Living in Sin
Page 6
and sued, and the jury found for her, with damages of £1500.53 Often cases
with large differences in class resulted in generous verdicts. In Berry v. Da
Costa (1866), a well-off gentleman lived with the daughter of a milliner
for several months. When he married another woman, the jury gave her
£2500.54
Natural y, not all cohabitees collected damages. Women had to
offer at least some proof that the man intended marriage, and women
with irregular pasts, though not automatical y excluded, had to counter
accusations of immorality. In Irvine v. Vickers, the plaintiff was a prostitute
with a police record for violent behaviour; with such a background, she
Copyright © 2008. Manchester University Press. All rights reserved.
could not convince the jury of the existence of an engagement, and she
lost her case. Furthermore, the contemplated marriage had to be legal, or
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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
the plaintiff could not sue. Hannah Rowlands sued her deceased sister’s
husband; she worked as his housekeeper and had eventual y become his
lover. Baron Pollock dismissed the case, saying ‘A man could no more marry
his deceased wife’s sister than he could marry his grandmother.’55 All the
same, breach of promise cases often allowed female cohabitees to get some
provision for themselves and their children. Though women did not have
a perfect winning record, they did make impressive gains and established
in the minds of judges and juries that a man had a moral obligation to
support a woman he treated as a wife. One should not overstate these legal
advantages, but these cases show that courts believed in men keeping their
promises, with or without marriage.
Supporting the family: illegitimacy and wills
The courts, then, were surprisingly friendly to ‘kept’ women throughout
the nineteenth century, which was probably, at least in part, a strategy to
provide for children of these unions. Illegitimate children became wards of
the parish if the JPs could not find anyone to maintain them, so enforcing
bonds made financial sense. Middle-class and upper-class couples also
worried about supporting children, but they relied on bequests in wil s.
Men and women had to write these careful y; courts assumed that the word
‘children’ referred to legitimate ones only, with rare exceptions. In addition,
the common law assumed that a contract given to support future illegitimate
children was against public policy (encouraging the birth of illegitimates)
and was therefore void. Only settlements written after the birth of children,
and specifical y mentioning those children, stood. A good example was
Wilkinson v. Adam in 1812. John Wilkinson left his property to Ann Lewis
‘who now lives with me’ and to their children, whom he careful y listed in a
ledger. When he died in 1808, his nieces and nephews sued to get the estate.
The court decided that since Wilkinson had specifical y called them the
‘children which I may have by the aforesaid Ann Lewis’, whom he could not
marry legal y (he had a wife living), he must have meant the children in the
ledger. Also, only those children born at the time of the will could inherit,
since an illegitimate child had to acquire ‘the Reputation of being such
Child’ to be included. All three of Ann’s children fitted this description, so
they inherited the estate.56
Unfortunately, the fine lines laid down by the courts meant that
many who desired to provide for their children failed to do so. In Swaine
v. Kennerly in 1813, James Swaine left his estate to his son, Thomas Swaine,
Copyright © 2008. Manchester University Press. All rights reserved.
