Separation and Divorce in the 1700's

John Ennever born in 1713, was the only surviving child of John Ennever of Dunton Hall in Essex, he courted Mary the daughter of Robert Cornwell who was from Great Coggleshall. They were married at the Mercers Hall Chapel in London in 1736, and went to live at South Ockenden Hall in Essex where John followed the same occupation as his father, farming. They appear to be relatively comfortable employing a number of servants on the farm as well as in the house. Initially all was bliss, although Mary was continually pregnant, producing nine children in eleven years, however most of the children were very sickly and five of them died within their first year of life.

Over time their relationship deteriorated and by 1748 Mary had moved into a separate bedroom, but things continued to get worse and in August 1750 Mary walked out of the house with just the clothes on her back.

Within eighteen months she petitioned for a judicial separation from John, at this time the ecclesiastical courts had sole jurisdiction over the legal break up of a marriage, but the most they had power to grant was a separation from bed and board with no permission to remarry. The only way a divorce could be granted was through an act of Parliament, having first been granted a judicial separation. Mary's petition for a separation from bed and board was on the grounds of John's adultery and cruelty towards her from which she states she was frightened for her life. Although a wife was legally able to sue her husband for adultery, adultery on its own was not enough, she would usually only be able to win her case if there were also aggravating circumstances such as life threatening cruelty.

She gives some indication of her life style with the list of personal processions that she had left behind, this included among other things, jewellery and a dozen gowns. Very likely Mary started the judicial proceedings as a device in order to improve the desperate financial position that the separation had caused. She states that she is totally dependant on her brother and friends for her subsistence as she had no personal money and received no money from her husband. This ploy obviously worked as they appear to have come to some financial arrangement, and Mary dropped her petition.

A fresh petition was presented by John which was nominally contested by Mary, this would have formed part of a collusive arrangement to which they both conspired, Mary for financial reasons and John in order to prepare the grounds for the Parliamentary divorce he now wanted as he wished to be completely free to marry again.

The suit would have involved court interrogation of the witnesses, they would have appeared twice in private, the first time to make their depositions.

John produced eight witnesses, five being servants of his, the others a neighbour, an acquaintance and his aunt's husband.

The servant, Elizabeth Taverner, stated that she had observed great familiarities, indecencies and immodest behaviour between her mistress Mary and the family's cowman Jonathon Harvey, she had seen them kissing each other, and that Mary was often without her stays on. Elizabeth recalls one incident when John was at his mother's house at Dunton, Mary ordered Jonathon to sit up with her as she said the house was full of thieves, then ordered all the rest of the servants to bed, Elizabeth had to return to the kitchen for a candle, there she saw her mistress Mary in the kitchen with Jonathon Harvey, and that Jonathon was sitting on a bench and Mary was leaning over him and at the same time had her legs between his legs, and their arms round one another. Jonathon was later dismissed from John's service but Elizabeth stated that they frequently met in the cart house and the stables and she had to keep watch to let them know if anyone should come. She recalls one particular night between nine and ten o'clock, Mary removed her stays and met Jonathon at the cart house. After Elizabeth had been on watch for half an hour, Jonathon came and took a cloak from her and sent back with orders to return and let them know if John should come home. Elizabeth said her mistress did not return until four or five in the morning.

Elizabeth and John Gillman, two other servants, stated that they knew of no familiarities or indecencies happening between Mary and Jonathon Harvey. They did not know why Mary had left, but when she left she was big with child and that she had gone to a house of her brother at Grays where she was delivered of a daughter.

Elizabeth Ingram, a servant, states that Mary had a greater regard for Jonathon than any other of the servants but she never observed any indecent or immodest behaviour between them. However she stated that John was often away from the house, at which time she would send for Stephen Clark or Philip Benton, two local men, and sometimes both of them together. She had seen Stephen Clark kiss her mistress and that Philip had several times put one of his hands down Mary's bosom, the other up her petticoats. She recalls one incident when she took them up a glass of wine and she saw Philip Benton sitting in a chair with his breeches down to his feet and her mistress with her coat up, standing between his legs and could plainly see both their thighs.

The final servant Thomas Papril stated that he was in his master's garden when he saw Mary with Jonathon Harvey in the cellar, putting up beer into a barrel and plainly heard Jonathan ask Mary if he should 'lye' with her to which she answered 'no', but soon afterwards she said she would go and see where the children were, on returning she said they were safe in the kitchen, then Mary and Jonathon went behind some brickwork for a quarter of an hour before returning to the barrels.

The three other witnesses reported an incident in Whitechapel which happened approximately two years after Mary left her husband. The three men were all drinking together with John Ennever at the 'Red Lyon' between ten and eleven in the evening, when John was called out of the Inn and on his return told them he had been informed that his wife was in bed with another man, and he asked them to accompany him to Hobbs Coffee Shop in Newcastle Street where she was. After they had drunk a pint of wine, he asked the landlady to show them upstairs to the bed chamber where his wife was, where on opening the door they saw Mary Ennever dressed in her shift and cap in bed with a man, who none of them knew also dressed in his night attire.

No record has been found of the questions asked in the second interrogations, but from the answers we can deduce many of them.

For the second question the witnesses were asked if Mary was a person of a sober and virtuous life and conversation with a quiet and peaceful disposition, to which they all answered in the negative.

