11 Justice of the Peace, passim, 1850–1914; Wohl, ‘Sex and the single room’, 209.
12 L. Davidoff, ‘The separation of home and work? Landladies and lodgers in nineteenth-
and twentieth-century England’, in S. Burman (ed.), Fit Work for Women (New York: St
Martin’s Press, 1979), 68–92.
13 Reports from Commissioners on the Laws, ‘Minutes of Evidence’, pp. 7, 32, 82.
14 The Times, 25 February 1890, p. 12; Devizes and Wiltshire Guardian, 27 February 1890, p. 6;
first quote from Guardian, second from The Times.
15 Justice of the Peace 12 (1848), 644; 16 (1852), 799.
16 Reports from Commissioners on the Laws, ‘Minutes of Evidence’, pp. 34 (for quote), 59; see
also pp. 96–7.
17 Ibid., pp. 12, 96.
18 Ibid., pp. 16, 97; for clergy marrying within the prohibited degrees, see pp. 8–9; 12; 15–16;
77–9.
19 Justice of the Peace 68 (1904), 188; and Reports from Commissioners on the Laws, ‘Minutes
of Evidence’, p. 10.
20 D. Torr, Tom Mann and His Times (London: Lawrence & Wishart, 1956), pp. 23, 41; C.
Tsuzuki, Tom Mann, 1856–1941: The Chal enges of Labour (Oxford: Clarendon Press,
1991), p. 8.
21 Oxford Chronicle and Berks and Bucks Gazette, 5 July 1890, p. 7; The Times, 3 July 1890,
p. 7.
22 NA, HO 45 9978/X51597; The Times, 20 November 1902, p. 14.
23 NA, HO 45/7026, 15 January 1861.
24 The Times, 7 July 1901, p. 9; Justice of the Peace 65 (1901), 428.
25 NA, HO 45/9393/49503; emphases in original.
26 The Times, 20 December 1844, p. 8; S. Mumm, ‘“Not worse than other girls”: The convent-
based rehabilitation of fallen women in Victorian Britain’, Journal of Social History 29
(1996), 530.
27 Conley, The Unwritten Law, pp. 121–2; L. Jackson, Child Sexual Abuse in Victorian England
(London: Routledge, 2000), pp. 36–50.
28 Justice of the Peace 48 (1884), 92.
29 R. Clarke, ‘Marriage within the prohibited degrees’, Justice of the Peace 26 (1862), 334;
Reports from Commissioners on the Laws, ‘Minutes of Evidence’, p. 13. See also ‘A marriage
of affinity’, Justice of the Peace 68 (1904), p. 521.
30 11 Law Reports, Queen’s Bench Division (1848) 173–204; The Times, 15 June 1847, p. 7.
31 30 Law Reports, Magistrates Cases (1861) 197–201.
32 Reports from Commissioners on the Laws, ‘Minutes of Evidence’, p. 32.
33 Woods v. Woods (1840), 163 English Reports 493–8, quote from p. 497.
34 One was a bigamy case involving marriage with a deceased wife’s niece in 1872; Reg. v.
Al en, 1 Law Report, Crown Cases Reserved 367–77; 36 Justice of the Peace 820–2. The
other, in 1894, involved the marriage of a nephew with his aunt, which had taken place in
1843; Re Shaw, Robinson v. Shaw 2 Law Reports, Chancery Division 573–75; 71 Law Times
78–81.
35 Reports from Commissioners on the Law, ‘Minutes of Evidence’, pp. 3–5.
Copyright © 2008. Manchester University Press. All rights reserved.
36 161 English Reports 1064–6; quote from 1066. See also Cretney, Family Law in the Twentieth
Century, p. 43, note 37.
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living in sin
37 Wil iams v. Bryant (1769), LPA, Court of Arches Reports, D291, Case #10003, 70–85; D
293, Case 10004; Aughtie v. Aughtie (1810), 161 English Reports 961; Andrews v. Ross (1888),
59 Justice of the Peace 900–1; quote from p. 900. See also Women’s Suffrage Journal 16
(1885), 93.
38 Reports from Commissioners on the Laws, ‘Minutes of Evidence’, p. 24.
39 Ibid., pp. 24, 67; NA, HO 45/B2853.
40 D. Holman-Hunt, My Grandfather, His Wives and Loves (London: Hamish Hamilton,
1969), p. 261.
41 Reports from Commissioners on the Laws, ‘Minutes of Evidence’, pp. 82, 28, 76.
42 Holman-Hunt, My Grandfather, pp. 277–82; A. Clark Amor, Wil iam Holman Hunt: The
True Pre-Raphaelite (London: Constable, 1989), pp. 211–14.
43 E. M. Forster, Marianne Thornton: A Domestic Biography, 1797–1887 (New York: Harcourt,
Brace and Company, 1956), pp. 189–217.
44 Reports from Commissioners on the Laws, ‘Minutes of Evidence’, pp. 8, 23, 22.
45 Ibid., pp. 10–11, 68.
46 Hill v. Crook (1873), 6 House of Lords Appeals Cases 265–86; In re Harrison (1894), 1 Law Reports, Chancery Division 561–8.