and then to his grandchildren. Only one of his grandsons was legitimate,
though, so only he inherited.57 In In re Ayles’ Trusts (1876), a man left his
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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
money to his daughter Ann ‘and all the children of my daughter Ann’. At
the time of the wil , Ann lived with James Hicks outside of wedlock and
had three children. She and James wed in 1845 and had one child after
the marriage. When Ann died, the legitimate child inherited everything,
because Ann’s father had simply said ‘children’ in his wil .58
Judges recognised that the parents intended their illegitimate children
to inherit, but did not feel that they could overturn the law. In 1851 a Mr
Pratt had married his deceased wife’s sister, Susan Broom. He made a will
in 1852 when she was about to give birth to his son, leaving a trust to his
‘wife’ and ‘all and every my children hereafter to be born’. Pratt died in 1853,
and Susan soon discovered that the wording in his will was too vague. Sir
John Romil y, the Master of the Rol s, upheld Susan’s right to the trust,
but not her son’s. The wording could possibly refer to legitimate children
of a subsequent marriage, so these phantom children got the right to the
trust rather than Pratt’s actual offspring. Romil y gave the decision ‘with
much regret,’ but it stood.59 In Howarth v. Mil s in 1866, a woman who
married her brother-in-law after the death of her sister made a will at the
birth of her first child. By the time she died, she had four more children,
but because she had failed to make a new wil , specifical y naming them,
they were all cut out of the inheritance. Sir W. P. Wood explained that ‘to
hold that the after-born illegitimate children could take would be a direct
encouragement of an unlawful cohabitation.’60 The problems also occurred
when wider kin tried to include illegitimate children. In 1883, an aunt left
property to her nephew’s illegitimate children, but the court disinherited
the youngest, because she was born after the making of the wil . Like
Romil y, Lord Justice James expressed his opinion ‘with regret,’ but felt that
he had no choice.61
Another problem in inheritance was that illegitimate children without
wil s forfeited their entire estates to the crown. Brook v. Brook, in 1861,
il ustrated this danger. The grandchildren of the couple involved, a man
and his deceased wife’s sister, could not inherit because their father was
illegitimate and died intestate, so the crown took the property.62 Nor could
the parents inherit from their illegitimate issue if the latter died without
a wil . In 1818, David Don, a Scot, had a son with his cohabitee. He later
married the mother of his son; in Scotland this marriage legitimated the boy.
The son settled in Newcastle and bought some land there; unfortunately, h
e
died without a wil . His father was unable to inherit the property, because
in England, the son was illegitimate.63
Similarly, children suffered because the English courts would not
Copyright © 2008. Manchester University Press. All rights reserved.
accept Scots divorces for English marriages. In two cases in 1859 and 1865,
English courts ruled that since the Scots divorces were col usive, they
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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
were invalid in English law. Thus, the children of subsequent (bigamous)
marriages were illegitimate and could not inherit.64
Illegitimate children could prevail in some instances, because many
judges tried to find ways to uphold parents’ intentions. In Beachcroft v.
Beachcroft (1813), Samuel Beachcroft, a long-time inhabitant of India, left
his estate divided between ‘my children’ and ‘the mother of my children’
before he died in 1806. Beachcroft’s companion was an Indian woman, and
they had five children. Beachcroft’s natal family contested the wil , but the
court declared in favour of the children. Though they were not specifical y
named in the wil , they had attained the reputation of being Samuel’s
children. Since Beachcroft also left money to ‘the mother of my children’,
this was another point in the children’s favour. Thus, the Indian cohabitee
and her children succeeded to the property.65
Nor was the above case an isolated instance. In the early nineteenth
century, Nathaniel Wright cohabited with Mary Lomas and had four
children with her. In October 1811, Wright created a trust for Mary to care
for her and ‘his four natural children by her, and also of any after-born
child that Mary Lomas might have by him.’ Mary did have another child
before he died in 1818, so she had five children to care for alone. Nathaniel’s
legitimate son John refused to confirm his father’s settlement, so Mary
sued. The Chancery Court found in favour of Mary and her children,
judging that Nathaniel’s wording had been specific enough to uphold.66
A similar instance was that of Gabb v. Prendergast in 1855. In this case, the
five children of Felix and Elinor Rol and, all of whom were born before
their parents’ marriage, inherited from their aunt, Mary Parry, since she
called them in her will ‘all and every the child or children then already
born or thereafter to be born … of Felix Rol and and Elinor his wife’. Into
the late Victorian period, the courts fulfilled the intentions of those who
left legacies to illegitimate children if they could find a way to do so.67
The oddities of the law of illegitimacy meant that illegitimate siblings
sometimes fought each other over the inheritance. In these cases, the
courts tried to find a way to be equitable. In In Re Goodwin’s Trust (1874),
Mary Goodwin had married her brother-in-law and had two children
who survived her, one born after she wrote her will and one before. In
her wil , she left her property in trust ‘equal y between and among all and
every my children and child by the said Richard Perkins’. Goodwin died in
1860, and her elder son sued to get the estate away from his brother, since
the second son had not been born when she wrote her wil . The Court of
Chancery, however, found for the younger son, Sir G. Jessel arguing that
Copyright © 2008. Manchester University Press. All rights reserved.
