitations of the Churches belonging to the Peculiar of the Dean of York', Yorkshire Archaeological Journal, 18 (1905), 197-232.

²² Furnivall, pp. 76-9.

²³ See also Spousals, p. 225.

²⁴ See Joseph Jacobs, ed., The Palace of Pleasure: Elizabethan Versions of Italian and French Novels From Boccaccio, Bandello, Cinthio, Straparola, Queen Margaret of Navarre, And Others, Done into English by William Painter (New York, 1966) (hereafter, Painter), 'The thirty-Eight Nouell'—Shakespeare's immediate source for the story of All's Well.

²⁵ Baker, p. 360. See also pp. 361 and 375.

²⁶ Ibid., p. 362.

²⁷ See S. F. C. Milsom, Historical Foundations of the Common Law (London, 1983), pp. 88-90 and 289.

²⁸ Ingram, 'Spousal', p. 52. On the reciprocal influence between common law, and canon law as practised in the church courts, see R. H. Helmholz, Canon Law and English Common Law, Seiden Society Lecture, 1982 (London, 1983), esp. pp. 15-19.

²⁹ Baker, p. 360.

³⁰ See p. 186 above.

³¹ Cp. Humphrey Winstanley v. Alice Worsley, a 1561 divorce suit from Chester, Furnivall, pp. 2-4.

³² See also Spousals, pp. 71, 101, 206-12.

³³ On the various symbolisms of the ring, see Spousals pp. 207-9; A. H. Bullen, An English Garner: Some Shorter Elizabethan Poems (Westminster, 1903), p. 296, posy no. 15; J. E. Cirlot, A Dictionary of Symbols and Imagery, tr. J. Sage (London, 1971), p. 273; G. F. Kunz, Rings for the Finger (Philadelphia, 1917), pp. 193-248; Shirley Bury, An Introduction to Rings (London, 1948), pp. 15-17; Stith Thompson, Motif-Index of Folk Literature (Copenhagen, 1958), vol. 6, pp. 650-1.

³⁴ See Houlbrooke, 58, esp. n. 14; Peter Rushton, 'The Testaments of Gifts: Marriage Tokens and Disputed Contracts in North-East England, 1560-1630', Folk Life 24 (1985-6), 25-31. See also Spousals, Sections XII-XV.

³⁵ Norfolk and Norwich Record Office diocesan records (hereafter, NNRO), DN/DEP (deposition books of the consistory court) 9, bk. 8, 158v, 162-3v; DN/ACT (Act books) 9, bk 10.

³⁶ Furnivall, pp. 65-6.

³⁷ For attacks on the ring in Puritan writing, see Anthony Gilby, A Pleasaunte dialogue, Betweene a Souldier of Barwicke, and an English Chaplaine (Middleburg, 1581), M5r; Dudley Fenner, Certain Learned and Godly Treatises (Edinburgh, 1952), p. 96; Andrew Kingsmill, A View of Mans Estate (London, 1576), sig. K2r. Also, Donald McGinn, The Admonition Controversy (New Brunswick, 1949), pp. 218-19; Richard L. Greaves, Society and Religion in Elizabethan England (Minneapolis, 1981), pp. 184-5.

³⁸The Sarum Missal, tr. A. H. Pearson (London, 1844), p. 552. See also 'The Form of Solemnization of Matrimony' as given in The Book of Common Prayer, pp. 290-3.

³⁹ Canterbury Cathedral Archives (hereafter, CCA), x.10.20, 173-6.

⁴⁰ Painter, p. 174.

⁴¹ Henry Consett, The Practice of the Spiritual or Ecclesiastical Courts (London, 1685), p. 76.

⁴² On the relation between the definition of a 'court' of law and the presence of the monarch, see J. H. Baker, The Legal Profession and the Common Law (London, 1986), pp. 153-69.

⁴³ Raine, pp. 238-40. See also Furnivall, pp. 187-96 (Edmund v. Bird) and pp. 65-7 (Sothworth v. Sothworth); Raine, p. 243 (Grynwill v. Groundye).

⁴⁴Rhetoric, 3.11.1, 3.11.4, and 3.10.6, in The Rhetoric and Poetics of Aristotle, tr. W. Rhys Roberts and Ingram Bywater, ed. Friedrich Solmsen (New York, 1954). The potential of the image for being an instrument of proof is a well established concept in Aristotle and emerges from a collateral reading of the De Anima and Nichomachean Ethics. On the provenance of this notion in Renaissance England, see Kathy Eden, Poetic and Legal Fictions in the Aristotelian Tradition (Princeton, 1986), pp. 69-111.

⁴⁵ CCA, X.10.17, 152V. See also ibid., X.10.12, 182-V.

⁴⁶ Furnivall, p. 57.

⁴⁷ 'Legal fiction' may be roughly defined as a lie perpetrated with official or institutional authorization, in the interest of the commonweal. On 'Legal fiction', see Ian Maclean, Meaning and Interpretation in the Renaissance: The Case of Law (Cambridge, 1992) (hereafter, Maclean), pp. 138-42.

⁴⁸ On Swinburne's upholding of legal presumption in 'such a favourable matter' as marriage, see Spousals, pp. 88, 98, 103 and 149.

