Shakespeare, Law, and Marriage BJ

Cambridge University Press 0521822637 - Shakespeare, Law, and Marriage B. J. Sokol and Mary Sokol Index More information

Index

Abduction wardship, 9, 50–2; enforced marriage, Abduction Acts, 108, 109; not seen applied in 146, 200 Shakespeare, 111 Annesley, Brian, 166 creates felony (1487), 109; beneﬁt of clergy Antony and Cleopatra removed (1597), 109 and bastardy, 160 to marry, in Shakespeare, 110, 202, 213 concubinage, 152 and myth of Proserpine, in Shakespeare, 110 impediment, 152, 223 Act concerning Pre-contracts (1540), 15–16 widows’ remarriage, 169 repeal (1548), 16 Appeal of felony (private prosecution), 3, 211, 215 Act to Restrain the Abuses of the Players (1606), allowed to women, 120, 121, 211 206 for rape, 106–7, 108 Actions on the case, 5 see also Trial by battle and breach of promise, 5 Arranged marriage, 30–41 and debt, 189 of King Henry VIII (historical), 40 Age of consent to marriage, 140 not followed by love, 35–6, 196 Age at marriage, average, 194, 202 royal, in Shakespeare, 39–40 AllIsTrue(King Henry VIII ) see also Friends and family on birth of Elizabeth, 102 As You Like It clandestine marriage, 102 arranged marriage not followed by love, 196 divorce, 156, 223 and Book of Common Prayer marriage dowager, 168 service, 87, 104 All’s Well That Ends Well and clandestine marriage, 104–5 bastardy, 50 and delayed marriage, 85–6, 102 bed trick, 69, 146, 193 guardian, 50, 199–200 and the Book of Common Prayer, 89–91; handfasting, 192 marriage service (travestied), 89–90, 207 impediments, 25–6 and companionate marriage, 69, 90 jointure, 179 consent, 146 marriage by proxy, 25 consummation, 146, 191 seduction, 65, 105 disparagement, 52, 200 sexual passion, attitudes towards, 85, 102 divorce, 146 solemnisation, 85 dowerless women, 69 spousals per verba de futuro or de praesenti, 25 gifts of dowry, for poor maids, 60 Assumpsit, 5–6, 189–90 handfasting, 146 see also Actions on the case heterogamy approved, 51 Autonomy in marrying, 14, 30–1, 32–3, 149 impediments, 155 in middling classes, 64 incompetents, ill treatment of, 50 restrictions on royal, 39, 41, 53–4, 149, 150, and Reformation religious conﬂict, 90–1 200, 222 solemnisation (offstage ‘ceremony’), 146 and training of youths away fromhome, 9, three reasons for marriage (parodied), 89–90 30–1, 47, 51 and vestimental controversy, 91 see also Wardship

252

Index 253

Bachelors, Shakespeare’s use of the term, 20–1 communion service, 77, 78, 79, 82, 88, 205 Banns, 75, 77, 210 and companionate marriage, 89–90 controversies surrounding, and Shakespeare, and Cranmer, Archbishop Thomas (author of 86 1549, 1552), 79, 82, 89 duration of, 86 marriage service, ‘Forme of Solemnization of see also Book of Common Prayer, Licence Matrimonie’, 77, 78, 89–90; endowment Bastards and bastardy incorporated into, 175–6; three reasons for advantages of, 159 marriage in, 89–90; Shakespeare’s response biblical condemnation of, 224 to, 92; use by Catholics, 96 canon law vs common law on, 97–100, 157–9, ornaments rubric (1559), 91 223 Protestant objections to, 79, 82, 92 in contemporary drama, 224 Queen Elizabeth I’s personal use of 1549 and divorce a vinculo, 140 Prayer Book, 79 fathers’ duty to support, 142, 157 and reformed religion, 77 ‘four seas’ rule, 158, 160–1 Shakespeare alludes to, 82–3, 84 increasingly reluctantly acknowledged, 161–2 Bride gift or marriage gift, see Dowry public condemnation of, 157 Burghley, William punishments for bearing, 157, 224 Court of Wards, 45 of Queen Elizabeth I, 148, 156 educates wards, 47 rights and disabilities, 157, 223 profits fromwards, 45, 47 in Shakespeare, 159–63, 224: derogatory, 159; promotes marriage of Lady Margaret Hoby, envious, destructive, 159–60; praised, 159; 198 proof of, 160–1; proud, strong, 159, 161, 224 status (filius nullius), 157, 160 Canon law, see Church courts Bawdy courts, 19 on illegitimacy, 97–100, 157 and seduction, 105, 210–11 Canons, Church of England at Stratford on Avon, 103, 207 and Queen Elizabeth, 80 see also Church courts Reformatio Legum Ecclesiasticarum, 1553, (not Benefit of clergy, 120, 225 implemented), 77–8, 80 made available to women (1624–91), 165–6 revised 1535 (not implemented), 76 and remarriage, 165–6 statutory limitations on, 76, 81 removed for abduction (1597), 109 see also Canons of 1603–4 removed for fornication (1650), 210 Canons of 1603–4, proposed for Church of removed for rape (1575), 108 England, 80–1 removed for some kinds of murder ineffective, 80–1 (1496–1547), 226 on parental consent to marriage, 33, 81, 195 Bess of Hardwick, Countess of Shrewsbury on licences and dispensations, 94 clandestine marriage of, 96, 98 see also Puritan hopes for reform marriage, failure of, 143 Chancery, Equity Court of, 6 and wardship, 46–7, 198 clandestine marriage, suits over, 99 Bigamy, 155–6 and dowries, 57, 58, 201 as defined for benefit of clergy, 165–6 and married women’s separate estates, 7–8, and divorce, 196–7 124, 125 see also Pre-contract protection for children and orphans, 50 Blackstone, William, 118, 119 women’s use of, 214–15 Book of Common Prayer Charitable Uses Act (1601) on dowries for poor 1549 (first), 77, 79 maids, 202 1552 (second), 78 Chattels (movable property) 1559 (third), 79, 81 and clandestine marriage, Swinburne on, alternative versions (unofficial), 79–80 97–8 and Acts of Uniformity (1549, 1552, 1559), of feme covert, 122 76–7, 79, 81 inheritance of, 171, 227 banns required by, 84 Child marriage, 31, 39, 83 and Bucer, Martin, 77, 82, 90 and King Henry VIII (historical), 40 Catholic objections to, 82, 92 in Shakespeare, 38–9, 196

