Posted by Krista Kesselring, 6 January 2020.
At the root of our own, looser use of the term, ‘disparagement’ once had real legal and social heft in regulating marriages between people of differing socio-economic ranks. The union of a medieval nobleman and a serving maid, for example, could be said to ‘disparage’ him, to degrade or diminish him in a manner that made unthinkable a proper marriage of the sort that might produce children deemed legitimate and able to inherit. Marriage created a relationship of profound inequality between husband and wife but was supposed to bring together two people deemed equal in some important way. In early modern England, no formal strictures invalidated marriages between socially disparate but consenting partners—King Henry VIII, after all, married women who had no royal blood and the ‘disparaging’ qualities of those unions were among the least of their problems—but the concept still coloured discussions of some pairings in revealing ways.
In few societies could people marry just whom they pleased, of course. Only in the recent past (and only in some parts of the world) have restrictions based on sex or gender disappeared, allowing two women or two men to marry each other. Restrictions based on race or ethnicity also have an all-too-recent history. Authorities have sometimes prohibited or punished marriages across religious lines and national borders. (For a time, unlicensed marriages between partners drawn from either side of the Anglo-Scottish border could theoretically be deemed treasonous.) Legal status and social rank could very much matter, as well. In Roman law, the enslaved and the free could not marry; free women could not marry actors; and the sons of senators could not marry women of low birth. Well into the middle ages, children of socially-mixed parentage could be deemed illegitimate, whatever the Church might say of the canonical validity of the match between consenting partners.[1] Over and above ecclesiastical law’s list of impediments to valid unions (e.g., close ties of blood), secular laws imposed restrictions, too. Marriage prohibitions have often served to entrench boundaries deemed politically important in a given time and place.
Learning of outright bans on marriages based on rank or status sometimes surprises my students—it seems to mess with notions formed from too many novels and films based on romantic rags-to-riches, happily-ever-after tales of love matches between a rich man and some lowly but worthy woman, even though the very drama of such tales is set up precisely by the odds against the unions. Or perhaps their surprise comes in part from the perceived need for a ban based on status, as social practices tend in that direction anyway, with ‘assortative dating’ (and mating) and all its varied effects being the norm.[2] ‘Homogamy’ is the term sociologists use for marriage between individuals who are similar to each other in some way deemed important within a given culture, a practice that prevails today. But the cleavages that can’t be crossed or the disparities deemed to matter change over time, as do the legal obstacles put in the path of such unions of ‘unequals’.
In some secular medieval laws, disparagium applied legal penalties to marriages that violated the hierarchies of status upon which political power rested. Widows and wards of feudal tenants could also invoke fears of disparagement to protect themselves from unions they deemed inappropriate to their rank if arranged by a lord or guardian against their will—Magna Carta is far more famous for its due process provisions, but it also insisted that ‘heirs are entitled to be free from disparagement’ in their marriages. (King John had developed a reputation for selling off his rights to bestow wealthy widows and minors in marriage based on the suitors’ ability to pay, not on equality of status.)[3] Even when and where formal restrictions on disparaging marriages arranged upon the willing consent of the two principals did not appear, social opprobrium certainly persisted.
Interestingly, the language of ‘disparagement’ lived on into early modern English history to describe unions deemed inappropriate by at least some observers—and came to be used by a wider range of people than envisioned in feudal law. Two statutes invoked this language in measures that sought to deal with abductions, whether understood to be without the consent of the bride or at least without the consent of the parents: a 1487 statute made it a capital felony to seize any propertied maiden, wife, or widow against her will, noting that the resulting marriages often worked to the ‘disparagement of the said women and utter heaviness and discomfort of their friends’.[4] Similarly, an act passed in 1558 tried to deter those ‘unthrifty and light personages’ who, by force or fraud, married young heiresses without the guardians’ consent, to the ‘disparagement of the said children and the extreme, continual heaviness of all their friends’.[5] Young heirs to estates bound by the strictures of feudal tenures could take to the Court of Wards allegations that their guardians had arranged disparaging matches for them.[6] But parents and youths more generally also tried to hinder unions they disliked by invoking fears of ‘disparagement’, in complaints brought before the Court of Star Chamber.
