Nevertheless, the jury convicted Thomas of murder at his trial in 1859.
The main reason for this result was the attitude of Chief Baron
Frederick Pollock (the first of this name). Pollock was seventy-six at the time
of the trial and was thoroughly against the defendant from the beginning;
indeed, in his lengthy summation to the jury, he re-prosecuted the case.
Since the evidence was weak, Pollock did not dwell on it; instead, he harped
on the doctor’s immorality. Pollock mentioned six times that Smethurst
had committed a felony (bigamy) and three times that he had run away
with a younger woman. His language was sensational; when discussing the
bigamous marriage, Pollock stressed ‘the iniquity, the sin, and the crime
of that act’. Pollock even theorised that Bankes was not a willing partner
in the bigamy, since an educated and well-off woman would not commit a
crime. Thus, Pollock surmised that Bankes had believed that Smethurst’s
marriage to Mary was invalid; only when she made her will did she find
out she was still single. Since she was pregnant, she pressured Smethurst
to prove that their marriage was the real one. Smethurst could not do this
and so killed her.38 Though the prosecution had made no attempt to prove
Copyright © 2008. Manchester University Press. All rights reserved.
this theory during the trial, Pollock crafted it for them, and the jury found
it convincing.
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living in sin
Smethurst’s conviction was wrong to most medical men, and they
persuaded the Home Secretary to issue a pardon in November of 1859.
Even then, Pollock insisted that the murder may have been an attempt at
abortion, but it was still murder.39 Though unwilling to give him the death
penalty, the government wanted Smethurst punished, so the attorney
general arranged a rare public prosecution for bigamy. Smethurst was
rearrested, convicted, and sentenced to a year at hard labour by Baron
Bramwell.40 One must conclude the juries convicted Smethurst more for
his ‘immorality’ than on the evidence. Especially to Pollock, Smethurst, a
professional man, was at fault when he committed adultery and bigamy.
Bankes, on the other hand, was innocent because Pollock could not believe
that a middle-class woman would willingly ‘live in sin’ or participate in a
felony.
Like in the murder trial, Smethurst’s position hurt him in his bigamy
case. His sentence was unusually long, considering that Bankes was a
willing partner in the fraud. Bramwell, in contrast to Pollock, told the court
that he believed Bankes ‘knew the prisoner was married when she went
through the ceremony with him’. He gave Smethurst a long sentence, then,
because he had deserted his wife and because he had committed perjury,
and ‘he, as a man of education, must have known what he was doing’.41
In other words, this trial was another occasion where Smethurst’s class
hurt him. Even more ironic was the partnership of Bramwell and Pollock
in punishing Smethurst. In August 1858, Pollock wrote to Bramwell, a
younger judge, insisting, ‘a legal sentence is not a punishment for moral sin
… its object is to deter others with as small an amount of human suffering
as will answer that end.’42 Smethurst could be forgiven for thinking that
neither judge had followed this precept in his two criminal trials.
In some ways, Smethurst’s case is the reverse of the Florence
Maybrick murder trial (in 1889), in which a middle-class woman was
convicted of poisoning her husband more because of her adultery than
from the evidence.43 In that case, too, a large number of people pressured
the government to release her, though it took ten years. Like Maybrick,
Smethurst’s adultery and willingness to commit a crime wiped out the
advantages he should have had from his position. Instead, his status hurt
him; a bigamous marriage was not such a disgrace in the working class and
so would not constitute a motive for murder. In addition, as we will see, few
working-class men served a year for an ‘honest’ bigamy, even though they,
too, took false oaths. Smethurst discovered that the courts were not always
sympathetic to male sexual freedom; the idealisation of the middle-class
Copyright © 2008. Manchester University Press. All rights reserved.
woman meant that the blame for irregular relations fell on the men.
Smethurst’s alleged victim was in his own class. But even with cross-
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violence and cohabitation in the courts
class relationships, the middle-class man might be censured for immorality;
after all, a man with both class and gender superiority should be especially
chivalrous. Nevertheless, these cases usually meant that both partners
faced character tests. These points are well illustrated in a murder trial in
1875. Henry Wainwright, the owner of a brush business and a married
man with five children, took Harriet Lane as his mistress in 1871. Harriet
was the youngest child (of eleven) of John Lane, a labourer, and she was
a milliner’s apprentice when she met Wainwright. They had two children
and lived together under the name ‘Mr and Mrs Percy King’ in the early
1870s. By 1874, relations had cooled between them, because Wainwright
went bankrupt that year and could not continue to support her. Harriet’s
financial difficulties were severe, and she pawned many possessions,
including her ‘wedding’ ring.
