Hawley v. Ham

In 1826 a five-page spread in the Kingston Chronicle transcribed the trial between Sheldon Hawley (Hester's father) and George Ham. Being one of the only family lawsuits to go to trial prior to 1850, it must have been standing-room only in the Kingston Court House. The presiding judge was William Campbelll, Chief Justice of Upper Canada. George's defense team included John Cartwright - the who's who of Kingston. Sheldon's legal team included Marshall Bidwell. This was a precedence trial establishing a man's responsibility to provide for his wife, no matter what their living arrangements. It was also cited throughout the 19th century to justify spousal abuse. The following is the transcript of that trial:

Sheldon Hawley v. George Ham

The Kingston Chronicle, 15 Sept. 1826

  On Saturday last the Court was occupied from 11 o’clock in the forenoon until 7 in the evening, with the case of Sheldon Hawley v. George Ham, which cause excited very intense interest.  The Court was crowded to excess.  We shall here endeavour to present our readers with an outline of the facts and a brief statement of the trial.

  On the 23d of April, 1813, the defendant, George Ham, married Esther Hawley, the plaintiff’s daughter, and from the defendant’s attachment to her previous to the marriage, every hope was entertained that they would live happily together.  It was, however, attempted to be proved on the part of the prosecution, that within little more than four months from the date of the marriage, the defendant had, in a variety of ways, so ill treated his wife, by personal chastisement and other-wise, as to render her life almost insupportable - and shortly after the birth of the first and only child of Mrs. Ham, her father, under the impression that the life of his daughter was in danger from the alleged brutality of the defendant, took her home with him - where she has since resided, being a period of upwards of twelve years.

  In the months of September and October last, attempts had been made to obviate the differences between the parties - and accordingly, Mrs. Ham had paid several visits to her husband - and, as will appear by the evidence expressed her willingness to live with him - but the terms on which the defendant proposed to receive her were (as alleged on the part of the prosecution) too gross and revolting to be accepted.

  The action was brought in the form of an assumpsit, for maintenance, embracing two counts - which were.

• 1^st.  For meat, drink, washing, lodging and other necessaries, found and provided by said plaintiff at the special instance and request of said defendant, for Esther Ham, wife of said defendant.
• 2d.  For meat, drink &c. found and provided for divers persons at the special instance, &C.  To the damage of said Sheldon Hawley of  £1000.

C. A. Hagerman, M.S. Bidwell, and Geo. Macaulay, Esquires, Counsel for the Plaintiff.

Henry H. Boulton, Esq. Solicitor General, John Cartwright and Henry Cassady, Esqrs. Counsel for defendant.

  The following Jury having been sworn, viz.

    Mr. Bidwell opened the case for the prosecution in a very eloquent speech - related at some length the circumstances that gave rise to the action - and went fully into the law respecting the degree of ill treatment which might warrant the wife to separate herself from her husband - and the legal obligation on the part of that husband to maintain and support his wife.  In alluding to the ill usage sustained by the plaintiff’s daughter in the present instance, the learned Counsel pointed out the difficulties that must necessarily exist in proving the different charges of ill treatment - the principal circumstances having occurred among the defendant’s relatives - and besides, he with much feeling observed, that no man could show the front - no man, however base, and however callous he might be, would lift his coward arm, in the presence of others against a helpless woman - such deeds were done in the dark - but that he could prove where the defendant had acknowledged to have beat his wife - could alto prove the marks upon her person - and that it was not to be supposed that any woman would leave her husband and her child without some extraordinary cause.  The learned Counsel concluded an able address by expressing a hope that the verdict of the Jury would be such as would prove a salutary warning to all husbands not ill treat their wives.

Evidence for the Prosecution

  Isabel Hawley is sister to Mrs. Ham, and daughter to the plaintiff - was present at the marriage of her sister with defendant.  Mrs. Ham, about three months after her confinement, was on a visit at her father’s, was very ill with a sore breast.  Recollects defendant coming for her to take her home;  he said, my lady, you must make ready and go home with me, and ride behind me, shaking, at the same time, a whip over her head.  Her father said, go and get a wagon and she will go with you.  Defendant again said, and flourishing his whip over her, my lady you must get up and come with me, and if you live to have another child by me, I shall discharge the nurse on the third day, and make you do all the work of the house - and if you do not get out of bed I will flog you out.  This occurred about a year after the marriage.  Defendant went for a wagon, and his wife returned home with him. -  About three years ago, witness met defendant accidentally, and spoke to him of the separation, expressing a hope that they might yet live happily together.  Defendant said he would never take his wife back - no, not even if she went on her knees to him.

