the husband did not have to support a child not his own, and the mother,
as a married woman, could also not be compelled to do so (all her property
was her husband’s). The luckless child went to the workhouse.74 At times,
then, mothers as well as fathers avoided supporting their children; little
wonder that Poor Law officials were frustrated. In both the upper and
working classes, children could suffer the most from cohabitation.
Clearly, the legal position of cohabiting women and their illegitimate
children made their condition challenging. Nevertheless, none of these
consequences stopped informal unions or women’s determination that
men should honour their irregular relationships. The state made marriage
more difficult in 1753, and left cohabiting women and their children with
limited options. In response, most people made the effort to marry in
the prescribed manner. But a distinct minority chose to ignore the legal
definition of marriage and to create their own, and these couples caused
Copyright © 2008. Manchester University Press. All rights reserved.
difficulties from the parish level to the House of Lords. This challenge
continued into the criminal courts; the Victorian state had to find a way to
27
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living in sin
cope with cohabiting couples in both branches of law. In neither part was
the state’s role easy or consistent.
Notes
1 L. Stone, Uncertain Unions: Marriage in England, 1660–1753 (Oxford: Oxford University
Press, 1992), p. 31.
2 J. Gillis, For Better, For Worse: British Marriages, 1600 to the Present (New York: Oxford
University Press, 1985), pp. 140–2; R. Outhwaite, Clandestine Marriage in England, 1500–
1850 (London: The Hambledon Press, 1995), pp. 75–144; S. Parker, Informal Marriage,
Cohabitation and the Law, 1750–1989 (New York: St Martin’s Press, 1990), pp. 29–47; D.
Lemmings, ‘Marriage and the law in the eighteenth century: Hardwicke’s Marriage Act of
1753’, Historical Journal 39 (1996), 339–60.
3 Outhwaite, Clandestine Marriage, pp. 112–21; 145–67; Parker, Informal Marriage, pp. 50–61;
S. Cretney, Family Law in the Twentieth Century: A History (Oxford: Oxford University
Press, 2003), pp. 3–11.
4 J. Cookson, Thoughts on Polygamy (Winchester: J. Wilkes, 1782), pp. 44–5.
5 Munro v. De Chemant (1815), 171 English Reports 69; ‘Presumption in favour of marriage’,
Justice of the Peace 45 (1881), 711–12.
6 Outhwaite, Clandestine Marriage, p. 144.
7 Justice of the Peace 6 (1842), 429.
8 Outhwaite, Clandestine Marriage, p. 144; ‘The law relating to marriage as it affects the
law of settlement’, Justice of the Peace 2 (1838), 65–7; quote on 65; W. Hooper, The Law of
Il egitimacy (London: Sweet and Maxwel , 1911), pp. 122–31.
9 U. Henriques, ‘Bastardy and the new poor law’, Past and Present 37 (1967), 103–29.
10 C. Tomalin, Mrs Jordan’s Profession: The Actress and the Prince (New York: Alfred A.
Knopf, 1995), pp. 64–7.
11 J. B. Atlay, The Victorian Chancel ors 2 vols (London: Smith, Elder, & Co., 1906), I: 444–6;
Cretney, Family Law, p. 545, note 4.
12 Reddall v. Leddiard (1820), 3 Phil imore’s Reports 256–7; quote from p. 256.
13 Wiltshire v. Prince, otherwise Wiltshire (1830), 162 English Reports 1176–7. See also Pouget v.
Tomkins (1812), 1 Phil imore’s Reports 499–506.
14 National Archives (hereafter NA), HO 45/O.S. 1300.
15 The King v. The Inhabitants of Tibshelf (1830), 109 English Reports 758–60; Outhwaite, Clandestine Marriage, pp. 151–2.
16 Cope v. Burt (1809), Lambeth Palace Archives (hereafter LPA), Court of Arches Records,
D475, Case #2266.
