by Wendy Moore
When Bowes’s legal team won a reduction of his bail term from fourteen years to two in early May it seemed as if the tide had turned his way. Certainly The Times thought so, unable to resist the comment that ‘it appears, that, in spite of public prejudice, the cause of her Ladyship is not so immaculate, as the world at large have been taught to believe’.27 Even when the Court of Arches found in Mary’s favour on 7 May, confirming her divorce and alimony payments, he was undaunted. Determined never to release Mary from her marital shackles if he could possibly avoid it, nor pay her a penny, he immediately launched a further appeal, this time to the High Court of Delegates, the ultimate place of appeal from the ecclesiastical judicial system, on the spurious ground that he had not been allowed time to produce all his witnesses.28 As he headed back to London to face his trial for abduction with bullish self-confidence, Bowes inserted a notice in The Times announcing that a ‘certain society of married Gentlemen’ planned to celebrate his expected victory by erecting a memorial to Bowes ‘in honour of his meritorious services to the enemies of petticoat government, and the friends of matrimonial subordination’.29 Referring to the social reformer John Howard, who had just begun his final tour of the foul conditions endured by the majority of England’s prison population, if not Bowes himself, the article added: ‘It is thought that this subscription will be much larger than that which was made to give a statue to Mr Howard; as the taming of bad wives is a matter of infinitely greater importance to society than a casual improvement in the police [government] of a prison.’ So, by the time Bowes appeared before Judge Buller and a special jury at the King’s Bench on 30 May 1787, he cut a far more jaunty figure than the reviled character of six months earlier.
Charged with five counts of conspiracy that essentially accused him of seizing, assaulting and imprisoning Mary in order to compel her to drop her divorce suit, Bowes appeared with eight of his partners in crime.30 These were the corrupt constable Edward Lucas, the hackney coach driver John Bickley, the pitworkers Charles Chapman and William Pigg, the coal merchant Francis Peacock, Bowes’s valet Mark Prevot, his steward Henry Bourn and his attorney Thomas Bowes. Doubtless feeling secure in the knowledge that numerous husbands had previously stood on that very same spot and successfully defended their ancient right to chastise and confine their wayward wives, Bowes listened impassively as the charges were read. And since he had engaged probably the best criminal defence barrister of the Georgian era, Bowes had every reason to feel confident.
At thirty-seven, Thomas Erskine was a rapidly rising star in the legal profession whose services were heavily in demand among those unfortunate or uncouth enough to find themselves before the King’s Bench.31 The youngest son of a straitened Scottish earl, Erskine had joined the navy and then the army before trying his hand at the law at which point he had enrolled as a pupil with Francis Buller. Having finally found his metier, he immediately proved himself an audacious advocate and sparkling orator by winning a string of acclaimed legal victories. A lifelong radical and fervent advocate of free speech, Erskine was briefly elected an MP during the Fox-North coalition in 1783-4; in future years he would defend Thomas Paine, unsuccessfully, in the state trial over publication of The Rights of Man and secure the acquittal of the radicals Thomas Hardy, John Horne Tooke and John Thelwall in their dramatic trial for high treason in 1794. Ultimately, in 1806, he would become Lord Chancellor. Defending political agitators from charges of treason notwithstanding, his brief to defend Bowes would prove one of the toughest challenges of his career.
Faced with the bar’s most popular and esteemed advocate, Mary’s barrister James Mingay had every excuse to feel apprehensive as he rose to open the case for the prosecution. The son of a country surgeon from Norfolk, raised in ‘the most humble obscurity’ as one contemporary would term it, Mingay had lost his right hand in an accident in his youth and subsequently sported an iron hook. Stymied from following his father’s profession, the young Mingay was given financial help by the Duke of Grafton to enter Cambridge and subsequently join the bar. Rising rapidly, Mingay had soon found himself pitched against Erskine in the King’s Bench where their fiery sparring matches provided entertainment for law students comparing their oratory styles. Concise, bold and forceful where his adversary was polished, flowery and verbose, 35-year-old Mingay was widely regarded as ‘the second person in professional estimation’ to Erskine himself. Strident rivals in court, the two had become firm friends at leisure.
