Parliamentary Divorce, 1700–1857

Parliamentary Divorce, 1700–1857parh_310 169..189

D O U G L A S J A M E S

King’s College, London

Divorce by parliament in the 18th and early 19th centuries was long considered to be thepreserve of the wealthy and the upper ranks of society. But while social standing has guidedhistorians’ analysis of those who obtained divorce, the standing of those who failed to obtaindivorce has been largely overlooked. If rank or status is to serve true analytical purpose, thesuccessful must be set against the failed. Juxtaposing the successes and failures by group acrossthe period reveals that the upper echelons of society were by no means preferred. Evendistinctive cases – for instance of multiple failure – were not decided on rank. Status isultimately shown to be of limited significance. Although the sources are not at all explicit,from the analysis of certain specific cases, it would appear that moral and legal judgments (forexample, on collusion) far outweighed any social prejudices.

Keywords: England; parliament; 18th century; marriage; divorce; exclusion; status; procedure;judgment; Lords Journal

1

Divorce in the long 18th century was, so Lawrence Stone has argued, a ‘termination’inferior in social and legal importance only to death.1 Marriage was considered a sacredunion instituted by oath before God. In theory only death, God’s calling, could dissolveit. Yet in practice, as the highest legal arbiter in England and the nearest in sovereigntyto Him, so could the monarch-in-parliament. Adultery was the sole ground on whichdivorce could be obtained.As Caleb Fleming explained in 1751, in life ‘nothing short ofdefiling the marriage bed, can legally dissolve the contract’.2

Before 1700, parliament had, on occasion, validated de facto divorces and sanctionedremarriages, lest bastard issue or dissenting religion profit from adultery. For instance, thethreat of spurious inheritance hovered over Lord Roos’s case of 1670, often deemed thefirst parliamentary divorce. The first ‘pure’ case, however, was decided in 1700, whenthe duke of Norfolk, after two failed attempts in the 1690s, finally secured his divorcefrom his duchess, Mary.

This curious arrangement of divorce by parliament – which so far as I know is uniquein world history – stood until 1857. In that year, the Matrimonial Causes Act provided

1 L. Stone, Road to Divorce: England 1530–1987 (Oxford, 1990), 6.2 C. Fleming, The Oeconomy of the Sexes (1751), 3, 9.The ground rested on scriptural authority, at Matthew,

xix, 9: ‘whoever shall put away his wife, except it be for fornication, and shall marry another, commitethadultery’.

Parliamentary History, Vol. 31, pt. 2 (2012), pp. 169–189

bs_bs_banner

© The Parliamentary History Yearbook Trust 2012

for a secular divorce court presided over by a temporal judge. The management ofdivorce passed from the legislature to the judiciary.

Unsurprisingly, legislation dissolving marriage forms a tiny proportion of the activityof parliament in the period 1700–1857. It amounts to 300-odd of several thousand acts.3

Even among private legislation, ‘estate’ acts far outnumbered divorce acts. In 1711, forexample, just one divorce act (that of Stephen Jermyn) was passed, alongside almost 40estate acts, among a total of 72 private acts.

Legal and family historians have done much important work on divorce in recentyears.4 In two pioneer articles, Stuart Anderson and Sybil Wolfram presented the socialcomposition of parliamentary divorcés. Both commented usefully on the motives propel-ling a petition to parliament.5 Anderson also analysed the skewed findings of the 1853royal commission on the costs of divorce. Wolfram, meanwhile, also examined suits of‘criminal conversation’ (the legalese for adultery; hereafter cited as crim. con.) thatcuckolded husbands brought at common law against their wives’ lovers; she assessed thecongruence of these suits with divorce patterns.6 In 1990, Lawrence Stone added hisfindings from consistory courts and the appellant court of arches: full divorce (termed avinculo matrimonii) was increasingly dependent, even before a 1798 standing order madeit mandatory, on prior ecclesiastical divorce a mensa et thoro, i.e., from bed and board.7

A simple question has been central to the historiography of parliamentary divorceproceedings. Anderson put it plainly: was divorce a ‘law for the aristocracy’? The earlyanalysis returned no clear answers. Wolfram claimed that divorce was ‘by no means aprerogative of the aristocracy as it was alleged to be’ (by the 1853 royal commission).8

On the other hand, Anderson claimed that ‘no petitioner . . . came from the lowerorders’.9 Stone, avoiding a direct comment on status, proposed that divorce was ‘theprivilege of a plutocracy’: for Stone, money was the ‘determining factor’: the upper rankswere simply better able to respond to the practical costs and institutional requirementsof petitioning parliament, such as paying legal fees and travel costs, or gathering eye-witnesses to testify.10 Other subhypotheses also sidestepped status.Anderson, for instance,thought that the ‘key’ to the likelihood of success lay with the lord chancellors and their

3 See S.Wolfram,‘Divorce in England 1700–1857’, Oxford Journal of Legal Studies, v (1985), 181. I have takenthe total number of successes to be 311. For the problems with the various figures and the official return, seeWolfram, ‘Divorce in England’, App. 1B; R. Phillips, Putting Asunder: A History of Divorce in Western Society(Cambridge, 1988), 31 n. 8. Of all the totals, the maximum figure is 322.The largest effect of such a figure onthe rates calculated below would be (a hopefully negligible) 3.9%, assuming all the possible 21 extra came inthe cohort with the highest success rate as it currently stands (1761–90).

4 In addition to the below, see Phillips, Putting Asunder, passim; J. Bailey, Unquiet Lives: Marriage and MarriageBreakdown in England, 1660–1800 (Cambridge, 2003), passim; D.T. Andrew, ‘ “Adultery à-la-mode”: Privilege,the Law and Attitudes to Adultery, 1770–1809’, History, lxxxii (2002), 5–23.; P.R. Backscheider, ‘ “EndlessAversion Rooted in the Soul”: Divorce in the 1690–1730 Theater’, The Eighteenth Century: Theory andInterpretation, xxvii (1996), 99–135.

5 Wolfram, ‘Divorce in England’; S. Anderson, ‘Legislative Divorce: Law for the Aristocracy?’, in Law,Economy and Society: Essays in the History of English Law, 1750–1914, ed. G.R. Rubin and D. Sugarman(Abingdon, 1984), esp. 436ff.

6 Wolfram, ‘Divorce in England’, 160–2, 167, 171 and passim.7 Stone, Road to Divorce, 28ff., 183–95, 244–5; for his take on petitioners’ status, see 326–7.8 Wolfram, ‘Divorce in England’, 162.9 Anderson, ‘Legislative Divorce’, 417.10 See Stone, Road to Divorce, 326–7, 354–7.

170 Douglas James


respective attitudes towards divorce, the sanctity of marriage, and the dubious morality ofcrim. con., connivance and collusion.11 Indeed,Anderson speculated usefully on the timelag between the arrival of a new lord chancellor, the recognition of his attitude and theflow of divorce applications.12

None of these conclusions implies that the house of lords – where divorce bills wereread in the first instance – consciously discriminated by rank. Yet, since we areconcerned with legislation that was so seldom passed, we ought, if we are to discern themost robust trends for why divorce was granted, to consider those who were denieddivorce as well as those who petitioned successfully. The central historiographical ques-tion, however it is phrased, implies inclusion and exclusion. It follows that we must chartthe trends of inclusion and exclusion – must set the composition of failed divorcepetitioners against that of the successful. Although a few failed cases have been men-tioned, no one has yet carried out a systematic analysis of the social composition of thosewho were denied divorce.13 Such is the present task.

