Living in Sin Page 3
not have tried. Most of those who did apply admitted their relationships
openly, but even if they did not do so, the Foundling Hospital investigated
all petitions rigorously, so the investigators usual y found them out. Since
a cohabiting relationship was a bar to acceptance, any woman admitting to
this was probably telling the truth, though she might exaggerate the man’s
culpability.6 I have taken into account both the women’s stories and the
investigations in using this source.
Other records for the working class match those of the middle classes,
including the two Royal Commissions of Marriage in 1848 and 1912, which
had numerous working-class examples. The Women’s Cooperative Guild,
made up primarily of the wives of artisans, also surveyed their members
in 1911 and recorded several instances of adulterous cohabitation. A fourth
type of evidence was that supplied by middle-class observers of the poor.
Henry Mayhew published four large volumes of investigations of the
London poor in the 1850s, and Charles Booth published seventeen volumes
on the London poor at the end of the century. Many other investigators
Copyright © 2008. Manchester University Press. All rights reserved.
abounded, especial y in the late Victorian and Edwardian periods when the
middle and upper classes rediscovered poverty. In using these sources, one
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living in sin
must take into account that middle-class observers may have exaggerated
the vices of the poor. But the historian has little choice but to consult
these compilations in order to get some idea of the number of cohabiting
couples, and the reluctance of some poor people to talk to a stranger partly
balanced out the tendency of middle-class investigators to overstate their
depravity. Though Mayhew, in particular, focused on the pathos of his
subjects, his broad patterns were probably accurate, especial y when other
sources confirm his deductions. Final y, I consulted Elizabeth Roberts’s
oral history collection in Lancaster as an alternative to middle-class views.
This book is a national history, not a close study of one region. I
have relied on local studies at many points, but have not conducted such
research myself. I have tried to guard against too much London-centred
history by using two provincial newspapers, the Lancaster Guardian and
the Yorkshire Gazette, and I have used violence and bigamy cases from
across the country as wel . Yet the bulk of my evidence comes from urban
areas, since cities received most of the attention from social reformers,
and London couples dominate in the records of the Foundling Hospital
and the Old Bailey reports. Since the number of cohabiting couples in the
country was never huge, I have had to take a large-scale approach to garner
a representative group, but regional variations certainly existed. Future
research will il uminate all the complexities of the marital/nonmarital
situation across England. My purpose is to set out broad themes and to
allow, as much as possible, the cohabitees to speak for themselves over the
next nine chapters.
Notes
1 R. Ashton, G. H. Lewes: An Unconventional Victorian (London: Pimlico, 2000), p. 271; W.
Baker (ed.), Letters of George Henry Lewes, 3 vols (Victoria, BC: English Literary Studies,
1995), II, 211–13, G. H. Lewes to Charles Lee Lewes, 11 July 1875.
2 K. Hughes, George Eliot: The Last Victorian (London: Fourth Estate, 1998), pp. 303–4.
3 G. Frost, ‘“The black lamb of the black sheep”: Illegitimacy in the English working class,
1850–1939’, Journal of Social History 37 (2003), 293–322.
4 H. G. Cocks, Nameless Offences: Speaking of Male Homosexual Desire in Nineteenth-Century
England (London: I. B. Tauris, 2003); S. Brady, Masculinity and Male Homosexuality in
Britain, 1861–1913 (New York: Palgrave Macmil an, 2005); M. Vicinus, Intimate Friends:
Women Who Loved Women, 1778–1928 (Chicago: Chicago University Press, 2004).
5 The numbers break down as follows: nineteen cases between 1810 and 1819, ten cases in
the 1820s, twenty-five cases in the 1830s, sixty cases in the 1840s, and sixty-three cases in
the 1850s.
6 B. Weisbrod, ‘How to become a good foundling in early Victorian England’, Social History
Copyright © 2008. Manchester University Press. All rights reserved.
10 (1985), 193–209; F. Barret-Ducrocq, Love in the Time of Victoria: Sexuality, Class, and
Gender in Nineteenth-Century London (London: Verso, 1991), pp. 39–43.
