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  • Milton, Deliberative Liberty, and the Law of Spousal Privileges

In 1876, caught up in an ongoing legal battle with the male executors of her late husband's estate, the American suffragist Marietta Stow wrote and subsequently self-published her sprawling Probate Confiscation; or, The Unjust Laws Which Govern Women. In this text, which would become the basis for a nationwide tour of lectures and lobbying, Stow reframes her personal struggle with the California probate courts in apocalyptic terms, demanding a thoroughgoing reform in the systems of nineteenth-century American law, politics, and business that she regarded as fundamentally hostile to the rights of women. Stow's fervent convictions garnered the attention of luminaries such as William Lloyd Garrison, Ralph Waldo Emerson, and Henry Longfellow, all of whom supported Stow's initiatives in Massachusetts and elsewhere to revise state probate laws. These efforts, however, repeatedly foundered upon legislative presumptions—contrary to Stow's own experience, and that of other women as well—that the courts and their male judges already did sufficiently protect widows and children. Reflecting acidly on such assumptions, Stow remarks in the third edition of her book that while many men believed that women were well [End Page 231] taken care of at law, those same men "have fashioned women's legal garment so deftly, so cunningly, she can exclaim with Paulus Emilius, who being asked why he put away his wife for no visible reason, replied 'This shoo' (holding out his foot) 'is a neat shoo, a new shoo; and yet none of you know where it wrings me."1

Though Stow does not cite her source for this story, Milton scholars will likely recognize the anecdote as being a direct quotation from The Doctrine and Discipline of Divorce, the first of Milton's four divorce tracts. Stow's use of the Paulus Emilius reference in support of her model "Act for the Protection of Widows" suggests that while Milton's divorce tracts originally yielded little in the way of immediate political or legal change they offered at least a conceptual touchstone for future generations of impassioned reformers. Historians of American divorce law, for example, regularly cite the influence of the shared experience of rebellion that spurred both Milton and the newly independent citizens of the former thirteen colonies to formulate divorce as a matter of not only domestic but also political contract.2 Most recently, both literary and legal scholars have returned to Milton's divorce tracts in the context of Obergefell v. Hodges, the 2015 U.S. Supreme Court case that recognized that same-sex couples possess a fundamental right to marry. Here the focus has been on Milton's insistence that the foundations of marriage rest upon spiritual compatibility rather than bodily congress, an argument that Martha Nussbaum, Sarah van den Berg, W. Scott Howard, and others have viewed as presenting a direct challenge to the presumption that the state's interest in limiting marriage to heterosexual couples lies in its prioritization of child-bearing within a biological partnership.3

Milton's recurrent presence in readings of American law suggests the importance of reading his divorce tracts not just in their immediate context but also within the legal doctrines that have since evolved around their central arguments. In particular, this essay argues that a close reading of the importance and sanctity Milton and other seventeenth-century writers accorded marital conversation reveals a new genealogy for certain modern legal protections afforded to such conjugal intimacies. Manifested today in [End Page 232] what is now collectively called "spousal privilege," or, generally speaking, the right of a husband or wife to limit or prevent the evidentiary testimony of his or her spouse in a court of law, the roots of such evidentiary rights have been generally assumed to lie in the medieval and early modern doctrine of coverture, or the sublimation upon marriage of a woman's independent identity into that of her husband. By the nineteenth century, however, the justification for spousal privilege had become centered on the maintenance of marital harmony rather than male headship. When it is addressed at all, this shift has generally been credited to the economic changes of the sixteenth and seventeenth century, and in particular to how the continuing presence of women in commercial endeavors, especially when combined with a growing, class-based stratification of males as economic actors, encouraged the development of new conceptions of companionate marriage.4 Just as important as these factors, I will argue here, was the recognition accorded to domestic harmony by early modern writers on marriage, for as both Milton's divorce tracts and other seventeenth-century writings on marriage reveal, the early modern period in fact possessed a nuanced understanding of spousal conversation, one that though bounded by doctrines of coverture also recognized the importance of both mutual privacy and individual self-interest to healthy marital deliberation.

More than just correcting the historical record, however, Milton's divorce tracts also anticipate the continuing legal and political tensions that surround the exercise of modern evidentiary privileges regarding marital conversation. In the work of Milton and other seventeenth-century writers on marriage, the necessity of mutual conversation to a healthy marriage is accompanied by a consistent ambivalence regarding the exercise of such conversational rights by the wife, whose deliberative contributions to marital decision making are at once recognized and repeatedly suborned. As we shall see, the evolution at law of two differing forms of spousal privilege—the marital communications privilege and the adverse testimony privilege—similarly embodies this ambivalence, while the distinction drawn between these privileges based on the existence or dissolution of a marriage returns Milton's particular [End Page 233] arguments regarding divorce to a more broadly contemporary relevance. Precisely how these shared understandings regarding conversational privacy and marital intimacy developed, however, has never been adequately explored.5 As I suggest in the second half of this essay, unifying these seemingly disparate historical understandings is the recognized incapacity, common to both Milton and contemporary theorists of political liberalism, to accommodate women as self-interested actors, with seventeenth-century and more contemporary writers alike subsuming female self-interest within an abstract but ultimately hierarchized commitment to deliberative equality. Reading these positions back into Milton's work lends a particularly modern cast to the postlapsarian moments of incrimination and judgment central to book 10 of Paradise Lost. When examined as occasions of spousal testimony, the varying responses of Adam and Eve to their mutual sin exemplify not only the historical complexity that attends the rights of marital conversation but also the difficulties both Milton and contemporary theorists have in recognizing gender within constructions of the modern liberal subject.

The Law of Spousal Privilege

Pursuing such a multifaceted argument demands that we first understand something of the law of spousal privilege before investigating its early modern roots. In contemporary American law, the rights most frequently described as "spousal privileges" comprise two distinct rules, each with particular legal definitions distinguished largely by issues of time and manner of exercise. The marital communications privilege allows for the preclusion of testimony regarding any communication (verbal or not) that occurred during the marriage so long as it is apparent that said communication was intended to be confidential. In most cases, this privilege vests in the communicating spouse rather than the recipient and, importantly, it survives the dissolution of the marriage. Thus, statements once made in private to one's spouse can, at the request of the original speaker, be permanently excluded from trial, regardless of whether [End Page 234] the union still remains. The adverse testimony privilege, by contrast, exists only so long as the marriage does, a fact that belies its potential expansiveness. For unlike the marital communications privilege, which excludes only specific instances of confidential communication, the adverse testimony privilege "precludes any testimony by one spouse that may adversely affect the interest of the other in proceedings that are criminal in nature."6 A wife's testimony that she witnessed her husband murder a third party, for example, could be excluded under this privilege at the behest of her husband, so long as the two remain married at the time of the trial. While various exceptions to this privilege have been established, including for testimony by a spouse regarding wrong done to him or her by a partner, the most important implication of the adverse testimony privilege is that, at least historically, it could be invoked by one spouse to prevent the testimony of the other even if said spouse were willing to testify against the other.

