were registered for marriages.32 Magistrates also had trouble determining
the validity of inter-faith marriages, particularly those between Protestants
and Catholics, as well as those made outside England.33 Considering the
number of court cases about such issues, the difficulties of local JPs in
keeping to the rules was not surprising.
Many of the puzzling cases had to do with a wide array of
consanguineal and affinal unions. In 1852, an ‘Old Subscriber’ wrote in,
asking for help with a man who had married his niece. The man lied in
Copyright © 2008. Manchester University Press. All rights reserved.
order to get the licence, and the subscriber wondered if the parish could
prosecute for perjury. The editors recommended bringing a charge of
17
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living in sin
‘obtaining the marriage license by means of the false oath’, since a jury would
be less likely to convict for perjury.34 Other readers questioned marriages
between uncles and nieces, nephews and aunts-in-law, daughters-in-law
and fathers-in-law, half-siblings, and others. In each case, the marriages
were in the prohibited degrees and void. Clearly, the marriage laws were
not well known or enforced among the common people, and this caused
difficulties for women and children and headaches for local magistrates.
Cohabitation contracts
All the same, the picture was not entirely bleak for female cohabitees,
since some couples who lived together made contracts with each other.
These usual y involved one of two things: a bond made to support a
female cohabitee after the man’s death, or a will that left some support to
the children of the union. Interestingly, the common law courts were not
unsympathetic to cohabitees. Chris Barton, who surveyed cohabitation
contracts over a long period, found that female cohabitees prevailed in
about half of the cases. Without actual y condoning immorality, the courts
found ways to support former mistresses and their children.35 In other
words, some couples, though unmarried, believed their unions entailed
financial and emotional obligations, and the courts tacitly agreed.
Before 1753, the precedents were inconsistent. Most of the actions
involved the heirs of an estate suing to be relieved from having to redeem
bonds given to ‘kept’ women. In general, the courts found for women
whenever they seemed to be victimised by seducing males. In Spicer v.
Hayward (1700), the plaintiff ‘had seduced his wife’s sister, and had several
children by her’. He gave her bonds to keep her and the children, but then
sued to have them returned. The judge insisted that Spicer pay his sister-
in-law the full amount ‘and said it was a pity he could do no more.’36 The
exception to this leniency was any sexual aggression on the part of the
woman. In Priest v. Parrot, in 1751, the defendant was a woman of a good
family who had been ‘induced’ to live with a well-off man. But in this case,
the man was married, she was a companion of his wife, and the two of
them had broken up the marriage. These factors altered the case, and the
court voided the bond.37
In the hundred years following the Marriage Act in 1753, the courts
refined their dealings in cohabitation contracts. The deciding factor of
the cases centred around the well-known legal tenet that contracts that
tended to immorality were void.38 That is, if a man promised money to
Copyright © 2008. Manchester University Press. All rights reserved.
a woman in order to persuade her to live with him, the courts would not
enforce the contract. A good example of this was Walker v. Perkins in 1764.
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Frost, Ginger S.. Living in Sin : Cohabiting as Husband and Wife in Nineteenth-Century England,
Manchester University Press, 2008. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/nscc-ebooks/detail.action?docID=1069613.
Created from nscc-ebooks on 2019-06-18 23:44:10.
cohabitation, illegitimacy and the law
William Perkins and Sarah Walker had agreed to cohabit, and he promised
to support her while they did so and to pay her an annuity of £60 if he left.
Lord Mansfield found against Walker, because ‘if she becomes virtuous,
she is to lose the annuity.’ An even clearer example was Franco v. Bolton in
1797. In May 1793, Jacob Franco met Elizabeth Bolton and the two began
an affair. Early on, Bolton asked Franco to give her an £100 annuity in
return for her living with him. At first he agreed, but he soon discovered
she was unfaithful and refused to pay. When Bolton sued, Lord Chancellor
Loughborough found against her.39
Nevertheless, in many circumstances cohabitation contracts were
valid. For instance, if the bond were given at the end of the cohabitation,
in order to compensate for the wrong done to the woman, the contract
stood. In Gibson v. Dickie in 1815, the couple had lived together for years,
and the woman had even given £200 to her paramour. The two quarrelled
frequently, and Gibson (the woman) asked for some protection in case
the relationship failed. Dickie obliged, agreeing to pay her £30 a year, but
only if she did not marry or live with any other man. Once the couple
separated, Dickie reneged on his promise. Gibson’s barristers argued that
this contract encouraged her to virtuous living, since she only got payment
if she cohabited with no one, and she won her case.40 Not surprisingly,
in later cases women invariably argued that the bonds did not encourage
illicit arrangements, while men asserted the opposite. If the woman could
convince the court, she could recover, even if she was not pure. In Friend
v. Harrison, in 1827, the plaintiff was a ‘common prostitute’, who lived with
the defendant for two years before he promised her an annuity of £50. Stil ,
the jury and judge agreed that the money was a voluntary gift, despite the
sexual experience of the plaintiff, and enforced the bond.41
For the courts, the key to the matter was if the bonds were voluntary.
