PERSUASIONS ON-LINE V.36, NO.1 (Winter 2015)

The Marriage Law of Jane Austen’s World

Martha Bailey

 

Martha Bailey (email: baileym@queensu.ca), Professor of Law, Queen’s University, Canada, holds a doctorate in law from Oxford University.  She has published extensively on current and historical aspects of family and marriage law.

 

marriage is the central theme and conclusion of Jane Austen’s novels.  But marriage in Regency England was a very different institution from what it is here and now, in large part because of changes in the law relating to marriage.  Knowledge of the marriage law of Austen’s world gives a deeper understanding of her books.  More importantly, the books give us a richer appreciation of how marriage laws structured the lives of men and women.  Austen conveys the lived reality of those subject to early nineteenth-century laws relating to the economic arrangements of marriage, pre-marital sex, the marriage of relatives, clandestine and underage marriage, divorce, and adulterine bastardy.

 

The economics of marriage

 

The economics of marriage among the nobility and the gentry are not only much discussed in the books but also form the crucial context of the marriage plot.  Many Austen characters are challenged by inadequate fortunes, and marriage is, for some, a solution to their financial difficulties.  Within the normative order of the novels, marriage for money alone is wrong, but marriage without a fortune on at least one side is imprudent.

 

The men who figure in Austen’s novels are certainly more likely than the women to have wealth and income.  To some extent, the relative poverty of women was the result of legal rules favoring men, in particular eldest sons. If the owner of a family estate—the family house and lands and income generated by the land—died intestate, the rule of primogeniture applied:  the eldest son inherited the family estate.  In the absence of children, or of male children, collateral relatives, usually males, in order of seniority, inherited the estate.  Primogeniture was the rule applied in cases where a landowner died intestate.  But in most cases family estates devolved, not by the rules of intestacy but according to wills or settlements.  An outright owner of property did not have to favor his eldest son or other male relations in a will but often did so.  The purpose of favoring the eldest son, either by application of the law of primogeniture or by wills or settlements, was to keep family estates intact and free of heavy obligations to support other family members.

 

Austen shows how the tradition of keeping family property together by bequeathing it to the eldest son, rather than breaking up the property to provide for all, left women in particular at the mercy of the charity of their male relatives.  In Sense and Sensibility, Mr. Henry Dashwood is prevented from protecting his widow and daughters because he is bequeathed only a life interest in the family estate.  On his death the property goes to his son John and then to John’s son.  His daughters are left with just £1000 each.

 

Settlements of property, often made on the occasion of a marriage, typically gave the husband a life interest in the estate, and the property would be entailed on the eldest son (or other male descendant) (Cecil 44).  But the law did not require that settlements follow the rule of primogeniture, and there were exceptions.  In Pride and Prejudice, Lady Catherine de Bourgh comments:  “‘I see no occasion for entailing estates from the female line.—It was not thought necessary in Sir Lewis de Bourgh’s family’” (185).  Lady Catherine is fortunate.  In her portrayal of the Bennet family, Austen reveals the hardship imposed by the usual practice of settling the family estate on the eldest male relative.  The settlement of the family property prevents Mr. Bennet from providing for his wife and daughters after his death.  If a son had been born to the Bennets, the son, rather than Mr. Collins, would have been entitled to the family property on Mr. Bennet’s death.  And a son, on attaining the age of majority, could have entered into an agreement with Mr. Bennet that would have cut off the entail and provided for the rest of the family.  The son’s motivation for making such an agreement often was his desire to marry.  In order to enter into a marriage settlement involving the family property, the father’s consent was required (Neate 18).

 

Younger sons as well as daughters suffered under the general preference for eldest sons.  Their relatively small income and poor prospects made it more difficult for them to marry.  In Mansfield Park, Edmund Bertram becomes much more attractive to Mary Crawford when Thomas Bertram, the eldest son, is apparently on his deathbed.  And in Pride and Prejudice, Colonel Fitzwilliam, speaking of his relative poverty, says:  “‘A younger son, you know, must be inured to self-denial and dependence. . . . Younger sons cannot marry where they like’” (205).  But younger sons could at least enter a profession.  Edmund Bertram is a clergyman, Colonel Fitzwilliam in the military, and John Knightley a lawyer.  Women had no such opportunities.