Privileges that exclude evidence from consideration at trial, such as those that fall under the general category of "spousal privileges," represent significant statements of cultural values, demonstrating as they do a governmental willingness to accept a potentially substantial limitation on the ability of courts to ascertain the truth of an event and to resolve questions of guilt and innocence. The importance we place on marital privacy is thus evident in the continuing support for the marital communications privilege, which operates much like other familiar forms of legal privilege such as attorney-client, therapist-patient, or priest-penitent, all of which center on highly valued social relationships constituted in large part by conversational privacy and autonomy. Much more hostility, however, has been directed at the adverse testimony privilege, in part owing to concerns regarding gender bias. Though this particular privilege exists only so long as the marriage does, the ability of one spouse—most frequently male—to prevent the voluntary testimony of the other—most frequently female—has become so distasteful that in recent years most American states have modified their rules of evidence to vest this privilege solely in the witness-spouse.7 In the 1980 case Trammel v. United States, the U.S. [End Page 235] Supreme Court similarly changed the rules for federal courts, arguing that in instances where a spouse is willing to testify adversely against another there was likely little if any marital union left to preserve, and thus "a rule of evidence that permits an accused to prevent adverse spousal testimony seems far more likely to frustrate justice than to foster family peace."8

More than just the status of the marital union, however, Trammel also brought to the fore a substantial question of how any given party in a marriage might understand his or her own self-interest. Along with two other defendants, Otis Trammel had been indicted for conspiracy to import heroin from Southeast Asia. His wife Elizabeth Trammel had assisted her husband first by accompanying him as he carried heroin on a flight from the Philippines and then by returning alone to Thailand to secure another supply. During her return on this latter trip she was stopped by U.S. Customs in Hawaii and the heroin was discovered. As an unindicted co-conspirator, Elizabeth Trammel subsequently testified against her husband under a grant of use immunity and promise of lenient treatment, with the prosecution basing its case largely on her testimony.9 Though critics then questioned (and still do today) whether testimony secured by the government during a process of plea bargaining or immunity can ever be considered truly "voluntary," in allowing Trammel's testimony the court sidestepped this question by emphasizing Trammel's self-interest rather than her free will. Doing so allowed the court to modify the rules governing the adverse testimony privilege while simultaneously maintaining its support of marriage. Since prosecutors would be unlikely to plea bargain with a spouse if they knew the testimony they would elicit would subsequently be excluded from trial by the other spouse, the court reasoned, the ultimate result of such a dynamic would mean that one spouse could escape justice by ensuring a greater punishment on the other. In an era when men commit crimes at a much higher rate than women, the burden of this rule would, if not modified, fall disproportionately on wives.10 Indeed, the court concluded that the original foundations for the privilege's formulation as a mechanism for spousal control had been long abandoned. [End Page 236] "Nowhere in the common law world—indeed in any modern society—," Chief Justice Warren Burger wrote on behalf of a unanimous court, "is a woman regarded as chattel or demeaned by denial of a separate legal identity and the dignity associated with recognition as a whole human being."11

Trammel and nearly all other modern court opinions on the matter of spousal privilege posit that such retrograde opinions did exist in the seventeenth century, a time when, so the argument goes, presumptions regarding the indivisibility of a husband and wife would have thoroughly disenfranchised the sort of testimony—and the complicated calculus of marital harmony and individual interest that spurred it—Elizabeth Trammel offered against her husband. Both historians and literary critics, however, have increasingly recognized that individual experiences of coverture during this period could vary greatly, and that especially in economic terms early modern women could possess and act upon not only shared but also potentially independent and even diverging interests.12 The convergence of these two factors during the period created a powerfully persuasive legal and cultural fiction whose expectations of unitary marriage, much as in the Trammel case, challenged jurists attempting to understand individual instances of female independence amid cultural assumptions of male headship. Such challenges are particularly evident in the case law traditionally cited to establish the relationship of early modern coverture to the development of the adverse testimony privilege.

Modern legal decisions, for example, frequently cite the 1580 Court of Chancery case Bent v. Allot as the first reported case establishing a man's right to control the testimony of his wife. Yet as it was actually recorded in the Reports, the case neatly encapsulates the potential complexities of spousal testimony in early modern England: "The defendant's wife examined as a witness.—It is informed that Colston, one of the defendants, examined his own wife as a witness: it is therefore ordered, the plaintant may take a subpoena against her on his behalf; and if Colston will not suffer her to be examined on the plaintant's party, then her examination on the said Colston's party is suppressed."13 At issue, it seems, [End Page 237] was a prior decision by an unnamed court or judge allowing for Colston's wife to testify, a fact that itself complicates any blanket assumption that early modern women were considered at law to be insufficiently distinct from their husbands. To be sure, the resulting ruling in Chancery does suggest that at least some form of control resided with the husband, as Colston's decision regarding whether his wife would testify seems determinative, though to what extent this is because he is her husband rather than just the party that originally secured her testimony is less clear. More important to the case, however, is the manner in which such testimony should be handled. Here the Chancery Court's particular concern lies less with the doctrine of coverture than with ensuring rights of due process—in this case, the right to cross-examination fundamental to an adversarial system of justice.14 This emphasis on due process strongly suggests that, at least in this case, Chancery judges recognized a potential distinction, perhaps more practical than theoretical, between Colston and his wife, since if she was not a separate entity any queries directed to her could presumably have been answered by Colston himself.15

Just as significant to contemporary recollections of early modern law is the attention regularly paid to the commentary of Sir Edward Coke in the first part of his Institutes, one of the most influential compilations of common law to emerge from the efflorescence of court reporting in the sixteenth and seventeenth centuries.16 In many instances, including that of Burger's decision in Trammel v. United States, where Coke is the only voice of the law's ancient roots, judges and legal scholars directly quote Coke's claim that "a wife cannot be produced either against or for her husband." This certainly signals coverture, especially when we add the Latin phrase that follows Coke's claim—quia sunt duae animae in carne una, or "one in the flesh because they are two in the soul."17 Yet to this assertion Coke then immediately adds another much less frequently cited consideration: "and it [i.e., her testimony] might be a cause of implacable discord and dissention between the husband and the wife."18 Here the danger of a wife's testimony lies not just with the splitting of a unitary body but also with the more practical [End Page 238] concern that revealing secrets can destroy a marriage. This dual rationale, however little recognized it has been by modern courts, has led one recent commentator to suggest that Coke was in fact a "prime impetus" for a subtle shift during the seventeenth century toward a more instrumental understanding of marital communication, one that as early as 1736 had introduced discursive harmony alongside bodily unity as a significant element in the marital relation.19

