Living in Sin Read online

  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

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  Frost, Ginger S.. Living in Sin : Cohabiting as Husband and Wife in Nineteenth-Century England,

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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

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  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

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  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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  Frost, Ginger S.. Living in Sin : Cohabiting as Husband and Wife in Nineteenth-Century England,

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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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  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

  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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  Frost, Ginger S.. Living in Sin : Cohabiting as Hu
sband 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.

  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