254 Index

Choice of marriage partner, see Arranged marriage, failure of, 143, 209 marriages, Autonomy in marrying, on rape, 108 Coercion, Friends and family ward, trouble with his, 110 Church courts, 4, 6, 18–19 on wife-beating, 132 abjuration sub poena nubendi, 42 Coke, Frances (daughter of Sir Edward and Lady acting as marriage counsellors, 142, 221 Elizabeth Hatton), forced into marriage, administration of estates, 227 31–2 attempts to take over their moral The Comedy of Errors jurisdiction, 4 actions on the case, 5 and canon law, 19 divorce for adultery, 147 and civil doctors, 19 doctrine of unity of person, 129 and clandestine marriage, 93, 100; Common law courts, 3 punishments for, 103 and dower, 175 and divorce, 139 and illegitimacy, 97–100, 157–9, 223 and domestic violence, 142–3 see also King’s or Queen’s Bench, Common and dower, 175 Pleas enforcing duty to cohabit, 132, 142 ‘Common law marriage’, 2 ex officio, cases, 18–19, 142 Common Pleas, Court of, 4, 5 and illegitimacy, 97–100, 157 ‘final concord’ in, 123 instance cases, 18 Companionate theory of marriage, 69, 71, jurisdiction reserved to, 4 89–90, 117–18, 150, 207, 217 public confidence in, 192 critical views of Shakespeare on, 128–9, 196 and rape, 110 Concubinage, 68, 162–3, 203, 224–5 women litigants, 119–20, 121 declining, 161–2 Civil doctors, see Church courts and informal divorce, 139–40 Clandestine marriage, 14, 93–100, 208 Conduct books on to avoid Book of Common Prayer marriage autonomy in marriage choice, 32–3 service, 96–7 domestic violence, 131–2, 218 and Catholics, 96 duties of husband and wife, 126, 213–14, 217 contrived to collapse, 104 hierarchical family life, 32 definition, 93 inter-generational households, 166, 226 frequency of, 94–5, 208 poverty of widows, 172 in ‘peculiars’ or ‘lawless churches’, 95, 105 women litigants, 121 popularity in Shakespeare’s age, 95 Consensual model of marriage proof, difficulty of, 15, 94, 98 history of, 16–18 and property rights, 97, 209 and modes of indicating consent, 15, 17–18 punishment for, 15, 93–4, 99, 103 and performative utterances, 191 and Puritans, 96 problems with, 14–15 in Shakespeare, 93–105; consequences of, sincerity of consent, 15, 26 101–3, 105 spousals per verba de futuro, 17; dissolved by varieties of and motives for, 95–7, 209 fornication with third party, 152 with/without consequence, 103–4, 210 spousals per verba de praesenti, 13, 17 witnesses punished, 15, 94, 212 and theology, 17 Coercion to marry see also Pre-contract, Spousals at different social levels, 30–1, 194 Consent to marriage, 14–18 economic, 56; in Shakespeare, 62–4 age allowing, 140 for political advantage, 31–2, 39, 195;in handfasting, by, 17 Shakespeare, 31, 36–7 and King Henry VIII (historical), 143–4 see also Duress, Enforced marriage problems with, 14–15 Coke, Sir Edward, 6 sexual intercourse implying, 26 clandestine marriage of, 14, 96–7, 98–9 sincerity of, 15, 26 coercion or duress, applies, 31–2, 46 Consummation, sexual dismissal as Chief Justice, 6 attitudes to, following spousals, 21 on disparagement, 45 converts de futuro contract to full marriage, 26 on dower, 176 delayed, in Shakespeare, 84

