[In the following essay, Ranald surveys the use of English matrimonial law as a thematic and plotting device in Shakespearean drama.]

The ramifications of English matrimonial law, with its numerous and confusing regulations on spousals, contracts, and impediments, had considerable influence on the plotting of Shakespeare's plays, and indeed on a great deal of Elizabethan and Jacobean drama. A full understanding of the action of many plays in these two periods depends largely on a knowledge of the complexities of matrimonial law.

It is not necessary to claim that Shakespeare, Jonson, Webster, Wilkins, Beaumont, Fletcher, or Ford were well-trained lawyers or were otherwise possessed of any special knowledge about the canon and civil law of matrimony.¹ Osmotic knowledge of matrimonial law was probably even more comprehensive and precise in Shakespeare's time than today, partly because of compulsory attendance at Sunday services during the sixteenth and seventeenth centuries. There, in accordance with law, the congregation would hear, among other things, the prescribed homilies on matrimony. Parish priests were expected to report any breaches of matrimonial law occurring among their flock. Apparitors were appointed to bring offenders to the attention of the bishops and the ecclesiastical courts. Public penance was frequently imposed for sexual offenses. And since penance usually took place at Sunday services with the penitents exhibited as examples to all, it must have made a strong impression on even the uneducated.

As for Shakespeare himself, the circumstances of his own marriage, and his participation in the 1610 Belott-Mountjoy lawsuit (which concerned the financial arrangements of a marriage contract), indicate that he possessed at least a well-informed layman's knowledge of English marriage law. It is certain that he read both Holinshed and Foxe, whose works contain extensive matrimonial material. And he may have had professional legal advice, the source of which has as yet defied discovery. Be that as it may, almost all of the matrimonial situations used by Shakespeare and his fellow Tudor and Stuart dramatists suggest common knowledge rather than specialized study of English canon and civil law.² For the purposes of their plays, Shakespeare and his contemporaries merely transferred English legal practice to foreign settings.

In general, Shakespeare concerns himself with such obvious matrimonial topics as betrothals, contracting, premarital intercourse (antenuptial immorality), impediments to marriage, and the marriage ceremony itself. But matrimonial problems are used as primary plot devices on relatively few occasions. Generally, the laws of matrimony are used in varying degrees of importance as secondary plot devices, as devices to strengthen character motivation, or as the realistic substructures of imaginative dramatic creations. Around 1600-1604, however, Shakespeare seems to have become so fascinated with legal quibbles and complications that he wrote two plays, All's Well That Ends Well and Measure for Measure, that require an understanding of English matrimonial law for interpretation. By contrast, earlier plays, such as The Taming of the Shrew and Much Ado About Nothing, show Shakespeare merely experimenting with matrimonial material.

I

The Taming of the Shrew is full of references to matrimonial law and ceremonial practice, treated with that easy familiarity that comes from common knowledge shared among writer and audience. First of all comes betrothal contracting, with Petruchio initiating financial arrangements with Baptista before even talking with Kate. This sequence is sometimes thought to indicate the young man's fortune-hunting proclivities, but Petruchio is actually following Elizabethan custom; as a matter of prudence, the wealthy classes usually arranged financial settlements before wooing commenced. Petruchio, a typically prudent wooer, comes directly to the point, asking

… if I get your daughter's love
What dowry shall I have with her to wife?

(II. i. 119-20)³

Baptista's offer seeming satisfactory, the young wooer offers his part of the bargain, the jointure:

And for that dowry, I'll assure her of
Her widowhood, be it that she survive me,
In all my lands and leases whatsoever.
Let specialties be therefore drawn between us.
That convenants may be kept on either hand.

(II. i. 123-27)

Since this widowhood, or jointure, was the only money a wife was automatically entitled to from her husband's estate, a suitable pre-nuptial settlement was essential.⁴ The specialties (deeds) of which Petruchio speaks are simply those legal documents which put all such financial arrangements in the form of a contract.

The financial arrangements for Kate's marriage are quickly completed, for Baptista is so eager to get rid of a shrewish daughter that he does not haggle over terms. He does, however, insist that Petruchio gain Kate's “love,” presumably her willing consent, and this suggestion raises a good legal point. Baptista knows that since Petruchio will now become acquainted with the shrewish disposition of his lady, he will be unable to break the contract on the ground of the impediment “certain conditions unknown”; he will be unable to claim that he had not been made aware of Kate's violent behavior and lacerating tongue.

Baptista acts quite differently in the marriage of his outwardly docile daughter, Bianca. Since she has more than one wooer, he decides quite literally to sell her marriage to the highest bidder:

Faith, gentlemen, now I play a merchant's part
And venture madly on a desperate mart.