2

The plan is as follows.The first section examines everyone who tried to obtain divorcein parliament. It charts the successes (311) and failures (81) by social ranks, questioning,at a broad level, to what extent rank bore on each group’s attempts to divorce. Thesecond section compares a few case studies in greater detail. The fate of one failed billper group is described. The aim is the same – to work out how significant rank was –but the cases in this section are chosen simply by their median position in the chrono-logical sequence of cases in their group, not for any obvious peculiarity.

By the end, we will have looked at both ‘normal’ and ‘exceptional’ cases. If a broadthesis is to be abstracted, it is that social rank offers only limited insights into divorceproceedings. Decisions to grant or not to grant divorce may have been partly promptedby the social status of applicants (or their change in social status over time); but otherconcerns, such as the desire to punish and dissuade collusion, ultimately prevailed. Toomany trends are inconclusive to be able to assert confidently that success or failure indivorce reflected applicants’ social station. Moreover, our sources are often necessarilyreticent at the very point at which we need their explicit rationale for why divorce wasor was not granted. If the sources speak at all, they speak to more legal explanations.

If this line of enquiry will enable us to re-evaluate what were the criteria on whichparliament granted divorce, it may have a wider relevance still. It will offer clues onpublic access to parliament – an important and burgeoning theme.14 It may say some-thing about the openness of an elite institution (the Lords) that was formed of a

11 On these terms, and what they mean in divorce cases, see esp. Stone, Road to Divorce, 328–39.12 Anderson, ‘Legislative Divorce’, 424ff.13 E.g., Anderson, ‘Legislative Divorce’, 422–6 – but only in so far as they demonstrate the decisive role

played by the lord chancellor; and Stone, Road to Divorce, 328ff., on connivance, collusion and otherimpediments to success.

14 For this period, see J. Innes, ‘Legislation and Public Participation 1760–1830’, in The British and TheirLaws in the Eighteenth Century, ed. D. Lemmings (Woodbridge, 2005), 102–32.

171Parliamentary Divorce, 1700–1857


putatively discriminatory elite group (the peerage).15 It bears on legislative efficiency; onthe cultural anxieties of invaded domestic privacy and lapsed male domestic control; andon broader religio-moral considerations of 18th-century society, including, but notlimited to, male honour and female decency. Finally, it may prompt a re-evaluation ofhow status itself – for all its slipperiness in this period – is considered by historians.16

3

There are a few more preliminaries to attend to, before we move to the data.First: parliamentary procedure. In order to get a handle-hold on the data, we need to

outline the petitioning process. Sheila Lambert’s remains the standard account.17 Apetitioner would draw up a bill, and a petition to have it read.18 He or she would employa peer to introduce the bill. The Lords would resolve into a committee of all themembers sitting at the time of presentation. Purely personal bills could be exemptedsome formalities, such as printing, lying on the Commons’ table, and notices of com-mittee. Their passage could be thus accelerated – and given a greater chance of successbefore the end of a parliamentary session. A bill could fail at any stage: on reading, incommittee, in the Commons, or before engrossment. It could fail ‘actively’, by beingrejected or blocked at a necessary stage; or ‘passively’, by the Lords forgetting about it,allowing it to drift, or postponing it repeatedly until the session had expired.19 The lordchancellor, as the in-house jurist, would often act as the cross-examiner of witnesses, andwould almost always proffer his judgment.

Second preliminary: the sources. For failures down to 1800, I follow those casestabulated in Julian Hoppit’s Failed Legislation (excluding petitions for separation andnullity).20 I derive the social status of petitioners from their designation in the respectiveLords Journal entries. For failures from 1800 down to 1857, I have traced petitioners inthe Lords Journal and in the session papers (crucially in the petitions and bills themselves)lodged with the Parliamentary Archives, formerly the House of Lords Record Office. Itwill be interesting (mainly in the second section) to see what biographical informationis provided in these papers.

Third preliminary: the method. The first section processes the data statistically –mainly by percentage illustrations and comparisons. The limitation of the small samplesizes is, hopefully, mitigated by the argument’s very slight overall reliance on numbers.Thesecond section will regale the stories of human problems – which were pivotal to theseproceedings – as they were told to the Lords. The numbers lend weight to, rather than

15 See, e.g., J.A. Cannon, Aristocratic Century: The Peerage of Eighteenth-Century England (Cambridge, 1984);L. Stone and J.C. Stone, An Open Elite? England 1550–1880 (Oxford, 1984).

16 See, e.g., H. French and J. Barry, Identity and Agency in England, 1500–1800 (Basingstoke, 2004); A.Vickery, Behind Closed Doors: Domestic Life in Georgian England (New Haven, 2009).

17 S. Lambert, Bills and Acts: Legislative Procedure in Eighteenth Century England (Cambridge, 1971), 85–6,91–5, 104; see also J. Hoppit, Failed Legislation 1660–1800: Extracted from the Commons and Lords Journals (1997),22–4; Stone, Road to Divorce, 323.

18 In a few cases, a petitioner petitioned to bring in another’s bill – as in Wortham’s/Newenham’s case.19 Hoppit, Failed Legislation, 25.20 Hoppit, Failed Legislation.

172 Douglas James


substitute, analysis of how the Lords dealt with these matters. After all, without theexperience of such problems, there would have been no record for parliament and norecord for today’s historians – and certainly no history worth recounting.

Fourth preliminary: status. So that the reader may compare easily, I employ Wolfram’scategorisation. She defended her categories with a neat reference to Trollope’s DoctorThorne.21 They, none the less, carry serious health warnings. For one, they are not allbased on strictly contemporary societal analysis. No mention is made of King orColquhoun, for instance.22 The changing esteem of different statuses over time is elided.So might be the fact that a petitioner could possess ‘primary’ and ‘secondary’ statuses:many military officers signed themselves ‘esquires’ and have thus been included in thiscategory. If some ranks hide secondary statuses, others run the risk of more seriousconflation.Take Wolfram’s ‘surgeons’.Whereas common (barber-) surgeons tended to beof low social esteem, physicians were university-educated men jealous of their profes-sion’s august status.23 Yet even physicians defy strict description: our quarry includes aroyal dentist, Charles Dumergue, but also James Campbell, retained by the East IndiaCompany to practise military surgery. Social, occupational and professional statuses areoften best characterised as a series of subjective Venn diagrams. Another article is neededin order to query how divorce affected these identities.

The use of any ‘other’ category defies the fundamental point of categorisation. For thisreason, but also to take account of the fact that the Lords Journal noted a petitioner’soccupation, I have broken Wolfram’s ‘other’ into ‘professionals’ and ‘tradesmen’. I shouldstress that these denote what we today might mean by those terms – they are heuristic‘best-fits’.24 This, of course, may well hide the vast gulf in contemporary standingbetween a grubby lawyer and a princely merchant.