  On the 24^th of September last, Mrs. Ham, accompanied by witness, went to defendant’s house, in Bath - she then offered to live with him.  He seemed surprised to see her, said he was not a better man than when she left him; and says he, if you come to live with me you must look wild.  If all be true, I have several children in the country, and I have a sweetheart in Montreal, much prettier than you are.  His wife then said, “George, that is nothing to the purpose, I want to know whether you will live with me or not?” Defendant said, “I am independent , king, lord of all!  You must humble yourself very much before I tell you whether I shall live with you or not.  I have the whip in my own hand, and I shall use it as I shall think proper.  I will not tell you whether I will live with you or not, until you go and make friends with my mother.”  On the 26^th, being two days thereafter, Mrs. Ham, accompanied by witness, went to defendant’s father’s, and there made the most ample apology to her husband’s mother.  Defendant came in at the time, and his wife told him that she had made friends with his mother, and asked him whether they could not then make  up all differences, and live together.  Defendant observed “how do you know that they (alluding to his parents) wish us to live together?” - His wife said, addressing her father-in-law, “father Ham, have you any objection that we should live together?” - No, says old Mr. Ham, you know that I always wished you to live together.  Defendant then said to his wife, If you live with me, you must do all the work of my house - and you must do it in style - and if you show a cross look, or a frown, you shall walk.  I shall dismiss all my servants, except a man to wait on myself, for I am worthy.  Mrs. Ham said, can’t we make it up now, and I’ll go home with you - no, says he, I have business of greater importance to attend to today.  She says, I think this is a business of great importance.  - You may think so, says he, but I don’t.  Defendant said I have nothing more to say on the subject.  His wife then observed, “George, I shall go to your house this evening” - which she did, when he told her to go home, and give him a month to consider of the matter.  On this occasion, the defendant wrote a letter to the plaintiff, which was read in the Court.

  On the 24^th of October last, being the day appointed by defendant for taking her back, his wife, accompanied by witness, went to his house, when he (the defendant) informed her of the terms on which he proposed that she should live with him - they are as follows:  “You shall be confined in a room, and I shall neither eat, drink, nor lodge with you, and you shall receive no visitors, nor meddle with any thing belonging to me - for the instant you do, I shall show you the door and you walk” - and admitting, continued he, that I should lodge with you, have you any intention that another man shall sleep in the same room?  His wife said, “this is not receiving me as a wife nor treating me as such.”  Defendant further said “you must not be disappointed if 5 or 6 other women may occasionally come into the house.”  Mrs. Ham said she could not remain on these conditions, and went away.  Witness believes that Mr. Ham is in good circumstances.  Mrs. Ham was boarded, lodged, and clothed respectably by the plaintiff - Plaintiff kept the child about nine months.

  Cross-examined by the Solicitor - Peter Perry and his mother were present when defendant took away his wife in a wagon - Mrs. Ham came on foot from defendant’s sister’s - she was not so ill when she came as when she went away.  On remonstrance, he went for a wagon, and took her home - he flourished the whip over her head  - appeared to be in a passion.  He came [---] a violent passion, flourished the whip over his wife and said - “come home with me my lady.”  Witness did not know the cause of his passion.  Perry was in the same room and could see what passed.  Mrs. Ham while in her father’s house, was well-behaved and industrious - she washed, sewed, knitted and did the house work - did the same kind of work that witness did - did nothing while unwell - was invited by her mother to come home until she got better.  Did not know what reason defendant had for saying that he would not live with her, if she went on her knees to him.  Does not think that defendant had any reason to be jealous of her.  Did not recollect of a chairmaker living at her father’s house.  Saw Dr. Baker at her father’s house - never saw any familiarities between Dr. Baker and Mrs. Ham.  Witness had no knowledge of her sister being fond of the chairmaker, nor of her wishing to go off with him.  Defendant, at the time of his marriage, was a shoemaker - sometimes wrought at his trade, and sometimes worked on his father’s farm.  All the Hams lived together and kept no servants.  Understands that defendant made objections to the child living with to the plaintiff.  Plaintiff and his family are of the Church of England.  Witness is not aware that any improper language was taught to the child.  Is not aware that defendant belongs to any religious community - is not aware that her sister was to join the Methodists.  Witness’ father lives in Earnestown.  - Mr. Ham lived in the same concession, about three miles distant - is now living at Bath.  Recollects her father bringing home Mrs. Ham.  Witness is 23 years of age - was quite young at the time - recollects the circumstance and that is all.  Recollects that when she (witness) went home with Mrs. Ham in October last, defendant proposed that his wife should be confined to a room, and not that she should have the use of one.  Did not hear defendant intimate as his motives for having another person sleeping in the same room - that he heard that Mrs. Ham had formerly expressed a dread that he should murder her, and that he, by that means, wished to prevent it.

