'Disregarding the matrimonial vows': divorce in eighteenth and early-nineteenth century Scotland.

If marriage is the most important commitment in the life of most human beings, its dissolution is therefore traumatic, even in our own time, when it occurs so frequently. Debates on the ease or difficulty with which divorces should be granted continue to rage, and we forget that divorce has been around for centuries. Lawrence Stone has revealed the fascination there can be in looking at marital breakdown in earlier periods, but England was unique amongst European countries in allowing divorce only by private act of parliament. Looking at a country within the British Isles where it was readily accessible to all members of the population provides a different perspective.

In European countries which adopted Protestantism, marriage was no longer held to be a sacrament, and divorce was countenanced on the grounds of adultery. The right to divorce had to be the same for both sexes for, in Calvin's words, "A man may hold the primacy in other things, but in bed he and his wife are equal." The logic was that the Bible enjoined death for an adulterous wife, and "in modern times [the sixteenth century] divorce was a substitute for that punishment." Scottish divorce decreets therefore made the guilty party legally dead in relation to their spouse. England, having come to its Protestantism by a somewhat different route, was the exception, and in accordance with the teachings of the Roman Catholic Church continued to hold a marriage to be indissoluble, although separation without the right to remarry was allowed, and eventually it became possible for rich men to obtain a divorce by a private act of Parliament. Its laws encompassed Wales as well, but Scotland retained a separate legal system which allowed full divorce and remarriage. This was available on equal terms to both men and women on the straightforward grounds of simple adultery or "malicious" (i.e. deliberate) desertion for more than four years.(1)

In spite of this universal right, Scottish divorce rates remained low until well into this century. Studying divorce in periods before it became generally acceptable raises important questions about the marital tie. From 1684 to 1830, when its functions were transferred to the Court of Session, Edinburgh Commissary Court - the national consistory court - kept a register of decreets, and process papers were also retained in a more systematic way. As adultery was so rarely committed in full view of others, an enormous amount of circumstantial evidence was required, and the records of this court are therefore remarkably rich and full, enabling such questions to be posed. During this century and a half Scotland was transformed from a 'backward', largely rural, country into a heavily urbanized and industrialised one, so the first question must be what impact all this had on the divorce rate.

From evidence on divorce rates in various European countries and American states, and on separation in England, Lawrence Stone concluded that "there was some deep shift of mood and morals in Protestant areas in the late eighteenth century which made legal separation and divorce much more acceptable solutions to marital disharmony than they had been earlier."(2) As we will see, this also proved true of Scotland, and the reasons for the change must be considered. England's denial of divorce to women on the grounds of simple adultery until the 1920s formed a cornerstone of Keith Thomas's essay on the double standard.(3) So we must obviously ask if the legal right enjoyed by Scottish women was circumscribed by cultural disapproval of their using it. The final, crucial question is why in a country where divorce was so readily available, and where various circumstances rendered it far more acceptable by the end of the eighteenth century than it had been hitherto, the rate of divorce remained so very low compared with the later decades of the twentieth century.

Part I of this paper provides some background on divorce in Scotland and explains the procedures followed in the court. Part II presents the evidence. Part III looks at the implications and attempts to answer the questions.

I

"Divorces on account of adultery and desertion are evidently of the greatest consequence to the Constitution of the State, in so far as it is of importance that the happiness of Individuals and the general purity of manners should be preserved; and the most odious domestic Vices, the Contamination of profligate example, the ruin of infant children, with many other of the greatest evils that occur in Society, should be prevented," argued one Scottish lawyer in the full flow of rhetoric during an early nineteenth-century divorce case.(4) But divorce for adultery was not established by statute. Between 1560, when the Reformation was established in Scotland, and 1563, kirk sessions (local courts at parish level) followed the line of the European reformers and granted divorces to men and women whose spouses were guilty of adultery. This established a common law right recognised by Parliament in 1563 when it established the Commissary Court at Edinburgh as the central court to decide questions regarding marriage, with appeal to the Court of Session. When it became clear that the State would not follow the Church's line and execute adulterers (though "notour," or persistent, adultery was a capital offence), decades of debate ensued with regard to the right of the guilty party to remarry. An Act was finally passed in 1600 forbidding the marriage of the guilty party to the person he or she was guilty with (as named in the decreet). Divorce for desertion was introduced in 1573, by Act of Parliament. In Scotland, unlike some other Protestant countries, these remained the only grounds for a full divorce until the twentieth century, although judicial separation precluding remarriage was allowed (as it had been before the Reformation) on the grounds of cruelty.(5)

The first step in bringing a divorce suit was to engage lawyers, a "procurator" licensed to plead before the commissary court and an agent to carry out the investigations and do all the paperwork. The lawyers would draw up a lybel, spelling out the facts supporting the pursuer's claim for divorce. (The word could also be spelled "libel," but as the meaning in Scots law was so different from the English meaning of the word, the "y" spelling will be used here to avoid confusion.) The lybel began by giving the date of the marriage, and went on:

in consequence of their marriage they afterwards cohabited together as Husband and Wife owned and acknowledged each other as such and were holden and reputed married persons by all their friends neighbours and acquaintances for several years past. And although by the Laws of God, as well as by the mutual vows and faith plighted to each other upon their entering into the aforesaid marriage they were reciprocally bound to a strict adherence to each other, and to that constancy and chastity which ought to be inseparable from the marriage state; Yet true it is and of verity that the said - -, casting off the fear of God, and disregarding the matrimonial vows and engagements, whereby he/she stood bound to preserve the marriage bed inviolate, has, for a considerable time past . . . left the society of the Complainer, totally alienating his/her affections from her/him and given up him/herself at different times and places to adulterous practices, fellowship and correspondence with other women/men, one or more, known not to be the Complainer, and had carnal, adulterous conversation intercourse and dealing with such women/men.