Lastly, despite Stone’s protests, I have kept soi-disant ‘gentlemen’ within the ‘upperrank’ bracket.25 It is fair to say, as Stone does, that the rank by no means equated torelative wealth. Take the example of William Chippindall. Here was a former attorney,now an attorney’s clerk, who adopted the rank but had to petition in forma pauperis in1847–8, for he was worth less than £5.26 However, although the title may have wanedquite considerably, and may not dovetail with wealth status, it appears on enough bills towarrant separate consideration.27

The choices made here immediately signal the need for caution in analysing 18th-century statutes. We are right to probe at what contemporaries meant by using statusassignations, for they would not have been signed or assigned without reason. (Part of the

21 Wolfram, ‘Divorce in England’, 162 n. 25.22 With this, cf. Anderson, ‘Legislative Divorce’, 416.23 The works of Roy Porter are of first importance to this theme.24 The ‘professionalisation’ of various trades has received a great deal of attention. See, to begin with, the

list of works mentioned by B. Hilton, A Mad, Bad and Dangerous People? England 1787–1846 (Oxford, 2006),685–6.

25 See Stone, Road to Divorce, 327 n. 76.26 LJ, lxxx, 20, 723.27 With this, cf. P. Langford, ‘British Politeness and the Progress of Western Manners: An Eighteenth

Century Enigma’, TRHS, 6th ser., vii (1997), 65; and the works mentioned by L. Klein, ‘Politeness and theInterpretation of the British Eighteenth Century’, HJ, xlv (2002), 897 n. 118.



historian’s task is to discover where contemporary reason is revealed.) All the same, statusshould not become a charged keyword of the analysis of 18th-century society or beboiled down to a connotative tag.

4

Table 1 reminds us of the successful petitioners’ social status. I have divided the periodinto five cohorts: one of 31 years, three of 30 years, and one of 37 years down to 1857.The rationale is simply that keeping to decades as far as possible makes things neater,while 5 x 31.6 is messy. Our first concern, however, is to set these successes against failedpetitions, and spot trends there. Table 2 presents the failed divorce bills. I have confinedeach of the 81 petitioners to one entry (the first), even though there may have beenmore than one.We will return to this problem later. Table 3 presents the breakdown offailures for the period as a whole.

The relatively unemphatic total proportion of upper-rank failures (56.8%) belies thefact that in two cohorts they accounted for more than two-thirds, and in one for overfour-fifths, of failures.They always returned a majority of failures – and by some margin.The closest another group came was in the last cohort, when military men accounted for

Table 1: Successful Parliamentary Divorces by Rank, 1700–1857

Rank

Cohort

1700–30 1731–60 1761–90 1791–1820 1821–57

No. % No. % No. % No. % No. %

Titled 2 25 4 17.4 9 16.1 13 14.8 7 5.1Esquire 2 25 7 30.4 15 26.8 39 44.3 69 50.7Gentleman – – 9 39.1 8 14.3 5 5.7 6 4.4

Total – upperranks

4 50 20 86.9 32 57.2 57 64.7 82 60.3

Merchant 1 12.5 3 13.1 8 14.3 5 5.7 8 5.9Clergy – – – – 4 7.1 6 6.8 6 4.4Surgeon/doctor

of physic– – – – 3 5.4 3 3.4 3 2.2

Armed forces – – – – 3 5.4 8 9.1 16 11.8Other –

professional– – – – 4 7.1 3 3.4 9 6.6

Other –tradesman

2 25 – – 2 3.6 4 4.5 6 4.4

Woman – – – – – – 1 1.1 3 2.2No

information1 12.5 – – – – 1 1.1 3 2.2

Total 8 100 23 100 56 100 88 100 136 100

174 Douglas James


Table 2: Failed Divorce Bills by Rank, 1700–1857

Rank

Cohort

1700–30 1731–60 1761–90 1791–1820 1821–57

No. % No. % No. % No. % No. %

Titled 2 33.3 2 28.6 1 9.1 3 13.0 1 2.9Esquire 1 16.7 3 42.9 3 27.3 13 56.5 11 32.4Gentleman 1 16.7 1 14.3 – – 1 4.3 3 8.8

Total – upperranks

4 66.6 6 85.6 4 36.4 17 73.9 15 44.1

Merchant 1 16.7 1 14.3 1 9.1 1 4.3 – –Clergy – – – – 2 18.2 2 8.6 1 2.9Surgeon/doctor

of physic– – – – – – – – – –

Armed forces – – – – 1 9.1 1 4.3 10 29.4Other –

professional– – – – 1 9.1 – – 2 5.8

Other –tradesman

– – – – 1 9.1 1 4.3 1 2.9

Woman – – – – – – 1 4.3 5 14.7No information 1 16.7 – – 1 9.1 – – – –

Total 6 100 7 100 11 100 23 100 34 100

Table 3: Proportion of Failed Divorce Bills by Rank, 1700–1857

Rank

Total

No. %

Titled 9 11.1Esquire 31 38.3Gentlemen 6 7.4

Total – upper ranks 46 56.8

Merchant 4 4.9Clergy 5 6.2Surgeon – –Armed forces 12 14.8Other – professional 3 3.7Other – trade. 3 3.7Woman 6 7.4No information 2 2.5

Total 81 100



‘only’ 14.7% fewer failures. Esquires accounted for the bulk – in fact more than half –of the upper-rank failures in all but the first cohort. Esquires, indeed, failed the most ofall the ranks, by the considerable margin of 23.5%.The proportion of titled men amongthe failures decreased substantially and continuously; but the gentlemen failed the least,in both number and proportion.All this is powerful evidence against the assumption thatthe elite dominated successful divorce proceedings.

Merchants failed as much as both esquires and gentlemen at the beginning of theperiod.Their failed number remained virtually equal to gentlemen until the last cohort.The lower ranks combined accounted for between 14.4% and 63.6% of failures – a muchgreater range, it will be noted, than among the successes. Only medics could boast thatthey never failed.

Three ranks accounted for fewer than 5% of failures. Little of real significance can bedrawn from the ‘other’ ranks to illuminate the fortunes of either. For as many tradesmen(a mercer, a coachfounder and a tobacconist) failed as did professionals (an architect – theJohn Nash – and two attorneys). Finally, it might be with surprise that we note thatwomen failed as often as gentlemen did.

As with the successes, the smattering of results precludes any bold conclusions at thisstage. Suffice it to say, as comparative glances at Tables 1 and 2 might prompt, that divorcewas never an absolutely open or closed shop. No group was entirely debarred, no groupautomatically admitted.

5

What we are especially concerned with, however, are the rates of success and failure.Wewant to know to what extent different groups won and lost their petitions over time.Table 4 juxtaposes the successes and failures by group for each cohort, and presents theoverall (period-long mean average) success rate for each group.

The last column provides a useful starting point. Crucially, for the period as a whole,success rate diminishes as status increases among upper-ranked men. The titled were lesssuccessful than esquires, who were, likewise, more prone to failure than were gentlemen.Although less than 3% separates the three ranks, only the titled were more likely to failthan any randomly-chosen member of the upper ranks at a randomly-chosen time. Letus look at each group in more detail.

The titled fared better as the period progressed. The low success rates in the earliestcohorts distort the period-long average in this respect. Indeed, from the second to thethird cohort, the titled success rate jumped from 66.7% to fully 90%. (This is the largestsingle rise of any rank, save for those groups that jumped from zero in a previouscohort.) Generally speaking, the titled found divorce easier to obtain as the periodelapsed – notwithstanding the supposedly ‘harsh’ Lords Thurlow and Eldon.28 Yet, notonly were they the least successful of the upper ranks, they were less successful than themerchants, tradesmen and professionals. Anyone wishing to proclaim that divorce was alaw for the aristocracy should bear these points well in mind.