Milton and Marital Conversation

In publishing his four divorce tracts in 1644 and 1645, Milton placed himself near the midpoint of this evolution in early modern legal thought. Indeed, for all his emphasis on theological exegesis in these works, Milton also attends closely to the concerns and even the language of civil law.20 For example, in examining in Tetrachordon a key New Testament proof-text regarding divorce—Christ's statement to the Pharisees that "Moses because of the hardness of your hearts suffer'd you to put away your wives" (Matt. 19.8, KJV)—Milton relies upon a legal categorization of laws into precepts "obligatorie and permissive" to argue that there is no real distinction in the terms "suffer" and "command." Subsequently illustrating his point with reference to what we might term "family law"—adoption, the creation of guardianships for minor children, the execution of wills—Milton argues that "sufferance" on this point merely indicates that something (such as divorce) may be done, not that the act of doing carries with it an aura of disapproval. "By this we may see how weakly it hath bin thought that all divorce is utterly unlawful because the law is said to suffer it," Milton concludes, "whenas to suffer is but the legal phrase denoting what by law a man may doe or not doe."21

More than just possessing a general legal sensibility, however, Milton also attends quite specifically in his divorce tracts to both the domestic and legal implications of the sanctity of private marital conversation. Milton's interest in such matters is perhaps best introduced by a brief exchange with an anonymous critic, who in [End Page 239] 1644 took pointed aim at Milton's insistence in The Doctrine and Discipline of Divorce that the core of marriage was found in compatibility of mind rather than procreation. Accepting for the sake of argument Milton's claim that men do indeed seek satisfaction in the "fit conversing soule[s]" of their wives, the critic retorted that it was no matter if a husband, frustrated in this desire, seeks out conversation with other women, provided that he "remember to come home to [his wife] at night."22 In Colasterion, the last of his four divorce tracts, Milton curtly responds on this point, deriding his critic as an ill-bred and drunken boar who insensibly roots amid terms like "conversation" that he cannot understand (YP 2:747).23 This dismissal rests upon what Stephen Fallon has identified as Milton's monist integration of body and spirit, which leads Milton to reassert the impossibility of finding physical satisfaction in the absence of mental sociability.24 Marital intimacy, Milton repeatedly argues, is as much a matter of verbal as bodily congress, and thus to search for pleasurable conversation beyond one's partner is functionally equivalent, if not actually preparative, to physical adultery.

By insisting upon the centrality of conversational intimacy to marriage, Milton's divorce tracts advance precisely the sort of marital privacy that undergirds modern conceptions of spousal privilege. Recognizing the importance of this privacy leads Milton to reject any role for the civil magistracy in assessing the dispositional divisions between husband and wife that might occasion the collapse of a marriage, especially insofar as such judicial processes might oblige through testimony the public exposure of marital discord. In The Doctrine and Discipline of Divorce, for example, Milton bemoans that even Henry VIII, frustrated in his attempts to secure a quiet divorce from Catherine of Aragon, was forced to have "the obscene evidence of his brothers chamberlain" openly recited in order to establish her prior congress with Prince Arthur (YP 2:348). Women are similarly presumed to suffer at the bar. It would be humiliating, Milton contends, for an honest woman to have her flaws "and other concealments bandied up and down, and aggravated in open Court by those hir'd maisters of tongue-fence" [End Page 240] (YP 2:347).25 Milton's implicit concern in these passages lies not just with the particulars of a spouse's flaws but with the construction of such flaws into narrative. In early modern England, it was the formalization of complaint rather than the rendering of a decision that provided the greatest occasion for conflict, especially as the typically extended nature of civil suits enabled what was said in court to have a significant impact on relationships and communities outside of them.26 In such situations testimonial details, particularly those of the sort marked here as "obscene," possessed a compulsive power, obliging at times their graphic and extensive deployment, often by witnesses whose very capacity to testify was predicated (as in the case of Arthur's chamberlain) on a prior violation of marital privacy.27 Not surprisingly then, Milton insists that securing a quiet, private divorce is better than enduring "a clamouring debate of utterles things, in a business of that civil secrecy and difficult discerning" (YP 2:348). As Milton argues in both Doctrine and Tetrachordon, these are not matters "fit in public to bee complain'd on" and, therefore, "it should not be exacted to prove all things by the visibility of Law-witnessing" (YP 2:625 and 2:335).

Importantly, Milton's objections to the public exposure of marital difficulties are not simply the personal arguments of a writer then undergoing what must have been a publicly embarrassing separation from his wife.28 Rather, they reflect a growing insistence from seventeenth-century writers on marriage that neither men nor women should reveal the failings of their partners. Describing in 1617 the importance of what he terms "honest secrecie and concealment," William Whately cautions both men and women to "shunne, as a monstrous treacherie, the publishing of one anothers faults and frailties, or discovering of one anothers secrets."29 More than simply a general injunction regarding marital happiness, Whately is quite clear about the primary focus of his advice: "I mean those things, which, in hope of privacie, they have communicated one to another."30 Such "hope of privacie" is a similarly crucial precondition for the exercise of spousal privilege in a modern trial. Whately and other writers like him are more concerned, [End Page 241] of course, with the exposure of marital confidences to parents, friends, and the community, something closer to gossip than formal legal testimony. Yet distinguishing too strictly between gossip and testimony distorts how individuals and communities in early modern England most frequently resolved familial and domestic disputes. Especially at the local level, the importance of individual reputation and public opinion rendered gossip—and those who wielded it—a significant influence over the politics and even the formal judicial machinery of a parish.31 In addition to marshaling the potentially humiliating power of public opinion, gossip could also lead to action in either ecclesiastical or secular courts. Rumor might generate formal complaints, while the persistent violation of communal values, especially when widely known, could compel magistrates and wardens to intrude upon the personal and jurisdictional boundaries Milton and other writers sought to maintain.32

The importance of managing such potentially coercive dynamics, whether within the household or amid one's community, led the writers of conduct books to offer advice much like Milton's, similarly emphasizing that maintaining a mutual and interdependent privacy of deliberation is key to domestic harmony. Robert Cleaver, for example, notes that "the husband and wife have their secret counsels and communication of matters concerning their profit and commodity."33 Daniel Rogers similarly enjoins the husband in his Matrimonial Honor (1642) not to compartmentalize his conversations: "let her know the difficulty of thy business, if the knowing of it may either afford her content, or thy selfe advise … and why may not thy wives helpe thee! Its no wrong to thee, for her to desire a voice in thine affaires, who must be sure to smart in thy bad successe."34 Openness within a marriage, as these writers explain, binds a couple together, but exposure of counsels outside the marriage, whether to one's friends or family, wrongly reorients the affective and discursive objects of their union. Richard Snawsell would take this claim as something of an organizing principle for his A Looking-Glasse for Married Folks (1631), which presents a series of catechetical dialogues between a group of village women in which the well-spoken Eulalie, rather [End Page 242] than indulging in gossip, instead counsels the scold Xantip to avoid complaining publicly of her husband's faults.35 "A matter is soone amended," Eulalie notes, "that is but betweene two, and not blazed abroad." With the assistance of her fellow Abigail, Eulalie subsequently encourages Xantip's husband Benezer to be similarly restrained, arguing that his own embarrassment over exposure should encourage in him a parallel circumspection regarding his wife's faults.36