47 Clark Amor, Wil iam Holman Hunt, p. 227.
48 See, for example, Pawson v. Brown (1880), 44 Justice of the Peace 233; The Times, 6
November 1879, p. 4; and Brook v. Brook, Chapter 1.
49 Reports from Commissioners on the Laws, ‘Minutes of Evidence’, pp. 74–5; quote from p.
74.
50 Ibid., p. 10.
51 Clark Amor, Wil iam Holman Hunt, pp. 240–1; D. Holman-Hunt, My Grandmothers and
I (New York: W. W. Norton & Company, 1960), pp. 100–1.
52 Forster, Marianne Thornton, pp. 206–7; 211.
53 Holman-Hunt, My Grandfather, p. 283; Reports from Commissioners on the Laws, ‘Minutes
of Evidence’, pp. 25–6, 65.
54 S. Weintraub, Four Rosettis: A Victorian Biography (New York: Weybright and Talley,
1977), p. 210; Reports from Commissioners on the Laws, ‘Minutes of Evidence’, p. 9.
55 Forster, Marianne Thornton, p. 196.
56 Reports from Commissioners on the Laws, ‘Minutes of Evidence’, p. 13.
57 Ibid., pp. 71, 2.
58 Ibid., pp. 67–8, 26.
59 Holman-Hunt, My Grandfather, pp. 283–4; Weintraub, Four Rosettis, p. 210.
60 Reports from Commissioners on the Law, ‘Minutes of Evidence’, pp. 9, 81–2.
61 Reports from Commissioners on the Law, ‘Appendix’, p. 145.
62 H. Quilter, Is Marriage a Failure? (New York: Garland, 1984), p. 27.
63 Reports from Commissioners on the Law, ‘Minutes of Evidence’, p. 68; Watson and Watson
v. Faremouth and others, Annual Register 53 (1811), 136–7.
64 Reports from Commissioners on the Law, ‘Minutes of Evidence’, pp. 70; 97.
65 Lord Bramwel , ‘Marriage with a deceased wife’s sister’, Nineteenth Century 20 (1886),
403–15; Lord Coleridge, Tract #13 in ‘What the Liberals say’, Tracts Issued by the Marriage
Law Defence Union (London: Marriage Law Defence Union, 1884), 10–13; Atlay, Lives of
the Lord Chancel ors, II, 355.
Copyright © 2008. Manchester University Press. All rights reserved.
66 E. Clarke, The Story of My Life (London: John Murray, 1923), pp. 232–3; W. H. Hunt, et.al.,
Deceased Wife’s Sister Bill: Letters from Wil iam Holman Hunt, Sir Frederick Pol ock, and
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affinity and consanguinity
Others (London: Marriage Law Reform Association, 1901), pp. 26–9.
67 Reports from Commissioners on the Law, ‘Minutes of Evidence’, pp. 4
–5.
68 Ibid., p. 9 (for quote); The Times, 14 December 1844, p. 8; 21 December 1844, p. 6; 23
December 1844, p. 7; Staffordshire Advertiser, 21 December 1844, p. 2.
69 Reports from Commissioners on the Law, ‘Minutes of Evidence’, p. 14.
70 The Times, 3 June 1875, p. 7; 26 July 1875, p. 10.
71 L. Davidoff, Worlds Between: Historical Perspectives on Gender and Class (London: Polity
Press, 1995), pp. 206–26.
Copyright © 2008. Manchester University Press. All rights reserved.
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4
Bigamy and cohabitation
Because of the strict divorce law in England, few unhappy couples
could end their unions legal y. Thus, many couples lived apart, either
by mutual consent or because of desertion. These separations could
be long standing, and sometimes one or both of the partners wished to
remarry. Such marriages were bigamous and a felony at English law. Most
couples would not open themselves up to these charges and so cohabited
or parted, but others took the risk, apparently a substantial number.1
According to the Judicial Statistics of England and Wales, bigamy trials
occurred 5,327 times between 1857 and 1904, an average of 98 per year. As
the population rose, bigamy cases also increased, but not as quickly. The
average number in the 1850s was 85; in the 1890s, 103; and in the early
twentieth century, 112. Either bigamies declined, or the authorities ignored
more cases by the end of the century. All the same, almost every assize saw
one or two bigamy trials.2
Though these numbers are not huge, bigamy remained one of the
largest category of ‘offences against persons’ each year. And these were only
the bigamies that the authorities prosecuted; far more often, bigamists faced
no penalty. Gail Savage has found that in divorce cases using bigamy as a
grounds, only one in eight was prosecuted.3 Anecdotal evidence backs up
this statistic. John Skinner, a rector in Somerset in the early 1800s, recorded
the story of a man who went to the East Indies, leaving his wife behind. She
was about to remarry, having had three children with her lover, when he
returned. After an unsuccessful attempt at reconciliation, the man ‘married
a Timsbury woman by licence at Bristol’. Though Skinner admonished the
wife for cohabiting, he did nothing about the husband’s bigamy. At the
other end of the century, Guy Aldred’s estranged parents both married
bigamously after his father deserted the family in 1889, and neither faced
Copyright © 2008. Manchester University Press. All rights reserved.
criminal charges.4
In other words, a small minority of bigamies, possibly one in five,
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bigamy and cohabitation
made it to the courts. Stil , the historian has little choice but to use criminal
cases to study bigamy. Thus, this chapter is based on 304 bigamy cases
between 1760 and 1914, most between 1830 and 1900, from newspapers and
law reports.5 I was unable to uncover any strong regional differences in
the treatment or reasons for bigamy. Undoubtedly, local communities did
have variations, but they do not emerge in the often brief reports of bigamy
trials. As a result, this chapter will deal with overall patterns of behaviour,
using the trials as a window into attitudes towards marriage, cohabitation,
and the law.
