by Wendy Moore
Well aware that one of the most powerful lures to compel Mary to return was her anxiety over the two children she had left behind, Bowes took immediate steps to prevent her from seeing either of them. In the past he had threatened to place little Mary where her mother ‘should never see her again’; now he proceeded to do just that. The little girl who had begged to come home for the holidays was removed from her London school to a carefully concealed countryside location where she was entrusted to the care of Eliza Stephens, Mary’s one-time friend and confidante who had become Bowes’s spy and probable mistress. William, meanwhile, he kept by his side. At the same time Bowes suddenly remembered his latest offspring. Turning up on the doorstep of Mrs Sunderland’s brothel after three months’ absence, he seized Dorothy and her three-month-old daughter and hid them in lodgings in Kensington in order to prevent her testifying against him.8 In the meantime he set out to coerce or bribe any other servants or acquaintances he suspected might prove favourable to Mary.
Yet even as Bowes scoured the town for Mary, constrained her children and intimidated potential witnesses he still adopted his customary stance as the put-upon husband anxious to appease an eccentric wife who had callously abandoned her infants. In an emollient letter on 11 February to the lawyers who had been instructed by Shuter, Bowes wheedled: ‘Gentlemen, It having been intimated to me that Lady Strathmore is uneasy lest I should disturb her quiet I then trouble you to inform her Ladyship that after the step she has taken I never will directly or indirectly molest or in any way interrupt her.’ Proposing that their respective lawyers should come up with mutually agreeable terms for separation he pledged that their suggestions would be binding on him. A few days later an even more conciliatory letter arrived in which Bowes repeated his offer for arbitration as ‘the most speedy method’ to resolve ‘the unfortunate Dispute’ to their reciprocal benefit as well as that of ‘two poor little helpless Children’.9
Far from convinced that Bowes would suddenly prove so amenable to reason, Mary pressed on with her legal steps. With no means of supporting herself beyond the paltry savings of her maids, far less finance costly law suits, she now embarked on a mission to retrieve her lost fortune. Since, of course, every woman in eighteenth-century England from dairymaid to duchess surrendered all her possessions to her husband upon marriage, unless explicitly specified in a legal settlement, on the face of it her ambition seemed fanciful if not totally perverse. Certainly Bowes thought so. When Mary sent her attorney, James Seton, to retrieve the family heirlooms - silverware, paintings, jewellery, diamonds and watches worth more than £10,000 - at a time prearranged with Bowes, he found the door shut firmly in his face. Instead Bowes ordered William Davis to deposit the valuables in Child’s Bank while he continued to live richly on the rents and profits from the Bowes mines and farms.10 But Bowes had a nasty shock in store.
Having forced Mary shortly after their marriage to revoke her prenuptial settlement, which had vested all her estate in two trustees to secure it for her own use, Bowes remained convinced that no trace of the original deed existed. He had even sacked her former footman, George Walker, after searching his belongings to ensure no copy survived. Yet ‘trusty George’, as Bowes had cryptically nicknamed him, now lived up to his moniker. For not only had Walker smuggled a copy of the deed out with him when he left the household, but he also now delivered it to Mary. Furthermore, she had tracked down the one remaining trustee, Captain George Stephens - the lawyer Joshua Peele having died - to his current job as treasurer of the Middlesex Hospital, not a mile from her current lodgings.11 Now Mary launched an audacious attempt through the court of Chancery to restore the original deed and regain all her land, mansions, mines and income, on the grounds that the revocation had been extracted under duress.