 

Educational and employment opportunities for women were extremely limited.  Marriage was almost a necessity.  In a letter to Fanny Knight, Austen commented that, “Single women have a dreadful propensity for being poor—which is one very strong argument in favour of Matrimony” (13 March 1817).  Emma, an heiress, is one of the few women able to say, “‘I have none of the usual inducements of women to marry’” (E 90).  Most women were in the position of Charlotte Lucas:  “marriage had always been her object; it was the only honourable provision for well-educated young women of small fortune, and however uncertain of giving happiness, must be their pleasantest preservative from want” (PP 138).

 

On marriage, a husband became legally responsible for the support of the wife.  If she were forced to leave his house from ill-treatment, the husband would be ordered to provide for her in accordance with his means (Ewers v Hutton).  But the cost of obtaining protection from want through marriage was that the wife lost her legal personality.  At common law, husband and wife are one person, and that person is the man.  On marriage a wife became a “feme covert,” that is, a woman under the protection of her husband.  As Blackstone wrote in 1765:

 

By marriage, the husband and wife are one person in law:  that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband; under whose wing, protection, and cover, she performs every thing; and is therefore called in our law-French a feme-covert . . . and her condition during her marriage is called her coverture.  (442)

 

One implication of coverture was that the husband became entitled to his wife’s property and income.

 

Women of the class that Austen wrote about generally had marriage settlements, under which property was settled on the wife in trust for her separate use.  The source of the money settled on the wife might be the wife herself, her family, the husband, or the husband’s family.  A certain amount would be specified as her “pin-money” during the marriage.  Pin-money was for the dress and the pocket-money of the wife.  As well, marriage settlements often provided that a wife would give up her dower rights, a life interest in one-third of all land owned by the husband during the marriage, and receive instead a jointure, a specified sum for her separate use that would be her support if she survived her husband (see generally Howard v Digby).

 

Pre-marital sex

 

Pre-marital sex was a risky activity for women in Regency England.  The reputation of women, though not of men, was lost among respectable society if their sexual activity outside of marriage became known.  Yet some women, tempted by love or lust, or in hopes of marriage, took the chance.  Austen brings home the precarious position of women who engaged in pre-marital sex in her portrayals of unmarried cohabitation.  Lydia Bennet lives with George Wickham, Penelope Clay with William Elliot, and Maria Rushworth with Henry Crawford.  Only Lydia triumphs by marrying her lover and only after Wickham is “‘worked on’” and bribed by Mr. Darcy (PP 306).  Mrs. Clay remains hopeful at the end of Persuasion that her lover will be “wheedled and caressed” into marriage (273).  But the conclusion of Maria’s elopement is dismal indeed:

 

She hoped to marry him, and they continued together till she was obliged to be convinced that such hope was vain, and till the disappointment and wretchedness arising from the conviction, rendered her temper so bad, and her feelings for him so like hatred, as to make them for a while each other’s punishment, and then induce a voluntary separation.  (MP 536)

 

Maria is further punished by having to live out her days with Mrs. Norris as her sole companion.

 

Today, not only has unmarried cohabitation been de-stigmatized, but also many of the rights and obligations of marriage have been extended to those who cohabit outside of marriage, at least in many Western countries (Bailey 35).  In Austen’s day, however, Maria would have had no claim against Henry Crawford for support or anything else.  Austen shows that she has to rely on her father to be “secured in every comfort” (MP 538).

 

Sexual encounters, whether as part of long-term relationships or more casual encounters, created the risk of pregnancy for women.  John Willoughby’s tryst with Eliza Williams not only results in pregnancy but leaves Eliza ruined:  “‘He had left the girl whose youth and innocence he had seduced, in a situation of the utmost distress, with no creditable home, no help, no friends, ignorant of his address!’” (SS 237).  Even if she were able to trace Willoughby, Eliza would have no direct legal claim against him but would have to rely on his generosity to obtain any assistance from him for herself or her child.  But Willoughby could be forced to support the child by the public authorities.

