Not A Love Story: Bordeaux v. Bordeaux

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11
e
wayAmericansocietyhas
confirmeddefinitionsofwomanhoodhas been
to encode them in the legal canon.Based upon
cultural perceptions of womanhood, these
restrictive definitions are familiarto historians studyingthe relationshipbetween women
and the law in the nineteenth century. Although most states adoptedlaws to safeguard
women's legal rights in particularsituations,
women's prospects in divorce courts were
problematic.Divorcegenerallywas forwomen
of means far into the nineteenth century.
The exceptionto these generalizationscentered in the RockyMountainWest. From1850
to 1900, western states had the highest per
capita divorce rate according to the Bureau
of Labor Statistics. Bordeauxv. Bordeaux,a
protractedturn-of-the-centuryButte divorce
case, illustrateshow gender, class, and legal
context influenced divorce cases involving
middle-class women in Silver Bow County
and, by extension, suggests how these variables operated in similar litigation in other
jurisdictions.
John Bordeaux and Ella Bordeaux nee
Driggs were married in Butte, Montana, on
June 2, 1886. John Bordeaux was roughly
thirty-sixyears old and Ella was eighteen, an
unusual age difference for couples marrying
in the late nineteenth century.1Ella andJohn
exchangedequalmaritaldowries.EllaDriggs,
the offspringof old Butte pioneers, bartered
her social standing for her husband's new
money; John Bordeaux, a Butte parvenu,
swappedhis bright prospects for entree into
Butte society. The deal struck, the couple
jogged along until November 1889when Ella
returnedto her parents'home because of her
husband'sharsh treatment.A few days later,
John Bordeauxwent down on bended knee to
ask forgiveness, and the couple reconciled.
This time all went well for a decade untilJohn
filed for divorce in Silver Bow County on
January26, 1899, claiming that his wife had
deserted him on January23, 1898.2
-~~~~~~~~~~~:W
UI
.g
ZEXI
Much of the legal parrying in Bordeaux v. Bordeaux
took place in a setting similar to the Butte district
courtroom of Judge John J. McHatton, who resigned
from the bench in 1897 to return to private practice.
32
MONTANA THE MAGAZINE OF WESTERN HISTORY
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33
Montana The Magazine of WesternHistory
John's action was fairly common in Montana.
Desertion accountedfor two-thirdsto three-quarters ofthe divorces,dependingon the period.Most
desertions were fairly straightforwardphysical
abandonmentsof a spouse. Criticalto a desertion
charge was the requirementthat the plaintiff,the
deserted party,wait a year before filing a divorce
action.JohnBordeauxwas extraordinarily
prompt,
filing almost a year to the day after his wife's
alleged desertion.
Unlike most defendantswho did not bother to
contest a divorcesuit predicatedon desertion,Ella
responded on February 11, 1899, denying her
husband's charges and filing a cross-complaint.
Ella asserted that on January23, 1898,John Bordeauxhad ceased to live with her. Ella,moreover,
reproachedJohn with extreme cruelty, accusing
him of "threateningconduct and language"and
"abusiveand intimidatingbehavior."The result of
his behavior had caused Ella "greatmental pain
and anguish"and "disturbedher peace of mind."
John Bordeaux had literallydriven her from her
home by his continualthreatsagainsther life with
"loadedfirearms."
T she
earing for her life, Ellacontendedthat
had been
her will
to
compelled against
leave her home for the safety of her parents'
house in Salt Lake City. Immediately after her
leave-taking,according to Ella, her husband had
dismantled the family dwelling and, since that
time, had failedto providea suitableresidence for
them. Because Ella had enjoyed a wide circle of
friendsandacquaintancesamongthe "bestpeople
of Butte,"her humiliationhad been all the more
acute, causing "lastinginjuryand destruction of
her peace of mind and enjoyment of life." Ella's
complaint detailed John Bordeaux's property
holdings: interests in the MountainView, Prairie
Flower, and St. Lawrence mines; ownership of
severaltown lots; and proprietorshipin additional
but unknownmining claims. Valued at $100,000,
these properties,Ella and her attorneysbelieved,
provideda monthlyincome of $1,500,farin excess
of the $90 to $120 monthlyearnings of an average
Butte craftsman or miner. Ella claimed all the
propertywasacquiredjointlyduringtheirmarriage.
She petitionedthe court for a restrainingorderto
preventher spouse fromdisposingof anyproperty,
for supportof $500 each monthwhile the suit was
pending, and $5,000 in counsel fees.3
EllaBordeaux'scross complaintindicatedwhat
was at risk in the case and suggested the premises
on which she based her claims. Framersof Mon34
Spring 1991
tana desertionlaw understoodthat desertionwas
not always as simple as a husband's or wife's
packing and leaving. They understood that one
person might intrigue and create circumstances
that would force the other to leave the marital
home.
Ella'sclaim rested on this interpretationof the
law, but she went furtherby claimingmentalcruelty. Mentalcrueltyhadbeen a featureof Montana
lawsince Albertv. Albert(1885),in whichthe state
supreme court had outlawedphysical cruelty of
any kind. Lower courts had elaborated on the
court's ruling by extending the definitionof cruelty to encompass mental cruelty-at least for
divorcingmiddle-classcouples.4Few people contested a divorce suit; only when there was something to fight over such as propertyor money did
the titans of the middle or upper class clash in
court.
On March1, 1899,John Bordeauxdenied all of
his wife's charges. After Ella had voluntarilyleft
the couple's home, he had stored the familyfurniture with her uncle and had sent her $75 each
monththatshe residedin SaltLakeCity.Bordeaux
claimed to have "introducedher into the best
society in Butte,... untilshe by her own acts and
conduct ... alienatedher former friends and acquaintances."5While Bordeauxadmittedthat he
owned the city propertymentionedin Ella'scross
action, he denied owning the more valuablemining property.His holdingshe estimatedat $33,000
andhis monthlyincome at $517. He admittedthat
the propertyhad been acquiredsince the couple's
marriagebut declaredthatEllahad never contributed "one cent."6
On February25, 1899, John Bordeaux upped
the ante by filing an amendedcomplaint,reiterating his earlier charge of desertion and adding
adultery.Specifically,he alleged that his wife had
committed adulterywith an unknown man at a
host of specifiedandunknownlocationsandtimes
betweenAugustandNovember1897.7Ellaandher
attorneysreplied that the court had no authority
to allowanamendedfiling,butthejudge overruled
1. U.S.ManuscriptCensus,1880, U.S.ManuscriptCensus,1900,
U.S.ManuscriptCensus,1910, ProbateNo. 10950,Officeof the Clerk
of Court,SilverBowCounty,Butte,Montana.Itis difficultto gaugeJohn
Bordeaux'sage. In the 1880 census tabulation,he listed himself as
twenty-eightyears old;in the 1900census he told the enumeratorthat
he had been bornin April1844;his brotheraverredthat he had been
bornonJuly4,1850.Basedonthis data,JohnBordeauxcouldhavebeen
as young as thirty-fouror as old as forty-twoat his marriage.
2. SupremeCourtCase No. 1787,Bordeauxv. Bordeaux(1902),
Transcript,2-3, 585-86,MontanaHistoricalSociety,Helena,Montana
(hereafter,Bordeauxv. Bordeaux).