Star Chamber heard talk of ‘disparagement’ from people of a broad range of social backgrounds and based on a wide variety of criteria. A number of cases that alleged improper marriages came before the court, with bills of complaint or depositions that made varied assertions about what constituted ‘disparagement’. Claims of a partner’s ‘mean parentage and little worth and ability’ proved common.[7] Such complaints came not from the high-born alone: in 1624, a maltster named Robert Gateward argued that his son’s marriage to the daughter of a neighbouring shoemaker disparaged his boy (so much so that it could only have arisen from ‘strange, intoxicated drinks’ the young man had consumed). The young man’s new in-laws, in contrast, insisted that no ‘disparity, disparagement, or inequality’ distinguished the partners, whether in ‘age, parentage, or education’.[8]
The age of consent for a valid marriage was still 12 for girls, 14 for boys, but some parents of children just over those marks did try alleging age differences as disparaging. In 1609, Elizabeth Barker complained that the man who had eloped with her thirteen-year-old daughter Willoughby was ‘aged 60 or thereabout’. That said, the groom’s age perhaps mattered to Elizabeth no more than the other ways in which she thought him unsuitable: she mentioned his ‘unfit age, estate, and degree’ as all being equally disparaging to her daughter.[9]
Similarly, a young man who tried to get out of his marriage to Joan Bradley described her 
as being ‘of the age of 40 years or thereabout and so being in her spent and decayed time’. Thomas Westroppe married Joan naively when he was only sixteen ‘and but of small growth’—and when he mistakenly believed she had a hefty marriage portion due to her. (Her brothers had also primed him for the proposal, he said, by ‘encouraging him in the reading and study of lewd and prophane books, thereby endeavouring to stir up lascivious and unchaste desires in him’.) Beyond citing the problems of her age and unexpectedly small marriage portion, Thomas described her as a ‘dishonest, bad, and lewd woman’ who enjoyed drinking wine, taking tobacco, and attending plays.[10] Clearly, Joan was no fit partner for a respectable young man!
Markham Thorold offered a particularly interesting set of defenses to claims that marriage with him disparaged young Mary Havers. The complaint against him came in 1624, from Mary’s mother Anne, formerly the wife of the late Thomas Havers, a merchant tailor of London, as well as Anne’s current husband, Sir Thomas Burton, and Anne’s father, Robert Reynolds, esq. Their complaint invoked the statute of 1558, but Markham insisted it did not apply to him: the statute dealt with ‘light and unthrifty’ people, which he was not. Penniless at the moment, perhaps, he described himself as a gentleman by ‘extraction and blood’ who had some expectation of inheritance. Moreover, he was ‘by education bred a scholar’. He had served beyond the seas where he learned skills in trade and in several languages—he mentioned his proficiency in languages a couple times as a sign of his worth. Moreover, he said, Mary was nothing terribly special herself. He had checked with the clerk who dealt with orphans’ estates before pursuing her and knew she was ‘only’ expecting a portion of some £1500 from her late father. Moreover, her father had merely raised himself through trade. Mary’s mother’s parents, too, came from low station—Mary’s grandmother had made her living by ‘teaching young children their ABCs or horn books and to sew’. Members of Mary’s extended family still earned their daily bread by selling ale and tobacco. So, he was no ‘light and unthrifty’ person, nor was Mary a person of sufficient status to be disparaged by marrying him.[11]
To top it off, Markham asked, how could marriage with him possibly disparage Mary, given the other contender for her hand? 
Mary’s mother and her stepfather, Thomas, had intended her for one of Thomas’s wards, a stepson from his previous marriage named Henry Calverley. Henry was the sole surviving child of Thomas’s late wife and her previous husband, the notorious Walter Calverley. Walter Calverley had become infamous in 1605, when he killed his two oldest children, stabbed his wife, and only just missed killing his infant son Henry, then off with a nurse. Refusing a jury trial, Walter then suffered a shameful death by pressing, or ‘peine forte et dure’. His killing spree had inspired a few plays and news pamphlets; evidently the infamy of both the crime and the punishment lived on to affect Walter’s poor son Henry almost twenty years later.[12] As such, young Mary was ‘in no way disparaged’ by marrying him, Markham argued.
Writing a commentary on a late medieval text in the early 1600s, the legal authority Sir Edward Coke noted four kinds of disparagement: marriage that would cause a person to lose some important legal privilege as well as marriages to individuals deemed to have defects of the spirit, blood, or body (e.g., someone non compos mentis; a bastard or child of a person attainted of treason; someone diseased or a woman ‘deflowered of her virginity’).[13] Unlike other European jurisdictions in the wake of the Reformation, however, the English for a very long time did not enshrine requirements for parental consent in ways that allowed parents to have marriages they disapproved of simply declared null and void.[14] Instead we find parents taking cases to courts such as Star Chamber, in the process leaving evidence of the criteria some people thought to underpin social estimation and differentiation in an era of far-reaching social change.[15] Age, education, moral character, and reputation jostled alongside estate, status, and degree in these early modern claims made in language that lingered from the Middle Ages about what made a marriage ‘disparaging’—and who could be disparaged thereby.