(II. i. 328-29)

'Tis deeds must win the prize, and he of both
That can assure my daughter greatest dower
Shall have Bianca's love.

(II. i. 344-46)

Obviously he is not considering the compatibility of the parties, since one of the suitors, the old man Gremio, would clearly prove an unhappy match. Even though the books of matrimonial conduct always urged parents to consider the age and compatibility of the couple, Baptista operates as an all-powerful father and neglects a necessary prerequisite for valid matrimony, the free and unforced consent of Bianca. At the same time he takes care to keep Gremio as a candidate in reserve should the “supposed Lucentio” default on his generous offer. Bianca is simply informed by messenger of her father's decision; she is expected to agree to the marriage he has arranged.

Baptista does not dare to act in such a high-handed manner in the matching of the independent-minded Kate, and Shakespeare dramatizes this contrast through the wild wooing in which Petruchio espouses himself to his witty adversary. Interestingly, however, Petruchio begins his courtship by telling Kate that she has no choice other than to marry the man her father has approved of:

                                                                                                    Your father hath consented
That you shall be my wife, your dowry 'greed upon
And will you, nill you, I will marry you.
Now, Kate, I am a husband for your turn,
For by this light, whereby I see thy beauty—
Thy beauty that doth make me like thee well—
Thou must be married to no man but me.

(II. i. 271-77)

Kate says nothing here, and the betrothal is ratified by what is in effect a private exchange of consents.

In the above speech one should note one important point on which the interpretation of matrimonial contracts depended. There is some difficulty in distinguishing between the present and future tenses in English, and while the offer of marriage here would appear to be in the future tense, one must also consider the differentiation between “will” in the intentional sense, and “will” as an auxiliary in the future tense.

This distinction has considerable legal importance, because English canon and civil law recognized two kinds of betrothal contracts, whose effects were determined by the tense employed. A vow made in words of the present tense (sponsalia per verba de praesenti) constituted an agreement to enter into the married state immediately. A vow in words of the future tense (sponsalia per verba de futuro) was merely a promise to marry at some future time. A de praesenti spousal created the status of virtual matrimony at that moment, without future action on the part of the persons concerned. It could even be upheld in courts against a later, consummated contract. Henry Swinburne, the best Stuart authority on the subject, asserts that these “Spousals … are in Truth and Substance very Matrimony indissoluble.”⁵ On the other hand, a contract made in words of the future tense was not absolutely binding and might be dissolved without much difficulty, provided physical consummation had not taken place, because “this is no present Marriage, no present Espousals, no present Contract of Matrimony, no present taking of Husband and Wife, nor that Present Bond of Assurance, which can never be dissolved, as the only Cause and Essence thereof.”⁶ Spousals de futuro signified merely an agreement to marry at some time, specified or unspecified, in the future.

Ambiguity of tense occurs again in The Taming of the Shrew in the public betrothal of Kate and Petruchio, where Petruchio uses what appears to be a de futuro public spousal:

… we have 'greed so well together
That upon Sunday is the wedding day.

(II. i. 299-300)

After her angry retort “I'll see thee hang'd on Sunday first,”⁷ Kate remains silent, and by the legal principle that “silence means consent” she is considered to have agreed to the contract. Baptista takes both their hands, joins them, and blesses the union, while Gremio and Tranio joyfully act as the two required witnesses. To be sure, this ceremony is not a religious one, but evidence seems to indicate that the formal church espousal ceremony had ceased with the Reformation, despite Shakespeare's later reference to the ritual in Twelfth Night (IV. iii. 22-31, and V. i. 150-57).⁸ One departure from the usual form of spousing is that there is no exchange of tokens in the form of rings, gifts, or coins. But Petruchio promises them for the wedding. The couple then seal the bargain with a betrothal kiss: “And kiss me, Kate, ‘We will be married a Sunday’” (II. i. 326). The formality of this espousal is in sharp contrast to that of Bianca, who elopes and is married clandestinely but nonetheless legally, in the “church with the priest, clerk, and some sufficient honest witnesses” (IV. iv. 91-92).

Kate is eventually married in a public ceremony, but not before Petruchio has given her a bad fright by letting her think herself jilted at the altar:

Now must the world point at poor Katherine
And say, ‘Lo, there is mad Petruchio's wife
If it would please him come and marry her.’

