Living in Sin
Page 14
members of the Society of Friends. When they married, they had to leave
the Society, since Quakers insisted that ‘members of the Society of Friends
must respect that law of which they claim the benefits.’56 In addition, the
legal necessity of regarding a ‘wife’ as a single woman galled many men.
The Indian army officer complained, ‘I am obliged to make a will leaving
whatever property I give to my wife to her in her maiden name. I feel that to
be exceedingly grievous.’ A man in Norfolk had the same problem, having
to refer to his second wife as a ‘reputed Wife’ in his wil . The dry legal
terms do not indicate the distaste the men and women felt about being
semantical y ‘unmarried’ in these documents. And the legal disabilities
went further; any man who did not plan careful y could leave his spouse
without support. A Norfolk woman could not get maintenance from her
husband’s estate when he went insane, since she was not his legal wife.57 All
of these issues must have separated the couple from those around them,
especial y the women.
Stil , many affinal couples insisted that the dominant reaction of their
friends was supportive. The businessman in Manchester testified that ‘I have
never found any possible inconvenience arising from it … I have rather had
commendation’. When asked specifical y about his wife, he insisted that she
found no difference either. The stockbroker who wrote to all of his friends
and acquaintances to warn them about his remarriage claimed that he did
not receive a single snub.58 Despite an occasional problem, Edith and Hunt
had support from their friends, including Dinah Craik, who travelled with
Edith to Switzerland for the ceremony. Indeed, Lucy Rosetti was ‘quietly
outraged’ by her sister-in-law’s snub of Edith, indicating that differences of
opinion could be strong within families.59 Some people even managed to
remain successful in their careers. A clergyman in the Church of England
went to Switzerland to marry his sister-in-law. The pair remained there
some years until the wife’s health required a return. Since they had lived in
Switzerland several years, they had established a domicile, and thus could
argue that they were legal y married. Though he had to wait through a
three-year probation, the man eventual y got a licence to preach again.
Similarly, James Low won election to the Corporation of London both
before and after his affinal marriage.60
The majority of the time, the wider community accepted the marriage
Copyright © 2008. Manchester University Press. All rights reserved.
as valid. In other words, they did not support cohabitation, but instead had
a wider definition of marriage than the law. As a vicar wrote to the Royal
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affinity and consanguinity
Commission about a couple in his parish: ‘their friends and neighbours
regard it as a legal marriage’.61 One woman who wrote a letter during the ‘Is
Marriage a Failure?’ controversy in 1888 admitted that she had married her
brother-in-law seven years before. She insisted that their friends saw them
as ‘legal y married in our Maker’s sight’. The attitude only grew stronger
as the century went on, since more people believed in marriage as a
relationship rather than an institution.62 This growing acceptance probably
helped mitigate the greater intolerance of the church.
These couples had reasoned out their defiance of the law. First, since
scripture did not forbid the marriage, the law had no right to do so. The
Manchester businessman, like Annie Bailey, said he had searched the
Bible, but found no prohibition in the scriptures. Similarly, Samuel Watson
asked four ministers for advice before going through with the ceremony
with his deceased wife’s sister. All ‘told him there was no harm in it,
but it was contrary to law.’ Not surprisingly, Watson did as he wished.63
Second, because such marriages were not against God’s law, any act to ban
them was tyrannous and unreasonable. The Indian army officer insisted
that ‘I consider such prohibition an infringement of my natural liberty.’
Several of the witnesses warned that the laws were so far out of balance
with popular views that they were bound to cause problems. As Garbett
put it, ‘I think the argument, “You ought not to set the law at defiance,” is
one which is very difficult to urge upon people when their affections are
deeply interested … I do not think the law should put persons in such a
position.’64 The couples involved, then, were not hurting marriage; the law
itself was the problem. The law of affinal marriages undermined marriage,
since normal y conventional couples went outside the law to marry – or
worse, did not marry at al . Since the law defied both scripture and natural
emotions, many people ignored it. This attitude would emerge again with
adulterous and bigamous couples.
Those who worked in the law also had divided feelings. Many judges
and lawyers supported the ban. Baron Bramwel , though he sympathised
with those who married irregularly, nevertheless castigated men for doing
so, since it put their wives and children at risk. Chief Justice Coleridge was
firmly against such unions and fought legalisation, as did Lord Hatherley,
a mid-century Lord Chancellor.65 In contrast, others within the tight legal
community supported repeal of the ban. Edward Clarke, a barrister, came
out in favour of repeal in 1884, and Frederick Pollock, the third generation
of the legal dynasty, was one of Hunt’s strongest supporters.66 Thus, those
who wanted to marry within this prohibited degree could count on some
Copyright © 2008. Manchester University Press. All rights reserved.
high-profile support even within the conservative legal establishment.