  By Mr. Hagerman - Mrs. Ham always conducted herself with propriety when at her father’s.  Recollects her refusing to go to several parties.

  By the Solicitor - Never knew Mrs. Ham, either with or without witness, sitting up sparking at night with one William Fairfield and Samuel Clark.

  John Simpson - Recollects in 1814 or 15, having had a conversation with the defendant, coming from the Conscon Lake to the Carrying Place, asked him why he separated from his wife.  Defendant said, that in consequence of some dispute between them he chastised her with a riding whip and she left him.  Defendant observed, that he never intended to live with her again.

  Cross-examined by the Solicitor. - This conversation took place as above - witness lived at the Carrying Place at that time.  Defendant also lived at the Carrying Place at that time - he kept shop for Ebenezer Perry.

  Colin Mackenzie Esq., is near neighbour to the parties and knows them well - knows that Mrs. Ham has been     [---]  ably maintained by the plaintiff.  The defendant was a young man, doing well, and had a farm of his own at the time of the separation.

  Here the evidence of the prosecution closed and the Solicitor General, for the defence, craved a non-suit in favour of his client on the following grounds:   1^st, That there was no evidence to support the action, it appearing that the plaintiff was the wrong doer in the first instance and 2dly, That nothing had appeared to warrant the separation.

  The learned gentleman read several decisions applicable to the present case, and contended that there was no proof of violence adduced;  at least, of such violence as at all to warrant Mrs. Ham to leave her husband -   While he admitted that one witness had sworn that the defendant had acknowledged to him, having chastised his wife with a riding whip, yet he insisted that that was not enough to authorise the plaintiff to take away his daughter;  Fear and terror of life, he said, must be proved, but he contended that no such terror existed in the present case.

   His Lordship [William Campbell, Chief Justice for Upper Canada] stated the law of the case - and said, that to maintain an action of this kind it was necessary to prove that the defendant’s conduct had been such as to render her departure necessary, that the question now was, how far this had been the case.  it was true, it appeared in evidence, that a chastisement had taken place;  but, however, ungallant such conduct might be considered, yet a man had a right to chastise his wife moderately - and to warrant her leaving her husband, the chastisement must be such as to put her life in jeopardy.  And were it not for the defendant’s letter to the plaintiff, in which certainly consent was implied, he would have no hesitation in granting him a non-suit. - His Lordship wished the public distinctly to understand what the law was in such cases as the present - that it was decidedly hostile to the practice of wives running away from their husbands.  - His Lordship could not help expressing his disapprobation, in the strongest terms, of the officious meddling of the parents of Mrs. Ham, in the present instance; and in exemplification of what the conduct of a parent ought to be in such cases, His Lordship, with great good humour, related the following story:

It once upon a time, so happened, that a person who had some dispute with his wife, gave her a moderate chastisement - upon which the fair one ran home, and complained to her father.  The father pretending to be in a desperate rage at the husband said, - what! has the scoundrel really had the impudence to beat my daughter - well, says he, I shall be revenged upon him, for I am determined to beat his wife, which he did, and sent her home, and was no more troubled with the quarrels of the parties - and Mr. Hawley should have done the same.

