Wiener’s view that some judges castigated violent male defendants as
‘unmanly’. In my cases, the brutality of working-class cohabitees offended
the judges in part because the men asserted control over women without
having married them.
Though lower courts had the well-earned reputation of being
unsympathetic to abused wives, some coroners did their part to ‘civilise’
male behaviour. The coroner in Newcastle in 1856 influenced the jury to
commit William Fleming to trial for wilful murder instead of manslaughter,
since he had beaten his cohabitee Ann for five years. The coroner insisted
that ‘his conduct towards her has been most unmanly, and his usage of
her most savage and brutal.’ Similarly, the coroner in Thomas Brown’s case
supported the jury’s decision to indict him for wilful murder of Elizabeth
Caldwell; Brown had sawn off Caldwell’s head when both were drunk. The
coroner exclaimed, ‘a more deliberate and brutal thing I never heard of. I
cannot think how you could go and inflict a wound of this kind upon a
woman you profess to love so much.’23
The main impetus for reforming male behaviour, though, came from
high court judges. Justices had much latitude in the nineteenth century, so
their treatment of violent offenders varied. In her study of criminal justice
in Victorian Kent Conley gives several examples of justices who supported
Copyright © 2008. Manchester University Press. All rights reserved.
lower charges and short sentences against men who killed their wives or
cohabitees. But Conley also documents a growing tendency to be harsher on
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violence and cohabitation in the courts
working-class male violence over time.24 And some justices cracked down
on domestic violence as early as the 1850s. Justice Martin, in sentencing
George Mulley, a porter, for stabbing his cohabitee in 1855, insisted ‘they
[the judges] had come to the determination of passing the fullest sentence
allowed them by law, in the hope of making an example to deter others
from similar acts of brutality.’ Martin then transported Mulley for life.25
In that same year, Justice Wightman made a similar speech at the trial of
Maurice Hearn, who was found guilty of manslaughter after beating and
kicking Jane Kelly to death. Though Kelly was no angel, Wightman insisted
that Hearn ‘had been convicted of a most unmanly and brutal act,’ and
sentenced him to seven years.26
Neither of these judges made any distinctions between lawful and
unlawful wives in their desire to protect women, and this was typical.
Justice Denman, in 1890, heard the murder trial of George Bowling who
had beaten Eliza Nightingale to death with a hammer. Denman made a long
speech about domestic violence when he sentenced Bowling to death:
Over and over again, nowadays, we see the terrible state of things which
indicates a sort of belief on the part of men who are living with women
either as their wives or as you are living with the deceased, they have a
power of life and death over them, that if the woman … makes herself
disagreeable to the man, that the man, who is unworthy of the name of
brute – it would be an insult to the brute to say that he was like a brute
– thinks himself justified at once in … acting as her executioner.27
Like the magistrate in Stubbs’s case, Denman thought Eliza deserved the
protection of a wife, despite her illegal status.
Indeed, judges did not limit themselves to speeches after the trials
were over; they also influenced juries to find defendants guilty of murder
rather than manslaughter. In two trials in 1862 and 1866, Baron Martin
dismissed the extenuating circumstances of the killings and persuaded
the juries to hang the defendants.28 In 1877, Justice Grove refuted Caleb
Smith’s attempt to plead manslaughter by pointing out that he had used a
knife (showing premeditation) and had no immediate provocation. Grove
repeated his opinion to the Home Secretary, pointing out that Smith killed
his lover from‘an excessive fondness … & a jealous fear that she should
leave him’, and Smith hanged on 14 August 1877.29 Judges were also
suspicious of pleas of ‘excited feelings’. Justice Hawkins, in a murder trial in
1878, rebutted the defence barrister’s attempt to have the charge reduced
because of the defendant’s passion. Hawkins insisted, ‘No man was excused
Copyright © 2008. Manchester University Press. All rights reserved.
by the law from the consequences of his act because he did it in a moment
of excitement.’ Like Grove, Hawkins later insisted to the Home Office that
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Created from nscc-ebooks on 2019-06-18 23:44:10.
