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An Historical Analysis of the Voidability of Contracts in the Long Eighteenth Century: Control vs. Protection Kate Hunter, LLB (Hons) Lancaster University June 2018 This thesis is submitted to fulfil the requirements of the degree of Doctor of Philosophy Declaration I declare that this thesis is my own work, and has not been submitted for the award of a higher degree at any other university. Elements of Chapter Six have been presented at the Society for Legal Scholars Conference (York, 2015) and Chapter Four has been presented as a conference paper at the Arts & Humanities Postgraduate Research Conference (Stirling, 2018). Kate Hunter i Acknowledgments Firstly, I wish to thank Dr Richard Austen-Baker for his continued support and guidance as Supervisor for this thesis, and whose genuine enthusiasm for the historical aspects as well as the law has provided a constant source of motivation. To Professor David Campbell, for his advice and direction, and particular thanks to other members of the Law School, notably Professor Alisdair Gillespie and Dr Siobhan Weare for allowing me to gain valuable experience and undertake opportunities alongside my PhD. The support of the staff generally within the Law School has been invaluable and I am most grateful to all that Lancaster has given me both during my PhD and earlier, as an undergraduate student. Additionally, thank you to Lonsdale College staff and porters, for providing great support and encouragement, particularly in my final year as an Assistant Dean. I wish also to thank my friends, for always providing a listening ear and the best advice. Particularly to Ben, for enduring my thesis woes, to Beth, for giving the advice that I want, and to Ashleigh, for giving the reality check that I occasionally need. Finally, to my wonderful family for a lifetime of support. To Pops, for life advice and numerous hours of proofreading, to Gran, for unbounded love and strength, and to Mum, for sacrificing so much to allow me to pursue my career and for instilling in me the confidence and the belief that I can take on the world. This is for you. ii Abstract AN HISTORICAL ANALYSIS OF THE VOIDABILITY OF CONTRACTS IN THE LONG EIGHTEENTH CENTURY: CONTROL VS. PROTECTION Kate Hunter, LLB (Hons) June 2018 Thesis submitted to fulfil the requirements of the degree of Doctor of Philosophy The thesis has a period of focus of the ‘long eighteenth century’. This phrase is coined from that in use by historians when discussing the period from 1688-1832 and has been chosen given the number of key contractual developments which took place in this era. The primary purpose of this research is to understand the basis and motivations behind the creation of important rules under which some contracts were made void. It is conceded that ‘voidness’ of contracts is an extremely wide area of law and as a consequence of this, three areas of contract law in particular have been chosen to be explored, these being illegality, immorality and incapacity. These three topics are linked by the way in which they concern the intervention of the law on private relationships and personal lives, which is the chosen theme throughout this thesis. Ultimately, the thesis will arrive at a point whereby the underlying motivations behind the eighteenth century legal developments which held certain contracts concerning illegality, immorality, and incapacity to be void will be discovered. The means of doing this will be to analyse and interpret the social history and the legal history concurrently. iii It will be determined whether these developments were underpinned by a law which sought to protect or control and thus the tension between control and protection interests will be explored throughout this thesis. iv Table of Contents Declaration ……………………………………………………………………………………………………………… i Acknowledgments ………………………………………………………………………………………………….. ii Abstract ……………………………………………………………………………………………………………..…. iii Table of Cases ………………………………………………………………………………………………………… ix Table of Legislation …………………………………………………………………………………………………. x Chapter One – Introduction …………………………………………………………………………………….. 1 1.1 England in the Long Eighteenth Century …………………………………………... 1 1.2 Void(able) Contracts ……………………………………………………………………..… 11 1.3 Research Question ………………………………………………………………………….. 13 1.4 Methodology ………………………………………………………………………………….. 14 1.4.1 Legal Methodology …………………………………………………………….… 15 1.4.2 Historical Methodology ……………………………………………………….. 16 1.4.3 Justifications for the Interdisciplinary Method ………………………. 19 1.5 Methodological Considerations ……………………………………………………..… 20 1.6 Scope of Thesis ……………………………………………………………………………..… 21 Chapter Two – Illegality: Marriage Rights ………………………………………………………………. 24 2.1 Introduction ………………………………………………………………………………….. 