Victorian lunacy, litigation and hidden lives
Mrs Cathcart, if she is known at all to posterity, is better known by the prefix “Re:” than by the Christian name, Mary, given to her at her baptism in the Derbyshire village of Brimington in September 1844. She was born at Brimington Hall, the first and only surviving child of her parents, in the year after their marriage. The “Re” comes from Re Cathcart  1 Ch 549, a decision of judges of the Court of Appeal, sitting as judges in Lunacy, in December 1891. Earlier that year, at great expense and with excruciating public scrutiny, Mrs Cathcart’s husband, James Taylor Cathcart, had petitioned for her to be declared of unsound mind and her very substantial inherited property to be managed by someone on her behalf. Mary’s name had already been in the headlines in February 1891, when, at James’s instigation, she was seized off the street outside the Royal Courts of Justice in London, using then-newly introduced “urgency” powers under the Lunacy Act 1890, put into a carriage and driven south of the river to the Priory in Roehampton, then a private lunatic asylum, where she was compelled to stay until the hearing. After seventeen days of this Inquisition in Lunacy, which took the form of a public trial before a Master in Lunacy and a jury, spread over the height of the summer of 1891, the jury took only fifteen minutes to declare that Mary was not insane, and she was freed from the Priory, mistress of her own destiny again.
The court in Lunacy then had to decide who should pay the costs of the inquisition. Both James and Mary had retained large legal teams led by prominent QCs of the day and the costs were exorbitant. Although, like Mary, James came from a landed family background, he was much less wealthy than her, and could not afford to pay his legal costs. Mary, for her part, thought he should pay her costs. The judges decided that Mary should pay her own costs, and also pay two-thirds of James’s costs. Although they could not go behind the jury’s verdict, and although James’s own conduct was open to criticism in some respects, the judges thought he had sufficient grounds for bringing the petition in lunacy. In other words, Mary herself had behaved in a sufficiently irrational way to justify an inquiry into her sanity — an inquiry of which the motivation was her best interests and the purpose was to protect her, and her property. That, of course, is not how she saw it. A year later, in December 1892, her appeal against this order was dismissed, and reported in the Law Reports at  1 Ch 466. That was the final appeal, after which the Times published a thundering editorial criticising both husband and wife for their conduct, and public discussion of the case came to an end.
The decision and appeal in Re Cathcart have had legal posterity long after the word “lunacy” and the process of inquisition into lunacy have vanished into legal history. Part of the modern costs rules of the Court of Protection, which has replaced the High Court’s ancient jurisdiction in lunacy, and which makes decisions on behalf of mentally incapacitated adults, are a statutory version of the decision in Re Cathcart, and the judgment is still referred to from time to time in the Court’s decisions. In modern cases about the property and affairs of people who lack mental capacity, or whose mental capacity requires investigation, the general rule is that everyone’s costs are paid from the funds of the allegedly incapacitated person. But there are many circumstances in which the Court can and does depart from this rule and penalise, for example, failure to succeed in argument on an issue, or extravagance or misconduct in litigation. The principles as they have developed from the late 19th century to modern litigation in the Court of Protection are very well known to lawyers, yet Mrs Cathcart’s own life history lies in obscurity behind them.
The decisions in the Law Reports narrate only a fragment of that life history, a sparse glimpse of episodes from the few years between her marriage in July 1887 — a strikingly late marriage for its time, at the age of 43, to a man twelve years younger than her — to the turbulent events of 1891. One incident stands out in an otherwise unwritten history. The marriage appears to have been disastrous from its start, perhaps even unconsummated, as James claimed to have a cold and slept in his valet’s room immediately after the wedding, and it was followed by the couple’s separation only a few weeks later. Mary accused James of adultery with a prostitute in Tobermory in the course of their honeymoon yacht cruise around the Isle of Mull, an accusation for which there was no evidence (perhaps not even of a brothel existing in Tobermory in 1887), as she later acknowledged. The following year, in the summer of 1888, Mary had travelled to her own home, the Jacobean mansion of Wootton Lodge, near the village of Ellastone in rural Staffordshire, and on finding James there, immediately turned around to the nearby town of Ashbourne and stayed at an inn, from where James attempted to abduct her in order to consign her to the county asylum, in the small hours of the next morning, forcing his way into her bedroom as she cried “Oh Jim! Murder!”. Mary’s counsel at the costs hearing described this as “brutal as well as dastardly”, a resounding label for a hundred and thirty years’ old example of behaviour which might now be prosecuted as coercive control, but on which Mary herself failed to obtain a divorce on the ground of cruelty.
I have for a long time been curious to know more of Mrs Cathcart’s life history beyond this dramatic fragment. I thought of it again whilst reading the last in a series of Court of Protection decisions, published at the end of the legal year in July 2018, about “A”, an elderly mentally incapacitated woman who died in the spring of 2018. A was believed to have been the last person in England to be the subject of an inquisition in lunacy, in 1959, the same year that that ancient procedure was abolished. A’s nephew, D, had unsuccessfully objected to the appointment of another cousin as a replacement property and affairs deputy for his aunt, and then unsuccessfully appealed an order departing from the general rule, for him to pay most of the high costs of his objection. He had pursued this and other issues in the litigation, mostly as a litigant in person who was, in Sir James Munby’s words, a “far from typical litigant”, who was “unrelentingly pertinacious in pursuit of what he believes to be his aunt’s best interests”. An inquisition in lunacy, high costs, and a relentless litigant in person all have echoes of Mary Cathcart’s life.
