Unhappy Differences

It’s every family historian’s dream to have the opportunity to research and write about an ancestor who left a mark. It doesn’t even need to have been a big mark. Perhaps they were involved in a major political event or, as a soldier, took part in a significant battle. Or maybe your ancestor was an itinerant Methodist preacher travelling between northern mill towns during the Industrial Revolution; or they might have invented something or created a work of art.

If, like me, your ancestors were mostly labourers, small farmers or tradesmen, with, perhaps, the occasional craftsman thrown into the mix, this will probably remain no more than a dream but if you take a more liberal approach to the idea of what constitutes an ancestor, and dip into the extended family of aunts, uncles, nephews, nieces and cousins, the chances are you’ll find someone who fits the bill. And amongst my English Port and Truman ancestors, there’s a perfect candidate; two of them in fact, James Lawson and his son John Joseph.

James Lawson was the husband of Mary Ann Truman, first cousin to my recently-confirmed great, great, great grandmother, Mary Ann Port. He was to play a significant role in her life, assisting Mary Ann, her siblings and their mother in their eleven-year long Chancery Case, as their ‘Next Friend’ (a term used to describe a person who represents someone else in a legal case). James and his son, John Joseph, were, successively, the printers of The Times.

It’s my long-term aim to write the story of the Lawson family at length – it’s a story which deserves some in-depth investigation – but while that investigation goes on, I thought it might be useful to write about some of the key events in the story, starting with the recent discovery of a fascinating document, found as the result of a random search in the National Archives’ Discovery catalogue.

The document was part of a collection from the Chancery Court of the Palatinate of Durham, described in the catalogue as a ‘Bundle of Miscellaneous Unmarked Deeds’: the sort of collection which should set the heart of every family historian racing; the sort of collection, however, which only comes to life if, as is the case with this miscellaneous bundle, someone has taken the trouble to look at the documents and extract the key details. And this is how the entry in the National Archives’ catalogue describes the document in question:

Agreement (unexecuted) between James Lawson of Houghton-le-Spring, Durh, and his wife Isabel, and an unknown party; conditions under which Lawson and his wife are to live separately

The document was dated 9 May 1769.

Bundle of miscellaneous unmarked deeds. Palatinate of Durham Chancery Deeds, Series G.
The National Archives reference DURH 21/6

I had only recently discovered that my James Lawson had been born in Houghton-le-Spring and I’d found the record of his baptism at the parish church of St Michael and All Angels on 15 February 1767, which told me that he was the son of James and Isabella Lawson. The record that I had found clearly related to his parents so I decided to add it to my list of documents to view on a future visit to Kew.

Last week, I made that visit and I was able to view and copy the document, which I have now transcribed in full.

The document is what is known as a ‘Deed of Separation’. In a period in which a full-blooded divorce was only available after a lengthy process which culminated in the passing of a Private Act of Parliament, the options for people whose marriages had, for one reason or another, broken down, were few and far between. For the vast majority of the working population, the only realistic way to end a marriage was simply to live separately, and in many cases to begin new relationships with different partners. This offered the parties involved no legal protection whatsoever; in the eyes of the law, the original marriage was still binding and the children of any subsequent relationship were illegitimate. Of course, this wasn’t an option for many women living in abusive relationships, but if there was a degree of mutuality in the desire to end the marriage, it was a way out, of sorts. It’s worth noting, however, that the Established Church was firmly opposed to anything which intruded on the sanctity of marriage.

Socially speaking, James and Isabel/Isabella fall somewhere in between these two extremes. While a divorce as we know it today wouldn’t have been something they would even have considered, there was some property involved and both parties would want to protect their interests and those of their ‘heirs and assigns’. And this is where the option of a Deed of Separation comes in. Rebecca Probert, an authority on the subject of Marriage Law writes:[1]

Given the attitude of the church courts to separation, and given that they would not endorse collusive arrangements between separating spouses, it is unsurprising that they also took a dim view of separation agreements. Any such agreement to separate would be void as contrary to public policy.