In a court packed with students, journalists and spectators, as eager to hear the expected duel of words between the two advocates as to witness the long-awaited battle between Mary and Bowes, Mingay began by addressing the jury. Adopting the grave tone which the alleged crimes certainly merited, he solemnly warned the jurors that it ‘will be necessary for me to state to you a transaction that I hope never, or any thing like it, existed before in a Christian country’. And as he proceeded to outline the details of Mary’s kidnap and subsequent ordeal with the clarity and verve for which he was renowned, he did not disappoint them.
With studied restraint, Mingay described how Mary had fled her marital home and instituted divorce proceedings after ‘eight long and miserable years’ following ‘treatment that I should have thought no man could possibly have adopted against any woman, and that no woman, thank God, is bound to bear in this country from any man’. Fully cognisant that Bowes was likely to argue his right reasonably to chastise and confine his wife, Mingay concentrated on demonstrating that Bowes’s conduct had been neither reasonable nor justifiable. Having seized Mary from a public street in the middle of the day, Bowes had dragged her ‘near three hundred miles, through the heart of this kingdom’ and attempted to force her to drop her divorce ‘by means as savage as they were uncommon and unheard of’. Met at Streatlam Castle by her husband’s pregnant mistress, who had since ‘been brought to bed of a bastard child by the husband’, Mary had been ordered to sign a paper revoking her divorce suit with a pistol at her head. Yet still she had refused to drop her case and even ordered Bowes to fire with, Mingay proclaimed, ‘a courage that to me is astonishing!’ Subsequently bundled up the stairs by Chapman and Pigg - ‘people that were accustomed to deeds of darkness by living in a mine’ - Mary had resisted Bowes’s attempts to rape her. At this point Mingay felt compelled to advise the jurors, no doubt to their incredulity, that there were indeed cases where ‘a husband is liable to be tried for a rape even on his own wife’ - although in this respect his legal history was optimistic at best, since rape within marriage would not finally be recognised as a crime until 1991.
Detailing Mary’s torment over the next eight days as she was compelled to trek over mountains covered in snow, Mingay told the jury ‘she was very near dead, she was very near frozen’. Yet far from hanging his head in shame at the treatment he had meted out to his own wife, Bowes had since had the audacity to accuse her of perjury by disputing whether she had been kept captive in a dark room or a dark passage. Rising now to a crescendo, Mingay asked the jury: ‘I will, for a moment, suppose her the most abandoned prostitute that the earth ever produced, but for a man to treat a woman thus, what must be every honest man’s sensations?’ Leaving unsaid the obvious fact that the victim of this crime was not a resident of a brothel, but rather the only daughter of an ancient landed family, Mingay left the jurors in no doubt as to what he considered should be the response of an ‘honest man’ with his simple question: ‘Gentlemen, I ask whether she is not the most persecuted woman that ever was?’ Finally inviting the jury to identify with the simple but courageous country folk who had rescued Mary from such abominable maltreatment, Mingay concluded with a virtuoso flourish, declaring that, ‘a straw in the hands of an honest countryman is equal to all the fire arms in the hands of Bowes’.
Having brilliantly set the scene of Bowes’s outrage, Mingay produced a succession of turnpike keepers, tavern landlords and servants who testified to Mary’s suffering at every stage of her journey north and subsequent cross-country e
xpedition. They included the innkeeper of the Red Lion at Barnet who thought that Mary looked such a ‘subject of pity’ on her return homewards that she reminded him of ‘a woman that was sifting cinders in Gray’s Inn Lane’. None of them could have been more stolid in their support than Mary Morgan who said when she was reunited with Mary Eleanor: ‘I can scarcely describe her condition, she was so altered, so full of mud, and dressed in an old bed gown.’ Producing in court those very clothes - a red petticoat, bed gown and old bonnet - Morgan described the bruises Mary had revealed on her breast and at her temples. Asked whether her mistress had full command of her reason, in anticipation of Bowes’s defence, Morgan retorted adamantly: ‘I do not know any Lady that has so much possession of her mind.’
