Living in Sin
Page 4
but the king still had the marriage voided. Their son, Sir Augustus D’Este,
petitioned frequently to be legitimated, to no avail.11
Less elite examples of attempts to get around the marriage laws also
abound. In Reddall v. Leddiard (1820), the bridegroom, who was twenty,
swore out an affidavit that he was of age, and the bride and her two guardians
acquiesced in the lie, all so that he could marry without his parents’ consent.
Sir John Nichol, one of the judges, complained, ‘they trifle with the sanctity
Copyright © 2008. Manchester University Press. All rights reserved.
of an oath in a manner to undermine the very foundation of society.’ 12 But
judges would remain disappointed in the population’s regard for marital
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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
oaths. In 1830, the Consistory Court in London heard the case Wiltshire v.
Prince, a typical case. Henry John Wiltshire married Elizabeth Prince on
5 February 1828 after the reading of the banns. Henry was a minor who
changed his name – from Henry John to John – in order to conceal his
marriage to the family cook. When his parents found out, they sued to have
the marriage annulled. The court invalidated the marriage; this couple had
clearly acted fraudulently to get around the statute.13
In other words, in this and similar cases, couples defied the law, but
the courts enforced it strictly. The fact that couples refused to accept the
new legal definition was worrisome, however. Furthermore, other sources
showed that people married illegal y in a number of ways, and, unless
parents intervened, the government was reluctant to prosecute. In 1866,
a parson wrote to the Home Secretary, trying to get him to prosecute
two cases in which apprentices had gone to local Registrar’s offices and
‘obtained clandestine marriages through fraud & perjury.’ The Registrar
General refused to help, so the parson turned to the Home Office, who,
likewise, declined to get involved, despite the clergyman’s insistence that
something must be done to stop ‘so serious and encreasing [sic] an Evil.’14
The only time the authorities prosecuted was when one of the couple had
defrauded the other or committed bigamy, both more serious offences.
Even more disturbing than this flouting of the law was a second
complication. At times, the courts made decisions that ignored the
original intent of the parties. In these cases, couples found themselves to
be accidental cohabitees. In 1830, the common law courts invalidated the
marriage of Joseph and Mary Betts. The two had married in 1817 by banns.
The groom used the name Joseph Betts, but the clergyman called the bride
Mary White, though her name was Hodgkinson. Since the parents did not
object to the match, and both were of age, the clergyman had simply made
a mistake. Despite this, the court voided the marriage. The very strictness of
the Act, then, led to uncertainties. The issues were especial y complicated for
illegitimates. Because they had no legal parents, their Chancery Court
guardian had to approve any underage marriages. In Days v. Jarvis in 1814,
the husband did not have permission from the Court of Chancery, and so a
marriage that had been celebrated twice in 1805 was nevertheless set aside.15
Yet a third problem arose when unscrupulous spouses tried to use
irregularities to rid themselves of their mates. John Cope sued to nullify his
marriage to Sarah Burt in 1809 because she had declared herself a widow
and lived under the name of Melville when they married in 1793 (she had
never previously married). Though the outcome of this case is unclear, Burt’s
Copyright © 2008. Manchester University Press. All rights reserved.
false declarations put her marriage at risk.16 Wakefield v. MacKay, a Court
of Arches case in 1808, was more complicated. Isabel a MacKay married
13
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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.
living in sin
Daniel Wakefield in 1805 under the name of Jackson. When Daniel became
disenchanted with her, he sued to have the marriage nullified. MacKay
countered that Jackson was her legal name, since she was illegitimate, yet
the courts found for Wakefield.17 As MacKay’s case indicates, illegitimate
children had special difficulties. In 1796, Harriet Lydiard, a minor, had her
mother’s permission, as well as that of the guardian her father had appointed
for her, when she married. However, she did not have the permission of a
guardian from Chancery. Her husband used this loophole to invalidate the
marriage in 1799.18
To avoid such problems, church courts in particular tried to discover
the intent of parties when marrying. Judges invalidated long marriages
only if they could find evidence of fraud. In 1821, a wife could not escape
her sixteen-year marriage, since the court did not believe her husband
intended to defraud her when he changed his name on the banns. Similarly,
Maria Dormer could not extricate herself from her marriage to William
Henry Williams in 1838, since Dr Lushington believed only one of the
parties had ‘guilty knowledge’.19 But these cases contradicted some of those
in civil courts, adding to the confusion.