 

Children born outside of marriage were, in legal terms, “bastards.”  Although we are told that “Harriet Smith was the natural daughter of somebody” (E 22), under the law a bastard was actually nullius filius, the child of nobody (Strangeways v Robinson 428).  Those who were destitute were supported by the parish in accordance with the Poor Laws.  But under these same laws, the overseers of the parish could obtain court orders against the father (if he could be identified and found) and the mother to support the child or face imprisonment.  The payments made by the parents were to indemnify the parish against the costs of supporting the bastard child, but in practice they were often given to the mother.  There were concerns during Austen’s day that a “woman of immoral habits could collect a number of such payments from various men in respect of a train of bastards, until she became a local heiress and could make an advantageous match” (Henriques 105).  There were also concerns that unscrupulous women were using the threat of the Poor Law to coerce men into payments or marriage.  If the father was too poor to pay for the support of the bastard, the parish had to bear the obligation.  If the father lived in a different parish, the overseers might coerce the couple into marriage, motivated by a wish to move the obligation of supporting the bastard and any subsequent legitimate children from their own ratepayers to those of the father’s parish.

 

The Poor Laws had no application to bastards such as Harriet Smith who were privately supported.  Emma says of Harriet that “‘[h]er allowance is very liberal; nothing has ever been grudged for her improvement or comfort’” (66).  Willoughby, the father of Eliza Williams’s child, is not so generous.  But for her rescue from distress by Colonel Brandon, Eliza might have been forced to turn to the parish for support of her child.  If that were the case, and if she named Willoughby as the father, the parish could have used the Poor Law to force him to provide support for the child.

 

Marrying relatives

 

Marriages within the prohibited degrees of consanguinity (blood relation) were void for incest.  Although first cousin marriage is today banned by many states and by the canon law of the Catholic Church (Ottenheimer 325; Code of Canon Law, art 1091), first cousin marriage has been permitted in England for hundreds of years, since the rule of Henry VIII and his break from Rome.  The list of relations that one could not marry was laid down in the Marriage Act of 1540 and remained in place during the time of Austen.  Under this law, cousins, even first cousins, were not prohibited from marrying (indeed, King George IV and Queen Caroline were first cousins).  The possibility of a marriage is a consideration for Sir Thomas Bertram when he ponders the wisdom of undertaking the care of his niece Fanny Price:  “He thought of his own four children—of his two sons—of cousins in love, &c.” (MP 6).  In the end, Sir Thomas is well satisfied to have Fanny Price as a daughter-in-law.  It is not a great match that would unite two splendid fortunes, as is that planned by Lady Catherine De Bourgh for her daughter and nephew.  But Fanny brings a clear-eyed sense of right and wrong to the family, a much-valued quality after the moral bankruptcy of the glittering strangers, Henry and Mary Crawford, and of Sir Thomas’s own daughters has been exposed.

 

Marriages between brothers and sisters of course were prohibited by the Marriage Act.  Brothers- and sisters-in-law were covered by the same prohibition:  a man could not marry his deceased wife’s sister, and a woman could not marry her deceased husband’s brother.  Such marriages were within the prohibited degrees of affinity (relation by marriage) and voidable.  The distinction between void and voidable marriages was important.  Void marriages were never good, and any children born to parties in a void marriage were bastards.  Voidable marriages, on the other hand, were valid subsisting marriages unless and until the marriage was annulled.  If a voidable marriage were annulled, any children born to the couple would then become bastards and unable to inherit as legitimate heirs.  A voidable marriage could not be impugned after the death of one of the spouses (Elliott v Gurr 19).  Therefore, a greedy relative hoping to grab an inheritance could not attack the marriage after the death of one or both spouses with the hope of elbowing out the surviving spouse or children.  But while the spouses lived, their marriage could be annulled, and their children would then be bastards.  In order to address the uncertain status of children born to parties in a voidable marriage, the Marriage Act of 1835 validated marriages within the prohibited degrees of affinity that had taken place previous to 1835 and had not been annulled, but it deemed any such marriages that took place after passage of the Act to be void.