Index 255

and divorce, 143 informal marriage and divorce, 222 not required for marriage, 17, 222 parental coercion or duress, 40 ‘purges’ duress, 32, 146 and parental consent to marriage, 149 and theology, 16–17 rape, 113, 115 Contracts of marriage, see Spousal contracts royal marriages, restrictions on, 150, 189 Council of Trent, Decree Tametsi (c. 1564), 32, spousals per verba de futuro or de praesenti, 149 75, 94 treason, 125 Courts, in Shakespeare’s England wardship, 53 collusive or fictional actions in, 3, 4, 176, widows’ remarriage, 169 189, 190 great multiplicity of, 190 Death of parent, early, 48, 195, 226 see also Chancery, Church courts, Common Death penalty law courts, Common Pleas, Equity courts, as alternative to marriage, 43, 103 High Commission, Jurisdictions, King’s or as alternative to royal divorce, 150 Queen’s Bench, Manorial courts, Orphans for defying parent (proposed or foreign), 37, (court of), Requests, Star Chamber, Wards 196 and Liveries for fornication (fictional), 100–1 Coverture, 7, 8, 118–21 and Magna Carta, 103 Blackstone on, 118, 119 mitigated for married women by legal and clandestine marriage, 97 presumption, 120 difference between legal theory and Christian mitigated by pregnancy, 215 teaching, 119 for petty treason, 215–16 husband’s right to enforce cohabitation, 132 for rape, 107, 108; mitigated by marriage, 107 inconsistent application of, 119–20 for treason, 174 liability for crime under, 120 see also Benefit of Clergy liability for debt under, 120 Debt, 5, 189 and real property (land), 123 waging his law, 189 and St Paul’s Letter to the Ephesians, 119 see also Assumpsit Shakespeare reflects, 126, 137–8 Dekker, Thomas, The Witch of Edmonton, and and unity of person, doctrine of, 119; dowry, 64 Shakespeare spoofs, 129, 147 Disparagement, 45 see also Married women’s property by education, 45, 50 Cranmer, Archbishop Thomas by marriage, 45, 198 and companionate theory of marriage, Dispensations to allow marriages, 93–4, 210 89–90, 207 for King Henry VIII (historical), 40, 143 and divorce of King Henry VIII (historical), not mentioned in Shakespeare, 101 144, 222 see also Licence proposes divorce for adultery, 144 Dissolving marriage see also Book of Common Prayer by Act of Parliament, 144 Curtesy, rights of, 165 ease of before Shakespeare’s age, 141 Swinburne on, following clandestine history of, 139–40 marriage, 97 informally, 139–40, 220 see also Widowers in Shakespeare, 144, 145–6, 156; for adultery, Cymbeline 147; forced, 145–6, 151; and royal adultery, bigamy, 40, 197 148; treatment by Shakespeare and Jonson clandestine marriage, 102 compared, 14 companionate marriage, 150 Divorce a mensa et thoro, 139, 142 consummation, 149 grounds for, 142; barred by condoning wrong, derogation by marriage (alleged), 53, 200 142 divorce, 149–50, 151 informal or de facto, 142, 144–5, 222 domestic violence, 134 see also Duty to cohabit education of ward, 50 Divorce a vinculo matrimoni, 139, 140 guardianship, 49 for adultery: in early church, 139; Tudor heterogamy disapproved, 150 proposals for, 77, 144 incest, 40, 197 and dirimentary impediments, 140–1