For gentlemen, the opposite pattern of change over time is evident. They wereparticularly resistant to failure in the early cohorts, but their success rate then drops from

28 Anderson, ‘Legislative Divorce’, 428–31.

176 Douglas James


Tab

le4:

Succe

ssR

ates

ofD

ivor

ceB

ills

byR

ank,

1700

–185

7

Ran

k

Coh

ort

1700

–30

1731

–60

1761

–90

1791

–182

018

21–5

7To

tal

Succ

.Fa

il.R

ate

(%)

Succ

.Fa

il.R

ate

(%)

Succ

.Fa

il.R

ate

(%)

Succ

.Fa

il.R

ate

(%)

Succ

.Fa

il.R

ate

(%)

Succ

.Fa

il.R

ate

(%)

Titl

ed2

250

.04

266

.79

190

.013

381

.37

187

.535

979

.5E

squi

re2

166

.77

370

.015

383

.339

1375

.069

1186

.313

231

81.0

Gen

tlem

an–

1–

91

90.0

8–

100

51

83.3

63

66.7

286

82.4

Tota

l–

uppe

rra

nks

44

50.0

206

76.9

324

88.9

5717

77.0

8215

84.5

195

4680

.9

Mer

chan

t1

150

.03

175

.08

188

.95

183

.38

–10

025

486

.2C

lerg

y–

––

––

–4

266

.76

275

.06

185

.716

576

.2Su

rgeo

n/do

ctor

ofph

ysic

––

––

––

3–

100

3–

100

3–

100

9–

100

Arm

edfo

rces

––

––

––

31

75.0

81

88.9

1610

61.5

2712

69.2

Oth

er–

prof

essio

nal

––

––

––

41

80.0

3–

100

92

81.8

163

84.2

Oth

er–

trad

esm

an2

–10

0–

––

21

66.7

41

80.0

61

85.7

143

82.4

Wom

an–

––

––

––

––

11

50.0

35

37.5

46

40.0

No

info

rmat

ion

11

50.0

––

––

1–

1–

100

3–

100

52

71.4

Tota

l8

657

.123

776

.756

1183

.688

2379

.313

634

80.0

311

8179

.3



100% to 66.7% in the last 67 years. In the last cohort, they fared especially badly againstthe general average. In a time when the average success rate rose, theirs fell. Only militarymen, and women, fared worse between 1821 and 1857.

An esquire was more likely at the beginning of the period to be granted divorce thanwas an average petitioner. At that time, indeed, only a tradesman was more likely tosucceed. After 1731, an esquire was never more than 86.3%, and never less than 70%,likely to succeed. Esquires have the smallest success rate range of any group. It seems thatthey were treated with the greatest consistency across the period. It follows that theyresisted a particularly ‘harsh spell’, but did not capitalise on a lenient spell: in 1761–90,four groups had success rates higher than the average (including their fellows in theupper ranks), whereas the esquires’ was slightly lower.

The Lords did increasingly well by merchants.But for a shallow fall of 5.6% between thethird and fourth cohorts, merchants’ success rate rose continuously from 50% to 100%.Only in the first 60 years was a merchant’s bill more likely to be rejected than arandomly-selected bill – and it was only so by about 7%. Indeed, but for the medics, who,as noted, never failed, the merchants were the most successful of all the groups. In anotherforceful piece of evidence,we can say that across the final three cohorts, only twice – whenthe titled succeeded with 90% of bills and the gentlemen with 100%, both in 1761–90 –could any group of the upper ranks ever boast a higher success rate than the merchants.

Lords also got more used to seeing – and became more lenient towards – the clergy.William Hazeland was the first clergyman to apply, in 1763 – and he was successful.29

Whereas the clergy began with little success, over 16% below the cohort average, theyended the period more likely to succeed than the average petitioner. They might haveblushed had they known that, for the period as a whole, they were more likely than eventhe titled to overturn the indissolubility which they ratified and celebrated in churchesthe land over.

If there were groups that can be said to have suffered demonstrable exclusion, thenperhaps women and servicemen might be emphasized. They were the only sectors ofsociety that failed on average more than 30% of the time.Then again, even servicemenenjoyed a success rate of over two-thirds and only about 10% less than those who weretitled. Women were truly anomalous, however. At 40% success, they are all of 29.2%behind the military men. It might be surprising that even 40% were successful, given thestrength of the sexual double-standard, to borrow Keith Thomas’s analysis.30 We mightgrant women a few percentage leeway for the fact that Jane Wortham’s petition in 1846followed her daughter, Frances Newenham’s failure in the same year and concerned thesame marriage – i.e., they both produced bills for Newenham’s divorce. It should beborne in mind that women could come from different backgrounds and were notsocially homogeneous. None the less, as Stone has amply demonstrated, it requiredheinous and morally insupportable aggravating behaviour on the part of the defendanthusband for the Lords to look unfavourably on him and grant divorce to his wife.31

The above analysis suggests that no group was constantly privileged or consistentlydenied. There was certainly no clear gulf between the likelihood of the elite being

29 3 Geo. III, c. 19.30 See K.V. Thomas, ‘The Double Standard’, Journal of the History of Ideas, xx (1959), 195–216.31 Stone, Road to Divorce, 360ff.

178 Douglas James


granted a divorce and the likelihood of those of a lower station. On the face of it, theLords, itself a body of the elite, never saw fit to deprive its inferiors of the chance to sortout their marital difficulties by this ‘last resort’. Nor did lords really exert themselves atall to ensure that they helped their own kind.

Placing success rate alongside social composition allows us to ascertain and analysebetter the contrariety of decisions over time. Since only one social group – women – canbe said to have been excluded to any truly remarkable degree, we cannot label divorceas generally exclusive. It would appear that, in so far as divorce can be analysed throughany one lens, too many groups shared trends for one to conclude that success or failurehinged on social status. Hypotheses that stress institutional factors – such as the attitudesof the lord chancellors, the influence of the lord chairman, and the Lords’ moral fear ofcollusion and connivance – have by no means been undermined.32

Yet, in working out parliament’s rationale satisfactorily, we face the immediate, andperhaps insuperable, problem that their lordships never offered explicit explanations forwhy they decided as they did. Sometimes lords directed counsel on procedural points,especially the admissibility of evidence or the necessity for a particular person to testify.33

We can often pick out from the Lords Journal mention of proceedings that smack ofcollusion, even if lords did not call a spade a spade.34 We can guess whether a bill wasrejected or left to decay, by observing committee orders or repeated postponements.Those examples would quickly multiply. We can make rough guesses as to the costs ofpetitions, and work out who may or may not have been able to pay. (This, after all, wasone of the royal commission’s tasks.) But it cannot be denied that our sources arereticent when we want them to shout loudest.

6

Having outlined the raw data and offered some initial analysis, I should like, first, to pursuea few leads.The details of the relevant divorce bill’s journey will be given alongside.

The first lead to follow is those petitioners who failed once but were successful witha subsequent bill. The very fact that one could fail and then succeed on a second trysuggests that, unless a change in status had occurred in the interim, status was not in theirlordships’ minds on either occasion. But it would be revealing if there were a status link,even if it would only point to a group’s becoming more fluent in the language ofparliamentary business – more savvy in their dealings with the legislature. Happily, sincethere is only one petitioner, Robert Cunliffe, whose failure (1819) and success (1823)straddle two cohorts, we can test the point cohort by cohort.