Already the defendant in one suit still pending in Chancery, over her eldest children, Mary applied to Lord Thurlow to reinstate her prenuptial deed of 9 and 10 January 1777. Just like the fictional Jarndyce v Jarndyce case in Dickens’s Bleak House, Bowes v Bowes would drag on almost interminably, run up immense costs and blight the lives of scores of innocent descendants and dependants. Affecting the farms, homes and livelihoods of the many servants, tenants and miners whose families had been reliant on the Bowes estate for centuries, just as in Bleak House, children would be born into the suit, marry into it and die out of it. And although the Chancery caseload had not yet approached the mountainous heights or its deliberations the ponderous lengths of the early nineteenth century as lampooned by Dickens, those affected by the Bowes cause would doubtless have echoed the author’s description that, ‘it’s being ground to bits in a slow mill; it’s being roasted at a slow fire; it’s being stung to death by single bees; it’s being drowned by drops; it’s going mad by grains’.12
Yet while she sought valiantly to defend her safety and regain her fortune Mary knew that the only way she would ever truly be free of Bowes was by ending their marriage. And so at the end of February, eight years after their wedding, Mary initiated proceedings for divorce. This legal journey would prove the most arduous of all, dragging Mary’s reputation through a variety of courts and exposing her to sensational, lewd and outrageous allegations that were gleefully reported in the press and devoured by the public for years to come.
While getting married in eighteenth-century England - then as now - was a disarmingly simple procedure, ending a marriage was a distinctly more difficult challenge.13 For a woman it was well nigh impossible.
Prior to the establishment of a divorce court in the middle of the nineteenth century, England was the only Protestant country in Europe without a specific divorce law. Ironically, given his success in extricating himself from wedlock, Henry VIII was to blame. Until the Reformation, as Henry famously discovered, a marriage could only be dissolved by the Pope and only in exceptional circumstances, such as evidence that the alliance was incestuous or unconsummated. Contrary to the received wisdom of numerous schoolchildren, when Henry was refused permission by Pope Clement VII to dissolve his marriage with Catherine of Aragon on grounds of incest - her previous marriage to his brother - he did not unilaterally proceed with a divorce. Rather he had the marriage proclaimed null and void and - following his breach with Rome - subsequently had two further marriages annulled, with Anne Boleyn on the grounds of her alleged incest and adultery, and with Anne of Cleves for his supposed inability to consummate the alliance on account of her ugliness. Having invested himself as the head of the Church of England it would have been a simple matter for Henry to introduce a general law allowing for divorce, in common with other Protestant countries across Europe. Laws permitting divorce on grounds including adultery, impotence and desertion had been introduced from the mid-sixteenth century onwards in Germany, Scandinavia, the Netherlands, Scotland and even some English colonies in America. Yet despite encouragement from several clerical advisers, Henry denied his subjects the chance to emulate his marital enthusiasm and this rigid stance would effectively continue for the next three hundred years.
For the vast majority of English couples, therefore, death - of oneself or one’s other half - remained the only possible means of release from a violent, adulterous or otherwise miserable marriage. Yet for those who were powerful, wealthy or desperate enough, other alternatives inevitably developed. Desertion - simply walking away - proved a solution for a number of discontented spouses and although a fugitive husband or wife could be compelled to return to the marital bed this was rarely pursued. While desertion did not free either party to marry again, this did not deter some from bigamous marriages. More ingenious and certainly more dramatic was the idea of ‘wife sale’ which emerged in the sixteenth century and quickly gained popularity, especially - as Thomas Hardy would later illuminate - in south-west England. Frequently such sales took place on market day when a husband might lead his wife to the marketplace with a halter around her neck and offer her to the highest bidder. Barbaric as it might sound, in reality such transactions were commonly prearranged by mutual
consent between all parties. One woman, accusing her husband of assault in 1795, produced a receipt to prove that he had sold her, for one guinea, which stipulated ‘both parties being willing to part’.14 Such sales would continue into the nineteenth century although they were not - as the eponymous Mayor of Casterbridge would discover - legally recognised as divorce.
Rather more mundane, as well as socially and legally more acceptable, were private separations by deed. Originating in the late seventeenth century, the practice had become relatively standard by the early 1700s and the settlements drawn up by lawyers between a husband and a trustee of his wife - since she, of course, had no status in common law - often provided for custody of the children and financial maintenance for the wife. Such deeds gradually became recognised as legally binding during the eighteenth century - much to the chagrin of some recidivist husbands - and even helped to underline women’s separate legal status. The forward-thinking Lord Mansfield consistently ruled during his tenure as Lord Chief Justice that a wife granted an estate under a separation deed should be regarded as a single woman for legal purposes. But by 1800 such progressive notions would be reversed when his successor, Lord Kenyon, reinforced the principle that a married woman was not entitled to own property - with the enthusiastic backing of John Scott, by then Lord Eldon, who described earlier rulings as ‘impertinent and scandalous’.15 Popular as they were, such deeds did not allow for remarriage nor did they deter recalcitrant husbands from attempts to seize their wives or their property. They also required the consent of both parties.