Images: Feature image adapted from Pieter Brueghel the Elder’s The Peasant Wedding, via Wikimedia Commons.
Second image from Jean de Wavrin, Anciennes Chroniques d’Angleterre, Français 85, via Wikimedia Commons and courtesy of the Bibliothèque Nationale de France.
Third image from the title page of Samuel Rowlands, ‘Tis Merry When Gossips Meet (London, 1613) and the fourth from Anon., Two Most Bloody and Unnatural Murders, the one by Master Walter Calverley (London, 1605).
References:
[1] For a few works touching on such subjects, see, e.g., Peggy Pascoe, What Comes Naturally: Miscegenation Law and the Making of Race in America (Oxford, 2009). James Brundage, ‘Intermarriage between Christians and Jews in Medieval Canon Law’, Jewish History 3 (1988), 25-40; Brundage, Law, Sex, and Christian Society in Medieval Europe (Chicago, 1987), 36ff; C.J. Neville, ‘The Law of Treason in the English Border Counties in the Later Middle Ages’, Law and History Review 9.1 (1991), 1-30; Garthine Walker, ‘”Strange kind of stealing”: abduction in early modern Wales’, in Women and Gender in Early Modern Wales, ed. Michael Roberts and Simon Clarke (Cardiff, 2000), pp. 50-74 at 61-2; Ruth Mazo Karras, Unmarriages: Women, Men, and Sexual Unions in the Middle Ages (Philadelphia, 2012), esp. ch. 2; Sara McDougall, Royal Bastards: The Birth of Illegitimacy, 800-1230 (Oxford, 2017), pp. 29-34, 46-7. Pascoe notes that in the late 1600s, some English settlers abroad started to devise marriage prohibitions based on ‘race’—not just legal status but between freeborn English men and women and ‘negroes, mulatto, or Indian’, whether ‘bond or free’: What Comes Naturally, 20-21. For more extensive discussion of attempts at marriage prohibitions in another colonial context, see Susan M. Socolow, ‘Acceptable Partners: Marriage Choice in Colonial Argentina, 1778-1810’, in Asunción Lavrin, ed., Sexuality and Marriage in Colonial Latin America (Lincoln, 1989), 209-51.
[2] See, e.g., https://www.pewresearch.org/fact-tank/2014/01/29/new-academic-study-links-rising-income-inequality-to-assortive-mating/
[3] William Sharp McKechnie, Magna Carta (Glasgow, 1914), 212-24. See also Scott Waugh, The Lordship of England: Royal Wardships and Marriages in English Society and Politics, 1217-1327 (Princeton, 1988).
[4] 3 Henry VII, c. 2.
[5] 4 &5 Philip and Mary, c. 8.
[6] See Joel Hurstfield, The Queen’s Wards: Wardship and Marriage under Elizabeth I (London, 1973), 139-41.
[7] The National Archives [TNA], STAC 8/30/3.
[8] TNA, STAC 8/122/20.
[9] TNA, STAC 8/11/10.
[10] TNA, STAC 8/26/7.
[11] TNA, STAC 8/65/10.
[12] TNA, STAC 8/65/10.
[13] Coke on Littleton, section 107; see also Hurstfield, Wards, 140.
[14] Eric Carlson, Marriage and the English Reformation (Oxford, 1994), e.g., pp. 96, 138; Holly Brewer, By Birth or Consent: Children, Law, and the Anglo-American Revolution in Authority (Chapel Hill, 2005), ch. 8. The Anglican Canons of 1604 required parental consent for people marrying under age 21, but just made marriages without such consent irregular rather than void; contemporaneous attempts to legislate requirements for parental consent in secular law failed. For the contrasting French situation, see Sarah Hanley, ‘”The Jurisprudence of the Arrêts”: Marital Union, Civil Society, and State Formation in France, 1550-1650’, Law and History Review 21.1 (2003), 1-40.
[15] For a particularly insightful recent discussion of such criteria as revealed through self-descriptions in witness statements, see Alexandra Shepard, Accounting for Oneself: Worth, Status, and the Social Order in Early Modern England (Oxford, 2015).
Legal History Miscellany 