There was a good deal of standard verbiage about the defender being guilty with "various lewd and wicked women" - or men - even if in fact he or she had had only one other partner, followed by "In particular, . . ." when the specific facts of the case were laid out. It was not necessary for the pursuer to be physically present to present the lybel. Actions were raised from as far afield as Jamaica and India, the pursuer having given his mandate to someone in Scotland to act for him.(6)

After the lybel would come the summons. The messenger would deliver this to the defender's residence, calling for him or her to appear in court for the first hearing a fortnight later. If the defender's residence was not known and he or she was believed to be out of Scotland then the messenger would call out the summons at three locations - the market square of Edinburgh and pier and shore of Leith - with a longer time span before the first hearing. If the defender did not answer then the action continued in his or her absence.

The next step was the oath of calumny. The pursuer had to swear a solemn oath that he or she believed the spouse was guilty of adultery and that there was no collusion between them. The guilty party might be perfectly agreeable to the divorce, but the action had to be raised because of the adultery, not the adultery committed in order to allow a divorce. Although the pursuer was supposed to appear in court to swear the oath, pursuers living abroad, or at some distance from Edinburgh, could petition for a commission to be granted to a local magistrate to administer it.

After the oath of calumny the commissaries would allow the pursuer to proceed to proof, and in contested actions it was at this point that defences had to be taken seriously.(7) These often contained a great deal of irrelevant material about the conduct of the pursuer. As adultery was the only relevant ground, accusations of cruelty, drunkenness, pilfering etc. had no bearing whatsoever, but to discredit the pursuer, and to vent some of the bitterness accompanying a messy marriage breakdown, they often appear in defences. "Answers" to defences would then give the pursuer's version of the story, "Replies" could be made to answers, and so on. In many contested cases it is clear that the aim was simply to drag the case out as long as possible, in hopes that the pursuer would run out of money. The court held that a husband had to support his wife, and female defenders were therefore able to petition for money not only to live on but also for their defence costs. Although the amount awarded was seldom as much as asked for, repeated requests could be made. (One male defender petitioned for similar relief on the grounds that his wife was the breadwinner and had kept the means of subsistence - their tavern - in her own hands. The commissaries refused his petition.(8) Therefore by dragging out the case a woman not only had hopes of bankrupting her husband, she also extended the time that he had to pay for her support. A woman pursuer, on the other hand, might have less money to start with, and therefore a male defender might have a better chance of impoverishing her enough to make her abandon the case. (The court had no consistent policy with regard to women pursuers petitioning for aliment and expenses; some were awarded money, others were not.)

In all cases the proof or witnesses were crucial, for even an uncontested case would be dismissed if insufficient evidence of the adultery was brought. When only one or two witnesses could testify unequivocally, everything possible was done to prevent them doing so. The most useful evidence, of course, was when an adulterous coupling was actually seen, and this happened more often than one might suppose. But in most cases it was the build up of circumstantial evidence that allowed the commissaries to judge that adultery had been "sufficiently inferred" for a divorce to be granted.

When proof was concluded the commissaries would issue their interlocutor finding the adultery sufficiently inferred and grant the divorce. The effect, as noted earlier, was to declare the guilty party legally dead and the innocent party entitled to everything that would have come to him/her on the death of the spouse. For a woman this would normally be a third of his moveable estate and of the life-rent of his heritable estate if there were children, or one half of the estate and a third life rent if there were no children, as well as anything written into the marriage contract.(9) The innocent party was free to remarry anyone, while the guilty party could remarry but not the person named in the decreet. Successful women pursuers could also claim the expenses of the case on top of everything else they were awarded out of their husband's estate or effects.

How long did a divorce action last? Table 1 gives the breakdown. (There were sometimes two or more decreets: liability for expenses often appeared in a separate one, and where judgments were appealed against there might be later decreets affirming the findings of the original one. I have, in all cases, given the timing to the first decreet awarding the divorce.) It will be seen that a quarter of cases lasted for less than three months and over half for less than six months. The very lengthy cases were not only the bitterly contested ones (though one such action was dragged out for seven years). There might be long delays in cases raised by pursuers abroad, and others might run out of money and abandon a case for a long time, then raise it again. A case in which nothing happened for over a year was said to be asleep and required a summons of wakening.

Table 1

Length of Divorce Proceedings from Summons to Decreet

                                                        %
Total for which this information is known:    626     (100)

Under 3 months                                156     (24.9)
3-under 6 months                              201     (32.1)
6 months-1 year                               147     (23.5)
Over 1-2 years                                 77     (12.3)
Over 2 years                                   45      (7.2)

And how much did it cost? We can assess this from expenses claimed by successful women pursuers, but the amounts varied enormously. One case lasting under three months in 1782 cost only [pounds]5 and one in 1788 only [pounds]4. Yet one in 1778 lasting under three months cost [pounds]41/13s/3d, because it was initiated by upper-class litigants, and lawyers always charged them more.(10) Even in uncontested cases it might be necessary to pay for witnesses to come from distant parts, or there might be other expensive complications. In the early nineteenth century costs were certainly higher than they had been earlier - the lowest was [pounds]9/16s/8d, and more usual were sums between [pounds]15 and [pounds]30. T.R. Gourvish reckoned that the upper strata of Glasgow's working class were probably earning about 15 to 20 shillings a week in 1815, i.e. [pounds]45-[pounds]50 a year, so a divorce was not cheap. However, it was possible to apply to be put on the poor's roll and have all expenses paid. A certificate signed by the minister and elders of the parish affirming the poverty-stricken state of the petitioner was required, and the 'solicitors for the poor' had to be satisfied that he or she had a case. The commissaries rarely refused such applications, but only 6.5 per cent of pursuers fell into this category. At the other end of the spectrum, a contested case that lasted over two years in 1784 cost [pounds]150, while an aristocratic case lasting from 1811 till 1816 cost [pounds]628/10s.(11)

