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  • D.J. Richardson

Before the Colonies Had Divorce Laws: Escaping a Toxic Marriage in the Colonial West

Isabella Mainville Ross and Flora Amelia Ross: How a Mother and Daughter Escaped Toxic Marriages Before the Colony of Vancouver Island Had Civil Divorce Laws.

In the mid-19th Century, divorce laws in the Canadian colonies were a patchwork of inconsistency. Though civil divorce became legal under English law with passage of the Matrimonial Causes Act of 1857, the colonies were slow to respond, leaving many Canadians looking for access to the more liberal U.S. courts just across the border.

The stories of two women in the Colony of Vancouver Island, Isabella Mainville Ross and Flora Amelia Ross—respectively the wife and youngest daughter of Hudson’s Bay Company Chief Factor Charles Ross—provide vivid examples of the impact this uncertainty created in the lives of countless women who were stuck in intolerable marriages.

Divorce was unlikely on the mind of Isabella Ross during the twenty-two years she was married to Charles Ross. Isabella, of Ojibwe and French-Canadian background, married her husband in 1822, followed him throughout the Canadian west, and gave birth to ten children (at least, ten surviving and known children). When Charles Ross died in 1844 after overseeing the construction of Fort Victoria, Isabella established a farm with the help of her elder children outside of Fort Nisqually, soon to be Washington Territory. But she returned to Victoria with the youngest children in 1853 (Flora had already been lodging at Fort Victoria’s small school), and purchased ninety-nine acres of farmland that skirts Ross Bay and Foul (f/k/a Fowl) Bay, just south of downtown Victoria. It was a purchase that may have made her the first woman in the western colonies to own property under English laws.

But in 1863, with the last of her children straying from the nest, Isabella found herself courted by Lucius O’Brien, a young and recent immigrant from Quebec. O’Brien succeeded in marrying Isabella on June 29, 1863, and then immediately began turning her against her children in an apparent effort to secure control of her valuable farmland. The doctrine of coverture remained in force at the time, providing that any property in Isabella’s name was the legal property of her husband. But legal control wasn’t complete control on a family farm where some of the children still lived and worked. The family struggles caused by O’Brien landed one Ross son in jail on assault charges laid by O’Brien, while O’Brien himself faced criminal charges for assisting desertion by three seamen, and created a mass of press coverage for the family in the local papers.

On April 30, 1864, O’Brien published a notice in the Victoria Daily Chronicle indicating that Isabella had left their marital bed, and that he wouldn’t be responsible for her debts; a not uncommon type of notice that appears to have served a purpose similar to modern separation, by attempting to sever economic ties and responsibilities. But while Isabella had left O’Brien, she had few options to terminate the marriage and preserve her family farm. The colony of Vancouver Island had no civil divorce law at the time. And while the English divorce act was officially on the books in the neighboring colony of British Columbia as one of its received laws upon establishment of the colony, it wasn’t clear that the courts recognized the law, as no divorce would be granted until 1877. Moreover, even if the act were recognized and Isabella could have established sufficient residency to obtain jurisdiction, she would have had a far more difficult time securing a divorce than O’Brien would have had, as the English act included additional requirements that wives had to meet in order to secure a divorce, while their husbands could obtain such relief on a lower standard.

It was likely for these reasons that the family’s approach was a lawsuit filed by Isabella’s two youngest daughters and their husbands, and her youngest son, coinciding with the publication of O’Brien’s notice of abandonment, on April 30, 1864. The petition alleged that the marriage was invalid on the grounds of bigamy on the part of O’Brien. Court records for the case are incomplete, but it appears that the case was fully or partially settled by O’Brien’s and Isabella’s execution of a deed in November 1864, granting most or all of the remaining family farm to youngest daughter Flora, likely as a means of ensuring that the farm would remain in the family.

While Isabella’s marriage remained in place as a legal matter, O’Brien left Victoria. Just over a year later, in February 1866, O’Brien was found dead at his home in a lumber camp in Cowichan, north of Victoria. The jury composed for the autopsy concluded that O’Brien had died from “the sudden visitation of God.”