3. Ibid.,3-11.
4. PaulaPetrik,"IfShe Be Content:The Developmentof Montana
DivorceLaw,1865-1907,"
Western
HistoricalQuarterly,
18(Summer1987),
261-91.
5. Bordeauxv. Bordeaux,18-19.
6. Ibid., 18-21.
-~~~~~~
0
John Bordeaux's investments included an interest in the
St. Lawrence Mine photographed about 1885 overlooking the city of Butte.
the motion. Ella's attorneys promptlyfiled a demurrer,arguingthat the amended complaintwas
vague, insufficientin its statements of facts, and
ambiguousin that times and places for a majority
of the charges were not specified. The judge
agreed.8
ordeaux and his lawyersreturnedto
courton March3, 1899,to detailthe times
andplacesofElla'sallegedadulteries.These
occasions included, among others, adulterywith
LymanSisley on September21, 1897, in an unfinished house at 825 West Broadway,another liaison with Sisley at 825 or 827 West Park Street,
anotherassignation on November 30, 1897, with
Sisley at the Weyerhorst Block, and numerous
illicitliaisons at the Bordeauxhouse. Again,Ella's
attorneysdemurredon the same grounds as before, but this time the court disagreed and overruled the defense demurrer.9
Two months later Ella answered the amended
complaint by denying in toto her husband's
charges of adultery. She augmented her earlier
complaintof mentalcrueltywithadditionalcharges
of physicalcruelty,citing an incidentin November
1889,others duringthe summer of 1894, and numerous other unspecified occasions. Finally,she
addedfalse accusationsagainsther chastity.All of
these things had contributedto her general humiliationandto the breakdownof her physicaland
7. Ibid.,24-25.
8. Ibid.,29-31.
9. Ibid.,33-39.EllaBordeaux'sallegedsexualtransgressionswere
manybut clusteredin 1891and betweenAugustand November1897.
Onlythose thatfigurein the subsequentdivorcetrialareincludedhere.
10. Ibid.,40-54.
mental health.10
JohnBordeauxchallengedall of her statements
and amplifiedhis earlier claims, insisting he had
not made false charges against his wife's chastity
because she had been unchaste. Her health had
in no way been injured.He claimedthat Ella "was
an extraordinarilygood sleeper,"often keeping to
her room and sleeping until 11 A.M.or very often
until noon or 1 P.M. She was healthy enough "at
any time to walk for hours with Lyman Sisley
aroundthe town of Butte."Not only had Ella not
contributedtowardthe accumulationofthe couple's
estate, she had "never sought to save or economize or assist [Bordeaux] in any way whatever,
but on the otherhand [had]alwaysbeen worthless
and idle, and [had] spent thousands of dollars
uselessly and unnecessarily."1
When the flurry of legal maneuveringended,
John and Ella Bordeauxhad accused one another
of the worst that a husband and wife could do.
From Ella's perspectiveher husbandviolated his
marriage vows by forcing her from her home,
accusing her of infidelity,and beating her. From
John's viewpoint, Ella had violated her marital
contractby her lewd andlasciviousunfaithfulness
and her failureto fulfillher wifely role because of
laziness and profligacy.Both financiallyand socially much was at stake. The goal for John Bordeaux was to extricatehimself from his marriage
with the least possible economic liability;Ella's
goal was the restorationof her good name and a
goodly share of the couple's estate.
On August 15, 1901, roughly three years after
filing of the initial complaint,court proceedings
began in Bordeauxv. Bordeauxbefore Judge William Clancy.Described by one historianas a "po-
Spring 1991
Montana The Magazine of WesternHistory
day, before a courtroomaudienceincludingmany
women, Bordeauxv. Bordeauxbegan. In an unusualmaneuver,JohnMcHattonmovedto have all
witnesses excluded from the courtroom except
when testifying. Clancy denied the motion, and
John Bordeaux'slawyer called his first witness.14
RobertCampbellsummarizedwhathe hadseen
at 825West Broadway.He had watchedthe couple
from the back door of the unfinished building.
They were enjoyingeach other'scompany;he laid
her down on the bench there, and pulled up her
clothing;she had on a dark suit of underwear;it
looked to me like a dark suite of combination
underclothing;fromwhere I was I could see that
they were in the act of sexual intercourse.15
William Clancy, an engraving from Progressive
Men of the State of Montana (1902), page 784
|
jurist who often fell asleep during testimony. Representing John Bordeaux, the plaintiff, were the
firms of Stapleton & Stapleton, Breen & Mackel,
and B. S. Thresher. Representing Ella Bordeaux,
the defendant, was the firm of McHatton & Cotter.
George W. Stapleton, John J. McHatton, John W.
Cotter, and Judge Clancy all were involved in the
legal wranglings between F. Augustus Heinze and
Amalgamated Copper."2
Because nineteenth-century divorce law involved assigning blame or fault, contested divorces
were tried before a jury. Unlike criminal proceed-
ings in which juries were constrainedto returna
unanimous verdict beyond a reasonable doubt,
only eight members of a divorce jury had to be
convinced by a preponderance of evidence. The
first order of court business was the selection of
a jury, and opposing counsels agreed upon twelve
predominantly Catholic, working-class men.13Next
12. Manyof the biographicaldetails of the principalscome from
"mug"books.Whilethe accountsare generallyaccuratefactuallythey
are less believable in assessing the subjects'honesty and skill. On
WilliamClancy,see MichaelP. Maloneand RichardB. Roeder,Montana: A Historyof Two Centuries(Seattle:Universityof Washington
Press, 1976), 172-74;MichaelP. Malone,TheBattlefor Butte:Mining
and Politicson theNorthernFrontier,1864-1906(Seattle:Universityof
WashingtonPress, 1981), 168-75;Helen FitzgeraldSanders,A History
ofMontana(3vols.,Chicago:LewisPublishingCompany,1913),3:1520;
The Butte Miner, October 31, 1912. On John J. McHattonsee, A
NewspaperReferenceWork(Butte,Mont.:ButteNewswriters'Association, 1914),n.p.;MontanaStandard,March18,1944.OnJohnW.Cotter
see, Joaquin Miller,An IllustratedHistoryof the State of Montana
(Chicago:LewisPublishingCo.,1894),756-57;TheButteMiner,July30,
1903;TheButteInterMountain,
July30, 1903.OnGeorgeStapleton,see
JoaquinMiller,An IllustratedHistoryof theStateofMontana(Chicago:
LewisPublishingCo.,1894),302-3;ButteInterMountain,April25,1910;
The Butte Miner,April25, 1910. Other lawyers associated with the
Bordeauxteam were less importantand probablyacted as "window
dressing."
36
He had seen Tom Bordeaux, John's brother,
jump from under the carpenter'sbench and exclaim, "I have got you dead to rights," and immediatelyhad seen Sisley run from the building,
heading across Broadway and then southwest.
Ella Bordeauxgot up, put on her hat, and set off
east on Broadwaytoward home.16
Under cross-examination,Campbelladmitted
thathe had both a social andbusiness relationship
with John Bordeaux. He explained that he had
been in the neighborhoodof the Broadwayhouse
looking afterbusiness and had run into Tom Bordeaux, who asked him to go to the 825 address.
He had knownwhatthe purposewas becauseTom
had intimatedin a conversationthe monthbefore
thatEllaBordeaux"wasdoingwhatwas not right."