Nevertheless, Scottish costs were far below the English level where an unopposed suit for judicial separation in the ecclesiastical court was likely to cost between [pounds]120 and [pounds]140, while in the two-year contested suit between the Countess and Earl of Portsmouth in 1828 the bill came to [pounds]3,820. Furthermore, English litigants could sue as paupers only if they were worth less than [pounds]5, a useless benefit by the eighteenth century, whereas Scots law did not specify an amount, leaving it up to the judges to determine whether genuine hardship existed.(12)

On top of the other expenses of the case was the expense of "extracting" the decreet. This too depended on the complexity of the case, for an extracted decreet, i.e. one written out and bound into the volume, could run to hundreds pages. A man liable for expenses of a case costing [pounds]34/8s/5d in 1822 had to pay almost half again as much ([pounds]15/7s/7d) to extract the decreet, as did another in 1823 ([pounds]8/2s/1d on top of expenses of [pounds]17/7s/7d). It was only from 1824 onwards, when the extracted decreet was just the final interlocutor granting the divorce, that this became standardised at 16 or 17 shillings. As extracting a decreet was not a legal requirement, it is not surprising that over a hundred litigants in our period did not do so.(13)

The procedures so far described were those used in cases of divorce for adultery. Those for desertion were different and, indeed, bizarre. Before bringing an action on the grounds of desertion (also known as non-adherence), a prior action of adherence first had to be brought before the commissaries (sometimes also a declarator of marriage if there was likely to be any doubt about the validity of the marriage). In this prior case the defender's deliberate abandonment of the pursuer for more than four years would be established and he or she would be formally called upon to return to the pursuer. As with adultery cases, if the defender's whereabouts were unknown, or he or she were definitely not in Scotland, a public summoning at the designated spots would be made. After that the pursuer would have to go to a civil court and have the deserter declared a rebel and "put to the horn." The next step was to require the archbishop, bishop or superintendent of the offender's place of residence to proceed with public admonitions and then to excommunicate the offender. As presbyterianism had abolished those offices, the petition had to be presented to the presbytery, which was expected formally to refuse to have anything to do with it. In three cases in our period presbyteries attempted to intervene and simply caused annoyance and delay to the pursuer and court.(14)

Once all those procedures had been followed, the pursuer merely appeared in the commissary court and produced evidence of this, and the divorce was automatically granted.(15) The first desertion case does not appear in the commissary court records until 1756. Most deserters went off to cohabit with someone else, and if proof could be brought of this then it was obviously simpler and cheaper to bring a suit for adultery. In the 1806 divorce for adultery case of Jacobina Ann Copland against Captain William Rowe Dunbar, she stated: "The Pursuer certainly might have brought a process of Divorce for non adherence, and would have been well founded in doing so, But she was advised that it was an action greatly more tedious, expensive and troublesome than this on the head of adultery."(16) As indeed it was, though sometimes there was no other option.

II

The number of cases collected for the period 1684 to 1830 totalled 904, of which 757 were successful and 147 unsuccessful (either abandoned or dismissed); 803 were for adultery and 101 for desertion. This includes counter-processes - successful and unsuccessful - where sufficient information has survived, but does not include those mentioned in original processes (or vice-versa) where no papers have survived. Thus, the figure of 904 cannot be a complete tally of divorces in the period. Indeed, there are no surviving papers for two unsuccessful cases which established important legal precedents (and are therefore frequently mentioned in other cases); no doubt these were borrowed at some point by lawyers and never returned.

There was only one divorce case between 1684 and 1690. From 1691 to 1770 there was an average of not much more than one or two cases a year and then - as shown by Figure 1 - there was a spectacular rise. Reasons for this phenomenon will be discussed in Part 3 of this paper. For purpose of analysis the period from 1684 to 1770, with 118 divorce suits, will be labelled Period 1, and the period from 1771 to 1830, with 786 divorce suits, as Period 2. Although we know that the population of Scotland roughly doubled in our period, 17 bad record keeping combined with the prevalence of irregular marriage in Scotland means there is no way of knowing the numbers of marriages and hence no way of estimating the percentage that ended in divorce.

Considering the drastic effects of a divorce, and the bar on collusion, one might expect that most cases would be contested, but in fact the proportion of successful adultery cases contested was 41 per cent in Period 1 and fell to only 29 per cent in Period 2. The assumption that the prevailing double standard would lead to a disproportionate number of men suing for divorce also proves unfounded. As can be seen in Table 2, the sexes were fairly evenly matched, although again this is far more true of the later era: in Period 1, 65 per cent of cases were launched by men and in Period 2, 53 per cent. However, for desertion the imbalance is greater, with three-quarters of cases being brought by women. It is perhaps surprising that over a quarter of such cases should be male-initiated, a point which will be returned to in Part 3 when the motives for divorce are considered.

Table 2

Gender Breakdown

                                               %
Total divorce suits                    904    (100)
Men:                                   493    (54.5)
Women:                                 411    (45.5)

Period 1 (1684-1770)                   118    (100)
Men                                     76     (64.4)
Women                                   42     (35.6)

Period 2 (1771-1830)                   786    (100)
Men                                    416     (52.9)
Women                                  370     (47.1)

Adultery total                         803     (100)
Men                                    466     (58.1)
Women                                  337     (41.9)

Desertion total                        100     (100)
Men                                     26     (26.3)
Women                                   74     (73.7)

To put these findings into the context of other countries that allowed divorce, in the principality of Neuchatel between 1707 and 1806, women initiated 58 per cent of divorce suits, but divorce there was allowed not only for adultery but also for desertion, cruelty, and even incompatibility. For adultery alone it was men who initiated the majority of suits (59 per cent). In Massachusetts, women initiated 128 out of 229 suits, but this also includes annulment and separation suits, and as separation was normally granted for cruelty women were bound to predominate. Women initiators dominated most strikingly in France during the revolutionary period, where they accounted for 71 per cent of the total, but as the 1792 statute was entirely civil the grounds were incompatibility, cruelty, or desertion, not adultery. So a direct comparison is not possible.(18)

It is not feasible to classify Scottish litigants geographically, for there was simply too much physical mobility amongst all classes; it would be fair to say that small towns produced more litigants than totally rural areas, and the larger towns and cities more than anywhere else. Just about everyone seemed to pass through Edinburgh at one time or another, whether for pleasure, business, or in transit. (The sharp rise in Glasgow's population toward the end of the eighteenth century is mirrored in the number of litigants appearing from that city in Period 2.)