  The Solicitor General now entered upon the defence.  He stated to the Jury that the case was not of such consequence as they might have been led to suppose from the opening speech.  He with much eloquence and ability took a comprehensive view of the case.  He contrasted the serious and even awful charges brought forward in the opening address with the evidence which had just been adduced for the prosecution.  He observed, that if his client were such a beast - such an absolute brute as they represented him, he (the Solicitor) would not stand there to defend him. The reverse, however, he was happy to say, was the case, and he could now tell the Jury that Mr. Ham was a respectable man - that from a poor shoemaker and labourer as they would make him, he by his own merit and good conduct raised himself to wealth and respectability.  Were he such a monster as they would make him to be - yes, if he kept five or six women in Bath - if he really kept a Seraglio like the Grand Turk, as they alleged, how was it that he is now associated with and respected by his neighbours’.  He contended that his client, Mr. Ham, was at that moment fully as respectable as Mr. Hawley or any of his connections - and he would say further, if his client were such an abandoned monster as they represented him, why has he been so long on the list of magistrates.  Was there an instance, he would ask, of a brother magistrate complaining of him - no, gentlemen, he has always conducted himself with decency and propriety.  and how, gentlemen, I would again ask, has it come about that in the very face of the slanders and the calumnies of his enemies, this very Mr. Ham has been on one occasion elected by his neighbours to represent them in Parliament.

  The learned gentleman in going into the merits of the case, stated that he could prove to the satisfaction of the Court and Jury, that the conduct of the plaintiff, Mr. Hawley, was most improper.  He could prove that when he (Mr. Hawley) came for his daughter, he said to the defendant, “You d---d rascal, you have ill-used my daughter - I was able to support her before she married you, and I am so yet.”  This was a sample of the conduct of this mild, immaculate Clerk of the Church.  The learned gentleman put the Jury on their guard against the eloquence and ingenuity of the opposite Counsel.  Complimented Mr. Bidwell’s address - it had one material fault however - it was not true.  Towards the close of a very lengthy and very eloquent speech, the learned gentleman disputed the validity of the marriage between the parties.  The evidence on this point will appear below.

For the Defence

  Jemimah Perry was present when Mr. Ham took away his wife from plaintiff’s house; did not see Mr. Ham flourish a whip or say any thing angry;  he had a very small whip in his hand, but did not shake it over his wife;  Mrs. Ham made no objection to go home.  Mr. Hawley proposed to Mr. Ham to get a wagon, which was done, and they went home quietly.  Witness saw old Mrs. Hawley shaking her fist under Mr. Ham’s nose - old Mrs. Hawley was in a fret - supposes it was because her daughter was going home - recollected Mrs. Hawley saying that she wished her daughter was in her tomb before she married the defendant.

  Peter Perry went to the house of Mr. Hawley with Mr. Ham.  Defendant asked his wife to go home with him.  Mr. Hawley wished him to go for a wagon - saw nothing improper on the part of Mr. Ham.  When defendant first went into the house, and after the usual salutations, defendant asked the plaintiff if he owed him anything on account of his wife, and was answered in the negative - asked Mrs. Hawley the same question, and was also answered in the negative.  Did not see Ham shake a whip over his wife - if he had done so must have seen it.

  Mary Perry was present when Mr. Hawley took away his daughter from defendant, he told his daughter she must go with him, as he would not allow her to live any longer with her husband;  she did not wish to go, but her father insisted.  He ordered her to take down the curtains from her bed;  Mrs. Ham sat down on a chair and cried;  but old Mrs. Hawley took away the curtains;  thought the conduct of the plaintiff and his wife very outrageous.  Witness is sister to the defendant;  lived in the same house with defendant and his wife while they were together, and never saw defendant strike her.  Mrs. Ham told witness about six years ago, that her husband never struck her; thinks that if Mr. Hawley and his wife had kept away, there would have been nothing wrong, and they would never have been separated.

  John Ham thinks that the difficulty had originated between George Ham and his mother-in-law;  thought so from certain reports that she had been circulating;  for instance, she insinuated at one time, that witness had treated his wife harshly.

  Henry Ham was present in October last when Mrs. Ham came home.  Defendant said so you are come back to live with me.  You think that I am a better man now than I was before, but you are mistaken.  Defendant said he would let her have the best room in the house, and if that was not good enough, he would build another;  he would not cohabit with her;  she might go out and in as she liked;  but he would be the proper judge of what visitors should come to his house.

  John Ham is father to the defendant;  his son George Ham, is about 33 years of age, was christened by the Rev. Mr. Langhorn;  was married in 1813 by the Rev. Rob. Macdowal.  He & his wife lived happily together for the 1^st year; next year Hawley took away his daughter.  Job Aylesworth and Elisha Shorey saw Hawley the day he took away his daughter; met them on the road talking to one of the neighbours;   heard Hawley say I have taken away my daughter;  I supported her before, and can do it again;   she shall not live with him again.