The first cohort saw only one failed petitioner eventually succeed. Stephen Jermyn, asmentioned above, was divorced in 1711. He had, however, failed in 1707. Jermyn was awine merchant’s apprentice and the son of a namesake merchant. He had married SarahBell as a minor against his father’s wishes.35 Introduced in January 1707, Jermyn’s bill was

32 Anderson, ‘Legislative Divorce’, 424ff; Lambert, Bills and Acts, 91–3; Stone, Road to Divorce, 332ff.33 See, e.g., Sir William Wiseman’s case in 1824: LJ, lvi, 261–3.34 See, e.g., Thomas Edwards, Esq., in 1779: LJ, xxxv, 551, 618–19.35 Wolfram, ‘Divorce in England’, 163.



read twice and considered by a committee during February. Sarah petitioned to be heardon the matter, and Jermyn was ordered to cover her legal fees.36 On 25 February, his billwas deemed unfit to pass.37 Four years later, Jermyn got another committee.38 Though norationale is given, the bill was ordered to be engrossed on 9 March.39 It is not apparentwhether an ecclesiastical separation was obtained in-between the two petitions.

The second cohort, again, saw only one eventual success after failure. However,Godfrey Copley, Esq., failed twice before being granted his divorce. So I shall postponediscussion of him.

Of the 11 failures between 1761 and 1790, three found eventual favour with theLords: Rev. John Jenkins, Hon. Edward Foley and Francis Rybot. Jenkins – who had noliving – petitioned unsuccessfully in 1775.40 His bill was abandoned after the first readingin March of that year. He waited only a year to petition again – and was successful.41

Edward Foley petitioned in May 1786, but the bill was introduced too close to the endof the session (1 July). It expired.42 Like Jenkins, he succeeded in the following year.43

Finally, Francis Rybot, a London mercer, introduced a bill in June 1789.44 It was lastconsidered on 25 June.The order for a second reading was put off since his wife, Alicia,had appealed to the court of delegates (the second highest divorce appeal court) againsthis ecclesiastical divorce.45 Parliament rarely pre-empted a lower court’s judgment. YetRybot, too, had but a year to wait, for he divorced Alicia in 1790.46

In the fourth cohort, four men visited failure before success: Cunliffe, WilliamRaybould, William Lingham and Sir Hyde Parker. Raybould, a coachfounder andpainter, first sought a divorce in May 1791.47 But his bill was last considered just overtwo weeks after it was introduced. It lapsed in late May.48 As so often, he was successfulonly a year later.49 Sir Hyde Parker, meanwhile, an admiral, petitioned in late April 1798.The Lords Journal gives no prevailing reason for his failure, although Ann, his wife, didapply for time for an appeal in the court of arches. After three postponements in May,the second reading of his bill was finally postponed for three months – and not pickedup before the end of the session.50 Once more, a year later, he was successful.The Lordsdispensed that time with producing copies of the bill.51 Parker had numerous witnesses

36 LJ, xviii, 225, 248.37 LJ, xviii, 252.38 LJ, xix, 241.39 LJ, xix, 250; 9 Ann, c. 26.40 Anderson, ‘Legislative Divorce’, 421.41 16 Geo. III, c. 122.42 LJ, xxxvii, 471.43 27 Geo. III, c. 21.44 LJ, xxxviii, 271.45 LJ, xxxviii, 272.46 30 Geo. III, c. 5.47 Anderson, ‘Legislative Divorce’, 428.48 LJ, xxxix, 307.49 32 Geo. III, c. 13.50 LJ, xlii, 624–5.51 LJ, xliii, 176.

180 Douglas James


and, on that occasion, no impediment.52 William Lingham tried to divorce his wife, Eliza,in 1804, but she could not be traced to answer his claims. So Lingham’s bill was notproceeded with. It drifted out.53 At length she must have been found, for Lingham wasgranted divorce from her in the next year.54 Robert Cunliffe, like Jermyn, had fully fouryears to wait after his failure before his success. In 1819, his bill was considered but putoff.55 In 1823, the bulk of the hearing took place on 4 June.The proceedings in the courtin Calcutta were recited.56 The committee which was established on 16 June must havebeen satisfied that there was no collusion – as Cunliffe had insisted at the Indian trial –for by 26 June, the bill had arrived back from the Commons, where it had been agreedto without amendment.57

Between 1821 and 1857, half of all failed petitioners eventually secured divorce – 17out of 34. A few, all of different ranks, had sine die postponements or late-day orders:Jackson, Chippindall and Wiseman.58 One, Wyndham, had his bill dropped.59 But mostcould point to a lapsed bill first time around. Most bills simply ran out of time.

Speaking of the trends across the period, the first obvious point to note is that morepeople secured successes after a previous failure as the period elapsed.Whereas the first 90years saw only five subsequent successes, the remaining 67 years bore witness to 21.(However, lest the numbers impress us too much, this equates to a percentage rise of only16.7%.) No rank, at no point in the period, was preferred when it came to biting thecherry a second time. Strong prima facie evidence against imputing status to explainsuccess-after-failure is the fact that many petitioners had only a year to wait for success.Ata stretch, we might say that women were prejudiced in this way as in others, but no failedwoman tried a second time. Every other rank could point to someone who, if at first didnot succeed, tried again – and was successful. A longer study might determine whetherpetitioners recognized that ‘getting in’ earlier in a session might help them succeed.

The next batch of petitioners one imagines was doubly, or even triply, frustrated bythe divorce process.They were those who failed more than once. One verdict contra mayhave been bad luck or due to a naïvely late petition, but do two failures in any waycorrelate with status? Excepting the duke of Norfolk’s efforts in the 1690s, nine failedmore than once in the period.

Arthur Judge, from Westmeath in Ireland, was denied first in 1708, seemingly due tolengthy postponement.60 The next year, he was back, claiming the elopement of his wife.The rejection this time was more active, since the House was shown an affidavit of hersdenying Judge’s story.61 Unhappily we have no information on his status. (But note theimportance of the affidavit.)

52 LJ, xliii, 282.53 LJ, xliv, 438, 674.54 45 Geo. III, c. 100.55 LJ, lii, 882–95.56 LJ, lv, 734–55.57 LJ, lviii, 396, 816.58 LJ, lxxiv, 363, 548; lxxx, 20, 723; lvi, 273.59 LJ, lxxxv, 138, 147.60 Hoppit, Failed Legislation, 266–7.61 LJ, xviii, 484.



Godfrey Copley, Esq. came to parliament for the first time in 1749, but his bill wasnever read.62 In 1750, he got two readings and a committee.As we have seen they wouldin Rybot’s case, lords did not wish to bind the court of delegates – in this case intogiving Anna, Copley’s wife, an unfair hearing.63 Satisfaction came in the next session,however, as he was finally granted divorce by 24 Geo. II, c. 1 – third time lucky.

The first bill of Edward Downes (Esq.) in 1781 was allowed to lapse.64 His second, inthe following year, was rejected outright after two readings. In a useful demonstration ofhow questions on the ability to pay and on collusion elide easily in the sources, Downescould not swear that he was not receiving payment in the matter from his father-in-law.65

George Hoar, Esq., was given special leave to withdraw and reintroduce his bill in1801. But he did not prevail; his bill was rejected outright.66 He suffered the same fatein 1805.67 Information is especially sparse on his parliamentary experiences.