Given the enormity of the allegations so fluently described by his old adversary, even the renowned Thomas Erskine faced an uphill struggle to defend his client’s actions. Just four years earlier in a libel case, Erskine had famously upstaged Judge Buller, his former teacher, when he had refused to concede that Buller could overrule the jury. Now, it appeared, positions were reversed as the renegade pupil rose before his erstwhile master to plead a virtually impossible case. Indeed, it almost seemed that Erskine had concluded that the allegations were indefensible when he began by admitting that, ‘a man must be lost, not only to all Christians, but, I should apprehend, to all human feelings, who does not feel infinitely hurt by everything that has been stated this day.’
Having effectively confirmed his client’s guilt - and quite possibly betraying his true feelings - Erskine made no attempt to deny the acts alleged beyond suggesting that many statements were ‘fabrications of Lady Strathmore’. Neither did he endeavour to argue the usual abusive husband’s justification, despite the fact that it would remain a stock defence for a further century, when he gamely asserted that a ‘wife has a right to the protection of the law to keep herself from violence even against her husband’ and that although the husband enjoyed the right to the ‘possession of her body’ this did not permit him to seize or detain her by force. In an uncharacteristically lacklustre oration, Erskine merely claimed that Bowes’s actions stemmed from ‘just and pure motives’ in his determination to remove Mary from the hands of people ‘conspiring to ruin her with fortune-tellers, to widen the breach with her husband’. Instead, with Bowes seemingly a lost cause, Erskine concentrated his legal aplomb on attempting to exculpate his fellow accused by insisting that they were innocent of conspiracy since they had had no knowledge of Bowes’s aims. Channelling his energies in particular into absolving his colleague, Thomas ‘Hungry’ Bowes, Erskine called as a character witness the former attorney general ‘Honest’ Jack Lee who earnestly swore that: ‘I never did know a man of his profession, bear a fairer or more honourable character in my life.’ As Erskine sat down after one of the least inspiring speeches of his career there was little doubt that Bowes’s fate had been sealed.
Summing up the case for the jury, Judge Buller made no effort to disguise his disgust for the nine defendants or their misdemeanours. Taking particular exception to their exploitation of fundamental planks of the law for their criminal ends, by trumping up a charge against Mary’s servants, pretending to carry her to Lord Mansfield and even abusing the role of a constable, Buller had no hesitation in declaring that all nine had ‘knowingly engaged in criminal acts’. After seven hours of testimony, it took the all-male jury just minutes to decide that Bowes and his entire gang were guilty of every charge.
With sentencing deferred to a future date Bowes and his confederates remained on bail and at liberty. Inevitably, the entire pack absconded so that two weeks later writs had to be issued to bring them back for sentencing. When Bowes was seized, on 16 June, he claimed, of course, that he was on his way to court. All charges having been dropped against Thomas Bowes - there being as much honour among lawyers as thieves - and with Chapman, Pigg and Bickley still on the run, only Bowes and four of his accomplices now appeared at the King’s Bench on 26 June 1787 for judgement before Buller, Sir William Ashhurst and Sir Nash Grose.32
Although nearly two hundred crimes, from stealing a handkerchief to cold-blooded murder, carried the death penalty in eighteenth-century Britain, conspiracy was not among them. Nonetheless, while Bowes might escape the rope for his various acts of attempted murder, attempted rape and repeated assaults, he finally had to face the very real prospect of a lengthy imprisonment. Desperate to retain the liberty he had denied so many others, he now pulled out all the stops in his bid to mitigate his sentence. Maintaining the tired fiction of the tender husband trying to rein in his sinful wife, he had collected stacks of affidavits from the usual dubious suspects to justify his actions. Several of the testimonies even claimed that Mary had enjoyed boisterous sexual relations with Bowes throughout her abduction. So Bowes’s mistress Mary Gowland swore that she had heard them ‘whispering and laughing’ in bed, while the gamekeeper Matthew Shields attested that Mary ‘went to bed very willingly’. Yet even as he portrayed Mary as his devoted bed-mate, Bowes continued to accuse her of wanton and lewd behaviour. The judges were having none of it. Tersely, Grose remarked that rather than explain why Bowes wished to halt his divorce his evidence ‘would seem to make it rather a desirable thing’. His key evidence rejected, Thomas Erskine was forced to fall back on the argument that Bowes had been exercising his power, indeed his duty, as a husband to protect his wife when she was incapable of governing herself.