(III. ii. 18-20)

Apparently, as Kate notes (III. ii. 15-16), the banns of marriage have already been called. As far as she and everyone else are concerned, then, the marriage needs only the ceremony in church, in facie ecclesiae, to ratify the contract. Kate quite correctly refers to herself as “Petruchio's wife,” because the espousal, even if de futuro, gave the parties the right to call each other husband and wife. Should Petruchio now not come to claim her, Kate would be in a very difficult position. Although she would have grounds for claiming that Petruchio had abrogated the contract through his failure to appear, her reputation would be ruined because it would appear that Petruchio knew something detrimental about her which caused him to renege on the marriage. She would be thought “damaged goods” and therefore unmarriageable.⁹ At this point Kate is indeed deserving of sympathy: she sees herself as a permanent laughingstock, condemned to a life of frustrated spinsterhood. Hence the arrival of Petruchio, no matter how late and no matter how ill-dressed, comes as a relief to the young woman who is almost irrevocably committed to marry him.

Next comes the wedding ceremony, and Shakespeare makes it follow the ritual of his own day very closely. He does not reproduce the ceremony itself on the stage, however, and in this case one wonders whether a staging of the reported scene (II. ii) might have been considered blasphemous. Petruchio demonstrates his iconoclasm by reducing the essentials of the marriage ritual to broad humor. His reply to the priest's asking “If Katherine should be his wife” is shockingly irreverent: “ay, by gogs wouns.” And he frightens the congregation and the bride by cuffing the priest. With his stamping, swearing, and generally violent behavior, Petruchio succeeds in terrifying Kate and horrifying the wedding guests. He also reduces to shambles the nuptial meal of wine-soaked cakes (“sops”) and sweets customarily given to guests before they leave the church.¹⁰ Even the chaste bridal kiss is not exempt from Petruchio's brusque irreverence:

… he took the bride about the neck
And kissed her lips with such a clamorous smack
That at the parting all the church did echo.

(II. ii. 173-75)

Then, while insisting that Katherine accompany him away immediately after the ceremony, Petruchio carefully details her new position as his wife: she is his sole property, a femme couverte whose legal personality is completely subsumed in that of her husband:

She is my goods, my chattels; she is my house,
My household stuff, my field, my barn,
My horse, my ox, my ass, my anything.

(II. ii. 226-28)

From this point on, the action of the play is devoted to showing how Kate learns to accommodate herself to this new status without totally losing her own individuality.

Obviously in this play Shakespeare is using matrimonial law and practice in a manner subsidiary to and supportive of the structure of the plot. He garners humor from familiar situations and develops the characters of both Kate and Petruchio through their ways of dealing with matrimonial law and the conjugal relationship.

A similar strategy may be seen, though to a lesser extent, in The Merchant of Venice and Hamlet, where Shakespeare makes use of matrimonial impediments which are peripheral to the main action but which support and intensify character motivation. In The Merchant of Venice the impediment of disparitas cultus, which forbade marriage between baptized and unbaptized persons, gives Jessica an acceptable reason for her change of religion.

Similarly, Shakespeare's use of the impediment of “public honesty” in Hamlet helps to intensify Hamlet's disgust with the matrimonial situation of his mother and Claudius. According to English law, the marriage of Gertrude and Claudius would have been declared null and void ab initio on the basis of affinity, since Gertrude had previously been married to her husband's brother.¹¹ The Ghost's description of Claudius as “that incestuous, that adulterate beast” thus effectively states the canonical view of such a marriage in Shakespeare's England, whether or not adultery had occurred during the lifetime of the older Hamlet. Further, Claudius is guilty of the canonical impediment of criminality, the murder of the party who obstructs a marriage. Revulsion against Gertrude's sexuality is therefore only part of the reason for Hamlet's rage and horror; Hamlet's mother and uncle are living in a relationship that most Elizabethans would probably have recognized instantly as illegal and technically incestuous.¹²

II

On occasion the niceties of matrimonial law can be integral to the plot. This is first shown in the case of Much Ado About Nothing, where the action really turns on the marriage of Claudio and Hero rather than on the brilliant wit of Benedick and Beatrice. In this play the marriage of Claudio and Hero should be taken as representing the Elizabethan norm, solidly rooted in those same conventions detailed in The Taming of the Shrew, with Claudio in fact the shrewd, hardheaded fortune-hunter that Petruchio has alleged himself to be. Similarly, Hero typifies the modest maiden of conduct books and marriage manuals, the docile young woman that Bianca at first seems to be.¹³

From the beginning of his wooing, Claudio seems to be a young man with his eye set on marrying a rich wife. He says that he was first struck with the modesty of Hero, “the sweetest lady that ever I looked on” (I. i. 165-66). But as he continues, he takes care not to commit himself until Don Pedro, his patron, gives his blessing to the union, noting that “the lady is very well worthy” (I. i. 196-97). To this Claudio replies, “You speak this to fetch me in, my lord” (I. i. 198). These are hardly the words of a lover, and G. K. Hunter, the New Arden editor, notes the harsh meanings of cheat or beguile that belong to the word “fetch.” Some seventy lines later, we are told that Hero is Leonato's only child and heir. At this point Claudio launches into “romantic” speeches, but he still speaks of “liking” rather than love; he avoids committing himself irrevocably.