Richard Crewe, another esquire, also failed in 1801, after the examination of witnessesand the revelation that collusive deeds had been drawn up.68 Perhaps he did not waitlong enough for the Lords to forget his misdemeanour, for in the next session a motionto read his next bill a second time was resolved in the negative.69

Christopher Taaffe was an Irish esquire who had the weight of a substantial £5,000crim. con.damages award behind him when he petitioned in 1818.He failed, it appears, onthe Lords’ technical refusal to be petitioned and presented with the bill on the same day.70

When, the next year, he petitioned again, the second reading of his bill was put offrepeatedly.71

In the final cohort, Samuel Barker – another esquire, be it noted – had two bills putoff in the 1820s, the second sine die.72

Daniel Thorndike, a lieutenant in the royal artillery in Newfoundland, had two billslapse in 1826–7 – one for time, one for not being read a second time. But in 1829, hereturned with fresh evidence and was successful. He even survived no fewer than fourpostponements.73

Finally we have Major William Hough. He failed on no fewer than three occasions inthree years – in 1841, 1842 and 1843. Each of his bills lapsed.74 The second bill to divorcewife, Sophia, we know was ordered to be read on a late day. Yet, for all his tribulations,Hough’s efforts were rewarded eventually, in 1844.75 We will read more of him later.

62 LJ, xxvi, 112, 263.63 LJ, xxvii, 429, 482, 492.64 LJ, xxxvi, 319.65 LJ, xxxvi, 471; Stone, Road to Divorce, 330–1.66 LJ, xliii, 450–8.67 LJ, xlv, 160–1.68 LJ, xliii, 218.69 LJ, xliii, 422, 499.70 LJ, li, 661, 685.71 LJ, lii, 41, 621.72 LJ, lviii, 211, 330.73 LJ, lxi, 248, 467–599.74 LJ, lxxiii, 7, 21; lxxiv, 10, 65; lxxv, 18, 24.75 7/8 Vict., c. 48.

182 Douglas James


Have we any clues as to why the Lords saw fit twice – or thrice – to deny these men?It cannot pass unnoticed that all but one (on whose status we possess information) wereesquires. Yet these esquires did not petition in a particularly harsh spell for their rankvis-à-vis others. And they were not the only esquires to fail in their respective cohorts.Downes’s two failures, for instance, were straddled by two other esquires’ failures:William Gooch’s in 1781 and Matthew Lewis’s in 1783. Even in cases which appearobviously distinctive, legal and procedural questions were, by and large, the only onesposed. We cannot really derive any clues from a petitioner’s relative social standing.

7

We move now to the second task: to compare failures of different ranks in a little moredetail. One example of failure is selected for each group, by taking the chronologicallymedian case. Although this may inevitably lead to large discrepancies in time – for themedian will naturally fall in different years for different ranks – the trends noted aboveshould stabilise the comparisons. This exercise allows us to get closer to the stories ofadultery and the testimony of circumstantial evidence that underpinned the institutionaldocuments. It, therefore, also allows us to test the limits of our documents. I ask: werecases that came before parliament from different ranks in society similar in all but theireventual outcome? On what, ultimately, did success or failure depend?

Our select quarry for this section consists of: Hon. Edward Foley (titled), EdwardLoveden (esquire), John Cope (gentleman), Robert Collins (merchant), John Jenkins(clergyman), William Hough (serviceman), Thomas George (professional), ThomasChisim (tradesman) and Ann Dawson (woman). Since no medical man failed, this groupis not compared.

The Hon. Edward Foley’s case began fortuitously, when the Lords waived the fact thathe was strictly out of time to present a private bill. Having secured a divorce a mensa etthoro only five days before (6 May 1786), he claimed that ‘should he be deprived of thebenefit of this Session, he not being able to make an earlier Application, would be greatlyinjured’. But he presumably ran out of time, for there is no further mention of the billin that session.76 When he succeeded the next year, the committee noted favourably thatFoley’s counsel only asked questions about Foley’s wife’s adulterous liaison with LordPeterborough and the witnesses’ proof of it.77

The next case, of Edward Loveden MP, is fascinating. The reader interested in thecomplete saga is directed to the relevant chapter in Stone’s Broken Lives. Yet even a précisgives a tale of some length – and no little amusement. Evidence for this case survivesespecially plentifully, mainly because William Gurney – the celebrated shorthand writerwho covered the case – was so impressed by the reasoning of the judge, Sir WilliamScott, at first-instance, that he had Scott’s judgment printed.78

76 LJ, xxxvi, 471.77 LJ, xxxvii, 715.78 W.B. Gurney, Loveden and Loveden, The Judgment Pronounced by Sir William Scott in the Consistory Court of

London on the 13th July 1810 (1811), p. iii.



The transcript of Scott’s judgment lists numerous actions that had ‘the appearance ofsecrecy and clandestinity which leads to a suspicion of every thing [sic.] improper’, suchas Ann Loveden and Mr Barker being caught in the dining room by a butler wishing toknow how to dress the fish for dinner.79 Then there were the furtive staircase arrange-ments, feigned illnesses, plugged keyholes and damning love letters – of the pair havingfrequented a brothel and having kissed in the shrubbery.80

Other details emerged more clearly in the parliamentary proceedings.After some diaryreshuffling, the main business began on 27 March 1811.Warren Hastings, Loveden’s loyalbutler, was the first to testify.81 Among other things, he regaled how Ann confessed tohaving oiled the doors to allow Barker in and to having paid him, Hastings, £5 to keepthe secret. His tales were supported by chambermaid, Elizabeth Haynes. She added herimportant views on the implications of tumbled bed sheets as well as her noticingAnn’s secret posting of letters to Merton College, Oxford (where Barker was a fellow).82

Moreover, the under-butler, the gardener, the under-gardener, the groom and thefootman could all point to incriminating sights and sounds.83

Given this catalogue of circumstances, one would expect easy success. Parliament wascontent to pass the bill, but not without two amendments: the first annulling a settle-ment, the second providing Ann with £400 per annum for life. Loveden was aghast. Heargued that the amendments did ‘hold out a Premium to the Wife for the Commissionof Adultery’ and that the bill as it stood was directly against his interests. He, therefore,petitioned the Lords not to pass it. Loveden wished to suffer his crumbled marriagerather than pay continually for the privilege of divorce. The whole bill was put off forsix months – purposefully postponed.84

John Cope, the gentleman of our selection, had an altogether more miserable expe-rience in the Lords. He had seemingly obtained a satisfactory ecclesiastical divorce and£1,500 damages against Robert Bristow. It seemed, too, that the story suited a divorcebill. Mrs Cope supposedly lived with Bristow sometime after August 1798.85 But certainlords were gravely suspicious that the whole truth had not been put to them.Their fearturned on some missing evidence at the ecclesiastical hearing. The barrister in theecclesiastical suit was the only witness who was called to prove the nature of themarriage – but others were now testifying.The Lords’ fears were not assuaged.The billwas rejected for collusion.86 The case prompted Lord Radnor to urge the Lords toappoint an officer to ensure that ecclesiastical proceedings were correctly observed.87

In fact, the lord chancellor’s judgment on Cope’s case – happily found in the very fewparliamentary debates that survive before Hansard – shows just how strongly the House

79 Gurney, Loveden and Loveden, 12.80 Gurney, Loveden and Loveden, 20ff.81 LJ, xlviii, 153–5, 170–1.82 LJ, xlviii, 172–4.83 LJ, xlviii, 175ff.84 LJ, xlviii, 448–50. It was this case, Stone tells us (Road to Divorce, 345), that led to the annuity being

determined before the divorce bill was introduced – as a sort of retrospective prenuptial agreement.85 LJ, xliii, 155.86 LJ, xliii, 178.87 The Parliamentary Register, or History of the Proceedings and Debates of the Houses of Lords and Commoms . . . ,

ed. J. Debrett (18 vols, 1797–1802), xv, 261–2.