While O’Brien’s death brought a definite end to Isabella’s marital woes, those of her daughter Flora had just reached an extremely difficult period. Flora had met her future husband in the summer of 1859 when, as a seventeen year-old girl with minor nursing training, she lived at the Hudson’s Bay Company’s Bellevue Farm on San Juan Island, possibly to care for the dying wife of Aleck Mcdonald, the farm’s dairyman. Twenty-seven year-old Paul Kinsey Hubbs, Jr., was the U.S. deputy inspector of customs, a largely figurehead position that he had been given to ensure a U.S. government presence on the disputed island while a boundary commission sorted out the final location for the international border. Within a day or two of the likely date of Flora’s arrival on the island, U.S. troops landed at Hubbs’ instigation to help secure the island for U.S. interests, and the troops eventually set up their camp immediately adjacent to Bellevue Farm. Royal Navy corvettes were soon anchored in Griffin Bay with their cannons aimed at the hillside, and the four-month standoff colloquially known as the “Pig War” of San Juan Island was underway. Hubbs appears to have courted Flora throughout the dispute, as they were married on December 6, 1859, in Victoria’s Christ Church, just as a U.S./British joint occupation of San Juan Island was being consummated. Local papers published a wedding announcement that appears to have been written by a third party, as it announced the marriage as a second joint occupation agreement between an American and British subject, and noted with a measure of impudence the possibility that courts might someday be called upon to resolve boundary disputes for the young couple.

It was an accurate prediction. While Flora ran the couple’s farm over the next seven years (on the southeastern tip of San Juan Island, today known as “Cattle Point”), and raised their son, Hubbs attempted a variety of careers, including a single term in the Washington Territorial Assembly. But none of his attempts were particularly successful, and none replicated the controversial glory of his efforts in 1859 to bring U.S. troops to the island. By 1865, Hubbs had become extremely abusive and was rumored to be keeping a teenage indigenous girl in a nearby cabin as his mistress.

Flora separated from Hubbs on January 25, 1866, according to court papers, and her legal options in the courts of Vancouver Island remained as limited as her mother’s had been two years earlier. Notice of a future bill to authorize civil divorce in the colony was tabled in the Vancouver Island House of Assembly on January 11, 1866, but the bill wasn’t passed prior to the colony’s unification with British Columbia nine months later.

The resolution of the O’Brien bigamy lawsuit meant that Flora and her siblings had protected much of the Ross farm from his reach. But under the continuing doctrine of coverture, the recording of the property in Flora’s name meant that Hubbs was its true owner, and Flora’s marital woes placed the family farm in jeopardy once again. Even if Flora could have found the means to obtain a civil divorce in either colony, such as by establishing residency in the new colony of British Columbia, and convincing Judge Begbie (a member of her church’s congregation during his time living in Victoria) to apply the English divorce act, she could have lost her portion of the Ross farm to Hubbs in exchange for her freedom from the marriage. The Ross farm was then the home to Isabella, her son Alexander, her widowed daughter-in-law Genevieve, several grandchildren, and, until their arrest and incarceration in January 1866, her youngest sons, Francis and William. A loss of the Ross farm would have meant far more than a mere economic loss.

A bigamy case akin to the O’Brien lawsuit was a possibility, since Hubbs had claimed prior marriages or partners during his early twenties when he claimed to have lived in Haida communities along the north coast. But such partnerships, known colloquially at the time as “frontier marriages,” were unlikely to support a bigamy charge, in part because they typically hadn’t been performed in a Christian church, but largely because the concept would have threatened far too many marriages.

Flora had one option that hadn’t been available to her mother two years earlier, but it was an option that could prove to be far more troublesome if not handled correctly. Hubbs was an American citizen. And given the U.S. claim to San Juan Island, Flora had been an American resident in the eyes of the U.S. government, if not a citizen as well. Indeed, had she chosen to push the issue, she may have been able to claim U.S. Citizenship by reason of her birth on a beach on San Juan Island in 1842, while her parents were traveling to Fort Vancouver by canoe. Washington Territory had passed a relatively modern divorce act in 1863 that permitted a divorce upon “any other cause” that the court deemed sufficient, if the court were

to conclude “that the parties can no longer live together.” Somewhat ironically, the Washington territorial divorce act had been passed by the Tenth Session of the Assembly in 1862-63, which was the session where Hubbs had served as an Assembly member, while his father had concurrently served as President of the upper body, the Legislative Council. Both men should have known the terms of civil divorce law in Washington Territory with substantial certainty.