17 Wakefield v. MacKay (1808), LPA, Court of Arches Records, H 142, D2161, 1–19.
18 Outhwaite, Clandestine Marriage, pp. 151–2; see also Chichester v. The Marquess and
Marchioness of Donegal (1822), 1 Addams’s Reports 5–29.
19 Diddear, falsely cal ed Faucit, otherwise Savill v. Faucit (1821), 3 Phil imore’s Reports 580–3;
Dormer, falsely cal ed Wil iams v. Wil iams (1838), 163 English Reports 301–4.
20 Gompertz v. Kensit (1872), 36 Justice of the Peace 548–9, quote from 548; The Times, 25
January 1872, p. 10.
Copyright © 2008. Manchester University Press. All rights reserved.
21 R. Mitchison and L. Leneman, Girls in Trouble: Sexuality and Social Control in Rural
Scotland, 1660–1780 (Edinburgh: Scottish Cultural Press, 1998), p. 42.
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cohabitation, illegitimacy and the law
22 Watson and Watson v. Faremouth and Others, Annual Register 53 (1811), 136–7, quote from
137. See also LPA, Court of Arches Records, H 151/20, Case #9682.
23 Ware v. Ware (1765), LPA, Court of Arches Records, D 2185, Case #9614.
24 ‘False declaration of marriage’, Justice of the Peace 65 (1901), 428 (for quote); The Times, 7
July 1901, p. 9.
25 Outhwaite, Clandestine Marriage, pp. 149–50.
26 HO 45/O.S. 7953, Letter from J. D. Powles to the Foreign Secretary (re-routed to the Home
Office), 14 May 1867. The undersecretary wrote back on 19 June 1867.
27 Middleton v. Janverin (1802), 161 English Reports 797–801; quote from 801.
28 Cretney, Family Law, pp. 161–95.
29 L. Leneman, Alienated Affections: The Scottish Experience of Divorce and Separation, 1684–
1830 (Edinburgh: Edinburgh University Press, 1998), pp. 218–31; Conway v. Beazley (1831),
162 English Reports 1292–8.
30 Fenton v. Livingstone (1859), 23 Justice of the Peace 579–81; Mitchison and Leneman, Girls
in Trouble, pp. 67, 98.
31 Leneman, Alienated Affections, pp. 223–31.
32 Justice of the Peace 3 (1839), 680; 32 (1868), 477.
33 Justice of the Peace 5 (1841), 598–9; 21 (1857), 814; 46 (1882), 571.
34 Justice of the Peace 16 (1852), 799.
35 C. Barton, Cohabitation Contracts: Extra-Marital Partnerships and Law Reform (Aldershot:
Gower Publishing Company, 1984), pp. 38–42.
36 24 English Reports 55 (1700). See also Harris v. Marchioness of Annandale (1727), 24 English
Reports 801–2; and Cray v. Rooke (1735), 25 English Reports 713–14.
37 28 English Reports 103–4 (1751).
38 A. R. Cleveland, Woman Under the English Law (London: Hurst and Blackett, 1896), pp.
222–4; W. Eversley, The Law of Domestic Relations 6th edn (London: Sweet and Maxwel ,
1951), pp. 111–18.
39 97 English Reports 985 (1764); 30 English Reports 1058–60 (1797).
40 105 English Reports 684–5 (1815).
41 172 English Reports 265–6 (1827).
42 95 English Reports 845–7 (1767); quotes from 846.
43 27 English Reports 416�
��17 (1767); first quote on 416; 27 English Reports 524–5 (1767); second
quote on 525.
44 31 English Reports 591–5 (1800), quotes from 592.
45 Justice of the Peace 38 (1874), 37–8; The Times, 8 July 1872, p. 11.
46 Justice of the Peace 48 (1884), 598.
47 Justice of the Peace 23 (1859), 312–13, quote from 313; The Times, 28 April 1859, p. 9.
48 Justice of the Peace 28 (1864), 660; and The Times, 11 July 1864, p. 11.
49 Quote from Justice of the Peace 28 (1864), 660.
50 F. M. L. Thompson, The Rise of Respectable Society: A Social History of Victorian Britain,
1830–1900 (London: Fontana, 1988), pp. 307–8; J. Weeks, Sex, Politics, and Society: The
Regulation of Sexuality Since 1800 2nd ed. (London: Longman, 1989), pp. 60–4.