  Rev. Robert Macdowall identified the certificate of marriage between George Ham and Esther Hawley; witness is a Presbyterian of the reformed Dutch Church.  By the solicitor.  Were you ordained by a Bishop.  Witness.  We are all Bishops.  His Lordship observed, that if witness had been ordained by a Bishop, he could not be a Presbyterian. Defendant’s parents were communicants in his church, and George Ham, the defendant, was a regular attendant, but never communicated.  Point reserved for the Court above upon the legality of the marriage as above celebrated.

Here the defence closed.

  Mr. Hagerman now rose in behalf of the plaintiff; and in one of those bursts of eloquence peculiar to himself, carried along with him, if not the conviction, at least, the feeling, of his hearers.  It is always with pleasure we listen to the speeches of this gentleman, especially in cases like the present, calculated to create strong excitement.  We have heard those who could, perhaps, reason more closely than Mr. Hagerman, but very few indeed whose eloquence, in our estimation, is more powerful. 

  At the commencement of his speech, the learned gentleman adverted to the high eulogium which the learned Solicitor had passed on the character of the defendant;  he, however, contended that there were many then present who knew well to the contrary, and even a stronger proof of the absolute baseness and depravity of the mind of that individual could not be adduced, than the scandalous and most damnable plea now set up by him.  What gentlemen of the Jury, says the learned counsel, does he attempt to prove - it is gentlemen, that the wife of his bosom is a prostitute, and his child a bastard.

  The learned gentleman went at great length into the law and facts of the case.  He observed that the greater part of the witnesses were Ham’s near relatives; but he would put Miss Hawley’s testimony against the whole mass of evidence brought against him.  It was always with regret that he found himself compelled to differ in opinion with the bench.  In the present instance, notwithstanding what had fallen from His Lordship to the contrary, he would deny, that at the present day, a man was at liberty to chastise his wife - that was the law at former times - but the day, he was happy to say, was not too far advanced to admit such doctrines.

  Gentlemen (he continued) what inference are you to draw from the modest request of the defendant to his wife, that she would submit to having another man sleep in the same room with her?  Is there any man who now hears me, whose blood does not boil within him at such a proposal - whose soul does not revolt at the cold-blooded brutality of this bad man?  He was to derive either of two advantages from this proposition - if she rejected it, (as she did, with silent, but expressive indignation) he then would make it appear, that it was entirely her own fault if she did not live with him.  If she submitted, what then would follow?  Gentlemen, you have perhaps heard of an atrocious circumstance which occurred near the Napane Mills some time since.  John Clark (I suppose you all know him) induced an unfortunate female to consent to marry a man then living at his house; the worthy John proceeded to join the parties in holy wedlock & the day, with its festivities being over, the happy couple retired to bed.  As was concerted before, between the bridegroom & Clark, the former, whenever his unfortunate dupe fell asleep, got up, & left the room for a few minutes and Clark took possession of the bed.  The bridegroom immediately returned, and affected to discover that his newly married wife was false to his bed, upon which, the marriage was immediately declared void.  Gentlemen, do you think that Mr. Ham, with the knowledge of a stratagem, so saited to his ideas of right & wrong, would let so good an opportunity escape him, as his wife’s submission to his proposal would give him, to red himself of her forever.

  Towards the close of his speech, the learned gentleman having been frequently interrupted by the Solicitor, as to the indecorum of some of his expressions, begged pardon of the Court & Jury, if, in the heat of speaking, he had transgressed the bounds of decency; he denied, however, that he did; observed, that the defendant, by his infamous conduct, had brought it all upon himself.  But, my lord, continued he, against the continued interruptions of others I put myself, under the protection of the court.  I stand her, my lord, as a Barrister and a Gentleman.  In the former capacity, the Court will protect me, and in the latter, I shall protect myself. 

  His Lordship, after telling the Jury to divest their minds of the declamatory address which had just been made, entered into a dispassionate re-capitulation of the evidence, stated that he would at once have granted a non suit, but for the defendant’s letter already alluded to.  He was of opinion, however, that that letter ought not now to make any difference.  He was also of opinion, that not a farthing of damages ought to be given, at least, excepting for one month, and even was not certain as to that month.

  His Lordship then left the case with the Jury, who, after retiring for a short time, returned a verdict for the plaintiff - damages [£2 10 s].