Several pleaded that their first marriages were not valid, for example, that
they were under-age. Others denied that civil marriages were binding,
since they were not ‘real’. When George Stiffle was tried for bigamy, a man
named Green was a witness to the first marriage, a civil ceremony. Green
sniffed, ‘he never saw such a marriage – it was not at all like his – there was
no minister, nor any ring.’62 Of course, most of the defendants were trying
to find an excuse for breaking the law, but they may also have convinced
themselves that one of the marriages was not ‘real’ in order to justify their
behaviour to themselves.
English marriage laws also had numerous loopholes. For example, in
Ireland, a Protestant who married a Roman Catholic by a Roman Catholic
priest had to have been in the country and converted for a full year or the
marriage was invalid. Both William Dwyer and Thomas Fanning used this
provision to defend themselves (successful y, in Fanning’s case).63 Others
assumed that if they had grounds for an annulment, the marriage was not
legal even if they had not gone through the process. Richard David said
his first wife had ‘some physical malformation’ which he assumed voided
the marriage; after his sentencing, the judge told him he should have the
marriage annulled. Others argued that the first marriage was not real
because they had not lived together. Annie Stephens married Alexander
Stephens in 1854, but she insisted ‘he was not her husband, he left her on
coming home from church.’64
In addition, some couples thought the marriage was legal y over
when the wife or husband had been deserted for someone else. In the 1850s,
Thomas Barnes’s first wife left him for another man. When she applied
to the parish for relief, the Leicester magistrates called him up to know
why he did not support her. Barnes explained his reasons and left; his cost
for the summons was thirty shillings. Barnes believed that because the
workhouse had taken over supporting his wife, he was free to remarry,
especial y considering his monetary outlay. Indeed, his wife’s brother
testified, ‘Barnes paid thirty shillings to be divorced.’ More often, couples
drew up formal deeds of separation in an effort to make the divorce official.
Both Edward Green and John Nield separated from their wives with formal
documents which included clauses allowing remarriage.65 Judges were
never impressed with these papers. Justice Mellor lectured Nield sternly,
‘As for the agreement made between the prisoner and his first wife that was
perfectly absurd. It was quite ridiculous to suppose that he believed he was
Copyright © 2008. Manchester University Press. All rights reserved.
enabled by that to marry again during her life.’ But some couples obviously
did think so – or at least chose to tell themselves that they could.
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living in sin
Wife sales also came up in bigamy trials throughout the century.
Betsy Wardle insisted that she could marry George Chisnall in 1882
because her husband ‘sold her for a quart of beer’. Two of her female
neighbours took part in the second wedding because she had a ‘paper’ that
ceded her husband’s rights, and Chisnall confirmed that he bought Wardle
for ‘Sixpence.’ Justice Denman grew increasingly exasperated as witness
after witness argued the transaction was legal: ‘Everybody has committed
bigamy in this case as far as I can make out’, he opined. When he sentenced
Wardle to a week at hard labour, he told the court, ‘a man has no more
right to sell his own wife than to sell his neighbour’s wife, or cow, or ox,
or ass, or any other thing that was his.’ Despite judicial incredulity, such
defences persisted; as late as 1895, a plasterer claimed to have sold his wife
for 3s 6d.66 In fact, some defendants believed that the bigamy trial was a
sort of divorce. These confusions, too, occurred throughout the century,
including a coal porter in 1850 and a machinist in 1880. In both cases, the
defendants asked the judges if they could remarry after serving their time,
only to receive exasperated negatives.67
Clearly, the men and women involved in bigamous marriages were
not invariably ruined. Friends, neighbours, and even wronged spouses
tolerated this sexual nonconformity. Second spouses often said they would
continue to live with already-married spouses. Dinah Taylor, although she
had known nothing about labourer Jeremiah Thomas’s first wife, said ‘she
was quite ready to continue to live with him.’ Nor were the tolerant spouses
only women; Caroline Morant’s second husband testified on her behalf,
saying ‘she had been a very good wife to him.’68 First spouses also sometimes
forgave bigamies. Robert Frost, a shoemaker, had heard that his first wife
was dead. So he married Elizabeth Long, a street hawker. When his first
wife returned, he went back to her, and they lived happily together. Annie
Gibbon’s first husband also took her back after she married another man
during his six-year absence, saying ‘he did not consider himself aggrieved’.69
Nor did women necessarily lose their attractiveness by al ying themselves
with bigamists. In Dorchester, George Wel s, an iron moulder, married
Bertha Maidment in 1891 and Susan Broom in 1893. Broom prosecuted
him, but by the time of the trial, she had already married someone else.