Judges and juries assessed the causes and consequences of cohabitation
through these cases. Unlike in violence trials, the actors in bigamy cases
agreed on both ‘bad’ and ‘good’ bigamies, as did the wider community.
All were convinced that happy bigamous marriages were preferable to
miserable, legal ones. The couples defied the strict divorce laws but still
regarded marriage as better than cohabiting, risking prison sentences to be
‘man and wife’. Unfortunately, since the marriages were illegal, they could
not avoid the problems of unwed cohabitation, especial y when the families
were poor.
Bigamy and criminal law
Bigamy, a criminal offence since the reign of James I, did not receive
statutory attention until the Offences Against the Person Act of 1828, which
made marrying another person while a first spouse was alive a felony. A
revision of the penal code in 1861 included necessary changes due to the
Divorce Act of 1857 (remarrying divorced persons could not be convicted
of bigamy) and guidelines for sentencing. To succeed, a charge of bigamy
had to have proof of both marriages, preferably the marriage registers. The
first marriage could not be proved simply by the testimony of the spouse,
since spouses could not testify against each other in a criminal trial.6
However, others could testify to the wedding, and prosecutors preferred to
have both the registers and witnesses as evidence.
Bigamy prosecutions had a good chance of success. The conviction
rate between 1857 and 1904 was almost 80 per cent, slightly higher in the
mid-Victorian years and slightly lower at the end of the century. If the
state had both licences, defendants had difficulty refuting the charges, but
exceptions existed. The most important of these, enacted in 1828, was that
a bigamy charge failed against anyone who had not heard from her or his
spouse for seven or more years. The second marriage was invalid if the first
Copyright © 2008. Manchester University Press. All rights reserved.
spouse was alive, but the defendant was not criminal y guilty. In addition,
the invalidity of the first marriage (for instance, if within the prohibited
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living in sin
degrees) was a successful defence, but not that of the second marriage,
since it was invalid by definition.7
Over time, juries and judges accepted other defences. For instance,
if the bigamist had honestly believed that her or his first spouse was dead,
juries often acquitted. And, even if found guilty, defendants used this plea
to mitigate the punishment.8 Eventual y, judges began to argue that intent
was one of the factors in determining guilt. In a case in 1869, the Appeals
Court overturned a conviction of a female bigamist, because they insisted
that the question of intent should be left to the jury.9 All the same, the
point did not become se
ttled law until 1889, in Reg. v. Tolson. In this case,
the High Court of Justice quashed the conviction of Mary Ann Tolson for
bigamy, on the grounds that juries had every right to consider intent when
reaching their verdicts.10
Despite these helps to the defence, most defendants were convicted
in the nineteenth century. I have verdicts in 280 of my 304 cases. Juries
convicted in 225 and acquitted in 55, a conviction rate of 81 per cent.
Defendants were largely male – 249 of 304 cases (82 per cent). Both of
these figures agree with the Judicial Statistics, though men are slightly
over-represented in my group; men made up almost 79 per cent of the
defendants overall in the period 1857–1904.11 In addition, juries convicted
men at a higher rate. Of the 208 cases with male defendants and a verdict,
177 were convictions and 31 were acquittals, a conviction rate of 85 per cent.
Of the 54 female defendants, 37 were convictions and 17 acquittals, a 68 per
cent conviction rate. Women also had lower sentences than men. In the
1840s, eight men were transported, and three received sentences of a year
or more, while the three women got two months or less. By the 1860s, men’s
punishments had diminished but were still higher than women’s. Five men
received three to seven years; six got six to twelve months; nine got one
to three months; and three received sentences of two weeks or less. In the
same decade all nine guilty female defendants received sentences of two
months or less. In the 1880s, twelve men received one to ten years in prison,
while all six of the women defendants served only a few days. Obviously,
bigamy was a much more serious crime when the defendant was male.
The Judicial Statistics show that punishments for bigamy were usual y
mild. Throughout the 1850s and 1860s, only a minority of defendants spent
more than a year in prison for bigamy, an average of 15 per cent of those
convicted between 1857 and 1869. This percentage grew slightly larger over
the course of the Victorian period; between 1885 and 1900, 19 per cent of
bigamists received a year or more. At the same time, those who got no
Copyright © 2008. Manchester University Press. All rights reserved.
punishment or short sentences also increased. Those who received a month
or less were almost 25 per cent of the defendants in the 1860s, 29 per cent in
Living in Sin Page 15