24 2.2 Formalities of Marriage ………………………………………………………………….. 26 2.2.1 Clandestine Marriage ………………………………………………………….. 27 The Passage of the Marriage Bill ……………………………….. 31 The Marriage Act 1753 ………………………………………….….. 38 2.3 From Financial Gain to Romantic Love …………………………………………..… 43 2.3.1 Marriage Brokerage ………………………………………………………….… 45 2.3.2 Restraint of Marriage ……………………………………………………….…. 61 The Case of Lowe v Peers ……………………………………….… 62 The Middling Sort …………………………………………………… 68 2.4 Conclusion …………………………………………………………………………………..… 72 v Appendix 1 – William Hogarth, Marriage a la Mode (1745) ……………………………. 75 Chapter Three – Illegality: Marriage Rights II ………………………………………………………….. 78 3.1 Introduction ………………………………………………………………………………….. 78 3.2 Eighteenth Century Womanhood and Masculinity ………………………….... 79 3.2.1 Breach of Promise …………………………………………………………..….. 83 Female Breach of Promise Actions ……………………………. 85 Foote v Hayne …………………………………………………………. 86 The Importance of Reputation ………………………….………. 90 Male Breach of Promise Actions ………………………….……. 96 3.2.2 Breach of Promise vs. Restraint of Marriage ……………………..…. 103 3.3 Sex and Parenting ……………………………………………………………………..…. 104 3.3.1 Agreements for Separation …………………………………………………. 110 3.3.2 Separation in the Long Eighteenth Century ……………………..…… 111 Requirement 1: Immediacy ………………………………..……. 114 Requirement 2: Animosity …………………………………….... 117 3.4 Conclusion …………………………………………………………………………………... 124 Appendix 2 – Sandro Botticelli, The Birth of Venus (1408) …………………………… 127 Appendix 3 – Allan Ramsay, Lady in a Pink Silk Dress (1762) …………………….... 127 Appendix 4 – Joshua Reynolds, Jane Fleming (1778) ……………………………………. 128 Appendix 5 – Joshua Reynolds, Richard Crofts of West Harling (1785) ……….… 128 Chapter Four – Immorality …………………………………………………………………………………... 129 4.1 Introduction ………………………………………………………………………….……… 129 4.2 Morality and the Establishment ……………………………………………………… 131 4.2.1 The War Against Vice ……………………………………………………….... 131 Public Stews ………………………………………………………..… 135 4.2.2 The Political Agenda ………………………………………………………..… 140 Voting Qualification ………………………………………..……… 141 The Drive for Reform ……………………………………….…….. 144 vi 4.3 Morality Reconsidered ……………………………………………………………..…… 149 4.3.1 The Magdalen Hospital …………………………………………………….... 150 4.3.2 Social Acceptance ………………………………………………………………. 155 Kitty Fisher ………………………………………………………….... 159 4.3.3 Facilitation of Trade ……………………………………………………….…. 163 4.4 A New Agenda …………………………………………………………………………….... 170 4.4.1 Vagrancy Act …………………………………………………………………….….. 176 4.5 Conclusion ……………………………………………………………………………….….. 179 Appendix 6 – William Hogarth, The Harlots Progress (1733) ……………………….. 183 Chapter Five – Incapacity: Married Women and Widows ………………………………..……… 186 5.1 Introduction …………………………………………………………………………..……. 186 5.2 The Eighteenth Century Woman ……………………………………………………. 188 5.3 Married Women ……………………………………………………………………..……. 192 5.3.1 Dowry ………………………………………………………………………………. 192 5.3.2 Coverture during Marriage …………………………………………..……. 195 5.3.3 Coverture after Separation ………………………………………………… 204 5.3.4 Pin Money and Jointure ……………………………………………..……… 207 Jointure …………………………………………………………………. 211 5.4 Widows and Unmarried Women ……………………………………………………. 214 5.5 Conclusion …………………………………………………………………………………… 220 Chapter Six – Incapacity: Infants ………………………………………………………………………….. 224 6.1 Introduction ……………………………………………………………………………..…. 224 6.2 Position of Infants ………………………………………………………………………... 226 6.2.1 Sale of Goods ……………………………………………………………………. 230 6.3 Apprenticeships ……………………………………………………………………..……. 239 6.3.1 Void Apprenticeship Contracts …………………………………………… 251 Bad Behaviour ………………………………………..……………… 251 Illness and Death ……………………………………………..……. 253 vii Not Beneficial to the Infant ……………………………….…….. 257 6.4 Conclusion ……………………………………………………………………………….….. 263 Appendix 7 – William Hogarth, Industry and Idleness (1747) ……………………. 267 Appendix 8 – Apprenticeship Contract between James Hardy and the Lune Shipbuilding Company, 1st June 1865 ……………………………………………….……….. 273 Chapter Seven – Conclusion …………………………………………………………………………..……. 278 7.1 Implications of this Research ……………………………………………………..…. 282 7.2 Further Research ……………………………………………………………………….... 283 7.3 Final Remarks ……………………………………………………………………….…….. 285 Bibliography ………………………………………………………………………………………………………. 287 viii Table of Cases Appleton v Campbell (1826) 2 Car & P 347; 172 ER 157 Baddeley v Mortlock and Wife (1816) Holt 151; 171 ER 195 Bateman v Countess of Ross (1813) 1 Dow 235; 3 ER 684 Berolles v Ramsay (1815) Holt N P 77; 171 ER 168 Blackburn v Mackey (1823) 1 Car & P 1; 171 ER 1076 Bowry v Bennet (1808) 1 Camp 348; 170 ER 981 Brown v Peck (1758) 1 Eden 140; 28 ER 637 Cannan v Bryce (1819) 3 B & A 179; 106 ER 628 Cartwright v Cartwright (1853) 3 De G M & G 982; 43 ER 385 Clowes
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