Fully prepared for this age-old defence, James Mingay called on the justices to make an example of Bowes in order to deter similarly abusive husbands by issuing a ‘heavy sentence’. Finally losing his temper with his legal colleagues, he exploded: ‘How the Gentlemen can reconcile the evidence of the trial with the duties of a husband, seems to me to be a paradox!’ And in a bravura performance which went to the heart of the debate on husband’s rights, Mingay asked: ‘Are the powers of a husband in this country such, that women that are ill-used are not to complain?’ Women who had left their husbands to pursue divorce suits through the ecclesiastical courts required the protection of the law from such men who tried to seize them, not its connivance, he insisted. And in a clear swipe at the stereotype of the Irish fortune hunter, he added: ‘Is this the way Mr Bowes thinks English husbands are to protect their wives?’
Certainly the judges thought not. In a stinging indictment, Justice Ashhurst branded Bowes’s crimes ‘as atrocious and daring a nature as ever appeared in a Court of Justice’. Had not the facts been incontestably proven it would scarcely have seemed credible that ‘in a civilized country, governed by such laws, any set of men would have been found hardy enough to take away a Lady of rank and fortune, from one of the most publick streets of this great town, at mid-day, in defiance of all law, order, and government, and to drag her through the heart of the kingdom 240 miles’. What was worse, the judge added, was that Bowes’s intent had been to pervert the course of justice by preventing the progress of a properly instituted lawsuit. Bowes was fined £300 and sentenced to three years’ imprisonment, at the end of which he would be required to find securities totalling £20,000 for the ensuing fourteen years. His fellow conspirators were likewise sentenced to prison with heavy fines.
Widely reported in the press, the Bowes trial was a landmark case which signalled a warning to violent husbands everywhere that the powers they might have assumed were absolute over their wives were actually curtailed by law. It gave hope to abused wives throughout the country that they could expect the protection of the courts when pursuing divorce claims. At the same time, Bowes’s conviction and sentence were symbolic of a subtle shift in society’s perceptions of the balance of marital power and represented another step in the slow march towards the outlawing of domestic abuse and wrongful confinement. Sadly, however, it would be more than a century before the defence of reasonable confinement was finally declared obsolete. In a case remarkably similar to Mary’s, Emily Jackson was kidnapped in 1891 by the fortune-hunter husband she had fled yet he
r family’s application for a writ of habeas corpus was refused by the High Court on the usual basis of the husband’s right to detain his wife. The Court of Appeal, however, firmly rejected this defence as stemming from ‘quaint and absurd dicta’ which no longer applied in a civilised country.
Incarcerated but unrepentant, Bowes pursued his remaining legal challenges with undiminished zeal, determined at all costs to hang on to his fortune whether by scuppering the divorce or affirming his deed. Still a wealthy man, by virtue of the income from Mary’s estate, he continued to live in the marshal’s best apartments where he entertained his friends and mistresses. His decadent lifestyle prompted the Morning Post to observe: ‘To some people . . . a commitment to BANCO REGIS [the King’s Bench] is no great punishment. A certain delinquent daily eats, drinks, and gets merry, and though surrounded by as many wives and children as MACHEATH, keeps them all in good order.’33 In the meantime, Mary remained penniless, dependent on the goodwill of friends and powerless to prevent the once grand homes of her childhood from sliding into decay. At Streatlam, Colpitts’s son reported that October, the meadows were overgrown, the deer had not been culled and ‘the Castle is uninhabited except by pigeons and jackdaws’.34 At Gibside, where the snooping ostler Joseph Hill had set up quarters, James Smith lamented that ‘the Chapell, Greenhouse, Banquiting House, Bath, Gardens, and Walks, [and] pleasure Grounds are all gone to Ruin’.
Pressing on resolutely with her legal cases from her house in Holles Street, Mary was distraught in December when Morgan fell sick with a fever. Afraid the illness might carry off her friend, she told Colpitts: ‘You will easily imagine what I must have suffered; indeed it has cast a desponding Languor upon my spirits & a tremor upon my nerves.’35 As Morgan recovered, Mary’s nerves remained on edge. Still watched and harassed by Bowes’s hoodlums, who had recently tried to abduct two of her servants, she wrote: ‘I believe really that, instead of being tamed, Stoney will grow more & more desperate, I am therefore doubly cautious.’