The matchmaking then proceeds by way of intermediaries, according to the decorous Elizabethan pattern, but it is complicated by Leonato's belief that Don Pedro is wooing for himself. Hero, the submissive daughter, is expected to accept the patron just as readily as the protégé; similarly, Claudio seems prepared to give up Hero if Don Pedro wants her for himself. At the beginning of the play, then, Claudio is less the romantic young man in love than the ambitious young soldier primarily concerned with his own advancement. The action of the play proceeds on the premise that before Claudio can be worthy of Hero he must learn how to love. He must learn that marriage is more than a business arrangement.

Claudio is espoused twice in the play, and in both cases the contracts are de praesenti, notable largely because of the matter-of-fact and businesslike tone of the consents, so different from the unpredictability and indeed the warm humor of Petruchio's praise of Kate. In the first instance the spousal takes place in the home of the bride with her father performing the ritual. No actual financial bargaining is shown, by contrast with The Taming of the Shrew, but apparently since Don Pedro has “broke with her father and his goodwill obtained” (I. iii. 268-69), the financial arrangements are satisfactory. Leonato carefully points out the worth of Hero as a marriage bargain:

Count, take of me my daughter, and with her my fortunes. His grace hath made the match, and all grace say amen to it.

(II. i. 270-72)

Claudio says nothing, but on Beatrice's prompting he speaks his words of consent:

Silence is the perfectest herald of joy. I were but little happy if I could say how much. Lady, as you are mine, I am yours. I give away myself for you and dote upon the exchange.

(II. i. 274-77)

The modest Hero then remains silent until Beatrice takes command to suggest that her cousin stop Claudio's mouth with a kiss. As in The Taming of the Shrew, the young woman's silence constitutes constructive consent, which is then ratified by the spousal kiss. Now, since Claudio's words were couched in the present tense, the two are husband and wife in everything except bed, and the union is consequently all but indissoluble. Nonetheless, they should not anticipate the religious rites by physical consummation.

No spousal gifts are exchanged here, but one need not expect the totality of legally-sanctioned ritual in a drama. As usual, Shakespeare gives enough detail so that the situation will be recognizable, perhaps suppressing the remainder for reasons of dramatic economy. The day of marriage is set, and Claudio sounds like an ardent bridegroom when he suggests that the ceremony take place the next day: “Time goes on crutches till Love have all his rites” (II. i. 317-18). (Evidently this is to be a marriage without the calling of the banns—something permitted under English law if a dispensation had been obtained, something that Shakespeare well knew from his own marriage.) When Claudio offers to accompany Don Pedro to Arragon immediately after the consummation of his marriage—a proposal that argues ambition rather than ardor or uxoriousness—it becomes clear that his feelings are not very deeply rooted in this marriage. We can thus understand the ease with which Claudio believes the allegations of Hero's misconduct, despite the flimsy quality of the evidence.

In Don John, however, Shakespeare portrays a villain well versed in matrimonial law. Don John makes use of the one legal loophole that would invalidate a contract de praesenti: antenuptial immorality with someone other than the affianced. Robert Cleaver notes that a contract may be invalidated “if either of them … haue committed adulterie after the contract.”¹⁴ Hero's adultery (had it indeed taken place) would have constituted a breaking of the marriage contract, unless Claudio decided, knowing of the fault, to ignore and thereby condone it. But Claudio chooses to repudiate Hero publicly at the altar. It would be a mistake, however, as Charles T. Prouty and Nadine Page have pointed out, to conclude that Claudio is unnecessarily cruel. He is merely acting in conformity with Elizabethan conventions and safeguarding his legal position. Only by public defamation would a duped Elizabethan bridegroom have believed himself suitably revenged on his dishonest bride and her family and absolved of all responsibility for the marriage-breaking.¹⁵

Shakespeare manages the repudiation scene with great dramatic skill, gradually building suspense by his emphasis on the traditional wedding preparations before the couple reach the altar. The marriage then begins, following the form laid down in the Book of Common Prayer. But as soon as the priest makes what is usually a pro forma request that any impediments to the match be revealed, Claudio denounces Hero and abrogates the contract on the grounds of her unchastity. In the confusion Leonato thinks of the one legal point that would constitute an extenuating circumstance:

LEONATO
Dear my lord, if you, in your own proof,
Have vanquished the resistance of her youth
And made defeat of her virginity—
CLAUDIO
I know what you would say. If I have known her,
You will say she did embrace me as a husband,
And so extenuate the forehand sin.