256 Index

Divorce a vinculo matrimoni (cont.) Shakespeare’s use of term, 58, 178 and dower, 140 terminology, 57–8 of King Henry VIII, 143, 144, 148;in withheld or delayed (actually), 202 Shakespeare, 156, 223 withheld or delayed, in Shakespeare, 68–70 when remarriage is prohibited, 220 see also Jointure Domestic violence, 129–32 Duress and church courts, 132, 142–3 constant man or woman test for, 31, 38, 212 community disapproval of, 131, 218 as dirimentary impediment, 31 and conduct books, 131–2, 218 and divorce, 140 as exercise of patriarchal authority, 129–30 few recorded cases, 32 Fitzherbert on, 130 ‘purged’ by consummation or cohabitation, Lambard, William, on, 130 32, 146 legal authority for, 59, 130–1, 217, 218–19 see also Coercion, Enforced marriage legal remedies for, 130, 132, 218 Duty to cohabit, 132, 142 popular acceptance of, 130 in Shakespeare, 144–5 in Shakespeare: against child, 38; against servant, 136–7, 219; against sibling, suitor, Ecclesiastical Commission, see High 136; against wife, 132–3, 134–6, 137–8 Commission see also Petty treason Egerton, Thomas, 6, 7 Donne, John, clandestine marriage of, 94, 210 Elizabeth I, Queen Dowagers, 168, 173 bastardisation, 148, 156 see also Widows religious orientation, 79, 205 Dower, rights of, 175–6 religious politics, 79, 80, 81, 205 and abduction, 108 Elizabeth of Bohemia, Queen, 162 allowed, 181–2, 183, 230 Elopement barring, means to, 176–7 disguised as abduction or rape, 109 and clandestine marriage, 97, 98, 209 and New Comedy, 111 denied to Catholics (1606), 98 in Shakespeare, 111–12, 113–14, 115–16 disputed in death-bed marriage, 175 of wards, 212 and divorce a vinculo, 140 see also Abduction, Rape and Magna Carta, 228 Endowment at church door, 17, 75, 175–6, 228 means to enforce, 176 Enforced marriage Shakespeare’s use of term, 178 abjuration sub poena nubendi, 42–3 technicalities of, 176 of Coke, Frances, 31–2 and wives of traitors, 173–5 of Grey, Lady Jane, 195 see also Endowment, Jointure, Statute of Uses in Jacobean drama, 34, 193, 195 Dowerless women in Shakespeare, 34–41, 42–3, 195 and Poor Clares, 70, 203 see also Wards, Wardship in Shakespeare, 65–70 Entailed estate, see Married women’s Dowry, 56–7 property agreements for, confused with contract of Equity courts marriage, 201 women litigants, 120 agreements for, privately made, 56–7 see also Chancery, Requests as custom, 58 Equity vs law, 6–7, 190 at different social levels, 58–9 and readings of Shakespeare, 190 distinct from‘dower’, 58, 201–2 rules of equity, 190–207 gifts of, for poor maids, 60, 202 and state trials (Mary, Queen of Scots), 7 hunted, or as windfall, 59–60, 180, 202, 230 ‘Espouse’, as used by Shakespeare, 23–5 and inheritance, 61–2, 180–1, 201 for nuns, 70, 203 Falstaff protected by trusts, 58 and ‘contracted bachelors’, 20, 84 reciprocity with jointure, 58 Court of Star Chamber, 4 royal, in Shakespeare, 70–2 marriage promises used for seduction, 21–2 Shakespeare portrays realistically, 59–62, poaching, 4 180–1, 202 uses mock logic (like a Puritan), 89, 207