51 L. Davidoff and C. Hal , Family Fortunes: Men and Women of the English Middle Class,
1780–1850 (Chicago: University of Chicago Press, 1987); J. Tosh, A Man’s Place: Masculinity
and the Middle-Class Home in Victorian England (New Haven, CT: Yale University Press,
Copyright © 2008. Manchester University Press. All rights reserved.
1999), pp. 53–101; K. McClel and, ‘Masculinity and the “representative artisan” in Britain,
1850–1880’, in M. Roper and J. Tosh (eds), Manful Assertions: Masculinities in Britain since
2
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living in sin
1800 (London: Routledge, 1991), 74–91.
52 P. Brooks, The Melodramatic Imagination: Balzac, Henry James, Melodrama, and the Mode
of Excess (New Haven, CT: Yale University Press, 1976); J. Walkowitz, City of Dreadful
Delight: Narratives of Sexual Danger in Late-Victorian London (Chicago: University of
Chicago Press, 1992).
53 The Times, 19 December 1826, p. 3.
54 The Times, 15 January 1866, p. 11; 1 Law Reports, Common Pleas Division (1866) 331–6.
55 NA, ASSI 1/65; Berkshire County Chronicle, 17 July 1869, p. 5; Liverpool Mercury, 10
February 1882, p. 8; Il ustrated Police News, 18 February 1882, p. 3 (for quote); Gibson’s
Law Notes 1 (1882), 75. For more cases, see G. Frost, Promises Broken: Courtship, Class,
and Gender in Victorian England (Charlottesville, VA: University Press of Virginia, 1995),
pp. 111–13, 130, 134.
56 Wilkinson v. Adam (1812), 35 English Reports 163–82; first quote from 164; second from 175;
1 Vesey and Brames Reports 422–69.
57 Swaine v. Kennerley (1813), 35 English Reports 182.
58 In re Ayles’ Trusts (1875), 40 Justice of the Peace 181.
59 Pratt v. Mathew (1856), 52 English Reports 1134–9; first quote from 1137, second from 1139.
60 30 Justice of the Peace 759–60 (quote from 759); The Times, 30 May 1866, p. 11. See also
Meddowcroft v. Huguenin (1842–43), 163 English Reports 771–78.
61 In re Du Bochet, Mansell v. Al en (1901), 2 Law Reports, Chancery Division 441–50; quote
from 450.
62 Brook v. Brook (1858–61), 21 Justice of the Peace 21 (1857), 804–5; 22 (1858), 272–4; 25 (1861),
259–62; The Times, 17 March 1857, p. 11; 21 November 1857, p. 10; 23 November 1857, p. 8;
25 November 1857, p. 10; 26 November 1857, p. 8; 19 April 1858, pp. 11–12; 26 February 1861,
p. 10; 4 March 1861, p. 10.
63 In re Don’s Estate (1857), 21 Justice of the Peace 694; The Times, 6 July 1857, p. 10; 3 August 1857, p. 10.
64 Dolphin v. Robins and Another (1859), The Times, 6 August 1859, p. 11; In re Wilson’s Trust
(1865), 30 Justice of the Peace 163–4; The Times, 15 November 1865, p. 11. See also In re
Wright’s Trust (1856), 20 Justice of the Peace 675–6; The Times, 8 May 1856, p. 11.
65 Beachcroft v. Beachcroft (1816), 56 English Reports 159–64; quote from 162.
66 Lomas v. Wright (1835), 2 Mylne and Keen’s Reports 769–79; quote from 769.
67 Gabb v. Prendergast (1855), 1 Kay & Johnson’s Reports 439–43; quote from 440. For a later case, see Hill v. Crook (1873), 6 Law Reports, House of Lords 265–86 and Crook v. Hil
(1877), 41 Justice of the Peace 228–9.