 

The 1835 Marriage Act would have applied retroactively to validate the voidable marriage of Austen’s brother Charles with his deceased wife’s sister in 1820.  But the May 1847 marriage of Austen’s niece Louisa Knight to Lord George Hill, the husband of Louisa’s deceased sister Cassandra, would have been void because it took place after 1835.  In an attempt to avoid this result, Knight and Hill went to Denmark to be married (Hillan 132).  Other couples adopted this same strategy, leading to a public inquiry into “the state and operation of the law of marriage, as related to the prohibited degrees of affinity, and to marriages solemnized abroad or in the British colonies,” which included an examination of the marriage of Louisa Knight and Lord George Hill in November 1847 (Great Britain, Commission 26-28).  In 1861, the House of Lords handed down a landmark ruling on the validity of marriages within the prohibited degrees affinity that were celebrated abroad (Brook v Brook).  The case before the House of Lords involved the 1850 marriage of William Brook and his deceased wife’s sister Emily Armitage.  The couple lived in England, but, like Knight and Hill, had traveled to Denmark to marry in order to evade British marriage law.  The House of Lords ruled that the Marriage Act of 1835 applied to all British subjects, even those temporarily abroad to celebrate their marriage.  Therefore, the marriage of Brook and Armitage was void (as, presumably, was that of Knight and Hill).  Heated debates regarding marriage with a deceased wife’s sister continued in Parliament until 1907, when a statute was finally passed allowing such marriages to take place (Anderson 84).

 

At any rate, a marriage with a deceased wife’s sister or a deceased husband’s brother was voidable in Jane Austen’s time.  If John Knightley were to be widowed, he could not enter into a valid marriage with Emma, who is in law his sister.  Nor could George Knightley validly marry Isabella, were she to survive her husband.  But though Emma and Mr. Knightley have a common sister, Isabella, and a common brother, John Knightley, they are not themselves brother and sister.  Emma says to Mr. Knightley, “‘You have shown that you can dance, and you know we are not really so much brother and sister as to make it at all improper’” (E 358).  They are in a sense kin, but not legally brother and sister and not within the prohibited degrees.  We understand from Emma’s words that she has mistakenly cast Mr. Knightley in the role of brother.  This error accounts for her slowness in recognizing him as a lover.  Mr. Knightley’s muscular response, “‘Brother and sister! no, indeed’” (E 358), is thrilling because it signals that he is under no similar mistake and quite ready to step forward as dancing partner and lover.  Of course, a country-dance is “‘an emblem of marriage’” (NA 74).

 

Clandestine and underage marriage

 

Prior to the enactment in 1753 of An Act for the Better Preventing of Clandestine Marriage, commonly known as “Lord Hardwicke’s Act,” couples could marry away from public scrutiny if they could find an ordained clergyman to perform the service.  Because many clergymen were willing to conduct private marriages for a fee, clandestine marriages and irregular marriages (bigamous, incestuous, or involving minors) were a problem (Outhwaite 51-54; Stone, Uncertain 25-34).  Bigamous and incestuous marriages were invalid but caused tremendous harm to women in particular.  A woman who entered into such a sham marriage might surrender her body and property to her apparent husband and then be left unmarried and compromised, perhaps even pregnant with a bastard child.  Marriages involving minors were valid, provided the parties had reached the common law age of consent for marriage, which was just fourteen for boys and twelve for girls (Priestly v Hughes 909).  The problem with such marriages was that they took place over the often well-founded objections of the family.  Legislators sought to prevent all such problematic marriages by imposing rules against private ceremonies.

 

Lord Hardwicke’s Act provided that marriages must take place in a church after the publication of banns (a notice read out on three successive Sundays in the parish church, announcing an intended marriage and giving the opportunity for objections) or after the parties had obtained a special license.  The Act also provided that parties under the age of twenty-one (the age of majority) who were married by special license needed parental consent in order for the marriage to be valid.

 

Lord Hardwicke’s Act may be kept in mind when considering George Wickham’s planned elopement with Georgiana Darcy.  Georgiana was then fifteen years old, a minor but past the common law age of consent, so a valid marriage would have been possible, and a simple matter if Georgiana’s guardians, Colonel Fitzwilliam and Fitzwilliam Darcy, had given their consent to the match. In the absence of such consent, there were two possible ways of proceeding.  The first would be for the couple to take up residency in a new parish, where interfering relations could not find them, and have the banns read on three successive Sundays in the absence of objecting guardians.  The requirements of Lord Hardwicke’s Act would then be satisfied, and the marriage could have taken place.