Social status is also very difficult to classify in this period, as it was so fluid, particularly with the growth of the new "middle class" in the early nineteenth century. A very crude division has been made among aristocracy, gentry, and "common" - based as much on life styles as revealed in the evidence as on "designation" - and the results are shown in Table 3. The aristocratic level remained fairly constant at just over 3 per cent throughout this era. The number of gentry litigants actually quadrupled in Period 2, but as there were 12 times more "common" litigants, gentry were a much lower proportion of the whole. To some extent this certainly reflects the rise of the middle class, but menial servants and labourers continued to be represented, and 56 of the 61 litigants who sued as paupers did so in Period 2.

The situation contrasts markedly with what happened in English separation cases. At the Court of Arches, which heard matrimonial cases of all kinds, the poor vanished altogether by the 1780s, and there was "a remorseless drift to greater and greater elitism in the ranks of the petitioners, as rising legal costs increasingly excluded first the poor, and then the lower middling sorts." This was also true of the London Consistory Court, and though by 1830 the range of social classes was wider in Parliamentary divorces, litigants had to be able to afford several hundred pounds. Much closer to the Scottish situation was that of France during the Revolutionary years. A statute of 1792 established divorce on extremely libertarian grounds, including joint petitions on the grounds of incompatibility, and the financial obstacles were minimal. During the short period when the Act remained in force the social spectrum - like that of Scotland - ranged from noblewomen to the very poor. Nearly three-quarters of female instigators were working women, as were 69 per cent of men.(19)

Table 3

Social Class

                                   %
Total                     904     (100)
Aristo                     30     (3.3)
Gentry                    251     (27.8)
Common                    623     (68.9)

Period 1                  118     (100)
Aristo                      4     (3.4)
Gentry                     61     (51.7)
Common                     53     (44.9)

Period 2                  786     (100)
Aristo                     26     (3.3)
Gentry                    191     (24.3)
Common                    569     (72.4)

Turning to a different aspect of divorce cases, the records allow us to see how long unsuccessful marriages lasted. About half of the couples had been married for over 10 years, and proportions for both sexes were almost identical. In a handful of cases after years of stable marriage one partner suddenly developed a passion for someone else, but far more typical were cases like that of Agnes Williamson, daughter of a tailor in Edinburgh, who brought a suit against Robert Preston under benefit of the poor's roll in November 1792. They were married in December 1776; in May 1777 she was "under a necessity of leaving him at Greenock by reason of bad usage and treatment and to return to Edinburgh where she has continued ever since." He went to America with his regiment and she had neither heard from him nor seen him till the previous September "when she chanced to see him in Edinburgh when he informed her that he had just come home." She had since "found upon enquiry that the said Robert Preston had brought a woman with him and has for some time cohabited and still continues to cohabite with her in a state of adultery." Or that of Robert Knox, a servant, divorced by Katherine Dillon, the daughter of a plasterer in Glasgow. They were married in April 1771, and the divorce suit was brought in 1792. In her oath of calumny Katherine swore that "she had not seen the Defender for these fifteen years and had had no Correspondence with him by Letter or other ways during that period." Or that of Jean Dinwoodie against William Black in 1810: married in May 1795, he left her the following year and "They have lived separate ever since."(20)

This situation is in marked contrast to that in England, where in a divorce case of 1828 the Lords indicated their unwillingness to allow divorces where separation agreements had been entered into, "holding that such agreements repudiated the very basis of the marriage contract." If a couple had separated before the wife committed adultery, they considered that "no injury was done to the husband who had voluntarily released his wife (his property) from consortium."(21) Had the Scottish commissaries followed such a line, only a fraction of divorce suits would have been allowed, but the Scottish line was that a marriage subsisted until it was legally dissolved, and no matter how long they had been living separately, the injured spouse was still entitled to free themselves of the bond.

One measure of marital stability is the length of time between the wedding and adultery, as stated in the lybel. Again this reveals that many couples who were legally married for years had actually found different partners in the interim. Some 17 per cent of men and women had committed adultery within a year of marrying, and an additional 35 per cent had done so less than five years after the wedding. When Robina or Binnie Handyside brought a suit against her husband, Robert Wilkie, shawl manufacturer, in 1826, they had been married for 5 years. But in fact he had deserted her a few days after the wedding to live with another woman. A witness deposed that "the Defender married the Pursuer in the belief that she was possessed of money to the amount of one hundred pounds whereas in fact she had only nine or ten pounds and after that was spent the Defender abandoned his wife saying it was of no use to live any longer with her."(22)

Finally, there is the question of how long after the adultery was first committed the wronged party initiated divorce proceedings. There is some difference between the sexes here, as 24 per cent of men initiated an action within a year of the adultery whereas only 16 per cent of women did so. However, in both sexes over half initiated divorce proceedings between one and five years after the adultery had been committed, either because they had not been aware of it or, more usually, had been living apart.