McHattonquestioned Campbellabout the structure of the home. Howhad EllaBordeauxentered
the building?Why had Campbellended up at the
back door of 825 West Broadway?Easilyenough,
answered Campbell.Tom Bordeauxhad told him
that he had witnessed the couple going in the
unfinished house on other occasions. McHatton
quizzedCampbellclosely aboutthe conditionand
descriptionof the house and asked him to sketch
the roughdimensionsof the floorplanandindicate
the placement of windows and doors.17
Accordingto Campbell,Sisley arriveddressed
in a dark suit, probablya Dunlaphat, and a light
shirt and tie. Under continued questioning,
Campbell insisted the evening was balmy, very
pleasant.He testifiedthathe hadwaiteda moment
or two before following Tom and Ella Bordeaux
13. Members of the jury included:Daniel Thomas, a miner or
carman;J. P. Reins,miner;JohnSullivan,miner;RichardGoldsworthy,
occupationunknown;DarbyHastings,miner;John McKenna,miner;
JasperElliott,grocerydriverforLuteyBrothers;AndyCarroll,laborer;
MikeShea,miner;JohnArchibald,miner;JamesShepard,shoemaker;
and Joseph Massa, saloon owner.ExceptJoseph Massa,most of the
jurymenwereintheirlatethirtiesorearlyforties,married,withfamilies,
minersor mine workers,Irish,and propertyowners.Massawas married,childless,andItalian.See U.S.ManuscriptCensus,1900;ButteCity
1901
Directory,1900 (Butte:R.L.Polk&Co.,1900);ButteCityDirectory,
(Butte:R. L. Polk & Co., 1901).
Paula Petrick
an eng ravLing
(tGeorlge V. Stlapleton,
I)from A Histor X of Mon(ltofnl, vol. 2 (1913)
John J. McHatton
east on Broadway.Mrs. Bordeaux had stepped
alongbriskly.McHattonasked Campbell,"didshe
[Ella] have her hat in her hand?"Campbell respondedthatEllaputa small-brimmedstrawsailor
hat on her head as she walked away.18
Next McHattonasked about Ella Bordeaux's
underwear,and Campbell acknowledged that it
wasa darkunionsuit. Campbelldetailedhis movements after the incident and mentioned that he
had seen Charles Barnamanon the south side of
Broadway. Before going home, Campbell had
played a few hands of cards at a friend's house.
Responding to McHatton'squestions about the
date,Campbellrepliedthathe was sure of the date
because he had made a note of the incident in his
memorandumbook. McHattonwas incredulous
that Campbellhad noted an adulterywith other
entries pertainingto business.19
From Stapleton'sand Thresher's perspective,
Campbellhad done a crediblejob. He had shown
himselfto be a solid citizen with humanstrengths
14. Bordeauxv. Bordeaux,164-65;ButteInterMountain,August1517,26-28,1901;ButteMiner,August16,27,1901.EllaBordeauxwas not
presentduringjuryselection,arrivingin courtwhen testimonybegan.
She didnot sit withher attorneysbutratherbeside Mrs.LymanSisley.
A. E. Driggs,her father,occupiedthe chaircustomarilyassignedto the
defendant.Afterextensivecoverageof the trialon August 16 in which
witnesses detailed the adultery at 825 West Broadway,the Inter
Mountainof August 17, 1901,referredonly to McHatton'smotionfor
legalfees.The paperquotedStapleton:"Itlookslike anattemptto bleed
the plaintiffof everydollarpossiblebeforethe completionof the trial."
WiththattheInterMountain's
ceased
coverageofthetrialunaccountably
untilit announcedthe verdicton August24, 1901.The InterMountain's
left
the
with
a
biased
of
reportage
public
singularly
impression the trial
and Ella Bordeaux'sculpability;neither the revelationsfollowingthe
weekendnorElla'sdefenseappeared.The ButteMiner'sreportagewas
thebarest.TheMinernotedthe trial'sbeginningandend, nothingmore.
andweaknesses-faultiness of memory,curiosity,
fellowship-who had become mixed up in an unpleasant matter. He had remained disinterested
and disavowed any opportunityfor gain. A reluctant witness, he maintainedignorance of his central role in the case until the summons arrivedat
his ranchon the Big Hole. Insteadof testifying,he
indicated he should be cutting hay.
In McHatton'sview, Campbell'stestimony had
gone as he expected. His cross-examinationof
Campbell and other witnesses concentrated on
four issues: (1) What was the nature of the relationshipbetweenJohn Bordeauxandthe witness?
(2) Why did the witness follow Ella Bordeauxand
Lyman Sisley on the evening of September 21,
1897,andhow didthe witness knowthatthe couple
wouldrendezvousat825WestBroadway?(3) What
was the conditionof the house? (4) Whatwas the
weather? and (5) How were Ella Bordeaux and
LymanSisley dressed?
As credible as Campbellwas, when he left the
stand, McHattonhad accomplished a good deal.
He had established that Campbell'srelationship
withthe Bordeauxbrotherswas more thancasual,
and he had elicited from Campbellnumerous details that would set the standardfor succeeding
corroboratingtestimony.Finally,howeverslightly,
McHattonhad suggested the possibilityof a conspiracy.
15.
16.
17.
18.
19.
Ibid., 168.
Ibid., 166-69.
Ibid., 169-70,175-77,180, 182-88.
Ibid., 192, 198.
Ibid., 199-207.
37
Spring 1991
Montana The Magazine of WesternHistory
he second witness to take the stand
was Charles L. Barnamanwho testified
thathe hadseen EllaBordeauxandLyman
Sisley walking west on GraniteStreet sometime
between 8:00and8:30P.M.on September21, 1897.
He followed them down Excelsior Street to West
Broadwaywhere he lost sight of them. Barnaman
lingered on the south side of Broadwayand, a
shorttime later, saw LymanSisley hurriedlyleave
an unfinishedhouse and take off towardAlabama
Street. Shortly afterward,Ella Bordeaux left the
house andturnedeast on Broadway,fixingher hat
as she went. Tom Bordeaux followed closely on
her heels. Then RobertCampbellcame aroundthe
side of the house andtrailedafterthe Bordeauxs.20
In cross-examinationBarnamanadmitted he
had been to John Bordeaux'shouse and had been
friends with Tom Bordeaux for some time, although he qualifiedthe exact nature of their associationcuriously."Wehave been together considerable"he said, "... we have met on the street
considerable ... but haven'tbeen arounda great
deal."21Barnaman testified he had happened onto
Tom Bordeauxat the cornerof GraniteandWashington streets. McHatton asked how Bordeaux
had told Barnamanhe needed his help.
He just whistled to me ... I sometimes respond
to whistles of thatkind.... It did not occur to me
as being strangethathe whistledfor me, because
thatis a signal some peoplehavewhen somebody
is crossingthe street .... I havehadpeoplewhistle
to me that way in the night many a time before
that. Tom Bordeaux did it before several times
... so I recognized his whistle.22
Barnamanfollowed along behind Bordeaux and
Robert Campbell.Didn't it seem peculiar, asked
McHatton, that Tom Bordeaux would want
Barnamanto follow persons on the street?
It did not strike me as being peculiar. ...