To be sure, such arguments remained entangled within presumptions of coverture that persisted well into the nineteenth century. Richard Snawsell concludes his text, for example, with the tearful submission of Xantip, who after retreating to a silent place of prayer pours her heart out to God rather than her neighbors and then, after having been counseled by a minister who overhears her, returns to Benezer promising repentance and dutifulness.37 Even the potentially "voluntary egalitarianism" of early modern marriage, as Judith Bennett puts it, was "shadowed by inequality."38 Yet the emphasis Milton and his contemporaries repeatedly place on the necessity and value of husbands and wives maintaining their mutual confidences helps explain how judicial concerns regarding marital privacy could take on increasingly instrumental rationales, which in the United Kingdom would ultimately enable the first statutory recognition of the marital communications privilege even as its conceptual underpinnings in coverture came under question in the mid-1860s.

Marital Conversation and Political Deliberation

Statutory recognition—in this case of the right of spouses to divorce rather than to speak at trial—was of course precisely Milton's immediate aim in publishing his divorce tracts. In pursuing this objective Milton quickly widened the scope of his initial argument, beginning the second edition of The Doctrine and Discipline of Divorce with an appeal to Parliament that, as critics have long recognized, likens the failure of a marriage to the collapse of a political contract, and the prohibition of divorce in such [End Page 243] cases to tyranny. Permitting divorce, by contrast, would assure an exercise of liberty that had not only individual but also national implications, with Milton thus declaring "farewell all hope of true Reformation in the state, while such an evill as this [i.e., the ruinous prohibition of divorce] lies undiscern'd or unregarded in the house" (YP 2:229–30). A similarly revolutionary impulse, historian Norma Basch argues, animated the initial construction of divorce law in the newly independent American colonies, with success in their greater political rebellion providing the example for dissolution of the marriage bond.39 Companionate understandings of marriage like those surveyed earlier in this essay came to dominate first the laws of Massachusetts and Connecticut and then, with the expansion of the nation, those of more western (now Midwest) states as well, ultimately providing what Basch terms the "basic framework for American divorce."40 While the local particulars of these regulatory regimes developed primarily through the enactment of statutes and the resolution of individual cases, their original heritage in seventeenth-century languages of liberty, contract, and consent should encourage us to investigate how Milton's characterization of companionate and specifically conversational marriage might persist in American law, as well as in the larger political society. One particularly fruitful avenue to explore, the remainder of this essay will argue, lies in the complex and resolutely gendered understandings of self-interest that mark not only Milton's divorce tracts but also more contemporary debates regarding spousal privilege and the modern regime of political liberalism they evoke.

In particular, Milton's understanding of marital conversation shares with more recent doctrines of spousal privilege a difficulty in accounting for, if not accommodating, the free exercise of conversational liberty by both sexes. In contemporary law, as noted earlier, this difficulty evidences itself in the divergent status of the two primary forms of spousal privilege. While backing for regarding confidential spousal communications as privileged remains strong, exercise of the adverse testimony privilege (the ability to exclude any negative testimony by a spouse) has increasingly [End Page 244] been limited to the witness-spouse rather than the defendant. At issue, Georgetown University law professor Milton Regan Jr. has argued, are two competing conceptions of marriage, the "external" and the "internal," distinguished largely by how a man or woman comes to understand their relationship to both the institution and their spouse. An internal reading of marriage, so Regan explains, emphasizes a unity based on a cooperative sense of mutual investment and strengthened by an empathetic identification with one's spouse.41 The external stance, by contrast, insists that even when married, both spouses remain distinct individuals who on a regular basis "reflect critically upon, rather than simply identify with, [their] commitments and attachments," executing thereby a sort of continual cost-benefits analysis to their union.42 The marital communications privilege, in part because it speaks to discrete moments of communication mutually understood by both parties as confidential, more easily accommodates itself to a modern understanding of marriage as a continually deliberated-upon commitment, and as such enjoys a continued measure of public support. The weakening of support for the adverse testimony privilege, by contrast, reflects a growing discontent with the implicit patriarchalism in its emphasis on marital unity, a bias made especially apparent when, as Trammel established, this privilege is exercised by a husband to prevent his wife from testifying even if she so desires.

Though Regan frames these distinctions in purely contemporary terms, both positions can also be found in Milton's divorce tracts, their mutual presence reflecting the complex mixture of human motivation and action that defines Miltonic marriage. The ethos of the internal stance is apparent in Milton's continuing emphasis on the shared commitment of "deer affection" that transforms husband and wife into the one flesh of Genesis, the woman especially becoming, as he renders it in Tetrachordon, "another self, a second self, a very self it self" (YP 2:600). Elsewhere in Tetrachordon, however, Milton emphasizes not just union but the process of continuing deliberation that lies at the heart of the external stance. Elaborating on his own definition of marriage as "a divine [End Page 245] institution joyning man and woman in a love fitly dispos'd to the helps and comforts of domestic life," Milton concentrates not on "that singular act of consent which made the contract" but the continuing expression of love and mutual assistance, the absence of which permits divorce by either party (YP 2:612). As Milton similarly explains in Colasterion, "the covenant still is in performing," and should a spouse substantially fail in his or her responsibilities, nothing in the nature of the couple's original vows obliges a permanent commitment (YP 2:748). On its face, Milton's contention that a marital union arises not from a single, publicly witnessed vow but from the continuing and often private commitments of each spouse offers twenty-first-century readers a seemingly modern if not progressive understanding of marriage, one that might supplant a state's public interest in maintaining the family (and its procreative capacity) with a more private and discursive definition of the institution available to both different and same-sex couples.43 But the political and legal utility of this formulation comes at a cost, since, as Lara Dodds argues, the primacy Milton accords in his divorce tracts to the private definition of marriage simultaneously embodies and obscures his repeated privileging of masculine prerogatives.44 In discussing in Tetrachordon the importance of mutual consent, for example, Milton first insists upon an abstract equality of choice, acknowledging that "the parties either one of them, or both" are free to divorce in the absence of what he terms "the helps and comforts of domestic life." Immediately thereafter, however, Milton assigns the responsibility for these comforts primarily if not exclusively to women, "domestic" signifying the means by which we can discover "the properties and excellencies of a wife" (YP 2:612–13).