In the nineteenth century the commissaries had misgivings about long gaps between the commencement of adultery and the divorce action. James Leslie, tinsmith in Edinburgh, had married Christian Brown in October 1802. After cohabiting for two or three days she "insisted upon returning to her service where the Complainer understood she was to remain till the term of Martinmas thereafter but he very soon discovered in consequence of Letters from herself and otherwise that she had formed an adulterous connection with William Loch," son of her master. She became pregnant and bore a female child in November 1803, and had continued the relationship with Loch ever since. Leslie sued for divorce in February 1817, and the commissaries demanded justification for his waiting so long. "The scanty stock which he had saved for his marriage was reduced almost to nothing by its unhappy result," he declared, "and his mind having been seriously affected by the domestic calamity which had befallen him, he had neither the means nor the capacity to apply to a Court of Law." He delivered a tale of woe about having fled from his house, vainly endeavouring to forget his plight, suffering mental illness, enlisting in the army, and borrowing money to buy himself out. Now that he was settled and had prospects "he feels the more acutely the reproach of his situation. His wife being yet alive, he is married without knowing the solace of domestic happiness; he has a wife who instead of being her husband's ornament, is his disgrace. Nothing short of a dissolution of so degrading a tie can make his life, in his native place, endurable to him." Although he proffered more than 80 pages of legal arguments about why a delay should not preclude divorce, there would in fact have been many precedents, and he was granted his freedom.(23)

Did children figure anywhere in the equation? Roderick Phillips, looking at France in the Revolutionary period, commented that "the divorced population of Rouen seems to have been predominantly child free," and "the absence of children in divorcing couples in Le Havre was even more striking." He concluded that "the presence of children in a marriage acted as a powerful deterrent to divorce." But Nancy Gott, looking at eighteenth-century Massachusetts, came to a different conclusion. She found that few petitioners mentioned children, and that "references to offspring in the petitions, when present at all, suggested that parents did not consider their children's well-being of overriding importance."(24)

In the Scottish material, as in the Massachusetts records, there was no particular reason to mention children. When they were mentioned it was usually in the lybel, as part of the evidence of the marriage, as in "and procreated three children, two of whom are still in life" or simply "several" children, with no further details. Sometimes there was no mention of children in the lybel, but it becomes clear in the course of witnesses' depositions that there were young children in the house. Living lawful children were mentioned in 201 cases, nearly a third of all successful divorce suits, and as it became increasingly rare to mention them in the lybel the total number was undoubtedly higher, which bears out Cott's conclusion. This is not to go along with the argument that women cared less for their children in the eighteenth century; a telling comment was made by a witness in the case of George Reoch, smith in Cramond, against Agnes Gray in 1759, that "he had seen some of their children sitting on the mothers Lap and she fondly playing with them, as mothers usually do." And truly heart rending are the letters of the Countess of Eglinton to her husband after her adultery with the Duke of Hamilton was discovered, in 1788: "Every moment which draws me nearer to parting with the Child I am more and more wretched - For Gods sake consider what are my sufferings, and forgive me. . . . I earnestly entreat nay upon my knees I ask your forgiveness . . . if you could but see how wretched I am, how penitent for all my transgressions you would I think, be inclined to pardon me . . . . Consider the pangs of a mother being torn from her Child; Consider how the Child must suffer in losing her."(25)

All of the above analysis has been carried out on successful divorce suits. The section concludes with a very brief look at unsuccessful suits. Out of 144 unsuccessful adultery cases, 45 were dismissed and the rest were seemingly abandoned. Most unextracted decreets consisted only of a scribbled note on one of the existing documents; by the end of the period this was almost always the witnesses' depositions. So, if the only document to survive was the lybel, how can it be known if the case really was abandoned, or if the pursuer was actually granted a divorce? The answer is that it cannot, and that some of the cases labelled as abandoned may have succeeded. However, in cases where the reasons for abandoning it are stated, these were virtually always financial. A husband or wife bringing what he or she thought would be a simple, straightforward case, might suddenly face opposition or find that bringing proof would cost far more than expected. As with legal aid today, it seems that those who did not earn either little enough to be rated a pauper, or sufficient to be able to afford legal costs, were in the most invidious position.

III

The first question to be considered is the sharp rise in numbers of divorce cases in the 1770s. Nancy Gott found that in Massachusetts "more than half of the petitions and decrees between 1692 and 1786 occurred after 1764, and more than a third of them after 1774." In Connecticut Sheldon S. Cohen discovered the number doubling between 1785 and 1797. In neither of these states was there any change in legislation during this period. The European principality of Neuchatel underwent a similarly dramatic rise: of the 426 requests for divorce in the eighteenth century, 78 were heard in the first 50 years and 348 from 1757 to 1806. Even in England, where divorce was not allowed, there was a resurgence of separation cases on the grounds of adultery or cruelty, which Stone attributed to a change of mood and morals in Protestant countries.(26)

Such an explanation is certainly plausible for Enlightenment Scotland, where there was a ferment of new thinking with regard to relationships, both private and public. Until the 1770s a hierarchy of church courts controlled the behaviour and morals of the populace in a remarkably effective way, but at about that time (earlier in Edinburgh; later in some rural areas) the consensus between Church and people broke down amidst the new ideas concerning personal freedom, and the morality courts lost their grip.(27)

However, an ideological shift is unlikely to be the whole story, for this was the period of rapid social and economic change known as the industrial revolution, when traditional community structures were being shattered. As part of his explanation of why there was so little divorce in early-modern western society Roderick Philips laid great stress on the family economy into which most couples were locked and which was very difficult to get free of. This too was breaking down at the end of the eighteenth century, and there was also a rise in living standards during the same period in Scotland, which Gibson and Smout attributed less to the expansion of wage rates and employment opportunities for males than to their expansion for women and children.(28)