‘before the death of Mary Goodwin, William Harry Perkins had acquired
the reputation of being her child by Richard Perkins’.68 Thus, by the end of
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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
the century, the courts were more generous towards illegitimate children,
though the children often had to fight lawsuits to gain their legacies.
As confusing and difficult as these decisions often were, the children
involved and their relatives at least had some hope for maintenance. This
was not true for those in the working classes, where the consequences of
cohabitation might be destitution. Cohabiting couples dealt with the Poor
Law at several points, and the strictures of the law meant that the women
involved were ‘fallen’, no matter how long-standing the relationship, and any
children were illegitimate, taking their mothers’ birth parishes. Sometimes
mothers could affiliate the fathers, but this was not always possible. Parishes
had particular difficulties when cohabitees’ marital status was complex.
The New Poor Law assumed single women bore all bastards. Thus, married
women who left their husbands and had children with other men were
in a grey area. If the husband had access to his wife, the law assumed all
children of a married woman were his. If the husband did not have access,
the woman could make an order of maintenance against the natural father.
Broken and reconstituted marriages, though, complicated the process.
For instance, G. W. D. asked the editors of Justice of the Peace about
the following case. A woman’s husband was transported for a crime in 1840;
she lived with another man during her husband’s ten-year absence, having
his child in 1846. In 1850, the husband returned and the wife went to live
with him again. She asked the justices to make an order of maintenance
against the father of her illegitimate child. Could this be done, considering
that she had not made the order before the child had reached twelve months
old? The editors thought it could, since the putative father had maintained
the child, but the JPs would have to prove non-access of her husband.69
In another case, a woman left her husband to live with another man and
had three children with him. After her cohabitee died, she returned to her
husband, with whom she had another child. When the husband deserted
her, all four children went on relief. The justices could not compel the
husband to support the three illegitimate children, despite his ‘condoning’
her adultery by taking her back. They could, though, sue him to maintain
his wife and legitimate child.70
In fact, no matter how badly the husband had behaved, he could not
be forced to support an adulterous wife. In 1842, a couple married and
lived together for three to four years. The wife then discovered that her
husband had been unfaithful. She left him, and he lived with his lover for
the next forty years. The wife, in the meantime, lived with another man in a
different town. In 1882, the wife’s cohabitee died, and she became a pauper.
Copyright © 2008. Manchester University Press. All rights reserved.
The JPs tried to get the husband
to support her but failed. According to the
law, it made ‘no difference that her adultery has been committed while she
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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
has been living apart from him in consequence of his own misconduct.’71
In short, because of these limitations, women cohabitees often lost support.
Moreover, because they were not married, they could not stay with their
mates even when both were willing to do so. In 1860, a couple went to
the workhouse, and the magistrates prepared to remove them to the man’s
settlement (the place where he had established residency, either by birth
or by residing there a certain number of years). The authorities in the
husband’s parish then discovered that the two were not legal y married. They
separated the couple, and the woman took her own birth settlement.72
When families were broken and reconstituted, then, the children
involved could be left out of the equation. In 1853, Justice of the Peace reported
the story of a couple who had married and lived together for slightly over
a year. The wife then began a sexual relationship with her employer, one
that lasted seven years. She had a child but failed in her attempt to affiliate
it. The JPs were unable to force the husband to maintain the child, and
since the only evidence of non-access of the husband was the word of the
husband and wife – neither of which was admissible – they could not prove
the responsibility of the employer either. Thus, the child was legitimate in
law, but the husband did not have to support it.73 Another example, in 1865,
concerned a married couple with two children. The husband, a soldier, left
England, and the wife lived with another man and had a child with him.
Her cohabitee died, so when the husband returned, she lived with him
again. The husband took his wife and his own children back, but would
not support the illegitimate child. As a result, the mother left the child
behind when the family moved. The magistrates could do nothing, since