On 11 September 1874, Henry gave Harriet £15 to clear her debts,
and she went off to new lodgings, while her children lived with a close
friend, a Mrs Wilmore. After that date, Lane disappeared. When she had
not communicated for several days, Wilmore and Lane’s family questioned
Wainwright. Wainwright told them she had run away with a friend of his,
a man who insisted that she stay away from her family. When Wilmore
received a letter supposedly from Harriet’s new lover, her family accepted
this story. A year later, on 11 September 1875, police caught Wainwright
transporting Lane’s partially decomposed body across town. The autopsy
revealed that Lane had been shot in the head three times and had her throat
cut. The police soon discovered the grave in the cellar of Wainwright’s
warehouse where she had lain for the past year, and they arrested him for
murder.44
During the trial, the prosecution amassed an impressive case against
Wainwright for murder and against his brother Thomas as an accessory.
Most of the evidence was factual, but the trial also turned on the characters
>
of Wainwright and Lane. According to the prosecution, Lane was like a poor
heroine in a melodrama, ‘seduced’ by an older, wealthier man. Though she
had been weak, she was also a fond mother and good friend. Attorney-
General Holker insisted that such a loving mother and daughter would not
suddenly leave with a strange man and never write again.45 In contrast, to
the defence, Lane was frivolous and promiscuous; she refused to support
herself, drank too much, and left the care of her children to servants.
Thus, she might well run off with a virtual stranger, which was probably
what she had done. Lane was vulnerable to these criticisms because of her
class. Middle-class women rarely worked outside the home and employed
Copyright © 2008. Manchester University Press. All rights reserved.
servants as a matter of course. Lane, a milliner, was different. In addition,
her affair with a married man left her open to accusations of promiscuity;
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living in sin
indeed, Henry later insisted that she had been a prostitute and had an affair
with Thomas as well as himself.46
Historians have noted that working-class female victims of violence
had to pass character tests. Thus, the prosecutors had a problem, since Lane
was not pure and had been publicly drunk at least once. Fortunately for
them, the defence had a bigger problem, since Wainwright’s character was
also badly flawed. The defence barrister, Mr Besley, tried to mitigate the
circumstances by calling Harriet a prostitute and saying she initiated the
affair. He also argued that the defendant had decided to end the relationship,
in deference to his wife and family. Moreover, Henry supported Lane as
long as he could, but she was never satisfied, bleeding him for money and
threatening him with exposure.47 Besley ended by asserting Henry’s middle-
class credentials. As Wainwright himself later put it, he was a model citizen
– a school manager and a church-goer – ruined by his obsession with a
worthless woman.48
The prosecution did not allow this interpretation to go unchallenged.49
Primarily, Holker stressed that Wainwright was an utter failure. He was
promiscuous, keeping a mistress and also picking up girls at ballet halls. He
was bankrupt, and his money woes were his own fault; he was a gambler
and had produced two families to support despite his shrinking resources.
His financial failure meant that he could not provide for Lane, much less
make things right by marrying her. Furthermore, he had blackened her
name to her family. These were not the actions of an honourable man, but
of someone capable of a horrific crime.
Chief Justice Cockburn’s attitude was complex. In his summation,
he described Lane as ‘an angry, clamorous woman, for whom he [Henry]
had probably ceased to care’ and who was a ‘constant source of danger’.
But Harriet’s failings did not excuse the crime. In fact, Cockburn summed
up the evidence firmly against the defendant and his brother; the jury
could have had little doubt about Cockburn’s views of each man’s degree
of guilt. After a complicated trial of nine days, the jury took less than an
hour to convict Henry of murder and Thomas as an accessory after the
fact. Wainwright hanged on 21 December 1875. Cockburn gave Thomas,
who had apparently written the fake letters and helped Henry move the
body, seven years. Cockburn, in sentencing Henry, approved of the jury’s
decision: ‘There can be no doubt that you took the life of this poor woman,
who had been on the closest and most intimate terms of familiarity and
affection with you, and who was the mother of your two children … It was
a barbarous, cruel, inhuman, and cowardly act.’50 Cockburn agreed with
Copyright © 2008. Manchester University Press. All rights reserved.
the prosecution that Wainwright was a failure in every important respect
– as a husband, provider, and protector.