68 In re Goodwin’s Trust (1874), 38 Justice of the Peace 500.
69 Justice of the Peace 14 (1850), 165.
70 Justice of the Peace 20 (1856), 621.
71 Justice of the Peace 46 (1882), 301–2; quote from 302.
72 Justice of the Peace 24 (1860), 717; see also Justice of the Peace 39 (1875), 92. Parliament
restricted removals to those who had lived in an area less than five years in 1846, later
reduced to three years (1861) and then one (1865). This couple had either not lived in
the area long, or were victims of the poor wording of the law, which allowed for some
exceptions even late in the century. M. Rose (ed.), The Poor and the City: The English
Poor Law in its Urban Context, 1834–1914 (Leicester: Leicester University Press, 1985), pp.
Copyright © 2008. Manchester University Press. All rights reserved.
9–10; P. Thane, ‘Women and the poor law in Victorian and Edwardian England’, History
Workshop Journal 6 (1978), 36.
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cohabitation, illegitimacy and the law
73 Justice of the Peace 17 (1853), 351.
74 Justice of the Peace 29 (1865), 12.
Copyright © 2008. Manchester University Press. All rights reserved.
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2
Violence and cohabitation in the courts
Like the civil law, criminal courts showed ambivalence about, rather
than simple disapproval of, irregular unions. In fact, the juries and
especially judges focused as much on the men as the women in the
cases, and did not allow middle-class status to excuse violence. This fact
complicates the traditional view of English criminal justice as patriarchal,
class-biased, and moralistic. Though Victorian justice could be all of those
things, it was not invariably so, and even when it was, the results were not
predictable.
This chapter focuses on cases of violence within cohabiting families,
based on a collection of 217 violent incidents culled from the Yorkshire
Gazette, Lancaster Guardian, and The Times between 1850 and 1905. 1
Analysis of the data by region did not disclose any clear regional differences
in motives for murder or outcomes in the cases. In fact, the reaction of the
couples and the courts were remarkably similar across England.
In civil courts, the difference in status between married and unmarried
couples was considerable, which was why Hardwicke had so much impact.
In criminal cases, the situation was complicated,
since courts tended to
see cohabitees as ‘practically married’ at the same time as ‘fallen’. On the
one hand, cohabitees’ relationships mirrored those of married couples,
and judges and juries expected them to carry out spousal duties. On the
other hand, the fact that the two were not married sometimes changed the
motives for violence and the courtroom dynamic. In particular, judges saw
concubinage as a strand in working-class pathology that needed elimination.
These contradictions led to disagreements within the courtroom and also
to conflicts between different branches of the law.
The majority of these cases involved the poor; of the 212 where
the newspapers mention class or occupation, 197 cases (93 per cent)
Copyright © 2008. Manchester University Press. All rights reserved.
were working-class. Only 15 cases (7 per cent) had even one partner in
the lower-middle or middle classes.2 Similar studies of marital violence
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violence and cohabitation in the courts
have yielded more middle-class cases, so the predominance of the poor
reflects the fact that fewer middle-class people cohabited. In other words,
domestic violence existed in all classes, but those above the working class
struggled with this problem while legally wed.3 In addition, of the 189
violent incidents between cohabitees, the man was the aggressor 161 times
(85 per cent), the woman, 28. Of the 20 cases involving children, men
were the aggressors 9 times, women 6, and both 4.4 Men also resorted to
suicide more frequently, with 19 cases of male suicide and 19 attempted
suicide. Women committed or attempted to commit suicide in only 5 cases.
Though women could sometimes hold their own in scuffles, then, men
were more deadly.5
Statistically, the trial results favoured victims. Of the 155 cases with
recorded verdicts, 105 resulted in a guilty verdict, 21 were acquittals or
discharges (4 for insanity), 25 had a dead or escaped perpetrator, and in 4
the defendant was bound over to keep the peace. If one removes those with
Living in Sin Page 7