The Hubbs’ residency on San Juan Island placed the couple in Franklin County, the courthouse for which was in Port Townsend, WA. There were a half-dozen attorneys practicing in Port Townsend at the time, and their elder statesman was Flora’s father-in-law, Paul Kinsey Hubbs, Senior. Unlike his son, who had journeyed north from California in 1853 seeking adventure, Hubbs Senior and his wife, Maggie Gilchrist, had immigrated to Port Townsend in 1858, likely out of necessity after the activities of San Francisco’s Vigilance Committee of 1856 had made life difficult for Democratic politicians in California, if not potentially fatal. Hubbs Senior had been a state Senator and the state Superintendant of Schools prior to the 1856 uprising. Since arriving in Washington Territory, Hubbs Senior had rekindled both his legal and political careers. If Flora were to petition for a contested divorce in Franklin County, her father-in-law might have had the clout to ensure that she would receive an unfavorable outcome.

Yet passenger records show that Flora journeyed to Port Townsend in April, 1866, and returned on the same boat as Port Townsend attorney B.F. Dennison, who subsequently appeared as Flora’s attorney in divorce proceedings the following September. Dennison was not merely a legal colleague of Hubbs Senior’s, but appears from census records to have been his next-door neighbor as well. It remains speculative whether Flora journeyed to Port Townsend with Dennison’s assistance in mind, sought out the help and advice of her father-in-law, or simply met Dennison in passing while sharing the same passage back to Victoria. But given Flora’s education level, and the drive that she demonstrated in professional settings throughout her life, it was likely an intentional effort on her part to locate an attorney, obtain at least the cooperation of her father-in-law, and take the first steps toward negotiating an amicable divorce.

Hubbs Senior was rumored at the time to be a possible candidate for territorial Governor, and a contested divorce case detailing allegations of abuse and infidelity by his son might not have helped the campaign (though, ultimately, he didn’t run). Whether or not such factors worked in Flora’s favor, the result was a stipulated divorce Petition filed in September 1866, in which few details were disclosed. Flora alleged in her Petition that remaining with Hubbs would “render her life miserable in the extreme,” which Hubbs admitted in his Answer, though he refused to admit or deny an allegation that Flora had “performed her duties faithfully and conducted herself with propriety.” The agreement for divorce was relatively simple. She received no alimony, retained custody of their son, and each side bore their own costs. Unfortunately, while the Petition, Answer and Decree are in the court file, the stipulation of divorce is missing. It was likely the document that had detailed the separation of property, as Flora managed to retain the Ross farm, while Hubbs kept ownership of the couple’s homestead on San Juan Island. As a result of their agreement, the marriage was quickly and amicably ended by a divorce decree entered September 14, 1866.

Flora appears to have remained on the Hubbs farm for a short time after the divorce was finalized, perhaps to complete the harvest, but then returned to Victoria. An entry in Reverend Edward Cridge’s diary records a story told by Flora of losing her most valuable papers in a boat swamping in late 1866, including her confirmation papers. It was an event that may have occurred while returning with her possessions to Victoria, since traveling with one’s confirmation papers and other “most valuable” papers was unlikely an everyday practice. Flora’s arrival as Victoria’s first divorced, single mother with a career might have seemed novel at the time, particularly as she reclaimed her maiden name and was known thereafter as Mrs. Ross, but it did not harm her long-term career prospects. A few years after her return, in late 1870, Flora was appointed to serve as the caregiver of three women who went “insane” within a short space of time, and who were kept initially at the Victoria city gaol. In the absence of mental health facilities, male patients had historically been kept in the gaol under the care of an inmate too ill for the chain gang (who, in 1867-68, was frequently Flora’s older brother, Francis). But the arrival of female patients required a female matron, and the ability to lodge the women in the police barracks above the gaol. By 1872, the old Royal Hospital was repurposed as the first provincial “Insane Asylum,” with Flora as its Matron, caring for the female patients. It was a position that she retained when the asylum was moved to New Westminster in 1877, through to her death from cancer in 1897.

The adoption of civil divorce laws continued to be haphazard in the provinces following confederation, until the federal Divorce Act of 1968 provided uniformity across the country.

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