But what if a separating couple wished to engage a lawyer and enter into a formal agreement about maintenance, or about entitlement to the property that each had brought to the marriage? Such issues fell within the remit of the Court of Chancery rather than the church courts, and over the course of the seventeenth and eighteenth centuries it began to uphold the practical terms of separation agreements.

Chancery judges were, however, reluctant to interfere more directly with the jurisdiction of the church courts, with the result that any such arrangements could effectively be undone if one spouse later petitioned for ‘restitution of conjugal rights’. Only in the mid-nineteenth century, did the House of Lords confirm that, once a separation agreement had been entered into, an injunction could be granted to prevent one spouse forcing the other to return home. From that point on, there were no longer any doubts as to the validity of such agreements.

For the family historian, the existence of a formal, written separation agreement might come to light in court records if there was litigation over its terms, or alternatively in surviving family papers. Such agreements were, however, relatively rare, since they were only created where a marriage had broken down, neither wished to pursue other remedies, and there was sufficient property at stake to require formal legal arrangements.

The description of a separation agreement as one where “a separating couple wished to engage a lawyer and enter into a formal agreement about maintenance, or about entitlement to the property that each had brought to the marriage” exactly matches the situation that we have here. It also seems that the document is a relatively rare example of an eighteenth century Deed.

Deed of Separation, Palatinate of Durham Chancery Deeds, Series G.
The National Archives reference DURH 21/6/36

The document begins by giving details of an inheritance received by Isabel under the terms of the will of a man called Robert Hutton. Robert Hutton was the head of a prominent Houghton-le-Spring family, the owners of Houghton Hall.

Robert Hutton, the sixth of that name to live at Houghton Hall, inherited the estate on his father’s death in 1725. He never married and, writing his will in 1763, Robert left all his copyhold messuages, lands, tenements and hereditaments in Houghton-le-Spring and elsewhere, with the exception of “My Dwelling House Garden Orchard Stables and other the premises with the appurtenances thereunto belonging” in Houghton-le-Spring, in trust, to his nephew John. John was the only son of Robert’s younger brother, George Hutton, and was then aged under 21.

Robert left some money (£300) to his niece, Mary Woodifield, the daughter of his sister Grace, and then went on to make a series of bequests to his two servants, Isabel Lawson and Ann Jent (or Gent). He left each of them an annuity of £12, along with the rights to “hold and enjoy all that my Copyhold Messuage and Dwelling House scituate standing and being at Houghton le Spring aforesaid wherein I now Dwell together with the Garden Orchard Stables and other the premises thereunto belonging” for the terms of their natural lives “and the Life of the Longer Liver of them”. This ‘dwelling house’ was clearly Houghton Hall, the ancestral home of the Hutton family. He also left Isabel and Ann the use of the furniture plate and linen in his house along with the rights to an amount of coal and lead “for the better preservation and keeping Fire in my said Dwelling House”. After the deaths of Isabel and Ann, the house was to go to Robert’s nephew, John.

Houghton Hall, Houghton-le-Spring. © Victoria & Albert Museum

All of this raises more questions than it answers. What was the nature of Robert’s relationship with his two servants? His final bequests in his will are to his ‘natural’ (i.e. illegitimate) children, Elizabeth and Robert, but there’s no suggestion that Isabel or Ann were the mothers of these two. No surnames are given for the children in the will and there are no obvious baptismal records in the Houghton-le-Spring parish registers. This aspect of the story must remain a mystery for the time being.

Robert died in November 1764, aged 49, and was buried at the parish church on 25 November. Ann Jent survived him by less than a year. She was buried on 2 June 1765, leaving Isabel Nelson to solely ‘hold and enjoy’ the house in Houghton-le-Spring. This, along with her annuity of £12, would have made Isabel a particularly attractive proposition, and just two months after Ann Jent’s death, on 5 August 1765, she married James Lawson at the parish church of St Michael and All Angels, just a few hundred yards away from Houghton Hall.