I
sometimesfollowpeoplearoundtownbecause
someonesuggeststhattheywantto knowwhere
they go. ... I sometimes make that a kind of a
business.23
According to Barnaman,Sisley was dressed in
darkclothes and wore a hat. He did not think Sisley wore an overcoat.24Barnaman,too, admitted
to writingaboutthe evening'sevents in his memorandum book, which, unfortunately,had been
misplaced. McHatton quizzed Barnamanabout
the book. Did he usually note occurrencesof that
kind? Sometimes, Barnamanadmitted,he did.25
The plaintiffs legal team was pleased with
Barnaman'stestimony, which corroboratedRobert Campbell'sversionofthe events.ButMcHatton
was also gratified.He had enticed Barnamaninto
making some altogether outlandish admissions.
Barnamanrevealed himself to be a shady character, just the right sort to take partin a conspiracy.
On Friday afternoon, August 16, 1901, Tom
Bordeaux took the witness stand.26John Cotter
directed the cross-examination.He inquiredinto
Tom Bordeaux'semploymentrecord in an effort
to connecthimwithBarnamanandCampbell.Tom
Bordeaux had arrived in Butte in 1890 and had
been engaged in collecting city poll taxes. After
that he worked for his brother buying city warrants and witness fees. In 1895 he was elected
1t,
3*1
'l
oe(utiI
towards
Gixanite
mvcst fr-oni Main Street
Sti-eet,
ca 1900, looking
at. the tr-ial
by witntesses
wvhere
some of the activity
Street
dlescribed
W:ashington
att center
i'ises ab)ove surrounding
'I'hle coturthouse
clock tower
occurred.
t-ight.
I)uillirigs
38
_
According to John
Bordeaux's complaint,
one of his wife's liaisons
occurred in the Owsley
Building on West Park
Street in 1891, about the
time this photo was taken
of the building.
constableand remainedin office until 1897.From
January1897 until September 1897, he had been
a collection agent for a local butcher.27
TomBordeaux'srenditionofwhathadoccurred
coincidedwith that of other witnesses, but Cotter
wantedto know why Bordeauxentered 825 West
Broadwaywhen his quarrywas standing on the
opposite corner. Tom Bordeaux did not answer
directlyexceptto saythathe andCampbellentered
the house from the rear, and he had watched
Sisley's movements through the front door from
underthe bench. He was satisfiedfromhis observationsthat Sisley was coming towardthe house.
Why he undertookthe project in the first place,
TomBordeauxsaid:"Myobjectin going there was
just as I told you-just to see if there was anything
wrong;I was gratifyingmy curiosityto thatextent,
at least when I was in the frontof the buildingand
sawMr.Sisleyheadedtowardthe building."Cotter
ended his cross-examinationby going over the
conditionof the building, and Bordeauxaffirmed
the detailsof the constructionoutlinedby previous
witnesses."[It]was dryweather,"Bordeauxadded,
"she didn'thave on gum boots."28
When court recessed for the weekend on Friday afternoon, Ella Bordeaux's case appeared
bleak. Yet, the defense had scored against her
husband'slegal team by assembling evidence for
business and social relationshipsconnecting the
plaintiffs principlewitnesses. Charles Barnaman
was a distinctly suspicious character, and Tom
Bordeaux,as a constableandcollectionagent, had
20.
21.
22.
23.
24.
Ibid., 208-11.
Ibid., 211.
Ibid., 215.
Ibid., 219.
Ibid., 225.
;
plenty of opportunityto meet Butte's petty underworld citizens, and he seemed entirely too involved in his brother'spersonal life. The defense
also established details of the house under construction.Over and over again, they asked where
werethe doors,the windows,the carpenter'sbench.
n Monday morning John Cotter
of Tom
resumedhis cross-examination
Bordeaux continuing his quiz about the
dwelling. Cotter attempted to demonstrate how
little Bordeauxcould have witnessed from under
the carpenter'sbench asking, "Yousaw a woman
sittingon a carpenter'sbench in the room;you saw
a man standing in that room beside her; and you
go on the witness stand now and testify she was
guilty of a criminalact?"Tom Bordeauxanswered,
"That is the way I look at it."29Cotter next asked
when Tom Bordeaux had told his brother about
the incident at 825 West Broadway.This led to a
discussion of the date of the adultery and the
amazing disclosure by Bordeaux that the event
actually had occurred on December 23 and not
some three months earlier.
Startled, Cotter asked if Tom Bordeaux had
testified the previousFridaythat the adulteryhad
occurredon September21, 1897?Tom Bordeaux
25. Ibid.,234.
26. Ibid.,235-40.
27. Ibid.,240-41.
28. Ibid.,270-71,273, 273-74,256.
29. Ibid.,281.
30. Ibid., 284. In point of fact, Tom Bordeaux had likened the
weather to that during the trial. In other words, on Friday,he had
described the weather as summery;by Monday,he described it as
wintry.
39
Montana The Magazineof WesternHistory
How, conreplied, "I said it was cold weather."30
tinued Cotter,could he have made such an error?
Had he consulted with the plaintiffs attorneys?
Thresher objected.Any question regardingwhat
Tom Bordeauxhad related to his brother'sattorneys was improper.Judge Clancyroused himself
to ask, "Whatattorneys?"Cotter answered helpfully,'The attorneysforthe plaintiff."Judge
Clancy
noted that client-attorneyprivilege was involved.
When, Cotterinquired,had Bordeauxdiscovered
his error?Tom Bordeaux explained that he had
examined his memorandumbook the previous
evening and realizedhis mistake.He had brought
it along.When Cotterasked to see the book, Peter
Breen suggested the defense attorneysexamine
only the relevantportions.Cotterasked aboutthe
adulteryentryandlearnedthatthe bookwas empty
except for the notation about Ella.31
otter queried Bordeaux:Did he now
wish to change his entire testimonyto
reflect the change in dates? Bordeaux
answered affirmatively.McHattonthen asked to
know more aboutthe notebook,its timely appearance, and its revelatory information. Why,
McHattonwondered aloud, had Tom Bordeaux
chosen that evening to refresh his memory?Had
someone toldhim somethingveryimportantabout
825 West Broadway?Tom Bordeaux responded,
"Theymight have suggested something to me as
to the conditionof that buildingover there at that
date-September 21."32Under further questioning, Bordeauxadmittedthat his brotherhad suggested he look into the house business. Cotter
asked if Tom Bordeauxhad tailoredhis evidence
to the complaintor if he had testified to what he
had actually seen. Judge Clancy said Bordeaux
had alreadyanswered sufficiently.
Tom Bordeaux's testimony revealed several
importantpoints. First, although Cotterintended
to show that Bordeauxcould have seen only two
pairsof feet fromunderthe bench or, later, a man
and a womanin a room,the jurymenlikely agreed
with Bordeauxthat what he had or had not seen
in the way of criminalactivitywas immaterial;Ella
Bordeaux had been in the wrong place at the
wrong time.
Second,McHatton'scross-examinationallowed
the jurymen to hear ad infinitumthe damaging
details of the event at 825 West Broadwayand
permitted them ample time to reflect on them.
