Bill Long 1/17/05
The Development of a Law
The provision of MC, that "heirs shall be married without disparagement," reflected a growing social consensus that opposed the oppressive royal practices of charging large sums to force marriages of heirs of tenants in chief or widows to people of lower status. Yet the practice of selling heirs/widows could continue, as long as a "no disparagement clause" was added. For example, in 1203 we have record of a certain Bartholomew de Muleton who, for 400 marks, bought the wardship of lands and the heir of a certain Lambert, along with the widow, only that she not be disparaged. So, in a sense, John could easily have assented to chapter 6 of MC but still rake in a lot of dough as long as he assured his nobles that he wouldn't force their heirs into disparaged marriages.
The Growth of the Law
But the emphasis after MC was on defining what precisely counted as disparagement. Was it a concept that had any conceptual "teeth" to it? The Statute of Merton, 20 Henry 3, ch. 6 defined it as forbidding marriage to a "villein" or "burgess." Yet this would not be an exhaustive list. Littleton, in the 15th century, whose book on ancient tenures was thought by Coke in the 17th century to be the most perfect book, apart from the Bible, ever written, added other illustrations. Disparagement would take place in a situation:
"as if the heir that is in ward be married to one who hath but one foot, or but one hand, or who is deformed, decrepit, or having an horrible disease, or else great and continual infirmity, and, if he be an heir male, married to a woman past the age of childbearing (Tenures, ch. 109)."
When a law gets rolling, it sometimes has an irresistible force of its own, leading subsequent generations to try to "systematize" the law in more specific ways. You can tell the mind of a lawyer is at work if you see categories deelp where only brief definitions earlier sufficed. Let's see one way that the "law of disparagement" expanded.
Coke on Disparagement
Coke's four-volume Institutes (early to mid-17th century) was the most comprehensive overview of the English common law until Blackstone's Commentary on the Laws of England (4 vols) came out in 1765-69. Volume 1 of Coke's work is a commentary on Littleton's Tenures, with comments ringing the "sacred words" of Littleton on each page, much like Jewish medieval commentary on the Talmud surrounds the Talmudic sages' stories in most modern editions.
Commenting on an earlier section of Littleton (sec. 107), Coke divides the concept of disparagement into four categories: (1) disparagement "propter vitium animi"--"on account of the vice of the mind," meaning a lunatic; (2) "propter vitium sanguinis"--"on account of the defect of the blood"--meaning a villein, a burgess, a son of a person who has been attainted, bastards and aliens; (3) "propter vitium corporis"--"on account of the defect of the body," such a a person who has lost a limb or is diseased or impotent; and (4) "propter jacturam privilegii"--"on account of the throwing away of a special privilege"--meaning that the person would have to give up the "benefit of clergy" by being so married.
Recovering Disparagement Today
We chuckle a little bit upon reading Coke. We see a great mind at work, systematizing and controlling life with neatly balanced Latin phrases, as if the euphony or consistency of phrases leads to a calm ordering of life. But I would like to argue in these concluding thoughts that the idea of "disparagement" as it relates to marriage ought to be rediscovered today.
While in the common law of England the rule against disparagement forbade the compelled marriage to someone of lower station, I think that we ought to develop a sort of rule against disparagement that makes it difficult for people of different social location to get married today. I speak as a person who was married for 24 years to one whom I realized, as I gradually "awoke" to the reality of marriage in my 30s, was not socially "aligned" with me. I might have had the first inklings or realizations of this early in my "courtship" or marriage, but I think I repressed the thoughts for a number of reasons. Parents, not wanting to "intrude" into a son's seemingly firm decision, said nothing.
But when my mariage foundered finally around 1999, and when she connected with someone else, it was to a person of far different social standing but a person with whom she ultimately has been far more comfortable. It was only then that it fully dawned on me how much I had disparaged myself in my marriage. Maybe we can have no law forbidding disparagement today, but care should be taken, by counselors, pastors and parents or others who have a vested interest in marriages succeeding (hm..do counselors really have a vested interest in happy marriages?), to have disparagement be a category about which couples think.
Thus, we might smile at Coke's lawyerly attempt to systematize the concept of disparagement, but I believe he is onto something. We, in our democratic days, ought to rediscover disparagement. Maybe abstaing from self-disparagement, and not premarital abstinence, is the key to long and lasting happy marriages.
Copyright © 2004-2008 William R. Long