Slippages like this one also dogged legislative discussions of American divorce law throughout the nineteenth century, in which women were accorded a theoretical equality that was constrained if not dismissed in practice. These repeated contradictions between law and experience, Basch contends, represent "one of modern divorce's most enduring legacies."45 For its part, modern political liberalism has continued this problematic legacy through [End Page 246] its mixed handling of self-interest. What we might term classical liberalism argues that in constituting the public sphere, deliberation should move individuals away from self-interest, with participants aiming instead through reason to identify the common good and the best means by which to secure it.46 The potentially disparate impact that this might have on women, however, has led Jane Mansbridge and a team of coauthors to argue for a reconsideration of the role of self-interest in securing deliberative justice. Citing the example of a marriage in which partners each receive job offers in widely separate areas of the country, Mansbridge and her fellow scholars contend that obliging the couple to discuss these offers "solely in terms of what is good for 'us,' e.g. for the 'marriage' or for the children"—akin in some ways to the internal stance on marriage—would yield significant distortions in their decision making. "Only by recognizing their self-interests and the conflict between them," Mansbridge argues, "can the couple negotiate a fair, perhaps even integrative, agreement."47

Perhaps surprisingly, Mansbridge's position is not a novel one, for within their complex considerations of marital conversation early modern writers similarly wrestled with how much influence a woman's contribution to marital deliberation should wield. Seventeenth-century conduct books, for example, readily recognize the importance of securing a wife's input on such significant issues as the taking on of debt or the uprooting of one's family to a new home. Surveying a woman's rights and obligations in this regard, Thomas Edgar explains in his The Lawes Resolutions of Womens Rights (1632) that, should a woman learn only after marriage of her husband's frequent travel, she should be free to refuse to accompany him, the fault lying not in her recalcitrance but in their prior mutual failure to have agreed jointly to such living conditions.48 Such instances of joint decision making, however, could be highly contested, as in the case of Susannah Bell, the seventeenth-century wife of a Nonconformist minister who recalled at her deathbed a more complex story. Remembering her husband's initial desire to immigrate to New England, Bell notes that her husband gave way when, with the backing of her friends, she argued that as she [End Page 247] was pregnant the sea voyage would be too difficult. Soon after its birth, however, the infant died, an event Bell interpreted as divine correction, whereupon she acquiesced to the move.49 In this example, female self-interest, reinforced by Bell's seeking counsel outside her marriage, seems to damage the family Bell had hoped to preserve, a situation remediable only by her own submission rather than the couple's mutual negotiation.

The parallels between Bell's story and Mansbridge's suggest that classic liberalism shares with its early modern predecessors a particular difficulty in accommodating equally the self-interests of both men and women. Given this conclusion, we might look for evidence of what Ben Labreche terms Milton's protoliberalism in the divorce tracts not only in the distinction of public and private spaces but in the handling of expressions of self-interest within marital deliberation.50 Examining the particular case of the exposure of marital secrets reveals that Milton, like the later theorists of liberalism, finds it difficult to balance a regard for self-interest with gender hierarchy. In the case of Henry VIII, of course, this difficulty is easily managed, the king's particular interest in divorce being readily accommodated within the larger narrative of God's and England's assault on popery. To his credit, Milton similarly grants to women a certain measure of critical self-awareness and reflexive capacity. At the same time as Milton recognizes women's potential, however, he binds the expression of that capacity within patriarchal assumptions that confirm male prerogatives. A wife may rightly fear to "have her unpleasingnes" bandied about in open court, but, as demonstrated by Milton's anecdote about the Roman consul Paulus Emilius (which Marietta Stow would repeat some two hundred years later), the determination and active expression of such self-interest ultimately lies with the husband (YP 2:347). As Milton recalls, when Emilius was asked by his friends why he was divorcing his wife, the consul pointed to his shoe and exclaimed it was "a neat shoo, a new shoo, and yet none of you know where it wrings me" (YP 2:348).

While this may indeed be, as Sharon Achinstein puts it, "an account of particularity as a center of moral gravity," it is an account that locates that center firmly with the husband.51 Sensibility to [End Page 248] discomfort—and the regard for self-interest that attends it—in this example is rendered only to the husband. Milton's particular resort to this classical analogy strikingly contrasts with seventeenth-century conduct books, themselves based on the account of Eve's creation from Adam's rib, that insist a wife is decidedly not to be understood as a foot to be trodden upon. Rather, she is an equal partner, albeit one that still must recognize her husband—to continue the anatomical analogy—as head.52 The implicit tension here between self-interest and subordination is made even more plain by Milton's contemporary Daniel Rogers, who in considering a wife's influence over major decisions (not only child-rearing but also commercial ventures such as changes of residence and the borrowing or lending of money) both acknowledges the importance of and subordinates her self-interest. "She hath a judgment to inform as well as he, & must see her grounds cleere as wel as he," Rogers explains, and thus "its allowed her to deliberate," though he insists that in the end she must submit "to the judgment of wiser then her selfe, and as shee shalbe cast and adjudged, so to deny her selfe and obey either way."53

All of these issues—spousal testimony, marital privacy, and the incomplete consideration of self-interest—come together strikingly in Paradise Lost. Critics seeking to examine hierarchies of gender and domesticity within the epic frequently resort to some of the poem's great communal set pieces, and in many of these instances the privacy of conversation plays a significant role in advancing the poem's narrative.54 Satan's penetration of Adam and Eve's conversation in book 4, imagined by Milton as the predatory stalking of an unwitting prey, becomes the genesis of the couple's downfall, their adversary in that moment discovering the divine injunction regarding the Tree of Knowledge that he later uses to suborn their allegiance. For the reader, however, overhearing this conversation also reveals an idealized vision of marriage consistent with the most patriarchal elements of both seventeenth-century conduct books and the divorce tracts. Adam smoothly ventriloquizes God's law, whereupon Eve first acknowledges her husband's authority ("from whom I was form'd flesh of thy flesh, / And without whom am to no end, my Guide / And Head" [4.441–43]) and [End Page 249] then relates her memory of her Narcissus-like creation, the entire exchange culminating in an exchange of mutual touch and wifely submission that spurs the devil's envy.55 A more complex exposure of conversational privacy occurs in books 8 and 9, and again in both instances the poem is suffused with a fundamentally patriarchal understanding of marriage. In book 8, while detailing to Raphael his inability to think correctly when confronted with Eve's beauty, Adam situates deliberative intimacy in the service of masculine exchange rather than conjugal unity: "Yet these subject not; I to thee disclose / What inward thence I feel" (8.607–08; emphasis mine). Raphael's admonitions regarding both Satan and the necessity of Adam's marital authority, we then learn, have been overheard by Eve, who in book 9 reveals that she earlier eavesdropped on their conversation. In Thomas Luxon's analysis, this is a particularly crucial event in the poem's move toward the Fall, with Eve's hurt in overhearing Adam's recognition and subordination of her beauty driving her to assert her own fortitude, a virtue that subsequently fails both herself and humanity.56

Daniel Rogers's allowance for a wife's interior deliberations, however, also points usefully to Eve's soliloquy following her eating of the forbidden fruit, a moment in which Eve haltingly attempts to parse her experience of the complicated relationship between equality and hierarchy. Considering whether to share the fruit and her change with Adam, Eve muses:

        shall I to him make knownAs yet my change, and give him to partakeFull happiness with mee, or rather not,But keep the odds of Knowledge in my powerWithout Copartner? so to add what wantsIn Femal Sex, the more to draw his Love,And render me more equal, and perhaps,A thing not undesireable, somtimeSuperior: for inferior who is free?