McHatton'scross-examinationtechniquewas purposeful, however.The witnesses had thoroughly
40
Spring 1991
elaborated,detailed,and corroboratedeach other
on all points. Much of their credibilityrested on
their agreement over the state of the house. But
what if the house did not exist? Undoubtedly,
McHattonplannedto producethe buildingpermit,
like a rabbitout of a hat, to demonstratethat no
such house, finished or unfinished,existed at the
Broadwaylocation in September 1897. Without
the house, there could be no crime of adultery,
and,inturn,withoutthe adultery,JohnBordeaux's
case wouldcollapse.The taintof conspiracywould
haveaffectedthe otherallegationsof adultery,too,
rendering them suspect. Between the adjournment of courton Friday,however,and its opening
on Monday,someone-a courtroomspectator,one
of the band of Barnaman-likeButte ferrets, an
observantbuilder or contractor,a county official
involvedwith the buildingtrades-had indicated
to John Bordeaux that the building dates were
awry.
Third,Judge Clancy'srulings on the defense's
variouslegal maneuverstended to favorthe plaintiff. His willingness to accept Tom Bordeaux's
changeintestimonywas most obvious.Finally,the
Monday testimony represented a setback for
McHattonand Cotter,who, in a very brief time,
had shifted from laying an effectivetrapto determining the harm dealt to their client's case.
FollowingTom Bordeaux,W.A. Ellsworthtook
the stand and testified that sometime aroundDecember 20, 1897,he too, had seen Ella Bordeaux
and LymanSisley in the act of sexual intercourse.
Uponcompletinghis explicitdescription,Ellsworth
added: "Fromwhere I was, I think I could have
reached them with my hands."33
McHattonand Cotterreturnedto their original
plan of delineatingthe relationshipbetween the
witness and the plaintiff.Ellsworthadmittedthat
he hadbeen a constablein Meadervillein 1897and
had seen Tom Bordeauxfrequently.He also had
sold scriptto John Bordeaux.Most of Ellsworth's
testimonywas suitablyambiguous.Whatwas the
weather?Ellsworthwas not sure. He was equally
vague aboutthe circumstancesof his meetingwith
Tom Bordeaux.On several points Ellsworthcontradictedhis own testimony and that of previous
witnesses. Althoughhe was not sure of his route
or how the other partieshad arrivedon the scene,
Ellsworthwas sure of who and what he had seen
in the unfinishedhouse and of its exact location.34
Ofallthe plaintiff'switnesses, Ellsworthproved
the least credible. His testimony supportedTom
Bordeaux's revised date, however, and added a
31.
32.
33.
34.
Ibid.,287.
Ibid.,288, 289-93,293.
Ibid.,299-300.
Ibid.,303, 306-30.
Paula Petrick
particularlygraphic description of the couple's
illicitliaison.McHattonandCottercalledattention
to the criticalinconsistenciesbetween Ellsworth's
statements and those of the other witnesses and
underscoredthe impressionthatW.A. Ellsworth's
testimony was just too coincidental.At this point
in the trialthe defendant'slawyerssuspected that
the conspiracyagainst Ella Bordeaux,no matter
how jerrybuilt, would succeed. Accordingly,
McHattonandCotterbegan layingthe foundation
for an appealto the state supremecourt,andtheir
exceptions increased apace.
The plaintiffsattorneysintroducedevidenceto
supportother allegations of adultery,but the incidentat 825West Broadwayremainedbest documentedandthe most criticalto the plaintiffscase.
After they had refreshed their memories, both
Campbell and Barnamanreturned to the stand
with their notebooksto correctearlierstatements
about the date.35
inally, John Bordeaux tookthestand
andtestifiedthathe had heardaboutthe
West Broadwayincident during the latter
of
part Decemberfromwitnesses clusteredaround
the house. Hadhe heardanythingabouthis wife's
conduct before December 1897?John Bordeaux
replied:
I just don'tsay when because I can'tsay. At first
when I was informedof these variousacts, I didn't
believe;alongtowardsthe last they came so often
untilI had to;thatwas somewheresaboutthe first
of the year 1898.Since that time I have not lived
or cohabitedwith her as my wife or otherwise.36
McHattonopened his cross-examinationasking if John Bordeauxhad read, verified,and filed
the complaint,attestingthat his wife had committed adulteryin September 1897?John Bordeaux
excused his ignorance, "Oh,once in a while ...
say persons will bring in a paper and say it is so
and so, and say you are to sign it, andyou will not
be particularin readingover everything,do you?"
Was he willing to say he did not know what was
in the complaint when he signed it, asked
McHatton.Bordeauxsaidhe knewthe complaint's
contents. Was not the information, McHatton
continued,that John Bordeaux had given his attorneys stated in the complaint?Couldhe explain
to the jury how he had sworn to certain dates in
AugustandSeptemberof 1897as partof the initial
complaint?CouldJohn Bordeauxaccountfor this
35. Ibid.,408-24.
36. Ibid.,446-47.
37. Ibid.,453, 455, 461-63.
discrepancy?John Bordeaux supposed it was an
error.McHattonprovedrelentless.Howcouldthis
be when Bordeauxhad his books for reference?
"Aman often has books and still makes an error,
too," responded Bordeaux.37
McHattonswitched to the notebooks and reminded Bordeaux that he had examined his
memorandain preparationfor conferences with
his attorneys.Did he providethem with any dates
other than those appearing in the complaint?
McHattonthen redirected his questions to discover if John Bordeauxhad visited the owner of
the house at825West Broadwayoverthe weekend
to determinethe constructiondateandhadchanged
the date accordingly.Objection.At this juncture,
Judge Clancy invited the plaintiffs lawyers to
change the complaintto conformto the new date.
The complaint was altered, and McHatton objected.38
From the outset, John Bordeaux'sattitudetowardthe proceedings indicateda lack of seriousness. He treatedMcHattonand Cotterwith a masculine bonhomie normallyreserved for business
or social occasions. Both McHattonand Cotter
quickly showed Bordeauxthat he and they were
on opposite sides of the fence. The trial was not
simply another instance of a bunch of the boys
getting together at the SilverBow Clubto resolve
a pesky problem.Bordeaux,in response, resorted
to personalcalumny,intimatingthat, at one time,
Cotterwas in Bordeaux'spocket.AlthoughCotter
protested this characterization,it was McHatton
who indicated he meant business and that he
disliked Bordeaux.
Although defense lawyers introduceda cavalcade of witnesses to refute evidence for the adulteries and substantiatethe conspiracytheory,the
three most importantwitnesses were Ella Bordeaux;her uncle, WilliamFarlin;and her father,
A. E. Driggs. Farlintestifiedthat he had stayed at
the Bordeauxhome the two eveningsbeforeElla's
departurebecause, accordingto Farlin,she had
fearedforher life. He statedthe couplehad shared
a bedroomwith one bed. A. E. Driggs relatedhow
in the fall of 1898 he had met Bordeaux in an
upstairsroom at Lynch'sSaloonfor a man-to-man
talk. The substance of the conversationwas, accordingto Driggs, thatBordeaux'sdetectivework
had yielded nothing against his wife. Driggs also
substantiatedElla'sleavingher husbandearlierin
1889 on account of his cruelty.39
38. Ibid.,461-63.
39. Ibid.,555-60,584-89.Of all the witnesses,perhapsthe saddest
was LymanSisley, Ella Bordeaux'salleged correspondentAlso engaged in miningbrokerageandconnectedwithWesternMiningWorld,
Sisleyhadthe misfortuneof meetingEllaBordeauxatthe racetrackand
on the street.Fromthe plaintiffsperspectivehe probablymadea good
"patsy."See 590-606.