184 Douglas James


felt about collusion. The chancellor was ‘confirmed in apprehension that the wholebusiness is fraught with collusion. . . . Considering therefore the contumacy of anattempt so flagitious, to render their lordships the dupes and instruments of a collusorypurpose . . . he should not feel he did his duty . . . if he did not move that it be rejected.’To the Lords, collusion equated to contempt of court. Lord Thurlow, for one, thought itwarranted ‘some severe censure’ – severer, presumably, than the rejection of Cope’s bill.88

Robert Collins’s case is straightforward – by which I mean lacking in detail. Hesought divorce on account of his wife’s adultery with John Davies. On 9 March 1758,he petitioned to be allowed to introduce his bill after the expiry date for private bills. Hewas granted his wish – but never brought in his bill.89 That is his final mention.

Rev. John Jenkins was alluded to above. His case mirrors that of Hon. Edward Foleyremarkably. Jenkins’s first bill, like Foley’s, ran out of time – it was introduced in lateFebruary 1775 and the session expired in May.90 But Jenkins was back in the nextsession, on 25 October 1775, referring to the previous session’s leave to bring in a bill.91

This time he was successful. Mary Jenkins had been found to be having an affair withthe couple’s neighbour, Henry Lovibond Collins, in 1771. It seems that Collins was butone of many potentials defendants of a crim. con. action. For the evidence given at thehearing (on 6 May 1776) by servants of Collins, Mrs Jenkins and a neighbour, showedthat Mary had been sleeping with many men of the parish. Mary’s maid went so far asto say that Mary took lodgings in Hake Street for the purpose of meeting men. It seemshardly to do justice to the facts to cite that she had ‘many improper familiarities’.92

Major William Hough served with the East India Company. His ecclesiastical pro-ceedings tell of a ‘public and notorious case’. Major Thomas Skinner had been seencoming out of Sophia Hough’s room ‘with trouser in one Hand and Hand kerchief inthe other’ on 17 May 1838.93 When Hough learned the story, Sophia left him forSkinner. Hough brought proceedings against Skinner in June 1838, and in 1839 wasawarded 5,000 rupees damages.

In parliament, Hough made use of the 1820 statue, mentioned above, that allowedevidence in divorce proceedings to be taken in India – in this case at the supreme courtof judicature in Bengal. The state of the marriage was explicitly required to be ques-tioned. According to his warrant to Sir Edward Ryan in Bengal, the lord chancellorwanted it established among the evidence: ‘whether the general conduct and behaviourof William Hough toward . . . Sophia has or has not been affectionate and proper’.94

Hough foundered on his first attempt in the Lords for a breach of standing order 141,which required official copies of previous suits to be presented at the bar of the House.But the second attempt in February–March 1842 failed on the lord chancellor’s warrant:the Indian court ‘had not examined how the parties had lived together before theallegations’. The Lords ‘were not satisfied with reference to the conduct of the parties’.

88 The Parliamentary Register, ed. Debrett, xv, 262.89 LJ, xxix, 255.90 LJ, xxxiv, 328.91 LJ, xxxiv, 622.92 LJ, xxxiv, 696.93 Parliamentary Archives [hereafter cited as PA], HL/PO/JO/10/8/1353/50.94 PA, HL/PO/JO/10/8/1418/2, f. 2.



The Lords did not want to remit the case to India for fresh evidence, and so the bill wasordered to be read in six months.95

In 1843, Hough thought he had as ‘full and ample’ a set of documents as could begiven.96 But the House was, again, against him. He was ordered to return to examinemore witnesses – just as in 1841.97 Only in the next year was the Lords satisfied. Onlyin 1844 could Hough read, one imagines with great relief, 6–7 Vict., c. 48.

It is difficult to assess the case of Thomas George, an attorney from Cardigan in Wales.The manuscripts of George’s divorce are badly damaged.98 From what it is possible todecipher, George’s failure hinged on a technicality.The Lords could not be shown copiesof the crim. con. proceedings because the papers of the trial had been transferred out ofthe Welsh court before a verdict had been given. Although a verdict was eventuallyentered, with damages of a mere £5, the papers could not be found. It seems that, asHough would be, so George was frustrated by procedure.

Earlier we mentioned, in passing, the case of Edward Downes. He was the husbandwho could not swear that he was not being paid by his father-in-law to get divorced.The case of Thomas Chisim in 1778–9 is almost identical to it. It emerged at the timeof his bill’s second reading, on 3 February 1779, that Chisim’s wife had borne anotherchild by her seducer, Thomas Greaves. But it also emerged that Chisim had still notreceived the damages from his crim. con. suit against Greaves. The Lords questionedChisim on this point: why the delay? Chisim was boxed in, and was forced to admit thathis father-in-law was paying him collusively for the whole affair.99 When the bill wasfurther considered six days later, it was rejected outright.100

The case of Ann Dawson is poignant, not merely for its failure, but because more thanpride and dignity was injured in the events leading up to it.The case sheds light on thesort of behaviour that women might suffer under the authority of their husbands.101 Thebill is decidedly longer than most. Dawson, it seems, took advantage of her soleopportunity to bring her plight to the attention of the Lords. As it was, her bill wasrepeatedly put off, eventually sine die.102 Her story fell on deaf ears. But we shall hear it.

It began around Manchester in 1833. Ann claimed that she was ‘inveigled at the ageof fifteen’ into marrying John Dawson, a calico painter. He was ‘many years older’ and‘actuated by the hope of obtaining money from her . . . father’. She was whisked awayand married clandestinely, without her father’s consent. Dawson lied to source a mar-riage licence, claiming that Ann was 19 years old.When her father found out about themarriage, he commanded Ann to live with Dawson:‘in order to avoid further scandal anddisgrace’. John did not get hold of Ann’s father’s money. He turned to violence: he‘began habitually to treat his . . . wife . . . with great harshness and cruelty’. There fol-lowed a pattern: Ann would seek refuge with her father; he would urge reconciliation;

95 PA, HL/PO/JO/10/8/1418/2, ff. 2–5.96 PA, HL/PO/JO/10/8/1420/55.97 PA, HL/PO/JO/10/8/1420/84.98 PA, HL/PO/JO/10/8/1150/461.99 LJ, xxxv, 561–2.100 LJ, xxxv, 570.101 See Bailey, Unquiet Lives, 128ff.102 PA, HL/PO/JO/10/8/1667/355.

186 Douglas James


Dawson beat her again, growing more threatening each time. In 1836,Ann, having givenbirth to two daughters, moved away to London. She lived respectably on her father’spurse – until 1844.

Out of the blue, Dawson arrived at her lodgings in Orme Square with a gang of threemen. Dawson assaulted the tearful Ann ‘with such violence as to cut her forehead open’,took her keys and money, and threw her and the one daughter with her out of thehouse. He turned them ‘pennyless on the world’. She sought refuge with some nearbyfriends. They encouraged her to enquire into Dawson, presumably with the hope ofbringing some case against him.