The ninth question concerned whether John had physical injured Mary, Elizabeth Ingram answered that Mary used to pinch herself with tweezers until her arms were all bruised and she covered herself with the blood from a cut calf's tail, and said that John had inflicted the injury.

All the other witnesses answered that they had not seen John inflict injury on Mary.

The tenth question concerned John Ennever chaining his wife to the bedroom floor. Elizabeth Taverner answered that John had fastened Mary with an iron chain round her waist which was attached to a staple in the floor. This was due to a quarrel concerning her daughter and the daughter of a neighbour as to whom was better at their needlework, Mary calling her husband a rogue, villain and rascal. Elizabeth did add that John had not kept Mary chained for more than two minutes. There were no other witnesses to this incident.

The eleventh question concerned Mary being burnt by her husband. Elizabeth Taverner answered that Mary had by chance run against a candle but had not been burnt much, and that John had not put or thrust the candle in his wife's face. No one else had seen this happen.

On the appointed hearing day, the two proctors would have spoken and the judge deliver the sentence in open court. There is no record of these speeches, but the separation from bed and board and mutual co-habitation was granted in February 1753 by reason of Mary's adultery and John had to put up a bond of one hundred pounds that he would not re-marry during Mary's lifetime. This whole process had taken four months.

In March of the same year, a petition was proposed in the House of Lords by the Earl of Findlater to dissolve the marriage of John & Mary Ennever in order that John could marry again.

At the second reading which took the form of a full trial, and unlike the ecclesiastical courts John was invited to be heard by the council to make out the truth of his allegations and Mary was given copy of the Bill so that it could be heard what she might offer against the Bill. Various witnesses were examined, including Elizabeth Taverner who re-stated the familiarities which she had witnessed between Mary Ennever and Jonathan Harvey. Elizabeth Ingram stated familiarities she had seen between Philip Benton but none with Jonathan Harvey.

Anthony Bayley and John Hawkins recounted the Hobbs Coffee Shop incident. Neither John or Mary spoke.

At the third reading the House affirmed that the Bill should be passed and on the 15th May 1753 the Bill received the Royal Assent.

The suit in the London Consistory Court would have cost at least 50 pounds, and the parliamentary divorce about 400 pounds.

Mary was to live for only five more years and died alone of a fever in 1758. John re-married but was to only survive Mary by four years.

What really happened, was Mary as bad as she was depicted?

Legal records have some serious drawbacks, the marital litigation was a process in which John was striving to win the case, and not to investigate or reveal the full truth about the breakdown of his marriage. During the second suit there is no mention of Mary's accusation of adultery, though this would have been a barrier to the required outcome from John's point of view as adultery by both parties cancels itself out.

The object of the litigants, lawyers, witnesses was to tell and support John's side of the story and conceal Mary's.

Servants could have been biased or persuaded to give a required view, they might have had no choice in order to retain their position or be easily bribed to give a false testimony. Some of the witnesses may have been coached. John and Elizabeth Gillman's statements use many of the same expressions.

How reliable was the memory of the witnesses, some of them described in detail conversations which has taken place years earlier, and it questionably how much such testimonies could be relied on. Ideas could have been planted, William Reynolds, a witness at the House of Lords uses the expression reputed with reference to Mary being with child when she left her husband. Although Mary did give birth to a child within a few months of leaving John, the child was baptised naming John as the father, and in John's petition to the House of Lords he only refutes children born after the birth of this child.

The incident of Mary being burnt was put across as an accident, her bruising, self afflicted, and being chained to the floor as immaterial as it was only for such a short period, But did John just happen to have a stake and chain ready to hand for such a spontaneous occasion?

Mary was certainly shown to be forward and indiscreet in her relationships but the evidence of Mary actually committing adultery with Jonathon Harvey is only intimated through opportunity, by being alone in his company, there was no co-oborated evidence, to be admissible in ecclesiastical court there would have had to have been two witnesses.

Jonathon Harvey could not be called as a witness even though he continued to live at South Ockenden after his dismissal from John's service. In canon law he would have been excluded from testifying as well as John and Mary on the grounds that they would be biased and not tell the truth. Mary never produced any witnesses in her favour, and John never took any action for criminal conversion, a civil suit for the recovery of damages against Jonathon to remedy his injured honour, a common practise under the circumstances.

Adultery by a wife, even a single act was perceived as an unpardonable breach of the act of property, it was an invasion of the husband's property, it was also seen as a threat to hereditary descent by the possible introduction of spurious issue. The Act of Parliament to dissolve John's marriage, included that any child born to Mary after the end of August 1751 should be deemed to be a bastard and not the lawful issue of John, this was a year after Mary's departure. Adultery by the husband on the other hand was regarded as a regrettable but understandable mishap.

The only evidence of Mary's adultery is at Hobbs Coffee Shop and this smells of being set up to achieve the word of the law in order to be granted a separation.

By walking out Mary made herself an outcast, she had no money, any income from her real estate would be retained by John, as well as future legacies that she might expect, all her personal property could be seized by John and she would have broken all contact with her children, an act of a desperate person.

Could not Mary have been the long suffering, neglected, lonely wife, who although indiscreet sought attention and affection, a victim of the times in which she lived?

This was adapted from my story that was published in Family Tree Magazine in 1997

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