41
Montana The Magazine of WesternHistory
Both Farlinand Driggs bolsteredElla'sdefense
becausetheirintegrityandstandinginButtesociety
and among businessmen were unimpeachable.
Driggs'sconversationwithBordeauxtestifiedto his
uprightnessand earnest interest in getting at the
truthof his daughter'sbehavior.He had,moreover,
confrontedBordeauxin an honorableand gentlemanlymanner,face-to-faceand withoutthe aid of
shady operatives.Unfortunately,both Farlinand
Driggs were relatives;no independentwitnesses
were on hand to substantiateDriggs's or Farlin's
versionof the events.
Spring 1991
nothing between Sisley and herself. Ella denied
anythingimproper.A few dayslaterin the couple's
bedroom,with a gun on the bed beside him, John
Bordeauxagainput Ellaon her knees and interrogated her abouther relationshipwith Sisley. Her
husbandsuggested that Ellaleave the city. "Itold
him no,"Ellatestified."Ididn'tthinkso;thatif such
reportswere getting around,I thoughtit betterfor
him to go and see those partiesandget it straightened out andsatisfyhimselftherewas nothingin it,
and it was his duty to do that."41
Ella denied categoricallyany improperliaisonswith Sisley, characterizingtheirrelationshipas simplysocial,having
occurredin publicin the presence of other ladies
andgentlemen.Ellaaddedthatshe had sleptin the
same roomas her husbanduntilthe time she left.42
B. S. Thresher began Ella'scross-examination
by returning to the disposition of the couple's
withthe furnitureand workedhis
espite Farlin's relationship
way towardquestioning
defendant,his testimony was significant Ella about her lifestyle as John Bordeaux'swife.
for anotherreason.He furnishedevidence Ella
acknowledgedthat the Bordeauxhome was
thatJohn Bordeauxhad spent the nights immedi- furnished
nicely andthat she receiveda generous
atelybeforehis wife'sdeparturein her companyin
allowance.When Thresher moved on to quizzing
a room with one bed. At issue here was the legal Ella about her
housework, McHatton objected,
concept of condonation,definedby Montanacivil arguingthat opposing counsel's questioningwas
law as the "conditionalforgivenessof matrimonial immaterial.On the
contrary,Thresher rejoined,
offenseconstitutinga cause of divorce."In essence
Ella'scross-complaintraised the issue of cruelty,
once a husband or wife knowinglyoccupied the
and the characterof her husband'streatmentof
same bed with an unfaithfulpartner,the courts her was
important.McHattonwas dumbinferredsexualrelationshipand,by extension,con- foundedclearly
Thresher's logic.
by
doning and forgiveness as well as restorationto
Whymayit pleasethe court,manypeoplehave
maritalrights. Surprisingly,plaintiff'scounsel did
beencruellymurdered
in themostelegantlyfurlittle to contradictthe evidence of condonation.
in
nished
houses
the
world.
Doesthatinanywise
Perhapsoverlyconfident,theydisregardedthesmall
orexcuseormollifyoris it anydefense
extenuate
detailof a roomwith a single bed.
to theactofmurdercommitted?...Nomanwith
On Friday,August23, 1901,EllaBordeauxtook
a retinueof servantsis entitledorwillbe permitthe stand. In effect she outlinedfor the jury the
ted to commitacts of crueltyagainsthis wife.43
eventsleadingto her separationin 1889.According
Ella'stestimonyrevealedsteadyemploymentof
to Ella,inthe firstthreeyearsoftheirmarriage,John
hadbeatenherwitha stickkeptin the bathroomfor a servant and described the couple's domestic
thatpurpose,chokedher, andabusedher verbally. routine.The servantpreparedbreakfastand,when
the coupleatetogetheron those few occasionsElla
At the end of November1889,she had sent for her
fatherto bringher home.JohnBordeauxhadcome joined her husband, they ate between 9:00 and
11:00A.M.Ella said her husbandgave her jewelry
to her parents'home to pleadon his knees for her
at
Christmasand on her birthday.As to its value
return.The couplelivedpeaceablyforseveralyears
she
was unsure;her only knowledge came from
after their reconciliation,but in 1894, John Borwho estimatedthe price of all the jewBordeaux,
deaux had beaten her so severely that she had
at
about
$1,350. When Thresher asked Ella
elry
been lame for three days. She recalled:"I didn't
whether
she
needed
such things, she responded,
leavehimatthattime... becauseI didn'tlikeit to be
known to the public, and ... I was afraidof him "Asto whetherthesewerethingsthatI needed,I will
because he had threatenedme so manytimes that say thatI thinkI did."[Italicsmine].44She testified
furtherthat she arose frequentlyafter 9:00 A.M.,
he wouldkill me if I left him."40
AlthoughEllahad heardreportsof his effortsto
findsomethingagainsthercharacter,she remained
40. Ibid.,610-11,611-12.
41. Ibid.,614.
silent until one afternoonshortly before she left
42. Ibid.,615-22.
Butte.Witha servantas a witness,John Bordeaux
43. Ibid.,617.
44. Ibid.,631.
forced Ella to swear on her knees that there was
42
rarely joined her husband for lunch, regularly
went out in the afternoon,sometimes ate dinner
with Bordeaux, and routinely visited with her
mother in the evening.
From McHatton'sperspective Ella Bordeaux's
testimonywas a disaster. Her task was to portray
herself as a true woman replete with all the qualities associated with woman's role in the nineteenthcentury-selflessness, submissiveness,selfsacrifice, and domestic dedication. She had to
convince the jury, first, that she was not the kind
of woman who would enter into an illicit sexual
relationshipand, second, that her husband had
treatedher with such crueltythat she had to leave
her home. During McHatton'squestioning, Ella
did very well. Her testimony reflected her efforts
to keep her marriagetogether andto maintainthe
privacyof the family.Her descriptionsof the confrontationsbetween John and herself were dramatic and detailed.
T
I-
hresher's cross-examination
underminedElla'searlierself-portrait,and
played on class differences between Ella
and the jury. She was portrayedas spoiled, lazy,
treacherous, indifferent, and a poor domestic
manager.The jurymencouldeasily compareElla's
domestic efforts and her rewards with those of
their own wives. To the working-classjurymen,
Ella was a "badwife."
In rebuttalJohn Bordeaux emphasized Ella's
domestic failures, her indifference to him, her
leisurely lifestyle, and her generally willful, peevish disposition. In addition, his attorneys carefully recorded that the Bordeauxs had no children-yet another indication of Ella's marital
shortcomings.Inhis cross-examination,McHatton
adroitlysuggested to the jury that Bordeauxhad
accepted his wife's domestic failures without argument, but Bordeauxwas equally successful in
counteringMcHattonby saying that he was willing to indulge Ella up to a point.When it came to
"runningaround with other men, he drew the
line."45
OnAugust 26, 1901,nine of the twelvejurymen
decided against Ella Bordeaux,findingher guilty
45. Ibid.,654-71.A numberof witnesses took the standduringthe
plaintiff'srebuttal.LikeBordeaux,they either servedto confirmElla's
domesticfailuresor they counteredthe defense's efforts to prove a
conspiracy.