Index 257

Father High Commission, Court of, 6, 94 as head of household, 32 and clandestine marriage, 100, 103, 209, 212 silent role in marriage service, 88, 207 and ex officio oaths, 89 Feme covert, 118 northern branch, at York, 33, 209 feme sole merchant, 123, 167–8 and parental consent to marriage, 33–4 in Shakespeare, 121, 137–8 Hoby, Lady Margaret litigation by, 121, 215 arranged marriages of, 208, 226 see also Coverture, Married women’s property educated in and married from Huntingdon The First Part of the Contention (King Henry VI, household, 47 part 2) on autonomy of marriage choice, 33 divorce a mensa et thoro, informal, 145 on child marriages, 39 dowry, 24 on incestuous marriage, 141 marriage by proxy, 24 real property of, 123–4, 216 orphans, ill treatment of, 50 An Homilie of the State of Matrimony, 90, spousals per verba de futuro or de praesenti, 24 117–18, 132, 133–4, 214 widows’ rights, 179 Honourable estate, marriage as an, 76–7, 87, 140 Formation of marriage Household, early modern, 12, 190 Church’s role in, 74–5, 206 inter-generational, 68–9, 166, 203 in Shakespeare’s plays, 19–29 model of the nation, 37, 117, 196 see also Legal requirements for the formation of marriage Impediments (to marriage, dirimentary), 17, Fornication, laws against 25–6, 75, 86, 140–1 fictional (Shakespeare’s), 100–1 of affinity, 96, 140, 143, 144, 153, 155–6, 221 proposed, 101 of consanguinity, 95–6, 140–1, 153 under the Commonwealth, 210 of ‘crime’, 141, 155, 223 Friends and family, role of in early modern of difference of cult, 140 marriages, 30, 194 dispensations, 94 and provision of dowries, 56–7, 61 of duress, 31, 140; in wardship, 146 protective impulses of, 56, 65 of impotence, 141–2, 220, 221 of lack of capacity to contract marriage, 140 Gouge, William, Of Domesticall Duties of mistake of person, 26 children’s duties of obedience, 32, 36 as motive for clandestine marriage, 95–6 on laws concerning parents’ consent, 33 of pre-contract, 143, 153–5 Grey, Lady Jane, forced into marriage, 195 of public honesty, 143 Guardianship of a religious vow of celibacy, 140, 155 distinguished fromwardship, 43 termused by Shakespeare, 152 education of children, 199–200 Incest, 141, 221, 223 in Shakespeare, 49–50 and King Henry VIII (historical), 40 in Shakespeare, 40, 41, 152–3, 197 Hamlet see also Impediment of affinity, adultery, 152–3 consanguinity incest, 152–3 Inheritance, 170–6 and impediment of affinity, 153 and clandestine marriage, 98 widows’ remarriage, 153, 170 and dowries, 61–2, 201 Handfasting, 17, 95, 192 of personal property (chattels), 171, 227 Shakespeare’s many references to, 19 of real property (land), 171–2 see also ‘modes of indicating consent’ under see also Succession Consensual model Hatton, Lady Elizabeth Jointure, 177–8, 179–83 clandestine marriage of, 14, 96–7, 98–9 as bar to dower, 177, 229 dowries, provided for poor maids in her will, denied to Catholics (1606), 98 202 negotiated terms of, 58, 181–3 guardianship, 46 ratio between dowry and jointure, 177–8, 229; marriage breakdown, 143 in Shakespeare (possibly), 229 Heterogamy disapproved, 65, 149, 202 reciprocity with dowry, 58

258 Index

Jointure (cont.) inter-generational household, 68–9 in Shakespeare, 179–83 royal dowry, 71, 72 see also Statute of Uses sexual passion, attitudes towards, 66–7 Jonson, Ben, Epicoene, and divorce, 14, 221 spousals, 156 Julius Caesar and wardship, 50 bachelors, 20–1 King Richard II companionate marriage, 127–8 divorce, 145–6 and Puritan objections to ceremony, 206 sue his livery, 44 Jurisdictions, 4 King Richard III declining in Shakespeare’s time, 6 impediment of pre-contract, 153–4 mentioned by Shakespeare, 6 marriage by proxy, 23 not mentioned by Shakespeare, 6 King’s (or Queen’s) Bench, Royal Court of, 5 relations between, 4–7, 99 see also Courts Law wide knowledge of in Shakespeare’s England, 3 King John Law and Literature, theory and approaches arranged marriage, 39 legal history as cultural history, 185–8 bastardy, 160–1 Shakespeare’s three modes of dramatising delay in marrying, 84 legal realities, 8–9 guardian, 49 Lawes Resolution of Womens Rights, 119, 214 royal dowry, 71 on domestic violence, 131 widows’ rights, 178 on married womens’ property, 125 King Henry IV, part 1 Legal requirements for the formation of arranged marriage, 34 marriage, 14, 191 conditional contract, 22–3 consent and capacity to give consent, see marriage by proxy, 22 Consensual model King Henry IV, part 2 consummation not required, see actions on the case, 5 Consummation domestic violence, 135–6 endowment not required, see Endowment seduction, 21–2 impediments, see Impediments widows’ remarriage, 169–70 Licence to marry, 86, 94 King Henry V Litigiousness in Shakespeare’s England, 3, 189 arranged marriage, 39, 196 by women, 227–8 conditional contract of marriage, 22–3 see also under Church courts, Common law impediment of pre-contract, 154 courts, Equity courts, Requests, Widows royal dowry, 71 Love’s Labour’s Lost widows’ remarriage, 169–70 and arranged marriage, 39–40 King Henry VI, part 1 bastardy, 161 bastardy, 160, 223 dowerless women, 65 companionate marriage, 71 Luther, Martin, 76, 81, 206 dowerless woman, 70–1 impediment of pre-contract, 153 Macbeth King Henry VI, part 2, see The First Part of the companionate marriage, 128 Contention Maine, Henry, 118, 214 King Henry VI, part 3, see Richard, Duke of York Maitland, Sir Frederick, 25, 27, 98, 141 King Henry VIII, seeAllIsTrue Manorial courts (local) King Lear (The Tragedy of King Lear (Folio) and and clandestine marriage, 98 The History of King Lear (Quarto)) and widows, 214 bastardy, 159, 161–2, 224 women litigants, 120 bigamy, 155–6 Marriage differences between the Folio and Quarto, Act of 1753, Lord Hardwick’s, 75, 95–6, 149 223; equity vs law in quarto only, 6–7 by civil magistrates, during Commonwealth, divorce for adultery, 147–8 204 dowerless woman, 65–7, 72 clerical, 205, 220 economic coercion, 69 community surveillance of, 117, 213 impediments, 155–6 discouragement of, among the poor, 31, 194