⁴⁹ On the contemporary English stereotype of Italy, see Roger Ascham's interpolation at the end of the first part of his Scholemaster (c. 1570), quoted in Jacob's introduction to Painter, p. xix. See also Thomas Nashe, The Unfortunate Traveller in R. B. McKerrow, ed., The Works of Thomas Nashe (Oxford, 1958), vol. 11, pp. 301-2.

⁵⁰ See Skinner and Russell Price, ed., Machiavelli: 'The Prince' (Cambridge, 1988) (hereafter, The Prince), Chap. XXVII for the discussion of Caesar Borgia's prudence and ability (prudentia and virtú) manifested by his alertness to occasione, i.e. his recognition of the right opportunity and his acting upon it. See also Chap. XXI. Also relevant to this discussion is Machiavelli's stress on flexibility and adaptability to a particular circumstance or fortuna with all its limitations—see The Prince. Chap. XXV, pp. 85-7. This recipe for success is exactly what Helena's compromises are based on. Its link with prudence in Machiavelli, as stated in Chap. XV, is also an element in Helena's personality.

⁵¹ See Cole, chap. II, esp. pp. 19-20, on the honour accorded to human effort, ability, and ingenuity in Boccaccio. See also Lorna Hutson, 'Fortunate Travelers: Reading for the Plot in Sixteenth-Century England', Representations, 41 (1993), 83-103, on the 'Transformative virtues' of prudence, enterprise and pursuit of occasion in Italian novellae and in Machiavelli, esp. pp. 88-90, 97, 99.

⁵² See W. Baildon, Les Reportes del Cases in Camera Stellata 1593-1609 (1849), pp. 39 and 161; Bedfordshire Record Office, L28/46. See also W. R. Prest, 'Law and Women's Rights in Early Modern England', The Seventeenth Century, 6 (1991), 169-87; 182.

⁵³ Cp. the function of Juliet's 'plenteous womb' in Measure for Measure, which 'expresseth [Claudio's] full tilth and husbandry' to the public gaze (1.4.42-3).

⁵⁴ See Ingram, pp. 219-23, esp. p. 219.

⁵⁵ Ibid., 223-6.

⁵⁶ Houlbrooke, p. 76.

⁵⁷ See L. A. Montrose, '"Shaping Fantasies": Figurations of Gender and Power in Elizabethan Culture', Representations 1:2, Spring, 1983, 61-94 (72-3). For a historical study of the evolution of embryology, see J. Cole, Early Theories of Sexual Generation (Oxford, 1930).

⁵⁸ Painter, vol. I, pp. 178-9.

⁵⁹ See NNRO Dep. 4B, 30V; Dep. 5B, 173V; both cited in Houlbrooke, p. 77 (n. 74).

⁶⁰ Ingram, 'Spousals', p. 47.

⁶¹ Ingram, p. 210.

⁶² Ibid., 210-11. See also G. R. Quaife, Wanton Wenches and Wayward Wives: Peasants and Illicit Sex in Early Seventeenth-Century England (London, 1979), pp. 218-20.

⁶³ Salisbury Diocesan Records, deposition books preserved in the Wiltshire Record Office (hereafter, WRO), Dl/26, 136V-137V; 140r-141v.

⁶⁴ See, for instance, J. T. Fowler, ed., Acts of Chapter of the Collegiate Church of St. Peter and Wilfred, Ripon, 1452-1506, Surtees Society 64, 1875, p. 31ff.

⁶⁵ Ingram, p. 225. See, for example, Office v. Rowden, WRO (1612), AS/ABO 11; and Office v. Greene (1621), WRO, AW/ABO 5.

⁶⁶ See W. Hale Hale, A series of precedents and proceedings in criminal causes extending from the year 1475 to 1640; extracted from act-books of ecclesiastical courts in the diocese of London (1847), p. 44; Stone and Cozens-Hardy, p. 90.

⁶⁷All's Well, 1.3.90-1.

⁶⁸ T. E. The lawes resolution of women 's rights; or, the lawes provision for women (London, 1632), p. 4.

⁶⁹ On the jurisprudential debate on whether law was a science or an art, the conflicting visions of the status of law, and the argument for law emerging as an 'unphilosophical mixture of the necessary and the contingent in jurisprudence' that was 'In fact superior to that of philosophy', see Maclean, pp. 20-9. See also Donald Kelley, 'Vera Philosophia. The Philosophical Significance of Renaissance Jurisprudence', in History, Law and the Human Sciences: Medieval and Renaissance Perspectives (London, 1984), pp. 267-79. On the history of the idea of probability, see Ian Hacking, The Emergence of Probability: a Philosophical Study of Early Ideas about Probability, Introduction and Statistical Inference (Cambridge, 1975), and Douglas Lane Patey, Probability and Literary Form: Philosophic theory and literary practice in the Augustan age (Cambridge, 1984), esp. pp. 3-74.

More should I question thee, and more I must,
Though more to know could not be more to trust:
From whence thou cam'st, how tended on—but rest
Unquestioned welcome, and undoubted blessed.—

(2.1.205-8)

Like a promise, marriage, happy endings to stories and happiness itself, are all, in a sense, absolute and ignorant—like Pascal's wager with God, a leap of faith.