These difficulties led Parliament to revise the Hardwicke Act, first
in 1822, with an act which was practical y a repeal of it, and then with an
amended version in 1823 that substantial y reinstated it. In the 1823 act,
Parliament acknowledged that some breaches in the regulations were
inadvertent. Thus, they left it to the courts to determine the intent of
the parties. Though this did not help the Bettses in 1830, it did lessen the
number of marriages voided on technicalities. In 1872, for instance, the
court used the 1823 law to uphold a marriage. This case concerned the 1841
marriage of William Frederick Gompertz and Georgiana Adelaide Harvey.
The banns were published in the names Frederick Gompertz and Adelaide
Harvey, when the couple were nineteen and eighteen. Frederick insisted
that he shortened the names ‘for brevity’s sake only.’ They lived together for
twenty-four years until Adelaide’s death when a dispute over her will led to
the court case. The Chancery Court found in favour of Gompertz, because
there was no fraudulent intent.20 Nevertheless, the general public remained
confused, and many couples must have feared making even slight errors in
their marriage ceremonies.
Blood, empire, and nationality
Another seemingly unambiguous issue was that of marriage within the
Copyright © 2008. Manchester University Press. All rig
hts reserved.
prohibited degrees. Any marriage with those too closely related by blood
or affinity was void. English laws followed, for the most part, the decrees
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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
from Leviticus 18, which barred marriage with kin of first and second
degrees: ‘parents, siblings, aunts and uncles, children and grandchildren,
and half-siblings; plus their spouses and equivalents by marriage.’21 But
even here, the issue became muddled. Before Lord Lyndhurst’s Act of
1835, such marriages were voidable, but not automatical y void, at law. In
other words, if someone challenged the marriage during the lifetime of the
parties, the marriage was invalid. If not, then the marriage, though illegal,
was not invalid and the children were legitimate. A typical case was Watson
and Watson v. Faremouth and Others, heard in 1811. Samuel Watson was
Catherine Kingwel ’s brother-in-law, but they married and had children.
When Watson’s mother died, his relatives sued to have his marriage voided
so that they could inherit the entire estate. Since Watson and Kingwell were
still alive, the Court of Arches duly found against the marriage, declaiming
‘this was an incestuous cohabitation that ought to be put an end to’.22
Despite this danger, many couples married illegal y, particularly if they
were confused over the status of illegitimate siblings. In Ware v. Ware, Ann
Ware married a pair of half-brothers; her second mate was Thomas Ware,
who was illegitimate. When she sued to have her second marriage nullified,
Thomas defended himself by insisting that illegitimate siblings were not
included in the laws of consanguinity. The court nullified the marriage,
since Ware’s assumption was incorrect.23 This would seem to have settled
the point, yet almost 150 years later, couples still claimed confusion on the
issue. In 1901, William Perry was charged before the Exeter Assize Courts
with lying about his relationship with his niece, Alice Jackman, whom he
married in December 1900. Perry’s defence was that ‘the mother of the girl
the prisoner married was an illegitimate daughter’. Because of his apparent
ignorance, the jury acquitted him, though his marriage was still invalid.24
To add to the difficulties, only registered chapels could perform
valid marriages, and people did not always know which ones were legal.
Furthermore, as the population boomed, the Anglican church could not
keep up with the explosion. Parliament had to pass bil s expanding the
number of legal sites for marriage in 1781, 1804, 1825, and 1830.25 As the
empire grew, the problem became global. In 1867, J. D. Powles, the chair of
a mining company in Brazil, petitioned the Home Secretary to register the
local Anglican church to perform marriages. The nearest place to marry was
in Rio de Janeiro, too far for poor miners. Most of them, then, cohabited;
in fact, two doctors working in the area had not married legal y either. The
undersecretary wrote to assure Powles that the bill was being prepared;
these kinds of bil s must have been necessary wherever the British Empire
Copyright © 2008. Manchester University Press. All rights reserved.
spread.26
Adding another layer to the confusion, English law was different
15
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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.
living in sin
from Scotland and Ireland, as well as most of continental Europe, and the
courts had to determine which foreign marriages to recognise. In 1777,
Edmund Middleton, aged eighteen, married twenty-eight-year-old Martha
Janverin in Flanders without the permission of his mother, his guardian.
