Shakespeare's Courts And The Promise To Marry

Today let's travel back some three hundred years from Dickens to Shakespeare. Shakespeare would undoubtedly be familiar with the Prerogative Court and the Consistory Court of the 1500s. Prerogative Court was a Church Court in which the powers and privileges of the sovereign were exercised. The Prerogative Court of Canterbury handled the probate of Wills for the south of England and Wales. This court was eventually subsumed into the Court of Probate in 1858. You can find some of these Wills at the National Archive website such as Jane Austen’s Will from 1817.

The Consistory Court of London was another Church Court involved in marital issues including disagreements over estates. In "The Lodger Shakespeare" by Charles Nicholl, Shakespeare's life is illuminated not through his plays but through his personal relationships while he lived in London. Nicholl examines those around Shakespeare: his landlord and landlady as well as those he interacted with on a daily basis. Nicholl describes Shakespeare witnessing or actually presiding over his landlady's daughter's plight ceremony or betrothing. According to Nicholl, such a ceremony was a recognized form of marriage occurring before the religious ceremony. This betrothing had the force and effect of a signed contract and an aggrieved party could sue on the basis of a breach of this plight troth.

These contracts were the precursor to the common law marriages recognized by the courts even today. Nicholl discussed the difference between the de futuro marriage (a future agreement) contract and the de praesenti (a present marriage contract). The de futuro contract is only binding upon consummation of the marriage, while the de praesenti is binding immediately. Indeed, Shakespeare’s play Measure for Measure revolves around such a ceremony and contract with a delightful “play” on the sexual requirements to make such a contract enforceable.

In Canada there is no right to sue on a breach of a promise to marry. However, there may be an action to return an engagement ring if an engagement is broken. In D’Andrea v. Schmidt, a 2005 Saskatchewan Court of Queen’s Bench case, the defendant Kim Schmidt, who was the wearer of the ring, argued that such a lawsuit was based on an “anachronistic law” which discriminated against women and perpetuated stereotypes contrary to s.15 of the Charter. Such a cause of action, she argued, treated women like chattels and was not within the spirit of societal values. Needless to say, this argument did not have the “ring” of truth as the Court found a lawsuit for the return of gifts given in promise of marriage could be brought by either sex.

In McManus v. McCarthy there was a valid marriage but the husband wanted the return of the engagement ring after the marital breakdown. Madame Justice Kenny ordered the return of the ring as it was found to be a conditional gift only. No surprise as this marriage lasted 9 days and occurred after 4 prior engagements!

Betrothals do matter, however, when it comes to immigration. Refugee applications in Canada can be based upon the coercive effects of arranged marriages in foreign countries such as Ghana. See this link for a case on point. Such “marriages” can start at a very early age with a betrothal and thus an expectation of marriage at a much later date. This situation is a contract de futuro where the woman, when old enough to appreciate the situation, does not consent. It appears these claimants are not typically granted refugee status.

Shakespeare was therefore very much aware of the necessity for the rule of law as in his famous line from Henry VI suggests:"The first thing we do, let's kill all the lawyers." This line was not written to incite against the law or rail against lawyers, but was written to underscore the need society has for the rule of law, without which, anarchy reigns.

How To Celebrate "Persons" Day Next Year

October 18 was "Persons" Day in Canada. The moniker arises from the Edwards, et al case, decided 82 years ago, in which the British Judicial Committee of the Privy Council (JCPC), the then highest Appellate Court for Canada, defined women as "persons." This decision gave women the right to sit in the Senate. A right previously, and vigorously denied to women. The five women, who through their tenacity and will-power, appealed this case, are now known as the "Famous Five." In celebration of their achievements, equality rights for women is celebrated throughout Canada. Through their actions, they have inspired many.

There is no doubt the result of this achievement was a crucial and watershed moment for women's rights. There is no doubt the effect of this fight was also an important moment in Canadian law as Lord Sankey's decision brought the concept of our Constitution Act of 1867 into a modern and fruitful interpretation. One that is reflected today in our Charter. However, as with all "celebrities" there is another side to this story.

These women were politically powerful. Emily Murphy was a Magistrate, Nellie McClung was a Member of the Alberta legislature, and Louise McKinney was an active member of the Temperance movement. In short, they were important women who were personally affronted by gender inequality. Their fight did not include the concept of equality for all minorities or vulnerable groups. Indeed, their fight was for equal rights for women like them; politically powerful and of British descent. Indeed, Emily Murphy, held what we would categorize as, racist views, particularly towards Asian-Canadians and Afro-Canadians. Just read, if you can stand to, her book entitled Black Candle.

However, this does not mean we should not celebrate this moment or event. A quick glance at the celebratory events held throughout Canada show a remarkable array of events involving women of all nationalities and ethnicities. This is the true legacy of the Persons case.

Yes, women are people too but so are Aboriginal women, and Asian-Canadian women, and Afro-Canadian women, and thankfully and proudly the list goes on. So next year, I will celebrate this seminal moment by pausing for a moment and cheering for all women of all backgrounds in our country.