 

The second approach would be to leave the jurisdiction of England and marry in a place where Lord Hardwicke’s Act was not applicable.  The Act’s requirements were considered formalities and therefore applicable only in England.  Because couples could evade the formal rules by marrying outside of England, many went to Gretna Green in Scotland, just across the English border for this purpose.  Although Wickham’s scheme was thwarted when Georgiana confessed the elopement plans to her brother, the danger to Georgiana shows the inadequacy of Lord Hardwicke’s Act to protect against clandestine marriage.  Heiresses, such as Georgiana, could still be seduced away from their families and married by fortune-hunters.

 

Austen also shows how the continuing possibility of clandestine marriage permitted unscrupulous men to seduce young women, even when the men had no intention to carry through with the promised wedding.  When Wickham later runs off with Lydia Bennet, who is just sixteen, the initial thought that the couple has eloped to Scotland soon gives way to the realities of Lydia’s precarious position.  Jane Bennet writes to her sister Elizabeth:  “‘Imprudent as a marriage between Mr. Wickham and our poor Lydia would be, we are now anxious to be assured it has taken place, for there is but too much reason to fear they are not gone to Scotland’” (302).  Mr. Gardiner optimistically supposes that “‘it might strike them that they could be more economically, though less expeditiously, married in London, than in Scotland’” (312).  This suggestion is a reference to the possibility of the couple’s taking up residency in London and having the banns read on three successive Sundays in their new parish church.  It certainly was slower than going to Gretna Green, but, as Mr. Gardiner suggests, perhaps a cheaper method of marrying a minor without parental consent.  To the relief of Lydia’s family, the couple does finally marry in London.  Only Mr. Darcy’s intervention saves Lydia from being seduced with the promise of marriage and then abandoned.

 

Divorce

 

Both Mr. Rushworth in Mansfield Park and Mr. Brandon in Sense and Sensibility divorce their wives for adultery.  It would not have been an easy matter for either gentleman, despite the assertion that “Mr. Rushworth had no difficulty in procuring a divorce” (537).  Judicial divorce that would allow the parties to remarry was not available in England until 1857, when the first Matrimonial Causes Act was passed. Prior to 1857, the process was much more difficult and costly.  In order to get a divorce that would allow the parties to remarry, it was necessary that Parliament pass a special bill providing for the “relief” of the petitioner.  Before seeking such relief, Rushworth and Brandon would have to pursue the remedies available in the courts.

 

Both Rushworth and Brandon would have sought relief from the Ecclesiastical Court, which administered canon law concerning marital breakdown and annulment (Stone, Road to Divorce 16).  Their marriages could not be annulled unless there were some defect or impediment, such as incest, existing at the time of the marriage.  In the absence of any ground for annulment, their only remedy at the Ecclesiastical Court would have been a separation from bed and board (known as a divorce a menso et thoro), which could be granted on proof of adultery.

 

Even if there were evidence of adultery, the defences of connivance, collusion, and condonation were available to a wife in any proceeding before the Ecclesiastical Court for a legal separation on the basis of the wife’s adultery (Dounn v Dounn).  Connivance required the wife to show that the husband had actively encouraged the adultery of his wife.  An example of conduct that might ground a claim of connivance was that of Sir Richard Worsley, who notoriously supported his wife’s lover while the lover viewed the naked Lady Worsley (Kaplan 209-10).  Collusion was any agreement to fabricate or suppress evidence or to deceive the court.  Condonation was forgiveness of the adultery.  These defences reflected the prevailing norm that parties had a duty to live together as man and wife unless a matrimonial offence were proven and that they should not be permitted to separate simply because they no longer wished to be together.

 

In addition to obtaining a legal separation, a husband seeking a Parliamentary divorce on the ground of adultery generally was required first to obtain a judgment for “criminal conversation” (adultery) against his wife’s paramour (the wife was not a party to the proceeding).  Criminal conversation was a private action based on a civil wrong, and the remedy was an award of damages to the aggrieved husband.  Despite the terminology, adultery was not a crime for which the state would prosecute offenders.  It was a matrimonial offence in the Ecclesiastical Court that would ground a claim for separation, and it was a civil wrong for which a husband could claim damages, but in Austen’s day the state would not prosecute a party for adultery.

