Last week, I looked at Wife Selling as a Means to a Moral Divorce, but Not Necessarily a Legal One. Today, I will stay with the moral aspects of this practice of the late 1700s and the first half of the 1800s in Britain. E.P. Thompson, a British social historian and political activist and author of The Making of the English Working Class and Customs in Common studied some 218 cases of wife selling from 1780 to 1880. In the books, he addresses the custom and its ramifications. Specifically, in Customs in Common, The New Press tells us, “In a text marked by both empathy and erudition, Thompson investigates the gradual disappearance of a range of cultural customs against the backdrop of the great upheavals of the eighteenth century. As villagers were subjected to a legal system increasingly hostile to custom, they tried both to resist and to preserve tradition, becoming, as Thompson explains, ‘rebellious, but rebellious in defence of custom.’ Although some historians have written of riotous peasants of England and Wales as if they were mainly a problem for magistrates and governments, for Thompson it is the rulers, landowners, and governments who were a problem for the people, whose exuberant culture preceded the formation of working-class institutions and consciousness. Using a wide range of sources, Thompson shows how careful attention to fragmentary evidence helps to decode the fascinating symbolism of shaming rituals including ‘rough music,’ and practices such as the ritual divorce known as ‘wife sale.’ And in examining the vigorous presence of women in food riots from the sixteenth century onwards, he sheds further light on gender relations of the time.”
Common-law marriage, also known as sui iuris marriage, informal marriage, marriage by habit and repute, or marriage in fact is a legal framework in a limited number of jurisdictions where a couple is legally considered married, without that couple having formally registered their relation as a civil or religious marriage. The original concept of a “common-law marriage” is a marriage that is considered valid by both partners, but has not been formally recorded with a state or religious registry, or celebrated in a formal religious service. In effect, the act of the couple representing themselves to others as being married, and organizing their relation as if they were married, acts as the evidence that they are married. (Common-Law Marriage) Common-law marriages are there own entity in family law. Those cohabiting in today’s society are often referred to as living in a common-law marriage. Such an agreement certainly makes a “divorce” easier, which was one of the reasons a “wife sale” became popular among those who could not afford a divorce in England.
Whose wife is the woman is a great question. In my previous post, I mention the Thomas Hardy book The Mayor of Casterbridge. If one has read the book, he/she will notice that Susan is sometimes referred to as Mrs. Henchard and at other times, as Mrs. Newson. The reader can make that assumption that a wife sale is agreed upon as legal and the customary way of speaking of the woman, as in this case, would be Mrs. Newson. However, without a divorce, she is LEGALLY still Mrs. Henchard. In the Hardy book, Henchard “buys back” his wife, by extending her a gift of five guineas, the amount for which he originally settled with Newson. He also agrees to “remarry” his wife for propriety’s sake, rather than for legal purposes. As Susan lived with Newson for some twelve years. Is she an adulterer? A bigamist? Does custom outweigh the law in this case? Is the agreement of all three parties—original husband, wife, and new husband—a binding contract? It would have a variety of witnesses as it was a public auction of the wife. Does it take the death of either of the husbands to make a marriage legal? In Hardy’s book, Susan assumes that Newson is dead before she agrees to return to Henchard.
The problem in Hardy’s book is exacerbated by the fact that Susan bears Newson a child. Illegitimacy was not looked upon kindly during the period. There are several twists in Hardy’s tale regarding the birth of a child, and I shall not add spoilers to this post. E. P. Thompson tells a tale of a wife sale in 1819 that became quite complicated. The man sold his wife after she had given birth to his child(ren). When she left him, the children accompanied her to the new home. They were raised by the new husband. He even provided that their names be recorded as his in the church’s baptismal records. Later, when legal action was sought, the court declared the children the original husband’s responsibility, for when a child was born to a LEGAL marriage—whether the child was the original husband’s or not—LEGALLY, the child is considered to belong to the original husband. The wife sale DID NOT mean a legal divorce had occurred. If the sale is not a valid transaction, the original husband is the child’s father.
We must remember that prior to 1753, the means of speaking vows, as was present in a wife safe, was legal. It was a verba de praesenti contract. The Marriage Act of 1753 made marriage contracts invalid. It required a marriage ceremony by a clergyman of the Church of England and a calling of the banns (or) the purchase of a license. Unfortunately, the custom remained, and the Church was sore to stop it.
Adultery, according to the law, occurs when either the original husband and the wife, or both, take up with another. Legally, under common law, a promise to marry, which is followed by sexual intimacy, is a valid proposal. A man could be sued for “breach of promise.” Breach of Promise is a common law tort. From at least the Middle Ages until the early 20th century, a man’s promise to marry a woman was considered, in many jurisdictions, a legally binding contract. A woman could extract damages if such occurred.
We find in looking at this practice that it was more common among those of the lower classes than those of the middle class or the aristocracy. So, what is my new fascination with this practice? As you may have guessed, it is a plot point in a novel to be released in the Summer of 2018.