46. ButteMiner,August27, 1901.
47. Bordeauxv. Bordeaux,84-135.A. H. Nichol offeredthe most
interestingof the affidavits.In his statementhe outlinedhow Charles
Barnaman,the witness stationedat the back door of 825 West Broadway, had confessed in writingto him that he had been in charge of
roundingup membersof the conspiracyand schoolingthem in order
to fix the trial.
of adultery with Lyman Sisley on several occasions.46 John Bordeaux had his divorce.
McHattonand Cotterpetitionedfor a new trial
immediatelyon the basis of affidavitsof several
people involved in the case. The affidavitsprovided convincingevidence of a conspiracyamong
John Bordeaux'speople and suggested jury tampering, but Judge Clancydenied the motion for a
new trial.47McHattonand Cotterappealedto the
state supreme court on this and other issues.
The Montana Supreme Court first heard appeals involving Ella Bordeaux'spetition for temporary alimony, suit money, and attorney'sfees
duringthe March1902term and decided the legal
issues on June 2 and 5, 1902.The court diisssed
Ella Bordeaux'sappealon the grounds that state
law did not grant the supreme court the power to
awardmonies prayed for; such power resided in
the original Silver Bow Countyjurisdiction.48
In February 1904, the high court heard arguments regarding the legal fees and substance of
the case. CommissionerJohn Claybergprepared
an opinionfor the court that addressed the three
principalerrorsMcHattonandCotterurged on the
court, the most importantof which was condonation.49Claybergrightlypointedout thatJohn Bordeauxhad knownabouthis wife'sinfidelityalmost
48. 26 Montana,533-40;MontanaSupremeCourtCase numbers
1787, 1770, 1806.Bordeauxv. Bordeaux(1902).
49. 30 Montana,36-47,Bordeauxv. Bordeaux(1904);MontanaSupremeCourtCase No. 1787.The firstlegal issue involvedthe question
of suit money, and the second issue involveda proceduralquestion.
43
Montana The Magazine of WesternHistory
immediately after December 23, 1897, yet, he
continuedto livewithheruntilJanuary1898.Under
the circumstancesand the weight of judicialprecedent, John Bordeaux was not entitled to a divorce. Claybergcontinued:
We cannotrefrainfromsayingthatthe record
disclosesin manyinstancesa mostrecklessdisregardforthetruthonthepartofsomeofplaintiffs
witnesses,and also the characterto some of
plaintiffswitnesseswhichis notenviableto say
the least.50
The supreme court granted rehearing and remanded the case for a new trial in Silver Bow
County.51
In 1905 the supreme court entertained arguments-yet again-involving the Bordeauxdivorce
to contemplatethe same three questionsCommissioner Clayberghad addressed earlier.It was on
the thirdquestion-condonation-that the court's
finding was most critical. It found that Judge
Clancy'scourthad erredin its failureto denyJohn
Bordeaux a divorce because Bordeaux had condoned his wife's infidelityby sleeping with her in
the same bed.
he high court recognized condona-
tion as a delicateissue. State supreme
courtswere (and are) normallynot in the
business of reevaluatingevidence.Their role was
and is to safeguardprocedure.Condonationwas
a special defense, and the defendanthad to plead
condonationinitially,whichEllaBordeauxhadnot
done. The justices conceded this but said the
evidence in the testimony compelled them to
consider condonationanyway.They based their
rationale on a consideration of public interest,
precedent, and statute.
Of the three, the justices' recourse to statute
proved the most decisive and difficult.Although
John Bordeaux'slawyershad arguedthat the evidence forcondonationwas conflictingandthatthe
court had no business arrivingat its own conclusions regardingthe evidence, the justices looked
to statuteto supporttheirrightto do preciselythat.
In 1903the Montanalegislaturehad vested in the
supremecourtthe powerto examine questions of
law andfact in equity cases. Such powergave the
court the right to review the evidence and derive
its own conclusionsin light of a preponderanceof
evidence. With due warningto those who might
construe the justices' pronouncementas a thor50. Ibid.,4346.
51. Ibid.,47. The reasonsforthe rehearingseem to stem fromthe
fact thatJohn Bordeaux'sattorneysdid not appearnor did they file a
brief on his behalf.
44
Spring 1991
oughgoing precedent,the court recapitulatedthe
evidence and found overwhelming evidence of
condonation-that is, that John Bordeaux had
condoned his wife's behavior.
In an interesting aside, the court added:
We have, for the purposesof this discussion,
assumedthatthe evidencefullyestablishedthe
oftheactsofadultery
found
guiltofthedefendant
by the court.We do not careto be understood,
foranyother
however,asmakingthisassumption
purpose.The evidencein the case is not of a
character,andwe wouldhesitateto
satisfactory
reachthe conclusionarrivedat by the district
courtin thisrecord.Indeed,therearemanyfeaturesof the evidenceintroduced
by the plaintiff
whichjustifya verystrongsuspicion,to saythe
least,thatthe chargesof adulteryarethe result
ofaconspiracy
onthepartoftheplaintiff
andsome
ofhiswitnessestoestablishafalsechargeagainst
the defendant.52
Justice Theodore Brantlyreversed the judgment
of the lowercourtandremandedthe case to Silver
Bow County, directing the court to dismiss the
action.
Despite the supreme court's ruling and the
strong language accompanyingits opinion,John
Bordeaux reinstitutedhis divorce suit in March
1907,claiminghe had sought a reconciliationwith
Ella on March 15, 1906, and had been (perhaps
understandably) spurned. Bordeaux sued on
grounds of desertion,but the petitionlanguished.
The Bordeauxsremainedmarried,and Ella kept
aliveher financialclaimson her husband.In 1909,
John Bordeaux revived his suit; Ella responded
with the usual denials and complement of demands for legal fees. In May 1910 anotherjury
heardthe Bordeauxcase butwas dischargedwhen
it failedto agree on a verdict;the courtthen ruled
that neither party was entitled to a divorce and
dismissed the case.53As a result, the Bordeauxs
returnedto the supreme court. Bordeauxv. Bordeauxfinallyended in 1911 when the high court
rejected Ella's financialclaims one last time and
directed the Silver Bow County Court to find in
John Bordeaux'sfavor on the basis of his wife's
desertion.54
For the Bordeauxs,final dispositionmeant a
mixof success andfailure.JohnBordeauxescaped
his marriagewithout having to pay alimony,but
52. Ibid.,165-66,167-69.
The speciallegislativesession responsible
forthisstatutorychangestemmedfromAmalgamated
CopperCompany's
attemptsto breakthe legal impasseblockingits consolidationof Butte
Hill.To accomplishthis, they closedthe minesandbankedthe smelter
fires in October1903.Witha majorityof the state'sworkforceidle,the
companybroughtthe stateto its knees andforcedthe governorto call
a special session of the legislatureto deal with companydemands.
53. CivilCase No. A1767,Officeof the Clerkof Court,SilverBow
County,Butte, Montana.
54. Montana,Bordeauxv. Bordeaux(1911):102.
Paula Petrick
in the process had paidlarge sums to his successive groups of lawyers. Ella Bordeauxwas vindicated, but she had not punished her husband as
she had envisioned.They had spentthe best years
of their lives fighting with one another.
were the breadwinners and women were the
householdcaptains.Butthe role of the upper-class
wife was less household labor and more household management;she was less a partnerin ajoint
enterprise and more an affectionatecompanion.