Courts upheld them as long as the contract was not expressly written to
encourage immorality. In Turner v. Vaughan (1767), Catherine Turner
sued Thomas Vaughan for repayment of a £30 annuity he had promised
while they lived together. The defence tried to argue that the contract was
‘executed and given upon an illegal, flagitious consideration of having
cohabited with the plaintiff,’ but the judges disagreed. Chief Justice Clive
retorted: ‘If a man has lived with a girl, and afterwards gives her a bond, it
is good.’42 In Hill v. Spencer (1767), the defendant was a prostitute before she
lived with the plaintiff, Thomas Hil , an oil-shopkeeper. Furthermore, she
apparently had another lover named Perry. Hill argued that she should not
have the £50 annuity because the law ‘presumes that commo
n prostitutes
Copyright © 2008. Manchester University Press. All rights reserved.
are full of arts and designs’. But Lord Camden found for the defendant, and
the Lord Chancellor upheld the decision on appeal because ‘every person
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living in sin
who has a hand may receive a gift.’43 In Gray v. Mathias (1800), William
Jamison executed two separate bonds to Jane Mathias in 1796, one of £700
and another of £1000. After his death, his daughter sued; her barristers
argued that Jamison was ‘a man of weak understanding, and given to
excessive drinking’, while Mathias was ‘a very loose woman,’ adding that
the law should protect men from the influence ‘which artful women
may acquire through the medium of the passions.’ The defence argued,
predictably, that both bonds were voluntary gifts. Despite the plaintiff’s
rather sensational language, the court agreed with the defence.44 In short,
on the whole, the law of cohabitation contracts from 1750 to 1850 worked
on the side of female cohabitees.
Though the Victorian period was sometimes one of rigid morality,
the courts continued to uphold cohabitation contracts if worded correctly.
For example, the Chancery Court heard two similar cases in 1874 and 1884.
In Ayerst v. Jenkins, the couple had been unable to marry because Isabel a
Buckton was the sister of William Hardinge’s deceased wife. They lived
together for four months until Hardinge died in January of 1862. In his wil ,
Hardinge set up a trust fund for his pseudo-wife. This money sustained
Isabel a for years until she remarried in April 1870. After her marriage, the
executor of the estate sued to revoke the trust, arguing that it was immoral.
Lord Chancellor Shelborne found for Isabel a; he believed that the gift had
been voluntary, so he found no reason to set it aside.45
The court was also on the side of the female cohabitee in the case of
Re Val ance (1884). The couple in this action had cohabited for many years
until the death of the testator in 1881. Val ance left his lover £6000, because
‘he considered that she was entitled to it’. Though the other heirs of the estate
argued that the contract was invalid, Justice Kay disagreed. He insisted that
there was no proof that Val ance gave the bond in order to induce his lover
to remain. Indeed, it was far more likely that he was simply trying to take
care of her.46 These examples show a distinct set of assumptions on the
part of the court. Men and women could make private arrangements, and,
indeed, a man had the duty to do so when he had ‘ruined’ a woman. Though
the judges could have voided all of these contracts on the assumption that
they were ‘against public policy’, they chose to uphold them instead.