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Frost, Ginger S.. Living in Sin : Cohabiting as Husband and Wife in Nineteenth-Century England,
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1
Cohabitation, il egitimacy, and the law
in England, 1750–1914
Though conservatives liked to believe otherwise, the legal
definition of marriage changed over time, including and excluding
couples as it did so. The key legislation in these transformations was
the Hardwicke Marriage Act of 1753, a watershed in family law. Parliament
took control over the regulation of marriage, challenging the principle of
marriage as an eternal sacrament, since the state now determined who
was married and who was not. In addition, this act and subsequent pieces
of legislation tightened the laws of marriage and defined marriages more
rigorously. As English law divided those married from those unmarried, a
growing number of couples found themselves outside its parameters. The
legal consequences were considerable, so the provisions of the law were
vital y important.
Prior to 1753, the marriage laws of England were chaotic. The validity
of marriages was a major source of litigation, because couples could marry
secretly in a variety of ways. A man and woman could simply state ‘I marry
you’ in front of witnesses, and the church recognised the union as legal.
Couples who said ‘I will marry you’ and then cohabited were also married.
Though the church courts became increasingly unwilling to validate such
unions as the eighteenth century wore on, clandestine weddings remained
popular. As a result, many couples bound themselves for life without licences
or their parents’ consent.1 In the Hardwicke Marriage Act, Parliament
abolished the binding power of betrothals and much of the authority of
the church courts in England. Many factors influenced Parliament to make
the change. First, the confusions of the law led to difficulties, especial y
when prior contracts threatened long-standing marriages. Second, the
upper classes wanted to stop their under-age children from making unwise
marriages, a reassertion of patriarchal control. Third, the act gave more
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ss. All rights reserved.
freedom to men, since regularising cohabiting unions became much more
difficult. Thus, the only legal marriages were those performed on certain
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living in sin
days of the week, at specified times, and at registered Anglican churches
(exempting Quakers, Jews, and the royal family). The wedding had to
be performed after a reading of the banns three weeks in a row or the
purchase of an expensive licence. In addition, no marriage was legal unless
both parties were over twenty-one or had the consent of their guardians. In
other words, all secret marriages of minors, all clandestine marriages, and
all oral contract marriages were void.2
As Ralph Outhwaite has pointed out, the act was not the ‘last word’
on marriage reform. Opponents of the bill tried to overturn it several times,
and repeals passed the House of Commons in 1765 and 1781, but failed in
the Lords. The entire law was repealed in 1822, only to be reinstated in
an amended form in 1823. Most especial y, Parliament had to address the
grievances of Dissenters, whose religious ceremonies were now invalid.
Marriage by civil registration, which came into law in 1836, began this
process. After 1836, couples could obtain a licence from the local Registrar’s
office (created in 1835) and marry there. This law broke the monopoly of
religious establishments over marriages, since Dissenters and Catholics
could marry by registrar and then have their own religious rites as they saw
fit.3 The original act had intended to cut through the confusion of church
marriages and define a legal marriage in unambiguous terms. Nevertheless,
difficulties remained, in part because of the very specificity of the act.
Couples who made mistakes in the parish registers, married at the wrong
times, or picked an unregistered chapel might not be legal y married at al .
At times, a man or woman might assume that a marriage with some minor
mistake was not legal and so remarry, thereby making a possibly bigamous
marriage. Furthermore, both Ireland and Scotland had different marriage
laws, which meant a couple might be married in one country, but living in
‘concubinage’ in another. In short, the law meant to clarify the definition of
marriage instead offered a host of new problems.
Further complicating matters was the fact that common-law marriage
did not exist as a legal category in England. Indeed, commentators rarely
tried to describe ‘concubinage’, though they spent scores of pages explaining
marriage, since anyone who did not marry legal y automatical y fell into the
former category. Those who did attempt a description often had to reference
marriage; cohabitation was not something positive in its own right, but a
‘non-marriage’. James Cookson, writing in 1782, described ‘concubinage’
as ‘the cohabitation of a man and woman in the way of marriage, without
its ceremonies and solemnity, – the marriage of nature; but below that of
positive Institution.’4 Cohabitation, then, was a lesser relationship and never
Copyright © 2008. Manchester University Press. All rights reserved.
compared favourably with marriage. But what, specifical y, was missing?
Obviously, cohabitees lacked the sanction of the church and the
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Frost, Ginger S.. Living in Sin : Cohabiting as Husband and Wife in Nineteenth-Century England,
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cohabitation, illegitimacy and the law
state. All the same, they had often been through a ceremony of some
sort and were parents. After the passage of Civil Marriage in 1836, some
married couples also evaded the religious ceremony; though they had legal
sanction, they were not all that distinct from couples who lived together.