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violence and cohabitation in the courts
Though the double standard in Victorian England allowed men
more latitude in extra-marital affairs, such leeway had limits. A man
who beggared his legitimate family by keeping another could not make
a convincing case that he was provoked to violence by a cunning woman.
Lane was working-class and possibly both drunken and promiscuous, but
her sins paled in comparison. As in Smethurst’s case, the criminal justice
system punished the middle-class man in part for his sexual irregularity.
Henry could not blame Lane, since he was equally, if not more, at fault.
Thus, he went on trial for the capital charge, not manslaughter, and the
Home Secretary found no reason to extend mercy.
Whatever the class, then, the attitude of the Victorian state towards
cohabitation was ambivalent. The civil and criminal laws did not always
work in tandem, and judges and juries could also disagree about the
appropriate response to domestic violence. The criminal courts increasingly
cracked down on violent cohabiting men, confusingly treating these couples
as married and unmarried at the same time. On the one hand, judges
blamed the men for irregular unions, despite the fact that many could not
marry. Juries were more sympathetic, but, overall, male cohabitees faced
increasing sentences for their ‘irrational’ behaviour. On the other hand, the
court agreed that the couples should follow the gendered expectations of
marriage: men should provide, and women should obey. In other words,
these cases exposed the difficulty in adjudicating a status – common-law
spouse – that had no legal standing.
Cohabitees were, of course, a minority of those who came into the
courts, civil or criminal. All the same, their cases indicate that large numbers
of couples lived outside of legal matrimony in the nineteenth century. Who
were these couples? And why did they ignore the laws? The rest of this book
explores these questions. Those who lived together without marriage had
a wide variety of motives, and their relationships with each other, their
families, and the larger community were closely related to their reasons for
flouting the law. If the couple had no choice, they were more likely to get
sympathy for their plight. Not surprisingly, then, the first group, those who
could not marry, was by far the largest one, and included people from all
classes. They were ‘victims’ of the Hardwicke regime, the limited access to
divorce, and the tightening of laws against marriage within the prohibited
d
egrees. As we will see, the courts frequently had to contend with hard
cases and obdurate juries with these couples as well, but the couples’ main
concern was with reconciling their friends and themselves to their choice
to live outside the law.
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living in sin
Notes
1 I read the Lancaster Guardian for regular five-year intervals (1850, 1855, etc.). The
years I used in the Yorkshire Gazette were 1850, 1855, 1865, 1870, 1876, 1882, 1885,
1892, 1895, and 1899. Those in The Times were 1853, 1856, 1863, 1866, 1872, 1878,
1884, 1891, and 1893. To find this sample, I read through all the issues of the Yorkshire
Gazette and the Lancaster Guardian (both weeklies) in ten separate years between 1850
and 1905, collecting police, assize, and magistrates’ court reports. For The Times, I read
the police, assize, and Old Bailey reports for four months (March–April and August–
September) in nine separate years between 1853 and 1893. I used two local papers
to avoid having London-centred history, and I chose Lancaster because it was a good
example of an industrial area (with high levels of women’s labour) and because I could
supplement its records with the Elizabeth Roberts’s Oral History collection at Lancaster
University. I added Yorkshire in order to get a more rural area. After assembling the
cases, I looked at the Old Bailey Sessions papers and Home Office records of the trials.
2 Many reports listed the men’s jobs, but in some cases, the reports said simply ‘poor’ or
‘residing in a low part of town’. If the preponderance of evidence pointed to the working
class, I counted it as such.
3 A. J. Hammerton’s sample in Preston had 25 per cent middle-class cases, Cruelty and
Companionship: Conflict in Nineteenth-Century Married Life (London: Routledge,
1992), p. 37; S. D’Cruze’s had 8.8 per cent, Crimes of Outrage: Sex, Violence and
Victorian Working-Class Women (DeKalb, IL: Northern Illinois University Press, 1998),
p. 65.
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