Index 259

market in London, economic, 69 arranged marriage not followed by love, 35–6, promises used for seduction, 16, 21–2, 65, 105, 196 210–11 autonomy in marriage choice, 36 women resistant to, in Shakespeare, 70, clandestine marriage in, 100, 101 203–4 companionate marriage, 196 Married women, see Coverture, Feme covert coverture, 8, 229 Married women’s property, 2, 122 dispensation, 210 alienation of land by, (‘ﬁne’), 123 domestic violence, 134 chattels (personal property), 122 dowry, 35 earnings, 123 economic coercion, 64 married women’s separate estate, 124–5; inheritance, 229 entailed estates, 124; pin money, 122–3; jointure, 179 ‘restraint on anticipation’, 124–5; uses and poaching, 4 trusts, 58, 124, 125 Middleton, Thomas, A Mad World, My Masters, real property (land), 123 190 Swinburne on spousals and property rights, A Midsummer Night’s Dream 97–8, 127 bachelors, 21 see also Coverture, Equity courts and death penalty, 36–7 Measure for Measure and delay in marrying, 85 bastards, 163, 224 dowagers, 173 bed trick, 26 and force leading to marriage, 110 and clandestine marriage, 100 parental control of marriage, 34–5, 36–7, 103, consummation, 26, 193; converts de futuro 195–6 contract to full marriage, 43 seduction, 192 and delay in marrying, 84 sexual passion, attitudes towards, 85 doctrine of unity of person, 129 Milton, John, Paradise Lost, 203 dowries, 27, 28, 69–70 Misdemeanours, see Star Chamber, Court of enforced marriage, 42–3 Much Ado About Nothing ‘fast married’, 209–10 and banns, 86 fornication, ﬁctional law against, 100–1 and bastardy, 159 impediment of religious vows, 155 and the Book of Common Prayer marriage loss of dower, 174–5 service, 87, 88–9, 207 marriage promises used for seduction, 21, 43 consummation, 21; converts de futuro contract pre-contract, 26–7, 193 to full marriage, 21 release fromconditional spousals per verba de and delay in marrying, 86–7 futuro, 28–9 dowry as windfall, 59 resistance to marrying, 70 guardianship, 49 spousals per verba de praesenti or per verba de father’s role in marriage service, 88 futuro, 27–8, 193 friar compliant with irregular marriage widow of traitor (loss of inheritance), ceremony, 88 174 impediments, 86, 88–9, 152 widows’ remarriage, 168, 169, 174–5 and solemnisation, 86–7, 88–9 Mediation of marriage breakdown types of consent, 19 by the church courts, 142, 221 by the king or queen, 143, 221 New Comedy, 36, 64, 111, 196, 201 The Merchant of Venice abduction of heiress, 202 Orphans, 48 companionate marriage, 127–32 protected by Court of Chancery, 50 coverture, 63, 126, 127 protected by Court of Orphans, 50 and dowry funding jointure, 229 Othello dowry as windfall, 59 consummation, 193 economic coercion, 62–4 de futuro contract (purported), 193 elopement, 113 divorce, 151 rings in, 91, 208 dual time scheme (purported), 193 The Merry Wives of Windsor elopement, 115–16 arranged marriage, 35 parental control of marriage, 34–5