(IV. i. 43-48)

Leonato is here quite correct in terms of English law. But it is important to note the words “extenuate the forehand sin,” since the situation has sometimes been misunderstood. Contrary to the views of some earlier scholars, neither de praesenti nor de futuro spousals conferred all the physical rights of marriage.¹⁶ A spousal improperly ratified by premarital physical consummation formed a union that was valid, but irregular;¹⁷ the action was always deplored¹⁸ and ecclesiastical penalties were usually imposed upon the participants.¹⁹ These penalties usually involved public penance, and in some rare cases excommunication, but this latter sentence was usually voided on payment of a fee (in York, for example, the fine was two shillings and sixpence).²⁰ The couple were then obliged to ratify their union by recelebration in the parish church.

This is what Leonato wishes Claudio to do. The young man does not wish to be tied to a “contaminated stale,” however, and speedily disabuses Leonato, alleging Hero's adultery with someone other than the betrothed. Claudio eventually learns the truth, and in his repentance he purges himself of his past faults, is forced to reassess his own behavior, and finally comes to know himself. At this point he is worthy of Hero. In agreeing to marry the “daughter” of Antonio, sight unseen, he demonstrates a new humility, and a desire to make amends for his false judgment. He then contracts his second de praesenti spousals with the disguised Hero: “I am your husband if you like of me” (V. iv. 58). This second vow is very different in tone from Claudio's earlier, somewhat arrogant giving of himself to Hero (II. i. 274-77). Leonato is satisfied, but manages to twist the knife in the wound by pointedly referring to the lady's excellent financial position: “she alone is heir to both of us” (V. i. 277). In addition, both Antonio and Leonato take care that Claudio recite his vow in the presence of a priest and other witnesses before he is permitted to see Hero's face.

Actually this latter precaution is rather unnecessary, though it does provide a fine coup de théâtre: Claudio could not have refused Hero once her innocence had been proven. With the removal of the impediment of antenuptial immorality, the original spousal contract would have been automatically reinstated. Nevertheless, when Hero reveals herself, there is no doubt that Claudio is more than willing to perform on both his contracts; the two are indeed husband and wife by virtue of both past and present espousals.

It may be objected that Claudio gets off very lightly, by being permitted to marry the lady he had defamed. And today one may wonder about Hero's judgment in accepting Claudio as her husband. It must be recalled, however, that Hero could not marry any man except Claudio without tacitly confirming the charge of immorality. Further, even if Claudio had succeeded in having his first spousal contract declared void, all his protestations of Hero's innocence would have meant little if he had then refused to marry her.²¹ Her reputation would have been ruined and her fate similar to that feared by Kate—permanent spinsterhood.

Obviously Benedick and Beatrice do not require detailed consideration from this point of view. Suffice it to say that they too enter into a spousal contract in words of the present tense. Shakespeare uses their somewhat uncanonical but quite legal exchange of vows as a means of developing their merry and witty characters. Like Kate and Petruchio, they are iconoclastic and humorous as they give their free and unforced consents before witnesses and ratify their contract with the ritual spousing kiss.

III

Detailed studies of Measure for Measure and All's Well That Ends Well already exist, but some comments on the legal questions they raise are in order here.²²

The plot of Measure for Measure is deeply concerned with the same matrimonial problem as that treated in Much Ado About Nothing: the nature of spousal contracting. As Ernest Schanzer has pointed out, Claudio and Juliet are contracted to each other in a de praesenti espousal, for Claudio specifically says:

Thus stands it with me: upon a true contract
I got possession of Julietta's bed.
You know the lady, she is fast my wife
Save that we do the denunciation lack
Of outward order. This we came not to,
Only for propagation of a dower
Remaining in the coffer of her friends,
From whom we thought it meet to hide our love
Till time had made them for us. …

(I. ii. 140-48)

Quite clearly, their consummated contract is a union that in English law would be valid but irregular, arising from a “true contract” de praesenti made in secret between the lovers, but not ratified by public ceremony in facie ecclesiae. Though it carries a capital penalty rather than an ecclesiastical punishment,²³ the “Viennese” law against fornication is similar to the English ecclesiastical law against antenuptial immorality. Isabella's initial reaction to the news of her brother's offense and imprisonment would have been understandable to anyone familiar with the English ecclesiastical situation. Her words “O let him marry her” (I. iii. 49), indicate the usual answer to antenuptial immorality: that the lovers be permitted to marry in the church after suitable penance (something that the Duke arranges in the fifth act of the play). Claudio's imprisonment and close brush with death would have seemed sufficient penance for both parties, particularly when Juliet has also confessed and repented of her sin (II. iii. 34-35), willingly accepting an even heavier share of the blame than Claudio.