Witha servantcarryingout much of the domestic
routine, Ella, and women like her, functionedin
part as symbols of their husbands' status and
success. WhenEllarespondedto Stapleton'squesny reasonable jurymemberwouldbe tion regardingher entitlementto her husband's
hardputto findin favorof John Bordeaux largesse by avowingher worthiness, she merely
on the basis of evidence presented in the
affirmeda class expectation. From her perspeccase. As the supreme court underscored in two tive, her rankin Butte society demandedthat she
opinions,the plaintiffscase smackedofconspiracy. maintain her status among her peers, and the
The alterationof the date of the Bordeaux/Sisley requisite jewelry was only what a woman in her
liaison alone suggested that the plaintiffand his
positiondeserved.To membersof a working-class
cronies had concocted the incident on West jury, however, Ella's response to this and quesBroadway.Othersalientdetailssuchas Ella'sstraw tions dealing with the time she spent with her
hat and her dark underwear indicated that
husbandindicatedher gross indifferenceto even
Bordeaux'sconfederateshad made foolish errors a minimal role as a marital companion to her
in fabricatingtheir story. No nineteenth-century, husband.Indeed,Ella'sestimateofherjustdeserts
middle-class woman would have worn a straw painted her as an insolent, ungratefulwife.
boater in September, much less December, nor
Class considerationsalso tended to undermine
would she have sported dark underclothes. To
Ella's claim that John Bordeauxhad treated her
understandwhy the case ended as it did is to
with extremecruelty.Onthe one hand,upper-and
conclude that Ella was innocent of adulterybut middle-classexpectations decreed that men did
not strike or otherwise abuse their wives. No
guilty of being a bad wife.
John Bordeaux'sattorneysintroduceddamag- provocationor reason couldjustifysuch behavior
ing evidence of Ella's total dereliction as a wife. and,as McHattonsaid,no materialcircumstances,
Such a perceptionmade it easier for the jury to
no matterhow opulent,rationalizedabuse. Ella's
believe in the possibility of Ella's moral failure. lawyerasserted that a husband'sduties exceeded
While the jury might perceive that the adultery breadwinning.John Bordeaux'sattorneys,on the
incident at 825 West Broadwaywas phony, they
otherhand,developedanideatheybelieved,rightly
could easily discount particularinconsistencies or wrongly, would appeal to the working-class
and contradictionson the suppositionthat, given jurymen.Largelyby implication,Bordeaux'sattorElla'sgeneralwifelyconduct,she couldbe capable neys promoteda view that a husband need only
of adultery.The muddled incidents disclosed at provide material comforts. Comforts, however,
the trial,counterfeitas they were, simplyindicated demandedreciprocalwifelybehavior.A wife'sfailElla's undetected sexual indiscretions.In combi- ure to comply with the "contract"could provoke
nationwith reportsof Ella'sdomesticfailure,tales
her "correction."
of her adulteries tended to cast Ella as a wife
John Bordeauxhad upheldhis partof the maricapableof the worst maritalerrors. It was imma- tal bargain by providinga substantialhouse, elterialthat the adulteryat 825 West Broadwayhad egant household furnishings, clothes, generous
not happened exactly as witnesses testified or
amountsof pin money, a servant,andpresents for
even that it occurredat all, because Ella had cer- his wife.Fromthe perspectiveof the working-class
tainly trespassed in thought, if not fact.
jury,Ellahad defaultedentirelyon her partof the
Social class furthercomplicatedElla'sposition maritaldeal, and her conduct comparedunfavorandhelpedthejuryrationalizeits findings.Clearly, ablywiththejurymen'spersonalexperience.Their
two views of womanhood-one explicit,the other wives laboredlong and hard in their homes, cartacit-influenced courtroom proceedings. Both rying out domestic tasks and raising children.
groups ostensibly espoused companionatemar- Acknowledgingtheirwives'contributionsto familriage,a relationshipcharacterizedby mutualaffec- ial well-beingwith presents of expensive jewelry
tion, respect, consideration,and responsibilities. was beyond the financialabilityof most of them.
They differed,however,on the definitionof mutual Yet Ella Bordeaux, who did nothing, reaped reresponsibilities and appropriateresponse to de- wards far beyond her merit and, apparently,did
fault on these responsibilities.
55. I am gratefulto the HonorableHenryLoble for sharingthis
For both the upper and working classes, men
particularlyapt descriptionof Buttelitigation.
45
Montana The Magazine of Western History
not appreciatethem. Any man in John Bordeaux's
situation, his attorneys hinted, would be frustrated-perhaps to the point of physicalviolence.
The Bordeaux divorce case also played out in
the context of the War of the CopperKings. Beginning with the infamousfeud between Marcus
Daly and WilliamA. Clark,unethical and unprofessional shenanigans marked mining and financial litigationin SilverBow Countybeforethe turn
of the centuryand continuedunabateduntilAmalgamated CopperCompanysucceeded in consolidating Butte Hill. As a Butte attorney recalled,
'The only fairtrialin Butte was where the fix was
on-on both sides."55When John Bordeaux undertook his divorce suit, he naturallyused legal
flim-flam-bribery, perjury, subornation-so familiarto Buttelitigants.By the time the Bordeauxs
went to court, Butte had dividedinto two warring
camps: those who allied themselves with Amalgamated Copper Company and those who supported F. Augustus Heinze, Amalgamated'snemesis. The competing groups squared off in Bordeaux and resumed their opposition in another
venue. John Bordeaux had interests in several
mines associated with Amalgamated.Stapleton&
Stapleton,long associated with Clark,came into
the Amalgamatedfold when Clarkallied himself
with the giant copper company. Opposing them
was the McHatton& Cotterfirm,chief counsel for
the MontanaOre Processing Company,Heinze's
flagship firm. Both legal teams faced Judge William Clancy, Heinze's pocket judge, who might
Working-class
jurymen, with their
long hours, often
dangerous work, low
pay, and set notions
about a woman's place
in a marriage, had
little understanding of
and no sympathy for
what they perceived
as the frivolous life of
Ella Bordeaux.
46
Spring 1991
have favoredthe McHattonteam had he not been
a jurist of such flexible loyalties.
Despite the mixed quality of Ella Bordeaux's
legal victory,the supreme court's decision represented apersonaltriumphforher. ByfightingJohn
Bordeauxto a standstillshe had, in a sense, won.
Bordeaux v. Bordeaux represented a gloss on
women'srole in the operationof divorcelaw.Many
women took the initiative and successfully obtaineddivorcesfromtheirhusbands;manywomen,
albeit fewer, found themselves in precisely Ella's
position.Likeother women who fought back, Ella
adamantlyrefused to let her husbanddefine their
marriageeven in its dissolution. She challenged
directly her husband's estimate of her womanhood and sought to make him pay for his error.
Ellawas, in short, an "uppity"
woman.While Montana women fared well generally when they apwoman
proachedthe courtfora divorce,an"uppity"
who wantedmorethana simpledivorcecouldplan
on obstacles, setbacks, and a long campaign.Yet,
women like Ella Bordeaux were responsible for
pushing the MontanaSupremeCourtto interpret
divorce law in ways ultimately beneficial to all
women. oK-
PAULAPETRIKis associate professor of history and
associatedean in the College of Arts and Humanitiesin
the Universityof Mainein Orono.She is the authorof No
StepBackward:WomenandFamilyontheRockyMountain
MiningFrontier,Helena,Montana1865-1900,published
by the MontanaHistoricalSocietyPress in 1987.