Justice Kennedy, amused, gave Wel s only five days.70 In short, bigamous
marriages were tolerated – or even approved – in many communities; the
strict marriage laws meant that most neighbours and friends had to be
practical when marriages broke down.
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bigamy and cohabitation
Judges and bigamy
Another indication of a limited acceptance of bigamy was the conflicted
attitude of many judges. Their reactions, much like those of neighbours
and kin, depended on the circumstances. As Justice Erle put it, ‘there are
no cases which differed so much in their character as those of bigamy’.
The main way that judges adapted the law was in sentencing, where they
had maximum control. As Chief Justice Cockburn explained in 1865,
‘In a case where the woman knew the whole state of things, and went
through the ceremony of marriage merely to satisfy her conscience,
the offence was comparatively small; but where a woman was betrayed,
believing that she was contracting a valid marriage, the offence was most
atrocious.’71 Historians of Victorian justice have long recognised the biases
of the courts along class and gender lines. On this issue, bigamy trials, like
violence cases, offer a complicated pattern. On the one hand, the cases
were overwhelmingly brought against working-class men. On the other,
many of the men escaped harsh penalties for their crimes, and almost all
of the women did so. Because men were four-fifths of the defendants, one
could argue that the judges’ leniency showed a bias against working-class
women, but since women defendants received even gentler treatment, this
will not suffice. Instead, judges pondered a complex array of circumstances
to come to their decisions.
Judges’ collective sentencing decisions varied over time. First,
because of the change in the law, transportation applied only before 1850;
in addition, sentences were longer on average in the early part of the
century. Of the thirty-nine cases with a sentence of five years or more,
fifteen (almost 40 per cent) occurred before 1850; the rest were spread over
the remaining sixty-four years fairly evenly. In addition, of the sixty-seven
cases which had sentences of a month or less, sixty-three were after 1850.
To some extent, then, judges relaxed their standards as time went on. Partly
this was a result of the discussions of sentencing and changes in the law
throughout the Victorian period. The 1861 Offences Against Persons Act put
the maximum sentence for ‘aggravated’ bigamy at three to six years (later
changed to seven), with lesser sentences for those without aggravation.72
However, judges decided how to regard the bigamy (aggravated or not) and
also had leeway within each category.
Thus, punishment was contingent on numerous factors. Judges
always gave long sentences to serial bigamists. In addition, anyone who
lied to her or his second spouse, thus contributing to the fall of a pure man
Copyright © 2008. Manchester University Press. All rights reserved.
or (especial y) woman, received harsher penalties. Men of higher classes
sometimes also got longer sentences, because they set a bad example. In
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living in sin
1860, Justice Blackburn was disgusted with Henry Bickerstaffe, a clergyman,
calling his bigamy ‘an outrage to society’ before giving him three years.73
Other factors that lengthened sentences included a very young deceived
spouse or a mercenary motive for the marriages. James Malcolm combined
a number of these factors: he was a meat salesman, so lower-middle class;
he tricked a young woman into a fraudulent marriage; he attempted to ruin
another a few months later; and then, at his trial, he impugned the women’s
characters. Justice Field, as a result, called Malcolm ‘cowardly’, ‘disgraceful’
and ‘dastardly’ in an impassioned speech from the bench and gave him the
maximum sentence of seven years.74
On occasion, as wel , judges considered the public danger. The
indissolubility of marriage was, after al , the law, and people should not
break the law lightly. In an Old Bailey trial in 1840, the Common Serjeant
argued that ‘an example must be made in order to protect the public’ in
giving an ‘honest’ bigamist six months. Such sentiments survived into the
twentieth century. Sir F. Jeune, a Divorce Court judge, was appalled when he
heard that Evan Powell had received only a day in jail after pleading guilty
to bigamy. He fumed, ‘I have noticed several times that light sentences are
given in bigamy cases, and I very much regret to see it.’75 All the same,
these judicial voices were the minority. As many of the above cases showed,
judges agreed with juries about what made bigamy acceptable, giving short
sentences to those with good reasons to leave their first spouses and who
were honest with everyone involved.