All the same, the defiance of most middle-class people went only so
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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
far. Part of the reason for the support for these unions was that the majority
had gone through a marriage ceremony, even though the English courts
did not recognise them. Those few middle-class couples who chose not
to marry were in more tenuous situations. In his testimony in 1848, T. C.
Foster reported that of the 1,648 affinal unions he found, 88 did not marry
because of the law; of these, 32 resulted in ‘illicit cohabitations’. Though
most of these were working-class, Foster did not make any distinctions,
which indicates he included all classes.67 Also, many couples may simply
have announced that they were married wit
hout actual y going through the
ceremony, since a trip to the continent was expensive and made no legal
difference. Though many women wanted some sort of ceremony, others
were less insistent.
Several of the investigators in 1848 discussed middle-class cohabitees.
Respectable people with no wedding at all could fall into serious difficulties.
A Staffordshire widower with four children had his sister-in-law living
with the family after his wife’s death. After a time, they wanted to marry,
but the local clergyman refused them. When the woman became pregnant,
the two knew marriage was impossible, so instead they procured an illegal
abortion. Unfortunately for them, they were discovered and tried at the
assizes in 1844. Though acquitted, ‘the effect upon their social position,
which had hitherto been respectable, is, of course, a total blight.’68 In other
words, respectable people faced a dilemma; they had to be nonconformist
one way or the other, and some chose to abide by the marriage laws, but to
live ‘in sin’. J. S. Thorburne reported a case of ‘a man of wealth’ who lived
with his sister-in-law. He said ‘he would gladly marry but for the uncertain
state of the law.’ According to Thorburne, ‘though he is living in open
concubinage, his neighbours sympathize [sic] with him’.69 The choice to
cohabit openly was out of step with the general middle-class solution to the
problem, but perhaps these couples had a better grasp of the legal situation.
If the marriage would be invalid, why go to the expense?
In addition, any couple outside the narrow parameters of acceptable
affinal unions had severe difficulties. Robert James was a ‘clerk in holy
orders’ in Wales in the 1870s. When his wife died, he lived in a cottage
with his stepdaughter, Emma Alice Hamer. The neighbours insisted that
they ‘lived at a cottage in the vil age in every respect as man and wife’,
and the rumours became rampant when Emma had a child and the two
shared a hotel room when they went to register the birth. The Archbishop
of Canterbury sent a commission to investigate, and the commission
uncovered the fact that James had lied about his relationship to the child
Copyright © 2008. Manchester University Press. All rights reserved.
on the birth certificate. The authorities prosecuted him for putting false
information on the register (he called himself the father, the cousin, and
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Frost, Ginger S.. Living in Sin : Cohabiting as Husband and Wife in Nineteenth-Century England,
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affinity and consanguinity
the uncle of the child at different times). The jury convicted him, and Chief
Justice Coleridge gave him five years in prison. Since few working-class
men who perjured themselves got much punishment, this case indicates
that, as in violence cases, a middle-class man who went too far outside the
norm could suffer grave consequences.70
With such examples before them, few middle-class or upper-class
women agreed to cohabit; the vast majority of middle-class women insisted
on a ceremony. Because so few economic opportunities for women existed,
they were particularly vulnerable if the relationships failed. Most open
cohabitees, then, were working-class, who had a more elastic definition of
marriage and less to lose. Stil , even with a ceremony, middle-class affinal
couples had many challenges. This was one reason that they worked so
hard to legalise their unions, and, in this instance, they worked in tandem
with poorer couples.
Conclusion
Both the working and the middle classes engaged in ‘incestuous’ unions
during the nineteenth century. Often the couples went through some sort
of wedding, despite the fact that this did not change their legal status.
Working-class couples persisted in these ceremonies in the face of possible
prosecution for perjury; many assumed, correctly, that juries would
sympathise with them. On this issue, then, the legal definition of marriage
was out of line with many Victorians’ views. Too close relationships by blood
provoked disapproval and disdain, but marriages with in-laws seemed not
only acceptable, but even desirable, to a large number of people.