living in sin
there was ‘no palliation of the crime’ in the evidence. Numerous judges also
rejected drunkenness as an excuse; a man could not excuse his inebriated
actions if he had voluntarily put himself in such a state.30
Insanity pleas also received short shrift. Earnest Southey murdered
his three sons with his cohabitee, Mrs White, and then murdered his legal
wife and daughter in August of 1865.31 Southey’s barrister, E. T. Smith,
pleaded insanity, and since Southey made many wild accusations and
suicide threats, the defence had merit. Justice Mellor, however, stated flatly
that Southey had showed ‘sense and sanity of mind’ while in prison. Not
surprisingly, the jury found him guilty. Henry Poland, the prosecuting
barrister, expressed the difficulties of meeting the legal definition of
insanity when he described Southey as ‘probably half brute, and half mad
in the popular though not in the legal sense.’ Though Southey’s case was
unusually brutal, other defendants had equally poor success with pleas
of temporary insanity. Justice Denman demolished Thomas Smithers’s
attempt to plead insanity due to his epilepsy, insisting to the Home Office
that he was ‘not of entirely sound mind’, but still knew ‘the nature & quality
of his act’. Not surprisingly, only four defendants in my sample were
acquitted for insanity, two men and two women.32
The gender dynamic evident in the reaction of judges to male
violence fused the two contradictory impulses in the criminal courts
towards cohabitation. These judges held the men responsible both for the
cohabitation and the violence. A man who did not marry a woman could
not expect her to behave well nor to run an orderly home. If he so forgot
himself as to add violence to his sins, he deserved the highest punishment.
By focusing on fallen men, judges and juries ignored a counter-argument
that cohabiting women did not deserve to be treated as spouses; on the
contrary, they extended the need for husbandly protection to such women.
In these instances, judges and juries agreed.
Judges v. juries: class and gender differences
All the same, juries dissented from the judges’ opinions on occasion. Most
jurors were lower-middle or middle-class men who saw little difference
between regular and irregular unions.33 They also understood more clearly
why many couples cohabited and did not assume that the men chose it. In
addition, they may well have sympathised with the defendants’ wider range
of justifiable ‘correction’. Thus, conflicts between judges and jurors occurred.
For one thing, judges did not always support juries’ recommendations to
Copyright © 2008. Manchester University Press. All rights reserved.
mercy. The jury in William Abigale’s case recommended mercy ‘on account
of the prisoner’s youth’ (he was twenty). Baron Pollock, though, told the
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violence and cohabitation in the courts
Home Office that Abigale’s murder of his pregnant lover was without ‘any
excuse that I can see.’ Abigale was hanged in May 1882.34 In 1893, George
Cooke, a policeman, beat Maud Merton, a prostitute, with his truncheon
and then asphyxiated her; she had ‘pestered’ him after their relationship
ended. The jury recommended mercy, but Justice Hawkins disagreed,
telling the prisoner, ‘yours is a case in which peculiar atrocity is manifested.’
Hawkins was just as emphatic when he wrote to the Home Secretary: ‘this
recommendation to mercy astonished me … This was one of the most
cruel murders I ever heard of ’. The Home Office eventually agreed, and
Cooke hanged on July 25.35
For another thing, juries found lesser charges more often than judges
preferred. Since judges had discretion over sentencing, they gave longer
sentences than usual to demonstrate their disapproval. Joseph Fountain,
the man who attacked his cohabitee over ‘showing him up’ in front of his
militia, had badly wounded her when he slit her throat with a razor. The jury
convicted him of intent to do grievous bodily harm rather than attempted
murder. Nevertheless, Justice Blackburn gave him fifteen years, because, he
insisted, ‘it was a very bad case indeed’. In 1895, Justice Grantham presided
over the trial of John Foster, who had killed Mary Johnson by hitting her
with a coal rake. When the jury found him guilty of manslaughter rather
than murder, Grantham lectured him on how fortunate he had been,
before giving him twenty years. Justice Quain was even blunter, telling
an 1875 jury that they were being ‘extremely stupid’ when they wavered
over whether to convict for murder or manslaughter. When they finally
settled on the latter, he gave the defendant fifteen years.36 These courtroom
disagreements indicated a difference in opinion over gender roles, but also
over class, for judges found no justification for working-class domestic
violence.