Light appeared at the end of the tunnel when Ann discovered that Dawson had takena mistress, one Martha Huhne, a bonnet-maker from Manchester. The pair had livedtogether for some ten years by 1847. Ann managed to track down Lucy Chippington,from Gravesend, who testified to Dawson’s adultery.

But it was to no avail. The plain fact of the matter is that there was nothing in thiscase that the Lords found especially objectionable. Unlike a taboo case involving flagrantincestuous adultery, like Louisa Turton’s, here was simply a husband maltreating his wifeand taking a mistress.

Let us pause to reflect on these examples.There is a variety of reasons for failure: timeconstraints; the detection of collusion; breaches of technicality; the desire not to bring ina bill, or to see it pass; insufficient detail of the marriage; finally, simple rejection bypostponement. Each of these case studies, elaborated through the rhythm of the hearingsbefore the Lords, reveals that status was nowhere a factor. If we were to compare thefailures with the median successful cases, we would note that each successful case hingedon the proof – by testimony – of adultery.

In cross-examination, counsel put all sorts of questions that concerned the state of themarriage, the facts of adultery, the conspiracies of servants, and more minute details aboutdirtied bedlinen, doorlocks and hotel suites. They worried about who testified, whatwitnesses had to say, and in what order. But they were not at all concerned to impresson the Lords the rank of their clients. Nor did the Lords ever bother to ask about it.Stone put it rightly when he listed the Lords’ four main criteria for success: evidence ofadultery, evidence of good marital relations, absence of previous adultery by the peti-tioning spouse, and absence of collusion.103 Each failure could not satisfy these, or failedto observe the proper procedural conventions – or both. It is difficult, indeed, to add tothis list from our evidence.

Before we can so surely dismiss rank as being invisible in, and immaterial to, divorceproceedings, we must say something about the records of them. It was noted above thatlords never explicitly justified their decisions, and so never referred to status. Shouldstatus considerations have ever permeated records such as these? After all, the records thatsurvive are formulaic. Each bill was drafted as a series of ‘whereas . . . sheweth that’statements.The Lords Journal always repeated its stock anti-collusion phrase. Such docu-ments naturally conform to the requirements of the ancient institutions they passedthrough. A great deal is obscured by their language – for it was designed simply toexamine (in the Lords Journal ‘s case) or put beyond doubt (in the bill’s case) the facts of

103 Stone, Road to Divorce, 323–4.



the matter at hand.There was no room for linguistic niceties that might impress modernhistorians.104

These points about the generic ‘harness’ of parliamentary documents simply serve toreinforce the suggestion that legal and procedural formulae were – and had to be – theLords’ criteria in these cases.The House was a tribunal – the highest in the land.Therecould be no extra-legal considerations. Indeed, it might have been improper – andcertainly irregular – had there been.We should hardly expect the Lords to have judgeddivorce cases on status terms. Even if it did so surreptitiously or subconsciously, weshould hardly expect the sources to document it.

8

I have sought to examine and analyse the potential impact of a petitioner’s status on hisor her parliamentary divorce ‘experience’.There are, of course, more tests that could berun, if space allowed it.

One could examine how far from London a man had to travel, and with how manywitnesses. This would clearly deepen our understanding of the costs of divorce. Onecould look at the impact of causes célèbres, like the trial of Earl Ferrers in 1760, or,concerning divorce, the ‘scandalously collusive’ cases of the duke of Grafton in 1769 andLord Ellenborough in 1830.105 Pursuing Quentin Skinner’s train of thought on howavowed principles bind one’s behaviour, did episodes such as these bind parliament toappear to act impartially to men of all stations?106 One could examine the role of womenin divorce proceedings in greater detail.Although we have seen that they fared poorly inoutright divorce cases, they, none the less, had great power to influence a bill’s outcome– by appealing against ecclesiastical divorces, by draining their husbands’ funds, or simplyby alleging their own version of events.107

One could set Anderson’s lord chancellor thesis directly against social composition.Assuming a generally harsh or lenient stance on divorce, did different chancellors – all21 of them of our period – tend to help different groups? One could examine the peerswho introduced divorce bills, to determine whether, and with what likelihood, theyprejudiced the chances of a bill. It would, for instance, be very interesting to know whyLords Scarsdale and Walsingham notched up a good few failures in the 1780s and1790s.108 If George Urquhart’s advice to The Expereinced Solicitor (1773) was that he findpeers ‘conversant in . . . [the relevant] sort of business’ to introduce their bills, were

104 With this cf. N.Z. Davis, Fiction in the Archives: Pardon Tales and Their Tellers in Sixteenth-Century France(Stanford, CA, 1987).

105 See P. Langford, A Polite and Commercial People: England 1727–1787 (Oxford, 2nd edn, 1998), 298; Stone,Road to Divorce, 336–7; 9 Geo. III, c. 56.

106 See Q. Skinner, ‘The Principles and Practice of Opposition: The Case of Bolingbroke versus Walpole’,in Historical Perspectives: Studies in English Thought and Society in Honour of J.H. Plumb, ed. N. McKendrick (1974),93–128.

107 For more on women’s legal power, see, e.g., A. Erickson, Women and Property in Early Modern England(1993).

108 E.g., Hoppit, Failed Legislation, 436–7, 466–7, 478–9, 494–5, 502–3 (for Scarsdale); 560ff (forWalsingham).

188 Douglas James


Scarsdale and Walsingham simply less ‘conversant’ in divorce than others?109 On the widerissue to which these two issues refer, it may be that by delving prosopographically intowho attended the Lords, or simply who knew whom through what club, we might workout and impute significance to petitioners’ connections – and those of their agents – atthe time of parliament’s decision. Did those without connection have a tougher task?

Until these enquiries shed new light on the matter, procedural, legal and moral facts– adultery as sacrilegious and disturbing to the social order, collusion as legal malpractice,and the importance of sound testimony – should continue to take precedence inhistorians’ analysis of parliamentary divorce.While social rank throws up some intriguingdata, it offers but limited analytical purchase on parliament’s judgments. Certainly, fromthe sources, no active process of distinction was made on the basis of someone’s rank, forthere were simply too many other factors besides status that will have given food forthought. Each case was dealt with on its merits according to testimony and proof againstthe backdrop of faith in the institution of marriage and fear of collusion. Ultimately,divorce was a moral-legal, not a social, verdict.

In the long 18th century, countless pamphlets, plays, laments and speeches werewritten on marriage and divorce by all groups in society – from the duke of Clarenceto an anonymous wife and mother.110 Taken together, they suggest that different socialgroups could hold – and apply to one another – the same views on the subjects. Thehouse of lords, a social group in itself, appears to have taken a largely unchanging stanceagainst certain behaviour that gave rise to divorce proceedings. The legal, moral andprocedural ground on which that stance rested stood firm in the face of all social groupsthat tested it.

109 On the increased attendance of judicial peers in divorce hearings, see Anderson, ‘Legislative Divorce’,433. On Urquhart, see G. Urquhart, The Experienced Solicitor (1773), 14–15; I am grateful to Dr Ruth Paley forthis reference.

110 For an introductory list, see D.H. James, ‘Divorce in England, 1700–1857: A Survey of the Field and aResearch Proposal’, University of London MA, 2010.



Documents

Parliamentary Divorce, 1700–1857