 

Adultery had been made a crime punishable by death for both guilty parties in the year 1650 by the Act for Suppressing the Detestable Sins of Incest, Adultery and Fornication.  But this statute was repealed at the Restoration and never replaced, a matter of regret to at least one Victorian constitutional scholar who lamented the lack of criminal sanction for adultery, or at least adultery by a wife:

 

Of the various crimes against civilised society, this seems one of the greatest.  It poisons domestic felicity, it alienates parents from their children, and introduces all the train of evils attending want of parental affection, and of proper culture in youth.  The man whose wife is seduced from him sustains an infinitely greater injury than he could have done from any loss of property; since the children for whom he was daily toiling, anxiously accumulating, and exposing himself to privations, are now covered with their mother’s shame, and must enter the world under reproach, while the tender father can no longer regard them with confidence as his own offspring.  (Brodie 427)

 

As is evident from this excerpt, efforts to criminalize the adultery of wives were fueled by male anxiety as to the true paternity of their children.

 

In Austen’s day, the limited sanctions for adultery were a matter of regret for some Parliamentarians, to whom petitions for bills of divorcement were presented.  In response to the growing number of petitions for divorce over the course of the eighteenth century, there were calls for reform.  On 2 April 1800, Lord Auckland introduced in the House of Lords a bill that would provide the following:  “It shall not be lawful for the person, on account of whose adultery a marriage should be dissolved, to intermarry with the person with whom the adultery shall have been committed” (Great Britain, Parliament 1819, 225).  Lord Auckland explained that he did not seek to recriminalize adultery but thought it appropriate to consider whether “for the sake of public morality, that the crime of adultery be subject to some chastisement beyond that of a civil action for pecuniary damages” (Great Britain, Parliament 1819, 226).  Perhaps emboldened by the strong denunciations of adulterous wives during the debate, Lord Auckland decided to go further.  On 16 May 1800, he introduced a new version of his bill that now included a clause that would “make persons guilty of adultery liable to be punished by fine and imprisonment, as in cases of misdemeanour” (Great Britain, Parliament 1819, 236).  Despite generating a substantial amount of support, the bill was never passed.1

 

The requirement that a man first obtain a judgment for criminal conversation before petitioning Parliament for the bill of divorcement could be waived if to do so was impracticable.  While in the large majority of cases, such a judgment would be obtained, it was not required if the wife’s lover was unknown or deceased (Lardner’s Divorce 812-13).

 

The damages awarded by juries for criminal conversation were not determined by any formula and could vary widely.  One defendant unsuccessfully sought a new trial on the grounds that the £5,000 damages awarded were excessive.  In refusing the request for a new trial, the court reasoned that there was no benchmark against which the damages could be measured.  One of the judges, Justice Grose, commented:

 

We have known many of these cases where very large damages have been given, particularly one of £10,000 against a person in the situation of a servant.  If anything could have warranted the interference prayed for [i.e., ordering a new trial on the grounds of excessive damages], we may fairly presume it was that, where the damages given were tantamount to imprisonment for life; and yet no new trial was granted.  (Duberley against Gunning 1230)

 

The patent inability of the defendant to pay was not a relevant factor when exercising discretion to determine damages.

 

While damage awards for criminal conversation could be large, there is reason to think that at least some husbands did not enforce the awards.  During Parliamentary debates, the Duke of Clarence (later William IV), asserted that a husband who obtained a verdict was considered “not as a very honourable man” if he kept the damages rather than returning them to the defendant (Great Britain, Parliament 1819, 229).  Lord Eldon, a judge and later Lord Chancellor, argued that most criminal conversation actions were part of collusive schemes and never intended to result in payments by the wife’s lover to the husband:

 

nine out of every ten cases of adultery that came to the courts below, or to that bar, were founded in the most infamous collusion, and that, as the law stood, it was a farce and a mockery, most of the cases being settled in some room in the city, . . . and juries were called to give exemplary damages, which damages were never paid, nor expected to be paid by the injured husband.  (Great Britain, Parliament 1819, 237)

 

Lord Eldon disapproved the state of the law under which a husband could obtain the cooperation of his wife’s lover by a collusive arrangement under which the damages for criminal conversation were never collected.