Less subject to the vagaries of judges and errant husbands were legal separations obtained through the ecclesiastical courts. Although the Church of England had inherited the Roman Catholic view that a valid marriage was indissoluble, religious authorities did accept - in common with Rome - the undesirability of a couple remaining together in extreme circumstances. So the same Church courts which could declare a marriage null and void through incest or impotence - as for Henry VIII - could also decree that a couple should live separately, if it was considered that the physical or spiritual wellbeing of one of them was at risk by the conduct of the other, principally through adultery, cruelty or heresy. Known as divorce a mensa et thoro - literally from bed and board - such rulings released the pair from conjugal duties and cohabitation but did not, of course, permit remarriage. To all intents and purposes, however, and certainly in the eyes of polite society, these separations were regarded as permanent divorce and the courts even awarded maintenance to successful wives. Yet winning a Church divorce case was a lengthy, expensive and fraught experience - especially for women.
Granted with exceeding reluctance and only when a marriage was found to be intolerable, applicants had to prove severe cruelty or serial adultery and preferably both. Given society’s tolerance of violence and male sexual freedom this was a tall order for any spouse; given the prevailing double standards towards women it was hard work indeed. Aggrieved wives were expected to show not only that their husbands were violent but also that their abuse was unprovoked, repeated and life-threatening; not only had they committed adultery but also that their sexual liaisons were particularly perverted, prolific or profane. Furthermore, the courts required two witnesses to every alleged act - not just one as in common law - and specifically excluded evidence from interested parties, chiefly the wife, husband and assorted lovers. Under such burden of proof where witnesses existed at all they were almost invariably servants who were subpoenaed to relate incriminating details of crumpled couches, stained sheets and clandestine romps spied through keyholes. In one case servants stood on a table the better to hear - and report - the creaking bedsprings in the room above; in another, three servants crammed into a cupboard to ogle their mistress and her lover.16
Since the proceedings were fully reported, the Church authorities’ efforts to preserve the holy sanctity of marriage ironically supplied Georgian society’s most salacious publications with sufficient titillating material to keep the printing presses busy. A veritable industry of magazines, books and pamphlets sprang up in the latter half of the eighteenth century, devoted to reporting these ecclesiastical divorce cases. One such publication, Trials for Adultery or the History of Divorces, ran to seven volumes when printed in 1780. Naturally, while they related the sordid details verbatim, such publications adopted a high moral tone. Reminding its readers that adulterers were stoned or thrashed by ancient civilisations, one collection argued that lax contemporary standards meant that reporting such cases ‘may, therefore, be found the most effectual Means at present of preserving Religion and Morality’.17 All the same, the publisher betrayed his pecuniary motives with the aside that: ‘The rapid sale of our former Volumes has induced us to add to the present.’ As if public exposure were not sufficient, Church divorce cases were invariably convoluted, drawn out and expensive with exorbitant fees for lawyers and payments to court clerics. Applicants therefore needed both a thick skin and a deep pocket to embark on the ecclesiastical route. Nevertheless, as expectations of marital bliss rose just as perceived standards of marital fidelity declined, so the ecclesiastical courts saw a rise in divorce trials, particularly after 1780.18 The vast majority of the plaintiffs were wealthy members of the aristocracy or gentry and - not surprisingly - two-thirds were male.