James’s early life is currently a complete blank to me. When he died in January 1819, the burial register recorded his age as 84 which, if it’s accurate, would suggest that he was born sometime around 1734 or ’35 which would mean that he was about 30 when he and Isabel were married.

Within a year, James and Isabel’s first child (a daughter named Isabella) was born. She was baptised on 1 February 1766 and just twelve months later, a brother, James followed, baptised on 15 February 1767. No birth dates are given in the Houghton parish registers but they were probably just a few weeks old when they were baptised.

We’re now approaching the time when the Deed of Separation was drawn up. The document refers to the ‘unhappy Differences‘ which had ‘lately arisen between the said James Lawson and Isabel his Wife’ and tells us that they have,

mutually Agreed to live seperate and apart from each other

The deed sets out the terms under which the separation was to be conducted.

Isabel was to continue to receive her annuity of £12 ‘for her own seperate use’ as well as the interest on the sale of Robert Hutton’s furniture (which she and Ann seem to have arranged within months of his death). She was also to continue to live in Houghton Hall and to receive the ‘yearly Quantity of Coals’. James was to permit Isabel to live separately from him and to allow her,

to reside and be in such Place and Places and in such Family and Families and with such Relations and other Persons and to follow and carry on such Trade and Business as she the said Isabel … shall think fit

He wasn’t to ‘compel her to cohabit with him or sue molest or trouble her for living seperate and apart from her’, nor was he to visit her without her consent. Her possessions (her ‘Money Rings Plate Cloathes Linnen Household Goods or other Goods or Chattels’) were to be her own and James would have no claim over them or over anything that she might come to possess in the future. She was to be effectively a ‘Femme Sole’.

James, however, was to have the rents and profits from the ‘Garden, Orchard, Coachhouse, two Stables and Cowhouse, late belonging to the said Mr Hutton’.

The agreement also stipulated that Isabel would not visit James without his consent and that she would ‘find and Provide for her Children [not named in the document] sufficient Meat Drink Washing Lodging and Wearing Apparel from henceforth until they shall respectively attain the Age of [blank] Years‘. She was not to compel James ‘to make her any further or other allowance for the Maintenance of herself or her said Children’ and she was not to claim or demand any part of his estate if she outlived him.

It all seems to have been fairly amicable. The complaint is of ‘unhappy differences’; there’s no suggestion of any violence or cruelty on either part. And the document is clearly incomplete; there are a number of blank spaces, notably where the names of James and Isabel’s children (Isabella and James) should have been expected to appear, and the name of the third party (the intermediary?) who was to ensure that the terms of the agreement were adhered to is also missing in a number of places (although the name Joseph Pick is given at the top of the document).

Deed of Separation, detail, showing the gap where James and Isabel’s children’s names should have appeared. Palatinate of Durham Chancery Deeds, Series G. The National Archives reference DURH 21/6/36

Crucially, the document is unsigned and, in legal parlance, unexecuted. We can’t know exactly what happened next but James and Isabel appear to have been reconciled. 15 months after the document was drawn up, on 15 July 1770, their third child, a daughter called Frances, was baptised.

Isabel died in 1780, and, presumably, James’s right to live at Houghton Hall came to an end. He remarried two years later and had four more children. James died in 1819, aged 84; his second wife outlived him, eventually dying in 1831.

Despite the gaps in the story, the document gives us a fascinating glimpse into the lives of two ordinary people living in Georgian England. James, I now know, was a member of the Butcher’s Guild of the City of Durham. His name appears in a Durham Poll Book for the General Election of 1774 and he was evidently a man of some substance. I’m currently waiting on the results of some research into the family’s connection with the Butcher’s Guild – watch this space!

1774 Poll Book of the City of Durham

© David Annal, Lifelines Research, 18 October 2020

[1] Divorced, Bigamist, Bereaved? Rebecca Probert (2015) pp.84-85

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