The clearest statements about the duties of male cohabitees emerged
in those cases that dealt with illegitimate children. Two well-documented
actions from mid-century made this plain. In Smith v. Roche, the couple
had lived together and had two children by 1853. Roche did not want to
marry Smith, and so he arranged to pay her £50 a year to care for the
Copyright © 2008. Manchester University Press. All rights reserved.
children, a girl and a boy. A few years later, the daughter died, and Roche
discontinued his payments, arguing that the death of one of the children
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cohabitation, illegitimacy and the law
voided the contract. Smith sued in the Court of Common Pleas. Chief
Justice Cockburn ordered Roche to continue the payments, declaring,
‘a woman has a right to call on the father of her illegitimate child for its
support if she is unable to maintain it’.47
The justices undermined the bastardy clause of the New Poor Law
by their decision in this case, but the reason may have been the seeming
‘innocence’ of the woman involved, since Smith’s barristers painted her as
a seduced maiden. Nevertheless, such passivity was not a requirement for
winning the case. The best example of this was the second mid-century case,
Keenan v. Handley, in 1864.48 Ellen Keenan met Captain Henry Edward
Handley in 1859. She had no stated occupation (suspicious in itself), while
Handley was an army officer. The two lived together, and Ellen had a
daughter, Lucy, in 1860. Handley was uninterested in marriage, since Ellen
had already lived with two other men and had children with both of them.
He broke off the connection in the autumn of 1861, but he volunteered to
give Keenan and their daughter £150 a year. However, Henry soon stopped
paying, probably because of his marriage in April 1862, and Ellen sued him
for repayment. In 1864, the Vice-Chancellor found for Keenan, so Handley
appealed to the Court of Chancery, but to no avail. Lord Justice J. L. Knight
Bruce, in concurrence with the other judges, insisted that ‘the whole mass
of evidence’ supported the plaintiff.49
The courts’ reactions to these cases had class implications. All of the
cases concerned the middle class, even if sometimes they were only the
lower-middle class (no estate, no case for recovery). For the most part, the
women were lower class than the men, which explained their difficulties
in achieving permanent relationships. Indeed, the class of the men may
be one reason the courts insisted that they hold to their agreements; a
gentleman should not take advantage of an inferior (in class and gender)
without offering reparation. Over and over the justices carped on the ‘moral
obligation’ and ‘conscience’ that demanded payment of the bonds. In a way,
the justices were the upholders of the old church and community sanction
that a man do right by a woman he has ‘ruined’.50
In fact, the gender aspects were crucial to judges. Some female
cohabitees played on the sympathy of the court as hapless, innocent virgins,
seduced by the machinations of wily men. In Gray v. Mathias, Mathias’s
lawyers painted her as a pitiful creature, ‘reclaimed’ by her love of a good
man, and the language of ‘being kept’ also gave the impression of passivity.
In these cases, one could argue that the patriarchal courts were rewarding
women for patient, long-suffering, if not exactly chaste, behaviour. All the
Copyright © 2008. Manchester University Press. All rights reserved.
same, the defendant in Hill v. Spenser was no shrinking violet – a prostitute,
a cohabitee with Hil , and the lover of Perry at the same time – yet the
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sband and Wife in Nineteenth-Century England,
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living in sin
Barons of the Exchequer and, on appeal, the Lord Chancellor, upheld her
claim. The opposition pointed out the moral deficiencies of these women,
referring to them as ‘common prostitutes’ or ‘strumpets’. Yet, in most cases,
this unchastity did not mean that the women lost; the courts did not punish
them for not conforming to ‘proper’ womanly behaviour.
One explanation for this fact may be that before 1850, the construction
of gender was fluid enough to accommodate some irregularities on the
part of women. Another was the early nineteenth-century insistence on
contractual obligations, a tenet that only became more powerful by 1900.
Hand in hand with their emphasis on morality went judges’ obsession
that men who made agreements keep them. A man had an obligation to
keep promises and provide for dependents.51 As for the ‘immorality’ of
the woman involved, the rule of caveat emptor prevailed; a man should
make sure of the character of his associates before signing contracts with
them. In short, upholding individual responsibility was more important
than punishing a few errant women. A third possibility is that the courts
insisted on romanticising the women involved. Particularly when one of
the cohabitees was a well-off man and the other a lower-class woman, the
melodramatic idea of the ‘aristocratic’ seducer would have sprung to mind;
sympathy in such cases usual y went to the woman.52 And, of course, the
state also had a financial stake in seeing that men supported their children;
otherwise, the ratepayers had to foot the bil .
Cohabitation contracts were not the only way women found to get
compensation for years of faithful, if unlegalised, devotion; they could also
sue for breach of promise of marriage. The sexual activity of cohabitees
made them less than ideal plaintiffs, but they could sometimes sway a jury
if they appeared ‘more sinned against than sinning’. In Daniel v. Bowles,
in 1826, the plaintiff had run away with a much older general. They lived
together until she discovered that he was already married. She then left him
Living in Sin Page 5