Yet while these various avenues allowed disgruntled husbands, and occasionally wives, to cast off an unwanted partner, none permitted them to do what so many wanted most - and Henry VIII had so flagrantly achieved - to marry someone else. Although it took them more than a century, eventually English nobles did succeed in finding a way to follow the royal lead. In 1670 Lord Roos secured a private act of parliament which both dissolved his marriage to his wife, Anne, and allowed him to remarry. His argument that his wife’s adultery and subsequent illegitimate child deprived him of his right to a legitimate heir won support from Charles II - with an eye to his own marital disaffection - who declared the debate ‘better than a play’.19 With the precedent set, an act of parliament became the only route to a full divorce which allowed the partners to remarry, although solely on grounds of adultery, until the mid-nineteenth century.
The procedure usually began with the aggrieved husband suing his wife’s lover, or alleged lover, for ‘criminal conversation’ - essentially seeking damages for trespassing on his property - in the civil courts. He would then obtain a separation through the ecclesiastical courts before finally moving a bill for divorce through the House of Lords. Although used only rarely at first, during the late 1700s private divorce acts increased in popularity both with the landed classes, who could free themselves from unsavoury marriages, and the general public, who could salivate over their sexual exploits as each suit dragged through its three legal stages. Lady Diana Spencer, later Lady Beauclerk, endured public scorn when divorced from her first husband, Viscount Bolingbroke, by act of parliament in 1768, as the steamy details of her adultery were paraded in court while her husband’s serial philandering went unmentioned. The following year the Duchess of Grafton, later Lady Ossory, suffered a similar trial by humiliation. Yet while some wives, Lady Ossory and Lady Beauclerk among them, connived with the unseemly procedure in exchange for their freedom and the opportunity to remarry, initiating a parliamentary divorce would remain the preserve of a very rich, well-connected and exclusively male elite. Only 132 such divorces were granted before 1800; none were to women plaintiffs.20 Indeed, there were several attempts from 1771 onwards to prevent wives implicated in such cases from themselves remarrying. When finally the first parliamentary divorce sought by a woman was granted in 1801, she would have to prove her husband had committed not only adultery but incest - with her sister - and even then it took an impassioned argument by Lord Thurlow to persuade such diehards as Lord Eldon to support her cause.21
Ultimately it would require a sustained campaign led by enraged women in the early nineteenth century to end the shambolic system and introduce the 1857 Matrimonial Causes Act, which established the divor
ce court in which both sexes enjoyed the right to seek a full divorce. Even then the only grounds were adultery and women still had to prove further indignity, such as cruelty, desertion or sodomy. It would be 1923 before women were awarded equal rights in seeking divorce and only as recent as 1969 before the principle of divorce for incompatibility - breakdown of marriage - was at last recognised.
In 1785, therefore, the only way for Mary to sever her chains from Bowes was to seek a separation from bed and board through the ecclesiastical courts. Almost penniless and virtually friendless, she knew that her chances of success were slight while the process would inevitably expose her past indiscretions to public scrutiny. Nevertheless, on 28 February 1785, Mary Eleanor launched her suit for divorce from Andrew Robinson Bowes on grounds of adultery and cruelty with the London Consistory Court, the biggest and busiest of the bishops’ courts dealing with marital disputes.
Based at Doctors’ Commons, a muddle of seventeenth-century courtyards and quadrangles between St Paul’s Cathedral and the Thames, the LCC had become renowned as the country’s chief divorce court. Running in parallel to the common law system, the Church courts had a separate hierarchy of lawyers known as proctors and advocates, equivalent to solicitors and barristers, along with their own distinctive procedures and jargon. Accordingly, anyone initiating a suit had first to engage a proctor - ‘a kind of monkish attorney’ in Dickens’s words - to register a citation which effectively launched the suit.22 Providing a comprehensive litany of Bowes’s outrages, Mary’s citation accused him of ‘beating, scratching, biting, pinching, whipping, kicking, imprisoning, insulting, provoking, tormenting, mortifying, degrading, tyrannizing, cajoling, deceiving, lying, starving, forcing, compelling, and wringing of the heart’.23 Having instructed her proctor to prepare a ‘libel’, which outlined Bowes’s atrocities in detail, Mary now needed sufficient sworn testimonies, known as ‘depositions’, to prove her case. With Bowes determined to thwart her suit, she was going to need all the support that she could muster.