 

Wives could not bring an action for criminal conversation.  The law reflected the deeply-held belief that adultery by husbands should be forgiven but adultery by wives required serious sanction because it “necessarily breaks asunder all family ties, and may introduce into the family circle a spurious offspring” (Great Britain, Parliament 1857, 880).  Although wives could obtain a separation from bed and board in the Ecclesiastical Courts on the grounds of adultery (Durant v Durant 748), almost all Parliamentary divorces were granted to husbands.  None were granted to wives prior to 1791, and of eighty-eight Parliamentary divorces granted between 1791 and 1820, only one was granted to a wife (James 174).  Austen illustrates the devastating impact of divorce on women in her stories of Maria Rushworth and Eliza Brandon.  Their husbands may have undergone some trouble and expense to obtain divorces, but they were not exiled from society or left destitute.  Nor did the paramours of wives suffer banishment.  Henry Crawford did not suffer “the public punishment of disgrace” as did Maria Rushworth, and Austen comments that “the penalty [for adultery] is less equal than could be wished” (MP 542).

 

Adulterine bastardy

 

In Sense and Sensibility, Colonel Brandon gives a sad account of the fate of his first love, concluding:  “‘She left to my care her only child, a little girl, the offspring of her first guilty connection, who was then about three years old’” (SS 236).  Because of this clear statement that Eliza Williams was the result of a “‘guilty connection,’” it has been assumed that she was an illegitimate child (Hildebrand; Nelson 164).  Yet Austen actually does not give us sufficient information to form that conclusion.  Indeed the facts we are given better support an assumption that a court would have ruled that Eliza was not a bastard at all but the child of her mother’s husband, Mr. Brandon.  There was at the time a strong legal presumption in favor of legitimacy.

 

The presumption in favor of legitimacy meant that the status of a child born to a married woman could not be impeached without unequivocal proof that the husband was not the father.  It had to be shown with irresistible evidence that the husband was impotent, that the husband was divorced from the wife (separation was insufficient), or that the husband was absent from England, or at least did not have access to his wife, when the child was conceived (The King against Luffe; Nicolas 27-28).  Even if all the parties involved had acknowledged that Eliza Williams’s biological father was her mother’s lover, the law could still regard Eliza as the child of her mother’s husband.  If Mr. Brandon had not yet obtained his divorce, was not clearly proven to be impotent, and was in England at the relevant time, Eliza would have been ruled legitimate.

 

Another common assumption is that Eliza’s surname, Williams, came from her mother (Nelson 164).  But it should be noted that, while we are told that Eliza’s mother was also called “Eliza,” we are never given the mother’s surname.  Williams could have been the maiden name of the mother.  Another possibility is that Williams was the name of the mother’s “‘first guilty connection.’”  But whatever the source of Eliza Williams’s surname, the failure to give her the name “Brandon” at birth would by no means have determined the issue of her legitimacy.

 

Despite the strong presumption in their favor, it is unlikely that many offspring of “‘guilty connections’” would have sought to prove their legitimacy in court.  In cases of acknowledged adultery by the mother, there would likely have been an assumption among those without legal training that any attempt to establish legitimacy would be unsuccessful.  At best, their chances would have seemed highly uncertain.  And the expense of court proceedings would have been prohibitive for those, like Eliza Williams or her mother, who were left impoverished after the indiscretion of the mother.

 

 

Along the road to the happy ending of marriage, Austen reveals how marriage laws and settlements limited the life choices of men and women.  As well, she shows the hardships imposed on women in particular who engaged in pre-marital sex or adultery.  The failure of Lord Hardwicke’s Act to prevent clandestine and underage marriage is brought home by the stories of Georgiana Darcy and Lydia Bennet.  There is sometimes said to be a gap between the law in the books and the law in action.  Austen shows the law in action—how marriage laws operated in practice and how parties manoeuvred within the legal structures of the time.

 

 

Note

 

1. For further discussion of this bill, see Craig (127-29), where it is referred to as the “Divorce Bill.”  Stone uses the term “Anti-Adultery Bill” (Road to Divorce 335-39).

 

 

Works Cited

 

An Act for Suppressing the Detestable Sins of Incest, Adultery and Fornication.  1650, 2 Acts & Ords, Interregnum 387.

An Act for the Better Preventing of Clandestine Marriage.  1753 26 Geo 2, c 33.

Anderson, Nancy F.  “The ‘Marriage with a Deceased Wife’s Sister Bill’ Controversy: Incest Anxiety and the Defense of Family Purity in Victorian England.”  Journal of British Studies 21.2 (1982): 67-86.