The clearest indicator of this latitude was judges’ reactions to public
prosecutions. Judges considered prosecution by neighbours or even
relatives illegitimate if none of the spouses were unhappy. Justice Blackburn
disallowed the costs of the prosecution in Ann Birkhead’s case in York in
March 1860, complaining that ‘[i]t looked like the ignorant meddling of
some malicious person.’ That same year, Blackburn did the same in Ellen
Calverly’s case, since it was not prosecuted by either of her husbands, but
by a man named Wood who was feuding with her father. Even if public
prosecutions had good reasons, judges gave lesser sentences. John Calvert
was prosecuted by the Excise authorities. He had retired with a pension;
apparently, the authorities wanted to avoid paying it and so had him
arrested. As both wives were aware of the situation, Baron Parke considered
it a ‘venial’ case and gave him two months.76
Judges objected more strongly when they felt that the authorities
should have intervened to stop, rather than encourage, prosecutions. In
March 1860, Mary Hannigan was tried before Justice Hill at the Liverpool
Copyright © 2008. Manchester University Press. All rights reserved.
Assizes. Her first husband, Edward Hannigan, had lived with her only two
months and then enlisted in the army and left her pregnant. After five
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bigamy and cohabitation
years, she married John Collin; when Hannigan returned, he turned her in.
Hill gave Mary one week ‘served’, meaning that she could count the time
spent in jail awaiting trial, with the result that she went home immediately.
He complained, ‘witnesses ought not to have been bound over to prosecute
in such a case’, and he also denied the costs of the prosecution. The
magistrates appealed to the Home Secretary; they were, after al , bound by
law to bring a case when the evidence was clear. Though this argument was
right in theory, judges believed that the authorities should show discretion
in practice.77
Indeed, nothing excited the contempt of the justices more than
prosecutions brought by public authorities. Justice Willes was outraged by
the case of William Brightman, a Lincoln labourer, and his wife, Martha.
By 1860, they had been married twenty years and had four children.
Brightman became ill that year, so the family appealed to the parish for
support. The Poor Law officials soon discovered that both William and
Martha had been married before. To save the cost of supporting the family
of six, they prosecuted both for bigamy. Willes complained, ‘One might
have thought … that after the lapse of so long a time no one who had the
commonest feelings of man would have ventured to prosecute such a case.’
Martha’s trial provoked another tirade, in which Willes branded the Poor
Law commissioners as ‘indiscreet, ill-informed, and most unfeeling’. He
gave William and Martha a one-day sentence each and refused to allow the
costs. Again the commissioners appealed to the Home Secretary, although
they came away empty-handed. Their MP then appealed to the House of
Commons, but in vain.78
To modern readers, the magistrates who prosecuted poverty-
stricken couples come across as cruel and rapacious. On the other hand,
they were frustrated by the provisions of the New Poor Law as regards
illegitimates, just as when affinal marriages broke down. Men who married
bigamously and had children did not have to support their offspring; the
temptation to make them pay with a prison term was strong. A woman
who married bigamously was an equal problem; her legal husband could
not be compelled to support her, nor could her illegal spouse.79 Though
the magistrates might have preferred to punish the absconding father, they
may have settled for the satisfaction of punishing the mother. In the case of
the Brightmans, the JPs had a strong motive for having her four children
declared illegitimate, since this way Martha and her children might be
shifted back to her birth parish.80 In contrast, judges, unconcerned with
these local problems, considered these cases ‘frivolous’, unfairly crowding
Copyright © 2008. Manchester University Press. All rights reserved.
the assize calendar. Public prosecutions of bigamy cases show an interesting
divide within the ruling class for dealing with working-class irregularities,
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living in sin
one that worked in the favour of poor defendants.
Judges disdained public prosecutions so regularly, in fact, that in
1894, a chief constable and a commissioner complained to the Home
Secretary. The commissioner, in fact, insisted he would not prosecute any
Living in Sin Page 18