260 Index

Othello (cont.) in Shakespeare, 112–15; danger to women of, sexual passion, attitudes towards, 65 112–14; sadistic, 115 wife beating, 133, 134–5 statutes against (rape Acts and abduction wife murder, 132–3 Acts), 107–9 uses of the term, in Shakespeare, 114 Parental consent to (or control of) marriage, The Rape of Lucrece and rape, 111, 212 32–4, 75, 77, 93, 204 Religious orders, in Shakespeare and Canons of 1603–4, 33, 81, 195 Franciscan friars, 94, 210 and Court of High Commission, 33–4 friar compliant with irregular marriage in Shakespeare, 148–9 ceremony, 88 see also Friends and family Poor Clares (Franciscan sisters), 70, 203 Performative utterances, 191 Requests, Equity Court of Pericles, Prince of Tyre and dowries, 57 abduction, 112–13 women litigants: married women, 121, 215; bastard, 163 widows, 8, 214 incest, 40 Richard, Duke of York (King Henry VI, part 3) rape, 112–13 divorce a mensa et thoro, informal, 145 Petty treason, 121–2, 215–16 dower, 173–4 Shakespeare on, 125–6, 215, 216–17 dowerless woman, 70–1 Poaching, 4, 189 impediment of pre-contract, 153–4 Portion, Marriage, see Dowry jointure, 179 Poverty, see Marriage, discouragement of widows of traitors, 173–4 Pre-contract, 16, 21, 22, 191 widows’ remarriage, 169, 174 attempted legal reform of, 15–16 Rings, 17, 75, 77, 78, 80, 82, 92, 96 Protestant Reformation, continental, 206 in Shakespeare, 91–2, 208 see also Martin Luther Riot, see Star Chamber, Court of Protestant Reformation in England, 15, 75–6, 204 Romeo and Juliet popular appeal of, 79 child marriage, 38–9, 196 reversed by Queen Mary, 78–9 clandestine marriage, 104 Shakespeare’s response to, 91, 92 consummation, 104 Proxy, marriage by, 22, 23–4, 25, 83 delay in marrying, 38, 85 Puritan hopes for reform, 93 domestic violence, 38 of ex officio oaths, 89 economic coercion, 64 at Hampton Court conference, 80 elopement, 115–16 in Millenary petition, 1603, 80, 94, 96 forced marriage, 38–9, 196 vestimental controversy, 91, 207 and New Comedy, 201 why unsuccessful, 81 parental coercion, 37–9; for political advantage, 39 Rape and petty treason, 37 abduction or elopement, confused with, sexual passion, attitudes toward, 85 107, 114 and wardship, 50 abduction or elopement, distinct from, 106–7, Russell, Thomas, 209 110; story of Philomel, echoed in Chancery cases, 99, 209 Shakespeare, 110–11 clandestine marriage of, 99–100 and Church courts, 110 Ryche, Sir Richard Coke on, 108 provides for granddaughters in will, 229 danger to women of, in literature, 213 purchasing a ward, 47 definition, history of, 106–9 as felony, 106, 108; cases compromised, 109 Sacrament, 204–5 frequency, 211, 212 marriage as, 75, 76 as misdemeanour, 106 Seduction, see Marriage promises used for pardons for, 212 seduction and patriarchal model of women as property, Separation agreement, 142, 219, 222 106; analogous with wardship, 106 duty to cohabit, 132, 142 punishments for, 107–9, 211; and benefit of in Shakespeare, 145 clergy, 108 Settlement, see Dowry

Index 261

Sexual passion in marriage, attitudes towards, customary, 171, 227 65, 203 freebench, 171, 229 and Montaigne, 65, 203 gavelkind, 171, 228 in Shakespeare, 65, 66–8, 84, 102 intestate, 171 Shakespeare, Susanna primogeniture, 171 and sexual slander, 191 ultimogeniture, 171 Shakespeare, William see also Inheritance, Widows, Wills allows dower rights, 183, 230 Sue his livery, 44 as forgetful witness in Bellot–Mountjoy Swinburne, Henry, 209 lawsuit, 191 Treatise of Spousals, 15, 24, 26, 28, 29, 140, 191; religious orientation, 208 on abuses in wardship, 48–9; on property response to religious controversy, 91, 92 rights following spousals, 97–8, 127 Shakespeare’s three modes of dramatising legal realities, 8–9 The Taming of the Shrew Slander, 6, 191 abduction, 112, 202, 213 Solemnisation of marriage, 14 and Book of Common Prayer marriage delayed, in Shakespeare, 83–6 service, 87–8; communion service, 88 history of, 74–81 clandestine marriage, 101–2 not enacted on Shakespeare’s stage, 82–3 coverture, 137–8 rings, 77, 80 domestic violence: against servants, 136–7; in Shakespeare, 82–92 against siblings, suitors, 136; against wives, words and rubrics of Book of Common 136–8, 220 Prayer, 77 dower allowed in, 181–2 see also Book of Common Prayer and dower vs jointure, 179–83, 230 Southampton, Earl of, 45, 200 dowry, 59, 180–1 Spousal contracts, per verba de praesenti or per elopement, 111 verba de futuro, 13, 99 jointure, 181–3 conditional contracts per verba de futuro, 17, and New Comedy, 196, 201 22–3, 83–4 and petty treason, 37, 125–6 critics’ confusions with property agreements, and Puritan objections to marriage service, 88 191, 201 and rings, 87 de praesenti and property rights, 97 solemnisation (travestied), 87–8 difﬁculty over tenses of a verb, 24–5 widows’ remarriage, 169 Shakespeare alludes to, 194 The Tempest Shakespeare’s use of term‘contract’, 19–20, and abduction (Proserpine), 110 192 consummation, 21, 84–5 see also Age of consent for marriage, guardian, 49 Consensual model handfasting, 20 Spousals, 13, 14, 156, 190, 191 parental control of marriage, 41 Shakespeare’s use of the term, 23–5 sexual passion, attitudes towards, 67, 85–90 see also Consensual model, Handfasting, solemnisation, 84 Pre-contract spousals per verba de praesenti or per verba de Star Chamber, Court of, 4–5, 6, 189, 211 futuro, 20 poaching, 189 Timon of Athens riot, 3, 4 dowry, 60–1 women litigants, 215 economic coercion, 61 Statute of Uses (1536), 177 gift of friends and family, 61 and dower, 177 widows’ remarriage, 169 and jointure, 177 Titus Andronicus and trusts, 124 per verba de praesenti or per verba de futuro, Statute of Wills (1540), 171 spousals, 24–5, 192 and autonomy, 227 ‘rape’, ironic use of the term, 114 and marriage settlements, 61–2 rape, violent, 115, 213 Succession, laws of, 170–2, 227 ‘spousal’, use of the term, 23 borough English, 171 Trial by battle, 120–1, 215 coparcenors, 171 Tridentine marriage laws, see Council of Trent