Austen, Jane.  The Cambridge Edition of the Works of Jane Austen.  Gen. ed. Janet Todd.  Cambridge: CUP, 2005-2008.

_____.  Jane Austen’s Letters.  Ed. Deirdre Le Faye.  3rd ed.  Oxford: OUP, 1995.

Bailey, Martha.  “Unmarried Cohabitation in Quebec—Liberté ou Égalité?”  International Survey of Family Law.  Ed. William Atkin.  London: Jordans, 2014.  33-40.

Brook v. Brook.  1861.  9 H.L.  Cas. 193.

Blackstone, William.  Commentaries on the Laws of England.  Vol. 1.  Oxford: Clarendon, 1765.

Brodie, George.  A Constitutional History of the British Empire: From the Accession of Charles I to the Restoration.  Vol. 3.  London: Longmans, 1866.

Cecil, Evelyn.  Primogeniture.  London: Murray, 1895.

Code of Canon Law.  Book 4, Part 1, Title 7, Ch. 3.

Craig, Sheryl.  “‘So Ended a Marriage.’”  Persuasions 36 (2014): 117-35.

Dounn v Dounn.  1817.  161 ER 1182.

Duberley against Gunning.  1792.  100 ER 1226.

Durant v Durant.  1828.  162 ER 734.

Elliott v Gurr.  1812.  2 Phillim.  Eccl. Rep. (Eng.) 16.

Ewers v Hutton.  1819.  170 ER 607 (A).

Great Britain.  Commission to Inquire into the State and Operation of the Law of Marriage, as Related to the Prohibited Degrees of Affinity, and to Marriages Solemnized Abroad or in the British Colonies.  London: Eyre, 1856.

Great Britain, Parliament.  The Parliamentary History of England.  Vol. 35. London: Hansard, 1819.

Great Britain, Parliament.  The Parliamentary History of England.  Vol.167.  London: Hansard, 1857.

Henriques, U. R. Q.  “Bastardy and the New Poor Law.”  Past & Present 37 (1967): 103-29.

Hildebrand, Enid G.  “Jane Austen and the Law.”  Persuasions 4 (1982): 34-41.

Hillan, Sophia.  May, Lou & Cass: Jane Austen’s Nieces in Ireland.  Belfast: Blackstaff, 2011.

Hodges v Hodges.  1795.  162 ER 1100.

Howard v Digby.  1834.  6 ER 1293.

Kaplan, Laurie.  “The Rushworths of Wimpole Street.”  Persuasions 33 (2011): 202-14.

Larder’s Divorce (In re).  1839.  7 ER 812 (B).

James, Douglas.  “Parliamentary Divorce, 1700–1857.”  Parliamentary History 31.2 (2012): 169-89.

Marriage Act.  1540.  32 Hen 8 c 38.

Marriage Act.  1835.  6 Will IV, c 54.

Matrimonial Causes Act.  1857, 20 & 21 Vict, c 85.

Moorsom v Moorsom.  1792.  162 ER 1090.

Neate, Charles.  The History and Uses of the Law of Entail and Settlement.  London: Ridgway, 1865.

Nelson, Bonnie G.  “Rethinking Marianne Dashwood’s Very Strong Resemblance to Eliza Brandon.”  Persuasions 34 (2012): 164-78.

Nicolas, Harris.  The Law of Adulterine Bastardy.  London: Pickering, 1836.

Ottenheimer, Martin.  “Lewis Henry Morgan and the Prohibition of Cousin Marriage in the United States.”  Journal of Family History 15.1 (1990): 325-34.

Outhwaite, R. B.  Clandestine Marriage in England, 1500-1850.  London: Hambledon, 1995.

Priestly v Hughes.  1809.  103 ER 903.

Stone, Lawrence.  Road to Divorce: England 1530-1987.  Oxford: OUP, 1992.

_____.  Uncertain Unions and Broken Lives.  Oxford: OUP, 1995.

Strangeways v Robinson.  1812.  128 ER 423.

The King against Luffe.  1807.  103 ER 316.

Wagner, John A.  Voices of Victorian England: Contemporary Accounts of Daily Life.  Santa Barbara: ABC-CLIO, 2014.

 

Back to Persuasions On-Line Table of Contents

Return to Home Page