The jurors may well have been right in their take on these relationships;
judges were unrealistic in expecting men always to ‘make honest women’
of their partners. Some couples did indeed choose to remain unmarried,
but in ninety-two of the cases, the newspaper reported that one or both of
the partners were married to other people. Many of these couples, then,
probably would have married if they could. Thus, the judges’ insistence
that the men were responsible for ‘living in sin’ was incorrect; the strict
law of divorce, and its high expense, kept many of these couples from
marrying. In fact, one could look at it another way and be impressed that
these couples stayed together at all. But such sympathy rarely occurred
from the bench. The defendants’ violence and drinking marked them out
Copyright © 2008. Manchester University Press. All rights reserved.
as unrespectable, so judges assumed that their choice to cohabit was part of
their general disorderliness. Juries, however, understood the circumstances
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living in sin
better, which might in part explain their more merciful approach.
This conundrum points up several contradictions in Victorian
law about the issue of cohabitation, marriage, and violence. On the one
hand, the domestic laws in England supported marriage and discouraged
cohabitation, giving irregular unions no legal recognition and illegitimising
the children. At the same time, the criminal courts often saw the similarities
between marriage and cohabitation in the working class and expected men
to provide and women to obey, with or without vows. This, seemingly,
supported cohabitation by regarding it as practically the same thing
as marriage. In short, the civil law said they were not married, but the
criminal law (at times) treated them as if they were. But it was not this
simple, either. The civil law, with its limited divorce, forced some couples
either to part or live in illegal unions. Cohabitation was a perfectly rational
choice with such restricted options. But the criminal law, particularly late-
Victorian judges, punished couples for this behaviour, regarding them as
irrational. In other words, the civil law helped to create a pathology which
the criminal law then punished when violence erupted. The contradictions
in the legal system make the Victorian anxiety about marriage and divorce
reform understandable, particularly in its effect on the working class.
Middle-class ‘fallen’ men
Though the majority of cases were committed by working-class men, a
minority involved the middle classes, either as one or both of the parties.
Such cases were uncommon and garnered extensive press coverage.
Though rare, these cases destabilised the comforting equation between
cohabitation, drinking, and unruly working-class masculinity. Middle-
class men were well-educated, comfortably funded, and exemplars to
others. When middle-class and upper-class men forgot themselves to the
extent that they not only took part in irregular liaisons, but also committed
violence, judges and juries could be doubly severe. Thus, though high
class status was usually an advantage at the Victorian courts, this was not
always the case. A man who had ‘fallen’ lost his immunity in the eyes of the
court.
Because of the wide press coverage and the small number of cases,
I will centre on two high-profile cases that illustrate the interplay of class,
gender, and cohabitation. Both inv
olve men accused of violence towards a
cohabitee, and the criminal justice system’s reaction to their behaviour shows
the uneasiness of the courts with men who sacrificed their respectability
Copyright © 2008. Manchester University Press. All rights reserved.
for their passions. The best example of the problems for middle-class men
was the 1859 case of Thomas Smethurst.37 Smethurst, a doctor, lived in a
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violence and cohabitation in the courts
boarding house in Bayswater with his wife Mary, who was twenty years
his senior. Smethurst made enough money from medicine to retire at
the age of forty-nine, and the two lived comfortably until Isabella Bankes
also came to the boarding house in 1858. Bankes was a forty-two-year-
old spinster of independent means; within weeks, Bankes and Smethurst
ran away together, married bigamously, and lived under assumed names
in Richmond.
In April of 1859, Bankes became quite ill. She had always been subject
to bilious attacks, but these were worse than normal. When she realised
the seriousness of her condition, she wrote a will leaving her property to
Smethurst, partly under his urging. Smethurst eventually consulted two
other doctors, both of whom became suspicious, and they called in the
police. When Bankes died in May, Smethurst was charged with her murder.
Despite the circumstances, the evidence of murder was weak. The authorities
found no poison in Smethurst’s possession, and the autopsy revealed only
slight traces of antimony in Bankes’s body. Furthermore, Isabella was seven
weeks pregnant when she died, which may have fatally worsened her usual
ill health. Smethurst also did not have a strong motive. Bankes did not leave
much money, and her income from an annuity stopped at her death. Thus,
the matter might not even have gone to trial had the police surgeon not
blundered by claiming he found arsenic in Smethurst’s possession when he
had not (the doctor had added in the arsenic himself while doing the tests).
Living in Sin Page 9