The preference for in-laws indicates several things, especial y
the importance of proximity. In the working class, related women and
men became intimate because the women served as housekeepers and
stepmothers. The woman performing the roles of wife was often the key;
she had already ‘tried out’ for the position. Men, women, and children
all benefited, as well as the extended family, which preferred a second
marriage that kept the family circle intact. These factors also influenced the
middle classes and are good examples of the importance of siblings to the
middle-class family.71 The grandmother might well be dead or still caring
for her own young children, so when married daughters became il , sisters
were their mainstays. In addition, keeping a son-in-law in the family was
important to the maternal kin, to protect the rights of the children. With so
many advantages, these marriages often seemed the best solution to homes
Copyright © 2008. Manchester University Press. All rights reserved.
broken up by death.
For the most part, couples wanted to go through a ceremony; the vast
67
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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
majority did not dislike marriage itself. In fact, they were willing to go to
considerable expense and risk to have a wedding. The marriage law, on the
other hand, was another thing. If marriage laws defied reason and scripture,
couples need not follow them. Indeed, flouting the law of marriage was
so common that the police declined to prosecute most cases. Eventual y,
in the case of marriages with a deceased wife’s sister, Parliament changed
the law, a result that shows the limitations of a view of law as emanating
from the top-down alone. These unions also point out that all classes in
Victorian society might ignore the marriage laws, not just the poor. This
attitude would also be true of those who could not marry due to previous
unions, as the next two chapters make clear. Divorce laws were so far out
of line with the needs of many couples that they defied them. As a result,
the Victorian criminal justice system faced yet another dilemma in dealing
with irregular unions.
Notes
1 Atlay, The Victorian Chancel ors, pp. 115–16; A. Kuper, ‘Incest, cousin marriage, and
the origin of the human sciences in nineteenth-century England’, Past and Present 174
(2002), 163–5. For the prohibited degrees, see Reports From Commissioners on the Laws of
<
br /> Marriage and Divorce with Minutes of Evidence Appendices and Indices. Vol. I. Marriages
and Divorce (Shannon, Ireland: Irish University Press, 1969), ‘Appendix of Evidence’, p.
159.
2 N. F. Anderson, ‘The “marriage with a deceased wife’s sister bil ” controversy: Incest
anxiety and the defense of family purity in Victorian England’, Journal of British Studies
21 (1982), 67–86; E. R. Gruner, ‘Born and made: Sisters, brothers, and the deceased wife’s
sister bil ’, Signs: Journal of Women in Culture and Society 24 (1999), 423–47.
3 P. Morris, ‘Incest or survival strategy? Plebeian marriages within the prohibited degrees
in Somerset, 1730–1835’, in J. C. Fout (ed.), Forbidden History: The State, Society, and the
Regulation of Sexuality in Modern Europe (Chicago: University of Chicago Press, 1992),
139–69; J. Ayers (ed.), Paupers & Pig Kil ers: The Diary of Wil iam Hol and, A Somerset
Parson, 1799–1818 (Stroud: Sutton Publishing, 1984), pp. 77–8; 190.
4 H. Mayhew, London Labour and the London Poor 4 vols (New York: Dover, 1968), I, 219;
J. K. Walton and A. Wilcox (eds), Low Life and Moral Improvement in Mid-Victorian
England: Liverpool Through the Journalism of Hugh Shinmin (Leicester: Leicester
University Press, 1991), p. 110.
5 Conley, The Unwritten Law, pp. 121–2.
6 A. Wohl, ‘Sex and the single room’, in A. Wohl (ed.), The Victorian Family: Structure and
Stresses (New York: St Martin’s Press, 1978), 197–216.
7 R. Roberts, The Classic Slum: Salford Life in the First Quarter of the Century (London:
Penguin Books, 1973), p. 27.
8 Reports from Commissioners on the Laws, ‘Minutes of Evidence’, pp. 6, 7, 32, 74, quotes
Copyright © 2008. Manchester University Press. All rights reserved.
from pp. 6–7.
9 Reg. v. St Giles in the Field (1847), 11 Law Reports, Queen’s Bench Division 173–204; The
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affinity and consanguinity
Times, 15 June 1847, p. 7; Reg. v. Brighton, 30 Law Reports, Magistrates Cases 197–201.
10 Justice of the Peace 68 (1904), 521; Morris, ‘Incest or survival strategy’, 149.