The case of Angelo and Mariana is somewhat different, because their espousal appears to have been a conditional one dependent on payment of a dowry. Such a contract would have been classified as de futuro. It would have become de praesenti (and hence almost indissoluble) only after the fulfillment of the condition (here the exchange of money); it would have lapsed automatically on failure to perform on the terms of the contract.²⁴ Clearly the pecuniary provisions of the contract between Mariana and Angelo were violated. But then Angelo had taken a reprehensible action by dishonestly accusing Mariana of antenuptial immorality with another man, an allegation which, if true, would automatically have voided even a de praesenti contract. But Mariana still loves him and considers herself morally bound by the contract. Her physical ratification of the contract through the bed-trick would create another valid but irregular union. A fine distinction worth noting, however, is that a recalcitrant Angelo could have invoked the impediment of error personae had such a case come to trial before an ecclesiastical court.

But the really important thing to observe here is that Shakespeare's conception of foreign canon law is defective. In the Vienna of Measure for Measure Angelo would have committed the capital civil offense of fornication. In the historical Vienna of Shakespeare's time he would have committed the same offense under the Roman canon law that would have been in force there. In Europe after the Council of Trent (1546-63) such an offense would have constituted a mortal sin and the union would have been declared null and void. No extenuating circumstances would have been admitted, although later dispensation and permission to marry would probably have been possible.²⁵ Both Angelo and Mariana would thus have been liable to ecclesiastical punishment under Roman canon law as well as punishment under the statute which is the basic premise of the play. What Shakespeare is doing, in other words, is transferring the English canon and civil law of marriage to Vienna without concerning himself with legal anachronisms.

Despite the disguised Duke's assurances to the contrary, then, there is sin in the bed-trick substitution. But the sin is lessened by the existence of the conditional spousal that would “extenuate the forehand sin.” One might also argue, however, that the earlier contract is still in effect, since Angelo's allegation of Mariana's sexual offense is untrue and a dowry might still be paid. In this case, the bed-trick would reinstate the earlier spousal and make it indissoluble.

The couple are married in church, and as in Much Ado we are led to question the motivation of a woman who would even wish to marry the man who has destroyed her reputation. Certainly love is an irrational passion, but again we must recognize the fact that in a similar Elizabethan or Jacobean situation Mariana would have been considered immoral and hence unmarriageable except to Angelo. In joining himself to her, he would either be affirming her innocence or expressing his willingness to accept her despite her alleged past. But the marriage in Act V also develops another aspect of matrimonial law—inheritance. With the Duke's insistence on having the religious ceremony performed, the possible impediment of error personae is removed and the relationship is thereby rendered completely indissoluble, a union breakable only by death. Mariana is now an honest woman, and any child she may have conceived will be legitimate. Even more important, as Angelo's widow she will be entitled to her “widowhood,” her jointure or share of Angelo's estate on his death. But now the Duke goes even further, granting Mariana the entirety of Angelo's possessions “To buy … a better husband” (V. i. 421). This is a very tempting offer: it would free Mariana from a husband who has not treated her kindly, give her a chance of revenge, and leave her a rich widow who under English law was entitled to control her own property and bestow her hand where she herself pleased. Mariana is being tested; she is placed in a position to choose between love and wealthy independence, mercy and justice. She opts for love and mercy, taking Angelo as a husband, despite the wrong he has done her. The play thus ends with reconciliation, attained by means of legalistic maneuvers that give added depth to the admirable and forgiving wife.

IV

All's Well That Ends Well is usually regarded as a twin to Measure for Measure, chiefly because of its variation on the bed-trick.²⁶ But the major action of the play really depends on two other matrimonial problems: the enforced consent of Bertram, and Helena's insistence on gaining her conjugal rights.

At the beginning of the play Bertram is a fatherless minor of noble birth and consequently a ward of the King. The duties of a guardian were threefold: (1) he should oversee the education, both mental and moral, of his ward; (2) he should judiciously administer the estates of his ward, taking care to prevent wastage by rapacious relatives or by the inexperienced minor himself; (3) he should arrange a suitable marriage for his ward in terms of age, rank, and wealth. When Helena chooses Bertram for her husband as her reward for curing the King, therefore, she is quite correct in stating that the young man is within his gift. But the fact that Bertram is his ward does not give the King the right to insist on his marriage to a woman of lower rank, as Helena indeed is. This would constitute disparagement, a fate to which Bertram quite rightly objects. But the King outwits him by granting Helena a title of nobility to ratify her undoubted virtue and thus make her more than equal to her recalcitrant bridegroom. Where the King errs is in insisting on the young man's unwilling consent through reverential fear (per metus reverentialis), using threats that would strike fear into the heart of a strong man (metus qui posset in virum constantem cadere):

Do thine own fortunes that obedient right
Which both thy duty owes and our power claims;
Or I will throw thee from my care forever,
Into the staggers and the careless lapse
Of youth and ignorance, both my revenge and hate
Loosing upon thee in the name of justice,
Without all terms of pity. Speak! thine answer!