(PL 9.817–25)

Much like the nineteenth-century suffragists, Eve seeks a greater balance and equality within her marriage, and yet the result of her self-interested deliberation is ultimately disaster, as her singular violation of the law soon extends to her husband. It is the [End Page 250] mutual and discursive aftermath of this decision making, however, that most clearly emblazons the continuing legacy of these shared assumptions regarding self-interest at law. In the destructive recriminations of criminal spouses and then in the judgment that follows the Son's descent to the garden Milton provides Adam a good deal of testimonial latitude, during which Adam neatly summarizes the emotional dilemma facing any individual—early modern or modern—who considers testifying against a spouse at law: "either to undergo / Myself the total Crime, or to accuse / My other self, the partner of my life" (10.126–28). Adam's subsequent and self-interested explanation—"from her hand I could suspect no ill … Her doing seem'd to justify the deed" (10.140, 142)—bespeaks his desire to cut a deal and negotiate based on his own needs—in this case his inability to carry the full burden of heavenly punishment—rather than the couple's shared life. The moment is reminiscent of the climactic scene in Henrik Ibsen's controversial late-nineteenth-century play A Doll's House (1879), in which Nora is crushed by the refusal of her husband Torvald, concerned as he is with his own reputation, to take upon himself the full public blame for the illegal loan she secured in order to aid his recovery from illness. While in Ibsen's play Torvald's failure of character catalyzes Nora's decision to abandon their marriage in hopes of finding her own identity, in Milton's epic Adam's similar assertion of self-interest, however deplorable it might be, is followed not by Eve's independence but by her submission—"the Serpent me beguil'd and I did eat" (10.162).

The eloquent brevity of Eve's statement masks—or perhaps reinforces—the ultimate triumph in Milton's epic of the internal stance, that fundamental support for spousal privilege whose exercise often possesses a troubling imbalance. However compelling we may find her confession, the fact remains that within it Eve erases her prior deliberations in favor of a renewed commitment to the unitary self of marriage, her earlier violation of which had brought upon both "all our woe" (PL 1.3). Divine perspicacity, however, allows Milton to sidestep his otherwise uneven presentation of self-interest. In this instance, neither Adam nor Eve is able to plea bargain effectively precisely because their testimony is [End Page 251] superfluous to the matter at hand. Unlike in the Trammel case, in which Elizabeth Trammel's testimony was key to the entirety of the prosecution's case, in Paradise Lost divine foreknowledge has laid plain the entire crime from its very inception. The poem's structure of judgment in this sense is of a piece with the more open interventions of divine authority—Xantip's return to her husband after counsel from God and a passing minister, Susannah Bell's voyage to New England after the death of her infant—that mark the complicated considerations of female self-interest within early modern conduct books. A similar imbalance, Jane Mansbridge argues, is built into the structure of liberalism, for "the transformation of 'I' into 'we' brought about through political deliberation can easily mask subtle forms of control," particularly impacting women, constrained as they are not only by preexisting power relationships but also the exclusive reliance on and promotion of rational discourse—itself frequently coded as male—in the deliberative process.57 Bound by their shared intense interest in how the individual communications and the corporate commitments of marriage must be negotiated by both husband and wife, Milton's Paradise Lost, the texts on marriage and divorce that preceded it, and the history of legal and political theorizing that has followed bespeak the continuingly vexed negotiations that still attend—and indeed perhaps constitute—the privileges accorded to spouses in the twenty-first century.

Todd Butler
Washington State University

Notes

1. J. W. Stow, "An Independent Chapter on Comparative Law," in Probate Confiscation: Unjust Laws Which Govern Woman, 4th ed. (Boston, 1879), 20.

2. See, for example, Norma Basch, Framing American Divorce: From the Revolutionary Generation to the Victorians (Berkeley, 1999), 19–42; and Linda Kerber, Women of the Republic: Intellect and Ideology in Revolutionary America (Chapel Hill, N.C., 1990), 157–60.

3. See Sarah J. van den Berg and W. Scott Howard, "Milton's Divorce Tracts and the Temper of the Times," in The Divorce Tracts of John [End Page 252] Milton: Texts and Contexts, ed. van den Berg and Howard (Pittsburgh, 2010), 25; Martha Nussbaum, From Disgust to Humanity: Sexual Orientation and Constitutional Law (Oxford, 2010), 136, 138, 143; and David Urban, "Milton's Doctrine and Discipline of Divorce, An Answer to a Book, and Same-Sex Marriage," Appositions 6 (2013). Regarding the state support for child bearing and rearing, see, for example, the assertion in the amicus brief filed by Idaho Governor Butch Otter in Obergefell v. Hodges that Idaho has consistently endorsed not a "consent-based" view but "the more child-centric, 'conjugal' view" and that "marriage—as understood in Idaho—is centered on children, which man-woman pairings are uniquely capable of producing." Gov. C. L. "Butch" Otter, Brief of Amicus Curiae—Deboer v. Snyder, U.S. Supreme Court (2014), nos. 14–556, 14–562, 14–571, 14–574, and 14–596.

4. See Alexandra Shepard, "Manhood, Credit, and Patriarchy in Early Modern England, c. 1580–1640," Past and Present 167 (May 2000): 75–106; Craig Muldrew, The Economy of Obligation: The Culture of Credit and Social Relations in Early Modern England (Basingstoke, 1998); and John Gillis, For Better, for Worse: British Marriages, 1600 to the Present (Oxford, 1985), 11–14.

5. Frances Dolan's Marriage and Violence: The Early Modern Legacy (Philadelphia, 2008), which sets the standard for such cross-temporal readings of early modern and modern married life, makes passing reference to how courts have understood questions of marital conversation, but otherwise contemporary commentators are generally silent on how these presumptively shared positions have shaped modern conceptions of marriage, gender, and the law (95).

6. Milton C. Regan, "Spousal Privilege and the Meanings of Marriage," Virginia Law Review 81, no. 8 (November 1995): 2052–53.