The commissary court records provide some evidence of women able to support themselves. When, in 1783, Rebeccah Gibson petitioned for money for aliment and expenses for her case against her husband, Giuseppe Puppo, musician in Edinburgh, he responded: "Mrs Puppo is in much better circumstances than the defender she herself following the same profession with him and being as often engaged by the managers to perform in the Concert hall as the defender himself and her emoluments thence arising are little inferior to his - Besides she is also very much employed in private teaching which is a Branch of the profession the defender seldom or never practices and which is productive of very considerable profits." In an acrimonious case of 1814, Charlotte Franklin against her husband, William Murray, porter dealer in Edinburgh, she declared that she had continued to live in the house because she and her sister used it "as a boarding school for young Ladies which they had been enabled to do from the kindness of their husbands. Creditors who on seeing a state of their affairs were so much pleased with the conduct of the Pursuer and her Sister who had not contracted one house debt or any debt on their own account." Apart from making it easier for women to leave their husbands, it is possible that "women becoming more economically active as actual earners of cash wages" might have caused "strains within the family analogous to a modem situation of two income households" - and at a period where the ideology of husband as breadwinner was very much stronger.(29)

There is also the possibility that there was more divorce for adultery because there was more adultery. Britain was at war between 1776 and 1782 and then, in common with the rest of Europe, almost continuously from 1794 to 1815. Phillips noted that "military conflicts separated husbands and wives for prolonged periods and provided opportunities for adultery," a fact strikingly borne out in the Scottish divorce records; by 1815 there was scarcely a man of any social class, whether pursuer or defender, who did not have a military or naval designation. The proportion of divorced wives who bore bastard children doubled from 12 per cent in Period 1 to 24 per cent in Period 2. The immense social dislocation of the war years continued to have repercussions in its immediate aftermath: 22 divorce petitions, the highest of any decade, were presented in 1816. The downturn in numbers in the 1820s may reflect a return to more stable conditions, or the economic depression which followed the war. However, it was only temporary, for between November 1836 and November 1841 an average of 19 divorces were granted per year, a figure as high as for the war years.(30)

A figure of 22 divorce petitions in a year is still incredibly low by modern standards, even allowing for population rise, so we turn now from the question of why the divorce rate rose so dramatically when it did to why it did not rise much more than it did. What we cannot know, unfortunately, is how divorce and divorced people were regarded. The stigma borne by a divorced woman in the Victorian era cannot necessarily be projected back in time. A brief anti-divorce polemic appeared in The Scots Magazine of February 1739; although there were so few divorces at that time, the writer had heard that several were "now in agitation in some very considerable families," from which the writer feared "very melancholy and extensive consequences, and to fear that this, like too many other polite evils, will become fashionable and epidemical." While agreeing that divorce for adultery was necessary when "the injured persons can see no hopes of reformation, or cannot possibly reconcile themselves, after such injury, to the duties of the married state," he lamented "the inevitable scandal which so many unfortunate divisions must bring upon marriage, and the evil precedent which they will give to the caprice of untractable and peevish dispositions, to that licentiousness which daily contributes so largely to the increase of private misery, and to the great prejudice of the publick."(31) But the situation at that time, when most divorces were carried out by individuals in the public eye, was different from the later period when a stream (a small stream, but a steady flow nonetheless) of "common" people quietly divorced.

Amongst the reasons for not divorcing, Phillips suggests distrust of the law, its institutions and personnel.(32) Economic constraints were undoubtedly another key factor. We have noted that most abandoned suits fell for financial reasons, and no doubt such reasons operated as a disincentive even to begin. Even though divorce may have been relatively cheap in Scotland, it was unlikely to cost less than the equivalent of four to eight months' salary for a working man, and proportionally more for a woman, so the motivation would have had to be high.

We must be careful not to equate the rate of divorce with the rate of marital breakdown. Various stages along the route might be: incompatibility and unhappiness within the marriage without the couple parting, the couple informally agreeing to separate and live independently, or a formal agreement in a local court - none of which would show up in evidence of marriage breakdown at national level.(33) To gain a further understanding of why the rise in divorce cases was not much greater than it was, we might ask what drove that small number to the furthest point of marital breakdown.

A strong sense of betrayal was certainly one reason and accounts for most of the cases brought to the court within a short time after the discovery of the adultery. In one of the earliest cases (1691) John Ker, merchant burgess of Edinburgh, discovered that not only had his wife, Cecill Scott, been 5 months and 3 weeks gone with child to another man at the time she married him, she had continued to meet her lover about 3 times a week after the marriage.(34) But this motive cannot account for the cases where the couple had been living apart for years, the guilty party cohabiting with someone else who was then cited as co-respondent in the case.

In some instances, the guilty party had become an embarrassment. This was particularly true of wives who had become prostitutes. Finding them in the records was unexpected since the economic forces that might drive a single woman into prostitution are unlikely to have prevailed with a married woman. The most usual explanation proved to be alcoholism. In a society where alcohol was cheap and vast quantities were drunk, some women became so "addicted to spirits" that they would pillage the house of furniture and goods to pay for their habit, and ultimately sell their bodies for the purpose. It is not surprising that a husband married to such a woman should have wanted to rid himself of the legal tie. Nor is it surprising that a wife infected with venereal disease should have investigated where it came from and used the evidence to rid herself of such a husband. A number of pursuers were funded by other kin, who were clearly as eager to divest the family of the guilty spouse as was the injured party. But, again, this would apply in only a minority of cases.

The likeliest reason for the majority of divorce suits is simply the desire to remarry. The only time this was suggested was in contested cases where the guilty party claimed that the only reason for the pursuer bringing the divorce action was in order to marry someone else, a claim never denied by the pursuer. But as it was irrelevant to the case there was no particular reason to mention it. In cases of desertion, particularly, there is no convincing motive for spending so much money divorcing unless there was someone else on the scene. Since men were likelier to desert than women, the fact that as much as a quarter of desertion actions were brought by men can only be explained by their having taken up with a woman who demanded a legal marriage.