I began to research Mary Cathcart’s story in the summer of 2018, starting from the Law Reports, then searching in newspaper archives and Victorian legal documents in the National Archives at Kew, experiencing the dusty thrill of unfurling a bundle of large parchment scrolls wrapped in a sack like a mummy, and perhaps untouched since first rolled together and tied with pink or white tape nearly two centuries ago. Even at this early stage, I found that Mary Cathcart had led a long and eventful life — a life of Victorian institutions and Victorian litigation, and a life of both great fortune and great misfortune. Her life took her from the lesser and greater mansion houses of the 19th century landed gentry, both her own and those of her extended family, where she grew up with her widowed mother, to a peripatetic existence in a hotel in London after leaving James, and ultimately to prison and then to a lunatic asylum. Twenty-five years younger than Queen Victoria herself, Mary lived the entirety of her free adulthood in Victoria’s reign. After her father’s death in her very early childhood, Mary became a “ward in Chancery” at the age of four in 1848, at a time when Dickens was writing “Bleak House”, and the work of the Court of Chancery still had a far closer tangible connection with its medieval origins than it does now. Mary married in 1887, the year of Queen Victoria’s Golden Jubilee, spent much of the 1890s becoming “the well-known lady litigant” as she was described in the London Standard, in the then-new Royal Courts of Justice in London, and lost her liberty in 1901, the year of the old Queen’s death. The case that led to her committal to prison for contempt of court was an action for specific performance by the borough of Stourbridge, where she owned land she had inherited, and had failed to complete a contract for its sale to the town in order to build an electricity station, an archetypal story of land transfer in the Industrial Revolution. Similarly, Mary lived through and experienced great changes in women’s position in society and their property rights; in the understanding of mental illness and the development of psychiatry, and in modernisation of the law, the administration of justice and the legal professions, and the building of the new courts.
Mary’s life is now mostly observable through a series of courtroom descriptions and records, and from newspaper accounts of her court appearances, in an age when both national and local newspapers reported civil and criminal hearings in many courts up and down the country in extraordinarily prolific detail. And as a member of the class of landed gentry, her name also appears in newspaper records which followed the activities of this class. Rather like modern social media status updates, in August, local newspapers published lists of the arrivals of “distinguished individuals” or “people of fashion” at seaside resorts and spa towns, and Mary and her widowed mother were amongst those who went to Scarborough or Shanklin in the summer, and attended balls and theatres in the winter. We know what the Princess of Wales wore when Mary was presented by her mother at a Drawing Room in June 1863, the Princess then acting on behalf of her mother-in-law, Queen Victoria, to receive the official presentation of upper-class young women at Court — but not what Mary herself wore, or what she made of the occasion. I have not yet found anything written in her own hand or by anyone who knew her, and which has not been recorded elsewhere.
Perhaps because this is the most detailed source material I have yet found, Mary’s life seems to have been most strongly marked by court appearances, as a victim of crime, as a litigant in civil proceedings in her own right, and as an object of two lunacy petitions. The court reports start with the inquest on her father’s death in 1846; continue with the Chancery proceedings commenced in 1848 for the administration of his estate and her wardship in Chancery; are followed by the trial at Stafford Assizes in 1881 of a man accused of sending her an anonymous threatening letter, vividly terrifying and cruel in its terms; then proceed to her unsuccessful attempt as a litigant in person to divorce James in 1889 and renegotiate their marriage settlement the year afterwards; his money-driven litigation against her in 1889–91; the 1891 lunacy petition and its aftermath; his divorce of her in Scotland in 1899; her endless, obsessive civil litigation of the kind that might well now be declared vexatious, and a few appearances as a victim or witness in criminal courts throughout the 1890s; culminating in her committal to prison for civil contempt of court in 1901 and a second, successful lunacy petition brought by the Official Solicitor in 1902. From all of this Mary emerges, not as someone wholly or obviously incapacitated by mental illness, but as an active, intelligent but obstinate woman, who did not always act wisely or rationally and who may indeed have been mentally disordered and afflicted with genuine paranoia by the end of her life. The scrolls of parchment covered in “law hand” manuscript, and close-printed Victorian newspapers reveal a woman with a distinctive presence in a public world in her lifetime, but forgotten after her death, and a woman for whom the word “pursuit” has many shades of meaning.
The dominant image of Mary in her short married life is of a woman escaping the literal pursuit of her husband, and the doctors and asylum attendants who accompanied him, as he sought to have her declared a lunatic. Before that come the unanswered questions of why she was not pursued by suitors to marriage as a younger heiress in the 1860s, and why she was menaced and abused by an anonymous correspondent in her mid-30s. And beyond the brief failed attempt at married life, and the courtroom war with her husband lies the question of her own pursuits, as a woman of the leisured classes without either a husband and children and a home life with them, or any opportunity to pursue an occupation outside the home. The pursuit of litigation became the nearest thing that she had to an occupation in middle life, only ending when her obduracy in unsuccessful litigation led first to her imprisonment for contempt of court in the women’s prison at Holloway, and then to her incarceration in an asylum for the last twenty years of her life, albeit one which enabled her to live in a stately home of the kind where she had grown up, at Chiswick House in west London, where she died in 1922, survived only by cousins who inherited her intestate estate. Almost a century later, it feels timely to go in pursuit of her again, through archives and records, and shed some light on her life and her pursuits.
The Pursuit of Mary Cathcart continues via links below
 Re A (A Patient, Now Deceased) (No 3)  EWCOP 16, and Re A (A Patient, Now Deceased) (No 4)  EWCOP 17 — https://www.bailii.org/ew/cases/EWCOP/2018/16.html & https://www.bailii.org/ew/cases/EWCOP/2018/17.html
 Re A (A Patient)  EWCOP 38 paragraph 2