This book tries to untangle the knotty question of marriage law in early 17th-century England. It was written by the ecclesiastical lawyer, Henry Swinburne (c. 1551–1624), but only published in 1686, more than 40 years after his death.
Swinburne’s Treatise of Spousals explains how a man and woman could be legally married in Shakespeare’s day by making a private agreement without a church or priest. Such a marriage might have been frowned upon – and was usually formalised later in church – but it still had the full force of law.
Swinburne makes a crucial distinction between two forms of marital contract (p. 8). On the one hand, a couple might make an agreement in the present – Sponsalia de praesenti – by saying to each other, ‘I do take thee to my Husband’ or ‘Wife’. This is enough to make it binding, creating an ‘indissoluble Knot of Matrimony’, even if they change their minds later (p. 13).
On the other hand, they might declare their intention to marry in the future – Sponsalia de futuro. This agreement is more conditional and can be dissolved in certain circumstances, for example if there is no dowry. Importantly, however, it becomes binding if the couple have sex: ‘their lying together doth make the same uncertain Spousals, to become Matrimony’ (pp. 219–20).
At the time Shakespeare was writing, this was common law in Britain. But in Catholic cities such as Vienna, a church and priest were required, in accordance with the 1563 Council of Trent.
Some critics have used Swinburne to help explain the two parallel marital contracts in Measure for Measure.
For example, J W Lever sees the agreement between Claudio and Juliet as Sponsalia de praesenti. Claudio says he ‘got possession’ of her bed on the basis of ‘a true contract’. In terms of English common law, this makes her ‘fast’ his ‘wife’ (1.2.145–47), though Angelo revives harsh Venetian laws to charge them with ‘fornication’ (5.1.70).
By contrast, the ‘pre-contract’ between Angelo and Mariana (4.1.71) could be seen as Sponsalia de futuro. They were bound by ‘oath’ to marry, but the agreement was dissolved when Mariana lost her dowry at sea (3.1.214). It is only by bringing them together in sex that the marriage is made binding. This is used by the Duke to claim that the bed-trick is ‘no sin’ (4.1.72), though of course this is open to question.