But how many people felt strongly enough to demand a legal marriage? The majority of cases in the Scottish records involve spouses who were already living separately, one of them with a new partner. In December 1816 Grace Blair brought a suit against her husband, John MacDonald, a tailor in Perth. They had married in 1804 but been separated for some years; in 1814 he represented himself to be a single man and married Barbara Leslie. Then, "his falsity and unlawfull Conduct having become the subject of a criminal inquiry," he was found guilty of the crime of bigamy and sentenced to six months' imprisonment in Perth. After his release he returned to Barbara and was still living with her when Grace brought the divorce action. It would be impossible to quantify bigamy in this context, because most couples did not risk a criminal prosecution but simply cohabited without a marriage ceremony. In the 1827 case of Jane Henley against her husband, Joseph Walker, servant, a lawyer testified that Walker had "for some years lived with a woman not the Pursuer in his house in Glasgow, and that the said woman goes by his name and that the Defender has several children by her who pass by his name also." A year earlier Jane had applied to him for aliment from her husband, and the witness had obtained some money for her, Walker admitting that she was his wife. The witness added that "the Defender was living with the said female openly and allowing her to take his name previous to the period when the Pursuer applied to the Deponent upon the subject of aliment as deponed to, and the Deponent was surprised at the application being made to him as till then he had considered the woman the Defender lived with to be his wife." Nor were such relationships confined to the lower classes. For example, William Penson, professor of music in Edinburgh, had been living "in open and notour adultery with Jane Penson Daughter of the late Thomas Penson Architect" for some years before his wife brought a divorce suit in 1828.(35)

In Period 1 this would have been far more difficult, and in many areas impossible, because the local kirk session (church court at parish level) would not allow a couple to cohabit in its parish without having produced proof of a marriage. In 1761 James Wilson divorced his wife Sarah Dolphin, shopkeeper in Edinburgh, on the grounds of adultery with Alexander Milne, writer (i.e. lawyer), to whom she had borne a child. As Milne had been named in the decreet Sarah was not allowed to marry him. In July 1762 Edinburgh St Cuthbert's kirk session was horrified to find that they were still cohabiting and referred the couple to the presbytery; in 1765 she had a second child to him, and they refused to separate so were again referred to the presbytery. In spite of so much pressure from the Church the couple remained together - and no legal action was taken against them for continuing to cohabit, unmarried.(36)

While acknowledging that a low divorce rate was not synonymous with a low marriage breakdown rate, Roderick Phillips nevertheless believes the sketchy evidence suggests that "emotional incompatibility or indifference were in themselves seldom a reason for marriage breakdown before the nineteenth century." He also thinks that "the de facto dissolution of marriage (desertion or mutual agreement to separate) was unthinkable - simply inconceivable for most men and women in traditional European society."(37) While perhaps true for the period from 1684 to 1770, neither judgment can stand for Scotland at the end of the eighteenth and beginning of the nineteenth century. After reading description after description of a second home set up by a spouse after deserting or separating, one gets a very different picture from the traditional one of marriage until death. The individuals encountered in these records might be atypical, but only in going to the length of a divorce action, not in the situations they described. The hundreds bringing divorce cases may represent thousands who saw no need to, being settled in new partnerships unblessed by marriage. Most cases were uncontested, so this was hardly a world in which marriages was clung to at all costs; alternative futures were thinkable and realisable.

It is generally accepted that the end of "the world we have lost" and beginning of the "world we have gained" occurred at the time of the industrial and agricultural revolutions. Nowhere can we witness the social changes arising from the birth of a "modern" age more clearly than in these divorce records. There was the dramatic rise from less than one divorce action per year to a steady stream of them, arising both from the growing belief in the importance of the happiness of the individual and from the new opportunities arising from industrialization. The shift in the sex ratio to near equality also occurred after 1770, again both for ideological and economic reasons. And the shift in the class bias from the elite to the 'common' people was another feature of the "modern" era.

It is conceivable that the rate of marriage breakdown remained the same in the later period, with the change being in the acceptability of divorce as a remedy. This would be difficult to prove either way, since marriage breakdown that did not lead to the courts is unquantifiable. However, in view of the severe social dislocation caused by decades of war, on top of the massive changes brought about by industrialization and urbanization, it seems likelier to assume that overall more marriages were breaking down. At the same time the virtual collapse of church discipline made it very much easier for unmarried couples to set up house together.

Perhaps the question of why there were so few divorces at the end of our period in relation to the twentieth century should be turned round to ask why there were as many as there were. The evidence on couples who had lived separately for years, with one of them in another stable relationship, before the other brought an action for divorce, reveals a society which clearly tolerated stable unions without enquiring too closely into their legal base (as long as they were not harming anyone). Thus there would have had to be a strong motive to cause anyone to go to court and spend so much money to acquire a formal divorce. Serial monogamy, in which partnerships are formed, dissolved and re-formed, without sanction of kirk or state, may be thought of as a modern phenomenon, but it was definitely part of the landscape in late eighteenth and early nineteenth-century Scotland.

Department of Economic and Social History Edinburgh EH8 9JY Scotland

ENDNOTES

I acknowledge with gratitude the generous funding by the ESRC which supported the research for this paper. I would also like to thank the staff at the Scottish Record Office who so helpfully facilitated my work on the Commissary Court volumes and papers, and particularly Peter Vasey who first brought this rich source to my attention. Graham Sutton and Stana Nenadic read earlier drafts of this paper; the final version is much better in consequence.

All CC references are in the Scottish Record Office.

1. Lord Salvesen's evidence to Royal Commission on Divorce and Matrimonial Causes, 1912 (Parliamentary Papers, 1912-13), vol. 18, 258; Patrick Fraser, Treatise on the Law of Scotland as applicable to The Personal and Domestic Relations (Edinburgh, 1846), vol.I, 654; Roderick Phillips, Putting Asunder: A History of Divorce in Western Society (Cambridge, 1988), 53.