When they returned to England, they kept the marriage a secret. In 1780,
Middleton refused to support Janverin, and she sued for maintenance. In
this instance, the judges declared the marriage void because they concluded
that the marriage was invalid both in Flanders and in England, but they
saw the principle as wider than this. Sir W. Wynne concluded, ‘It is true
that a marriage had abroad is not within that act. But it does not follow
from thence that it is good by the law of England.’27 English subjects had
to follow English marriage law, and under the latter, Middleton was too
young to contract a marriage without his parent’s consent.
English judges equal y had to deal with cases coming out of Scotland,
as Scottish law on both marriage and divorce varied from English law.
The English law of divorce was quite strict. Divorce virtual y did not exist
before 1857, and even after the Matrimonial Causes Act of that year, it
was limited. The Divorce Court met only in London and the process was
expensive. Furthermore, the grounds for divorce were few and biased in
favour of men. Men could divorce for a single act of adultery, while women
had to prove adultery and some other offence, such as cruelty, desertion,
or bigamy. In addition, divorces required an innocent party; if both mates
were guilty of actionable behaviour, the court almost always refused relief.
As a result, most legal marriages were lifelong unions.28
The Scots had a looser marital regime. For one thing, they still
recognised irregular marriages. For another, Scottish law allowed divorce
on the grounds of desertion of four years and, for women, simple adultery.
As a result, English couples eloped to Gretna Green to marry secretly, since
it was just over the English–Scottish border and couples could wed there
without parental consent from age sixteen. English couples also tried to get
Scots divorces when their English marriages failed. Scots courts accepted
jurisdiction at times, but English courts did not uphold their decrees.
Samuel Beazley married a Miss Richardson in 1810 in England, but they
separated in 1813. Mrs Beazley went to Edinburgh in 1823 and divorced
Samuel on the grounds of adultery. On the strength of that divorce, Samuel
married Emily Conway in Edinburgh. In 1831, Emily, too, found Samuel’s
society uncongenial and sued to have the marriage annulled on the grounds
of bigamy. The question, then, was if an English marriage could be ended
in a non-English court. The English court found that because Samuel
Copyright © 2008. Manchester University Press. All rights reserved.
and his first wife were both English subjects, they could not divorce in
Scotland.29 In short, the first Mrs Beazley used the difference between the
j
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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
Scots and English laws to escape her marriage, and this allowed the second
Mrs Beazley to escape hers as wel .
The differences between Scotland and England sometimes worked
the other way. In Fenton v. Livingstone (1859), the issue was reversed. In
1808, Thurstanus Livingstone married his deceased wife’s sister in England;
both husband and wife were English and their son was born there. Since no
case was brought to void the marriage before the death of Mrs Livingstone
in 1832, the marriage was legal in England. However, Livingstone had
property in Scotland, and when his son tried to succeed to the land in
1859, he could not, as the Scottish courts considered him illegitimate. In
Scottish law, marriages with a deceased wife’s sister were automatical y
void.30 Thus, though some couples managed to use these escape clauses,
the majority did not. If the English courts would not accept Scots divorces,
English couples had little incentive to attempt it, and the number of such
attempted divorces reduced to a trickle by 1820.31
These high court cases show that many issues unsettled marriages,
but the uncertainty of marriage law is even clearer when reading the
correspondence of magistrates across England. The main journal of these
men was Justice of the Peace, and in each issue the editors included a section
answering questions from JPs. Magistrates were primarily concerned with
finding support for those chargeable to the parish. If a woman was not
married to her mate, he was not responsible for maintaining her or her
children, at least after 1834. Thus, magistrates constantly sought guidance
in defining a legal marriage. Their questions showed how many people
ignored the law, as well as the limited knowledge of many JPs.
Sometimes magistrates asked about basic provisions of the Marriage
Act, showing a worrisome degree of ignorance; for instance, one JP (in
1839) did not even know that a marriage of a minor without parental
consent was void. Most, though, were about the many grey areas of the law.
One correspondent wrote in 1868 about a marriage in a Mormon chapel;
the editors duly informed him that it would only be valid if the chapel