262 Index

Troilus and Cressida profits, 43–5, 47, 197–8 bastardy, 159, 161 in Shakespeare, 50–4 collusive abduction (Helen), 114 Tudor, 45, 198 and unwilling abduction (Proserpine), 110 and waste, 44 Trusts when arising, 43 for married women’s separate property, 124, see also Disparagement, Sue his livery 125 Webster, John see also Equity courts The Devil’s LawCase , 21, 141–2, 224 Twelfth Night The Duchess of Malfi, 13, 73, 150, 191 clandestine marriage, 101, 210 Whythorne, Thomas, 192 Two Gentlemen of Verona Widowers, 166 and bastardy, 160 remarriage of, 165, 225 economic coercion, 64, 68 in Shakespeare, 166–7, 226 elopement, 68, 113 Widows inter-generational household, 68–9 as executors, 172 rape, 113 of felons, traitors, or abjurers, 172–5, Two Noble Kinsmen 228 clandestine marriage in, 105 legal personality of, 167 delay in marrying, 85 litigiousness of, 169–70, 172, 226 dowry, 60 means of support: customary, denied to gift of dowry to poor maid, 60 Catholics (1606), 98; equity court of and force leading to marriage, 110 Requests, 8; non-enforceable promises for, sexual passion, attitudes towards, 85 202; property rights resumed, 167; see also widows’ rights, 178 Dower, Inheritance, Jointure Tyrants, right to overthrow, 126, 217 poverty of, 172 remarriage, 167–9, 226; inhibited by wills, Unity of person, doctrine of, 119 172; Magna Carta on, 168; Shakespeare’s Shakespeare spoofs, 129, 147 representations of, 168–70 see also Coverture rights, 167, 176, 178–9 ‘royal’, marriage of, 42, 197 Venus and Adonis and abuses of wardship, 50 wealthy, 172, 173 Vestimental controversy, 91 Wilkens, George, The Miseries of Enforced Marriage, 193 Wards Wife beating, 129–30, 133 education or training of, 44, 47, 49, 199–200 see also Domestic Violence elopement or abduction, 110, 212 Wife murder, 132–3 marriages of, 44 Wills, 47, 201, 202 Wards and Liveries, Court of, 45, 48, 50, 197, 198 inhibiting widows’ remarriage, 172 and marriage of ‘royal’ widows, 197 women’s wills, 171 unpopularity of, 47–8 see also Inheritance, Statute of Wills Wardship, 43–8, 50, 197 The Winter’s Tale abuses in, 45–6, 48–9, 50, 197 abduction (Proserpine), 110 commodification of, 45–6, 47 bastardy, 148, 162–3 composition of, proposals for, 48, 198–9 concubinage, 41, 68, 162–3, 224–5 duration, 43 delay in marrying, 85 in Elizabethan drama, 200 divorce, 148 families’ purchase of own child’s, 46 dowerless woman, 67–8 as feudal incident, 43 guardianship, 49 fiscal feudalism, 43, 44–5, 48 handfasting, 148 Jacobean, 48, 198, 199 parental opposition to marriage, 41, 148–9 and Magna Carta, 45 sexual passion, attitudes towards, 67–8 petition for, 45–6, 198 Wroth, Lady Mary, Loves Victory and Urania,on prerogative, 197–8 forced marriage, 195