(II. iii. 159-65)

The effect of these words is to force Bertram into a defective consent, creating an impediment that could be invoked to dissolve the union, even if it were later consummated, since a key ingredient in matrimonial contracting was the free and unforced consent of the parties. As a result, though Bertram obeys the King and goes through the religious ceremony, he takes two eminently sensible steps to avoid a permanent matrimonial contract: (1) he refuses to consummate the marriage unless certain impossible situations are fulfilled; (2) he deliberately arranges to desert Helena. Though one may regret Bertram's lack of taste, it is important to recognize that his actions are not merely callow cruelty. For in the English law that Shakespeare was using, absence for two years inside the country or three years outside the country would have been grounds for the annulment of an unconsummated marriage.²⁷ Further, Bertram's absence would make it impossible for Helena to bring an ecclesiastical suit to compel cohabitation.

With the object of gaining her conjugal rights, Helena now proceeds with the fulfillment of Bertram's tasks. This time no sin is involved in the bed-trick substitution. The couple have been married in facie ecclesiae, and Bertram's initially defective consent has been rectified by his later constructive consent in consummating the contract, though perhaps he could bring suit on the ground of error personae. In the final scene, however, Bertram is forced to recognize the virture and true nobility of Helena by contrast with the unsympathetic and apparently aggressive Diana to whom he had momentarily thought himself permanently bound by secret contract, ratified by exchange of rings. He willingly and thankfully gives his consent to Helena, promising to “love her dearly—ever, ever dearly” (V. iii. 313).

By the end of the play Bertram has arrived at a truer understanding and a more honest assessment of himself and is thus worthy of Helena, whose love has helped bring him to this point.

V

In these plays English matrimonial law is only one of the many important elements, of course, but appreciation of each is enhanced by a reasonable knowledge of the topic. In Shakespeare, marriage is the one human relationship portrayed in almost every play and almost every poem. It forms the optimistic denouement of every comedy, and it is usually described in affirmative images of harmony, order, and even transcendence. In the poems it may be either humorous or tragic, depending on the context. In the tragedies, wherever marriage relationships are subverted or destroyed, disaster ensues, until, in his bleakest play, Timon of Athens, Shakespeare even demonstrates the horror of a world completely devoid of marital love. By the last plays Shakespeare lessens his emphasis on matrimonial law, developing his treatment of marriage far beyond the use of legalism as a major plot device or as realistic detail. He now celebrates love, the kind of virtuous love that ends in marriage, the fertile relationship that purifies and ennobles humankind.

If we are to understand Shakespeare's plays fully, we must recover as much as possible of his views of marriage. To do that, we must endeavor to recover the Elizabethan and Jacobean milieu that helped shape his thought and dramaturgy, even if the search leads into the labyrinthine passages of canon and civil law.

Notes

1. Wilkins and Beaumont were enrolled at Inns of Court, but no record remains of their legal attainments. W. Nicholas Knight, Shakespeare's Hidden Life: Shakespeare at the Law, 1585-1595 (New York: Mason and Lipscomb, 1973), believes that Shakespeare gained an extensive knowledge through his possible employment as a scrivener, as well as through participation in his father's lawsuits. I am not altogether convinced by these arguments.

2. Note here the final scene of Ben Jonson's Epicoene, where the denouement gives a very complete summary of matrimonial impediments, culminating in error personae.

3. All quotations and citations from Shakespeare are from The Complete Pelican Shakespeare, gen. ed. Alfred Harbage (Baltimore: Penguin, 1969).

4. As a result of the institution of the jointure, wives did not have to be mentioned in the wills of their husbands, unless some unusual special bequest was made. Such may have been the case of Shakespeare's “second-best bed.” The church also used the wife's right to dower as a means of preventing clandestine marriages, because such financial arrangements were officially made “atte churche dore” before the religious ceremony in facie ecclesiae.

5. A Treatise of Spousals, or Matrimonial Contracts (London, 1686), p. 75. This excellent account by the Judge of the Prerogative Court of York was written in 1610 and published posthumously.