Thus, in a number of circumstances, cohabitees mirrored those legal y wed.
In fact, the attitude of many people to cohabitation was connected to their
opinion of a ‘true’ marriage. If the person saw marriage as an institution
and a sacrament, he or she was more likely to condemn concubinage. But
if a commentator stressed the relationship as the basis of marriage, he or
she tended to be more sympathetic to those who lived ‘in sin’. In the end,
however, the key point for the law was the lack of legal standing, even more
than the lack of church sanction. Without a legal marriage, a family lost
many benefits, particularly women and children.
Despite this, some couples still lived together irregularly and relied
on reputation and long cohabitation to give their unions public sanction;
without property considerations, the ambiguous state of the union rarely
mattered. And even when the courts did get involved, judges might declare
the marriage valid, since one of the axioms of English law was that such
reputation could be taken as proof of marriage.5 All the same, those
who cohabited were vulnerable. If one partner determined to leave the
relationship, he or she could use the law to end the union. In fact, Hardwicke’s
critics foresaw this possibility. Robert Nugent pointed out that ‘to declare
a marriage void, if not celebrated with all the punctilios prescribed by this
Bil , is real y to divorce the husband and wife’. His prediction was accurate,
sometimes with serious consequences.6
On the plus side, no legal penalty to cohabitation existed. With the
decline of the church courts, punishments for fornication withered away.
Though some local leaders disliked the new licence, they could do little
about it. In 1842, a magistrate wrote to Justice of the Peace to complain
about a couple who lived ‘in a n avowed state of concubinage’. He asked if
the local clergyman could force them ‘either to separate, or to marry?’ The
editors replied that ‘such parties are usual y left to the punishment which
society inflicts upon them … if they move in any decent sphere of life.’7 In
other words, if the couple did not care about public reputation, they could
live together as long as they pleased.
Nevertheless, such freedom came at a price, particularly for women.
Women who cohabited with men now had no legal claim to the status
of wife. Critics of the bill had pointed out the hardships it would entail
for women; Charles Townshend, for example, predicted that it would be
Copyright © 2008. Manchester University Press. All rights reserved.
‘the ruin of a multitude of young women’. As late as 1838, the editors of
Justice of the Peace asserted that ‘the choice was to be made between the
11
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Frost, Ginger S.. Living in Sin : Cohabiting as Husband and Wife in Nineteenth-Century England,
Manchester University Press, 2008. Pr
oQuest Ebook Central, http://ebookcentral.proquest.com/lib/nscc-ebooks/detail.action?docID=1069613.
Created from nscc-ebooks on 2019-06-18 23:44:10.
living in sin
inconveniences of clandestine marriages and the destruction of one of the
bulwarks of morality, and the legislature adopted the former’. Furthermore,
children born to these unions were illegitimate, and this was no small
consideration, since the English bastardy law was the harshest in Europe.
Illegitimate children were literal y parentless at law (filius nullius), and
even the subsequent marriage of their parents did not legitimise them.8
The position of illegitimate children became even more precarious
after the New Poor Law of 1834. This law’s Bastardy Clause placed the
responsibility of maintaining illegitimates onto their mothers. Women
could no longer name the putative fathers of their children and receive
support from them. Although some changes occurred in this law in 1844
(and more substantial y in 1872), women remained at a disadvantage in
collecting support; in addition, the amount of maintenance was small and
ended when the child reached thirteen.9 And even if women avoided the
legal and financial penalties, they were far more likely than men to face
social snubs. In short, the Hardwicke Act, combined with the New Poor
Law, made marriage both more difficult and more necessary for women.
Accidental cohabitation?
Despite the changes in 1753, the church and secular courts still had to
define legal marriage in the nineteenth century. This should have been
straightforward, due to the specificity of the Hardwicke Act, but it was
not. Many Britons disagreed with the new marriage law and tried to get
around it. More exalted examples of this phenomenon were the children of
George III, who tried to escape from the strictures of the Royal Marriages
Act of 1772 (which specified that the monarch’s children could not marry
legal y without the sovereign’s consent). The Prince of Wales married Maria
Fitzherbert in 1785 by bringing a clergyman out of the Fleet prison and
bribing him; though the marriage was illegal, Fitzherbert had the position
of a pseudo-wife.10 Similarly, George III’s sixth son, the Duke of Sussex,
married Lady Augusta Murray in 1793. Murray was the daughter of an earl,