7. Ibid., 2053.

8. Trammel v. United States, 445 U.S. 52 (1980).

9. "Use immunity" prevents the prosecution from using covered statements against an individual at trial, although the individual can still be prosecuted based on other evidence. For a factual summary of the Trammel case, see Trammel v. United States, 42–43.

10. According to the Federal Bureau of Investigation's Uniform Crime Reports database, for example, in 2013 more than 73 percent of all individuals arrested nationwide were male. Federal Bureau of Investigation, Crime in the United States 2013 (Washington, D.C., 2013).

11. Trammel v. United States, 52.

12. See, for example, Natasha Korda, Shakespeare's Domestic Economies: Gender and Property in Early Modern England (Philadelphia, 2002), 38–51 and 98–100; and B. J. Sokol and Mary Sokol, Shakespeare, Law, and Marriage (Cambridge, 2003), 118–25. On the significant and often independent engagement of women in early modern litigation, especially in urban areas such as London, see Timothy Stretton, Women [End Page 253] Waging Law in Elizabethan England (Cambridge, 1998), and Laura Gowing, Domestic Dangers: Women, Words, and Sex in Early Modern London (Oxford, 1996), esp. 30–38.

13. The English Reports, vol. 21 (London, 1902), 50.

14. This right remains crucial to the operation of contemporary justice. See, for example, Lawson v. Murray: "The defendant's right to present witnesses in his own defense, however, does not carry with it the right to immunize the witness from reasonable and appropriate cross-examination." Lawson v. Murray, 837 F. 2d 653, U.S. Court of Appeals, 4th Circuit (1988), 655–56.

15. A similar variability seems to have attended other cases during the period, with a wife being alternately admitted to testify against her husband and also excluded from doing so. On the former, see, for example, the Elizabethan cases Lake v. Dean and Preston v. Powel, while on the latter see the Jacobean case Holman v. Audley. In the view of some eighteenth-century commentators, the shift in decisions found in these cases turned in part on a change in the Lord Keeper of the Great Seal in 1596 to Sir Thomas Egerton, later Lord Ellesmere. William Brown, Reports of Cases Argued and Determined in the High Court of Chancery, vol. 3 (London, 1844), 10. Interestingly, Ellesmere's son Sir John Egerton, who would become Earl of Bridgewater in 1617, has his own tangential connection to questions of spousal privilege. One of the first significant exceptions to the doctrine of spousal privilege—that a wife might be authorized to testify against her husband in cases where her spouse had committed an offense against her own person—was recognized during the prosecution of Lord Audley in the 1631 Castlehaven scandal. The ascension of the Earl of Bridgewater to Lord President of Wales was celebrated in Milton's A Maske Presented at Ludlow Castle, 1634, a text that Leah Marcus argues acts in part to remove the stain of dishonor the Castlehaven scandal had levied on the Egerton family. Marcus, "The Milieu of Milton's Comus: Judicial Reform at Ludlow and the Problem of Sexual Assault," Criticism 25 (1983): 293–327.

16. J. H. Baker, "English Law Books and Legal Publishing," in The Cambridge History of the Book in Britain, vol. 4, ed. John Barnard and D. F. McKenzie (Cambridge, 2002), 474–503.

17. Sir Edward Coke, The First Part of the Institutes of the Laws of England, in The Selected Writings of Sir Edward Coke, vol. 2, ed. Steve Sheppard (Indianapolis, 2003), 623.

18. Ibid.

19. The date refers to Lord Harwicke's insistence in Barker v. Dixie that doctrines of spousal privilege helped "preserve the peace of families." David Leonard et al., The New Wigmore: A Treatise on Evidence (New York, 2014), 137–38.

20. For an excellent summary of Milton's long-standing personal and familial connections to the law, see Alison Chapman, The Legal Epic: "Paradise Lost" and the Early Modern Law (Chicago, 2017), 16–25. [End Page 254]

21. John Milton, The Doctrine and Discipline of Divorce, in Complete Prose Works of John Milton, 8 vols., ed. Don M. Wolfe et al. (New Haven, Conn., 1953–82), 2:660. All citations from Milton's prose are to this edition, hereafter cited in the text as YP, followed by volume and page number.

22. Anonymous, An Answer to a book intituled, The doctrine and discipline of divorce (London, 1644), 31.

23. Much of the vituperation between Milton and his anonymous critic centers on the critic's willingness to employ speculative legal analogies and citations from Coke's Reports to make his points, all of which Milton aggressively dismisses as the claims of a huckster whose lack of knowledge regarding the particulars of English law might more readily be answered by ballads than by legal hypotheticals. For examples in Colasterion, see YP 2:729, 741–42, 748, 756.

24. Stephen Fallon, "The Metaphysics of Milton's Divorce Tracts," in Politics, Poetics, and Hermeneutics in Milton's Prose, ed. David Loewenstein and James Grantham Turner (Cambridge, 1990), 77–78. See also Thomas Luxon, Single Imperfection: Milton, Marriage, and Friendship (Pittsburgh, 2005), who argues for how a similarly broad semantic range of "conversation" in Milton's work could encompass both verbal and physical exchange.

25. This was not simply argumentative polemic, as especially in cases of adultery such failures were indeed "aggravated" at law, with men tending to accuse their wives of not just one act of infidelity but of numerous and repeated transgressions, the better to both prove their case and remove suspicions that it was the husband's rather than the wife's character that was to blame (Stretton, Women Waging Law, 196–97).

26. Gowing, Domestic Dangers, 41–48, 133–38, and chap. 7.

27. On the importance of witnesses to suits for annulment, see Gowing, Domestic Dangers, 188–92.

28. In May 1642 Milton married seventeen-year-old Mary Powell, who shortly afterward left her new husband on the eve of the English civil war, returning to her family in a move most scholars attribute at least in part to the couple's political differences (Powell's family being royalist, Milton having Parliamentarian sympathies). Approximately a year after their separation Milton published the first edition of The Doctrine and Discipline of Divorce. Powell eventually returned to Milton in 1645 (the prospect of a royalist victory having worsened considerably), and they remained married until her death in May 1652.

29. William Whately, A bride-bush; or, A wedding sermon compendiously describing the duties of married persons (London, 1617), 13.

30. Ibid., 13.

31. See, for example, Capp, When Gossips Meet: Women, Family, and Neighbourhood in Early Modern England (Oxford, 2004), 267–84; Gowing, Domestic Dangers, 133–38; as well as essays by Martin Ingram, Laura Gowing, and James Sharpe in Women, Crime and the Courts in Early [End Page 255] Modern England, ed. Jennifer Kermode and Garthine Walker (Chapel Hill, N.C., 1994).

32. Capp, When Gossips Meet, 281.

33. Robert Cleaver, A godly forme of household government for the ordering of private families (London, 1621), M4iiir.

34. D[aniel] R[ogers], Matrimonial honor; or, The mutuall crowne and comfort of godly, loyall, and chaste marriage (London, 1642), 246.