6. Ibid., pp. 56-57; see also p. 14.

7. John Heywood reminds us of a frequently-rehearsed debate between a quarreling couple who finally conclude that hanging is preferable to wedding:

   Weddyng and hangyng are desteny I sée.
   Weddyng or hangyng, which is best, sir (quoth shée)?
   Forsooth, good wife, hangyng I think best (quoth hée)
   So help me god, good husband, so thinketh mée:
   O how like lambes, man and wyfe here agrée.

   Iohn Heywoodes Woorkes (London, 1562), sig. K.

8. Chilton Latham Powell, English Domestic Relations 1487-1653 (New York: Columbia Univ. Press, 1918), p. 4 n.

9. Margaret Loftus Ranald, “The Manning of the Haggard: or The Taming of the Shrew,” Essays in Literature, 1 (1974), 157.

10. John Cordy Jeaffreson, Brides and Bridals, 2nd ed. (London, 1873), I, 231-33; Edward J. Wood, The Wedding Day in All Ages and Countries (New York, 1869), pp. 248-49.

11. This prohibition remained in effect in England until the passage of 7 Edward VII, c. 47, popularly known as “the deceased wife's sister act,” which allowed dispensation for marriage within such a relationship of affinity.

12. See also Jason P. Rosenblatt, “Aspects of the Incest Problem in Hamlet,” Shakespeare Quarterly, 29 (1978), 349-64.

13. See Charles Tyler Prouty, The Sources of Much Ado About Nothing (New Haven: Yale Univ. Press, 1950), p. 53 and passim; see also Josephine Waters Bennett, Introd. to Much Ado About Nothing, Pelican Shakespeare, p. 275.

14. R[obert] C[leaver], A Godlie Forme of Householde Gouernment (London, 1598), p. 137.

15. Prouty, p. 46; Nadine Page, “The Public Repudiation of Hero,” PMLA, 50 (1935), 744.

16. See particularly W. W. Lawrence, Shakespeare's Problem Comedies (London: Macmillan, 1931). Lawrence's view has been refuted by Davis P. Harding, “Elizabethan Betrothals and Measure for Measure,” Journal of English and Germanic Philology, 49 (1950), 139-58; Ernest Schanzer, “The Marriage Contracts in Measure for Measure,” Shakespeare Survey, 13 (1960), 81-89; Margaret Loftus Ranald, “The Betrothals of All's Well That Ends Well,” Huntington Library Quarterly, 26 (1973), 179-92. See also J. W. Lever, Introd. to the New Arden Edition of Measure for Measure (London: Methuen, 1965), pp. liii-lv.

17. Alexander W. Renton and George G. Phillimore, The Comparative Law of Marriage and Divorce (London: Sweet and Maxwell, 1910), p. 18.

18. William Harrington, … the Commendacions of Matrymony, the Maner and Fourme of Contractyng Solempnysynge and Lyuyng in the Same, … Imprynted at the Instaunce of Mayster Polydore Vergyl Archdeaken of Welles (1528), is most specific on this matter:

    And whan matrymony [spousals de praesenti] is thus laufully made / yet the man maye not possesse the woman as his wyfe / nor the woman the man as her husbande / nor inhabyte [cohabit] / nor flesshely meddle togyther as man and wyfe; afore suche tyme as that matrymony be approued and solemnysed by our mother holy chyrche / and yf they do in dede they synne deedly.

    (Sigs. aiii^r-v)

    It is not clear from the quotation whether the term “synne deedly” indicates mortal or venial sin.

19. Reginald Haw, The State of Matrimony (London: S.P.C.K., 1952), p. 52; Schanzer, p. 87.

20. Ronald A. Marchant, The Church Under The Law: Justice, Administration and Discipline in the Diocese of York, 1540-1640 (Cambridge: Cambridge Univ. Press, 1968), p. 27.

21. Page, p. 744.

22. See works cited earlier by Schanzer and Ranald. S. Nagarajan, “Measure for Measure and Elizabethan Betrothals,” SQ [Shakespeare Quarterly], 14 (1963), 31-38, offers some challenging comments on the above approach, as also does J. Birje-Patil, “Marriage Contracts in Measure for Measure,” Shakespeare Studies, 5 (1969), 106-11.

23. Robert Grams Hunter, Shakespeare and the Comedy of Forgiveness (New York: Columbia Univ. Press, 1965), notes that in 1650 adultery was made a capital crime for both parties and that in Shakespeare's day there was a body of extremists who wished for such a penalty (p. 212).

24. Swinburne, pp. 114-19.

25. See H. J. Schroeder, Canons and Decrees of the Council of Trent; Original Text with English Translation (St. Louis: Herder, 1941), p. 184.

26. For a detailed discussion of backgrounds see Lawrence, pp. 39-63.

27. Swinburne, p. 237.