2. Lawrence Stone, Road to Divorce - England 1530-1987 (Oxford, 1992), 40-1.

3. Keith Thomas, "The Double Standard," Journal of the History of Ideas 20 (1959): 195-216.

4. Gordon agt Pye, 1815, CC8/6/101.

5. David Baird Smith, "The Reformers and Divorce: A Study in Consistorial Jurisdiction," Scottish Historical Review 10 (1912): 16-19 and 29-34; J. R. Hardy, "The Attitudes of Church and State in Scotland to Sex and Marriage, 1500-1707" (unpublished M.Phil. thesis, University of Edinburgh, 1978), 246-78.

6. Chalmers agt Marr, 1766, CC8/5/11; Campbell agt Campbell, 1790, CC8/5/3; Fortune agt Crawford, 1798, CC8/5/24.

7. The principal defences were denial and reconciliation. A full discussion of these, and all others, can be found in my paper, "Defending Adulterers in Eighteenth and Early Nineteenth Century Scotland" (unpublished).

8. Blair agt Douglas, 1808-09, CC8/5/30.

9. Lord Salvesen's evidence to Royal Commission, 258.

10. Sommerville agt Sommerville, CC8/5/16; Stewart agt Chapman, CC8/5/19; Maxwell agt Wallace Dunlop, CC8/5/15.

11. T.R. Gourvish, "The Cost of Living in Glasgow in the early nineteenth century," Economic History Review 2nd series, vol.25 (1972): 67 (fn); Campbell agt Cunningham Fairlie CC8/5/35.

12. Colin S. Gibson, Dissolving Wedlock (Routledge,1994), 15. Lawrence Stone noted that a Parliamentary divorce was likely to cost a husband at least [pounds]400, and that Lord Ellenborough's divorce suit in 1830 was reckoned to have cost him [pounds]5,000. Stone, Road to Divorce, 188.

13. Woodcock agt Strachan, CC8/5/40; Easton agt Aitken, CC8/5/41. Amongst process papers unextracted decreets were most often just a scribbled and dated note - the interlocutor - on one of the other documents. Occasionally there is a 'scroll' decreet, a draft awaiting someone to fill in all the details of the lybel, proof etc. In the most puzzling cases there is a final decreet, as complete as anything that appears in the registers; whether this was never paid for and hence never inserted into the relevant volume, or whether the clerk simply forgot to do so, I do not know.

14. Chaplin agt Jamieson, 1772, CC8/5/13; Reid agt Rowley, 1773, ibid; Nimmo agt Reid, 1825, CC8/6/184.

15. The reason for such an absurd procedure (which was altered in 1861) was because the statute had originally been passed for the sake of the Earl of Argyll, chancellor at that time. His wife had left him and refused to return but was not guilty of adultery, and the procedures as specified in the statute were those which he eventually carried out to obtain his own divorce. Hardy, "Attitudes," 285-6; Lord Salvesen's evidence to Royal Commission, 259.

16. CC8/5/29.

17. Michael Flinn, ed., Scottish population history (Cambridge, 1977), 241, 271, 302.

18. Jeffrey R. Watt, "Divorce in Early Modern Neuchatel, 1547-1806,"Journal of Family History 14 (1989): 148; Nancy F. Cott, "Divorce and the Changing Status of Women in Eighteenth-Century Massachusetts," William and Mary Quarterly 33 (1976): 592; Phillips, Putting Asunder, 262.

19. Stone, Road to Divorce, 38-9, 186, 327; Phillips, Putting Asunder, 268-9.

20. CC8/6/55; CC8/5/21; CC8/5/31.

21. Gibson, Dissolving Wedlock, 31.

22. CC8/6/150.

23. CC8/6/116.

24. Phillips, Putting Asunder, 270-71; Nancy F. Cott, "Eighteenth-Century Family and Social Life Revealed in Massachusetts Divorce Records," Journal of Social History 10 (1976): 28.

25. CC8/5/9; CC8/5/19. The Countess's pleas were to no avail.

26. Nancy F. Cott, "Divorce and the Changing Status of Women," 592; S.S. Cohen, "'To Parts Unknown': The Circumstances of Divorce in Connecticut, 1750-1797," Canadian Review of American Studies 11 (1980): 287; Jeffrey R. Watt, The Making of Modern Marriage - Matrimonial Control and the Rise of Sentiment in Neuchatel, 1550-1800 (Ithaca and London, 1992), 219; Stone, Road to Divorce, 40-1.

27. Rosalind Mitchison and Leah Leneman, Sexuality and Social Control - Scotland 1660-1780 (Oxford, 1989), c.2; Leah Leneman and Rosalind Mitchison, Sin in the City - Scotland 1660-1780 (forthcoming), c.1.

28. Phillips, Putting Asunder, 373; A. J. S. Gibson and T.C. Smout, Prices, Food and Wages in Scotland 1550-1780 (Cambridge, 1995), 338-9, 353.

29. CC8/5/17; CC8/5/33; personal communication from T. C. Smout, 12 May 1995.

30. Phillips, Putting Asunder, 235, 418. (The figures for wives bearing bastards are 9 out of 73 and 96 out of 391.)

31. The Scots Magazine February 1739, 59-61. I am grateful to Stana Nenadic for this reference.

32. Phillips, Putting Asunder, 373.

33. Ibid., 317.

34. CC8/5/1.

35. CC8/5/36; CC8/6/153.

36. CC8/6/23; Edinburgh St Cuthbert's kirk session minutes 25 July 1762, 6 and 13 January, and 11 April 1765, Scottish Record Office. By the twentieth century the statute forbidding the guilty party to marry the person they had been guilty with was a "dead letter," because the name was never mentioned in the decreet, but this had not always been the case, and in fact at the end of our period in an attempt to stop this abuse of the statute the commissaries refused to proceed with any process in which the name of the paramour was not supplied, unless firm evidence was provided of attempts to find it out. Lord Salvesen's evidence to Royal Commission, 263; Maurice Lothian, The Law, Practice and Style Peculiar to the Consistorial Actions Transferred to the Court of Session (Edinburgh, 1830), 176.

37. Phillips, Putting Asunder, 359, 362.