35. Snawsell's work appears to be an extended and more complex rendering of a popular Erasmian dialogue on marriage also between Eulalia and Xanthippe. Erasmus's dialogue has little to say regarding marital conversation specifically, though it does briefly relate the story of a woman who, following a beating from her husband, chose to cry privately rather than "scream in the street" about it. Her restraint then transforms her husband's behavior. Erasmus, "Marriage: A Counseling Session," in Erasmus on Women, ed. Erika Rummel (Toronto, 1996), 140. I am thankful to Lorna Hutson bringing this connection to my attention.

36. Richard Snawsell, A Looking-Glasse for Married Folks (London, 1631), B4v–B4ir and G4iv–G4iir.

37. Ibid., Nr and throughout. See also Hendrik Hartog, Man and Wife in America: A History (Cambridge, Mass., 2000), 105–06. John Henry Wigmore, whose sprawling 1904 work Treatise on the Anglo-American System of Evidence in Trials at Common Law was profoundly influential in shaping American rules of evidence, would thus dismiss such instrumental arguments as "mere sentiment," an assessment echoed in 1942 in the American Legal Institute's Model Code of Evidence. David Leonard, The New Wigamore: A Treatise on Evidence, vol. 1 (Austin, 2002), 507.

38. Judith Bennett, "Medieval Women, Modern Women: Across the Great Divide," in Culture and History 1350–1600: Essays in English Communities, Identities, and Writing, ed. David Aers (Detroit, 1992), 154.

39. See both Basch, Framing American Divorce, esp. 19–42, and Marylynn Sampson, Women and the Law of Property in Early America (Chapel Hill, N.C., 1986), 58–71.

40. Basch, Framing American Divorce, 48.

41. This position is well illustrated by Lady Ann Fanshawe's description of her own marriage recorded in her Memoirs (London, 1676): "Glory be to God, we never had but one mind through out our lives, our souls were wrapped up in each other, our aims and designs one, our loves one, and our resentments one." Quoted in Dolan, Marriage and Violence, 44.

42. Regan, "Spousal Privilege," 2049. The distinction between the two stances is aptly illustrated by the Supreme Court's assertion in Eisenstadt v. Baird, a case that extended to single persons the access to contraceptives earlier established for married couples under Griswold v. Connecticut, that "the marital couple is not an independent entity, with a mind and heart of its own, but an association of two individuals, each [End Page 256] with a separate intellectual and emotional makeup." Eisenstadt v. Baird, 405 U.S. 453. U.S. Supreme Court (1972).

43. On the nascent potential in Milton's Doctrine for a queer politics that challenges otherwise normalized institutions of love and marriage, see David L. Orvis, "Eros and Anteros: Queer Mutuality in Milton's Doctrine and Discipline of Divorce," Queer Milton, special issue of Early Modern Culture: An Electronic Seminar 10 (2014), ed. Will Stockton and David L. Orvis, http://emc.eserver.org/1–10/orvis.html (accessed August 23, 2017). On the larger considerations of homoeroticism and Milton's understanding of companionate marriage in both the prose and Paradise Lost, see Luxon, Single Imperfection.

44. Lara Dodds, "'To due conversation accessible'; or, The Problem of Courtship in Milton's Divorce Tracts and Paradise Lost," Texas Studies in Literature and Language 56, no. 1 (Spring 2014): 45–48.

45. Basch, Framing American Divorce, 61.

46. Jürgen Habermas, for example, would insist in his early work that in the ideal public sphere the "competition of private arguments came into being as the consensus about what was practically necessary in the interest of all." Habermas, The Structural Transformation of the Public Sphere: An Inquiry into a Category of Bourgeois Society, trans. Thomas Burger with the assistance of Frederick Lawrence (Cambridge, Mass., 1989), 82–83. Arguing along similar lines, Jon Elster contends that "in a political debate it is pragmatically impossible to argue that a given solution should be chosen just because it is good for oneself. By the very act of engaging in a public debate—by arguing rather than bargaining—one has ruled out the possibility of invoking such reasons." Elster, "The Market and the Forum: Three Varieties of Political Theory," in Foundations of Social Choice Theory, ed. Jon Elster and Aanund Hylland (Cambridge, 1986), 112–13. For similar claims, see also Joshua Cohen, "Deliberation and Democratic Legitimacy," in The Good Polity: Normative Analysis of the State, ed. Alan Hamlin and Philip Pettit (Oxford, 1989), 67–92; and Cass Sunstein, "Beyond the Republican Revival," Yale Law Journal 97, no. 8 (July 1988): 1539–90.

47. Jane Mansbridge et al., "The Place of Self-Interest and the Role of Power in Deliberative Democracy," Journal of Political Philosophy 18, no. 1 (2010): 76.

48. Thomas Edgar, The Lawes Resolutions of Womens Rights (London, 1632), 64.

49. Susannah Bell, The Legacy of a Dying Mother to her Mourning Children (London, 1673), 45.

50. Ben Labreche, "Espousing Liberty: The Gender of Liberalism and the Politics of Miltonic Divorce," ELH 77, no. 4 (Winter 2010): 972.

51. Sharon Achinstein, "Medea's Dilemma: Politics and Passion in Milton's Divorce Tracts," in Rethinking Historicism from Shakespeare [End Page 257] to Milton, ed. Ann Baynes Coiro and Thomas Fulton (Cambridge, 2012), 203. In her otherwise thoughtful and learned essay, Achinstein similarly subsumes questions of gender, preferring to speak about the importance of the passions and conscience from a generalized but implicitly masculine perspective. While recognizing throughout the importance of compassion to Milton's text, she also describes the Paulus Emilius story as "an amusing anecdote" (201). Perhaps it is, but the humor in the story itself remains blind to a full exercise of compassion.

52. For one of many examples, see Cleaver's admonishment that "The husband is also to understand, that as God created the woman, not the head, and so equall in authoritie with her husband: so also he created her not of Adams foote, that she should be troden downe and despised; but he tooke her out of the rib, that she might walke ioyntly with him, under the conduct and government of her head" (A godly forme, N4iir).

53. Rogers, Matrimonial Honor, 265.

54. For an extended analysis of these dynamics, see Laura Lunger Knoppers, Politicizing Domesticity from Henrietta Maria to Milton's Eve (Cambridge, 2011), 148–54.

55. All citations of Paradise Lost are taken from John Milton: Complete Poetry and Major Prose, ed. Merritt Hughes (New York, 1957), hereafter cited parenthetically in the text.

56. Luxon, Single Imperfection, 154–58.

57. Jane Mansbridge, "Feminism and Democracy," American Prospect 1 (Spring 1990). [End Page 258]

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