Divorced from Reality

On a recent fact-checking exercise to verify a plot line in my latest novel, I found myself in the rare books archive of Brighton’s Jubilee Library delving into the newspaper reports of criminal conversation and divorce trials held at the very beginning of the 19th century. This was an era before the matrimonial act of 1857 by which divorce was made easier and less expensive (for men), as the divorce no longer needed to be granted by the House of Lords. 

The fact I needed to establish was what precisely could be grounds for divorce - whether a witness testimony of ‘criminal conversation’ was sufficient in itself. My impression from my rather casual research so far was that a woman could be divorced on the flimsiest grounds. However, I realised from a reading of Kate Summerscales’ Mrs Robinson’s Disgrace, set in 1858, that even after the matrimonial causes act, a decent defence lawyer could put up an impressive fight against a plaintiff’s arguments and protect the wife from the ignominy and penury that inevitably came with a divorce. 

Long ago, someone had painstakingly cut the reports from a newspaper and pasted them in the volume which now lay before me on a cushion.  Its stiff, slightly foxed pages gave no hint of the colourful tales of ardent lovers and chagrined husbands that lay within.

Perusing the trials, my rudimentary understanding began to fall into place. “Criminal conversation” was the act of adultery. Though crim con was obviously grounds for divorce, the aim of the initial crim con trial was to assess damages for trespass, because the woman was the property of her husband, and her lover was being sued for damages.

As antiquated as this notion might seem, it is my understanding that a very similar law still exists in Japan. It’s also worth remembering that children were considered their father’s property, and a woman proved of adultery would be unlikely ever to see her children again.

However, despite the stiff social, legal and financial penalties of the era, women were still unfaithful to their husbands. Love and sex was, it seems, still as much an escape from unhappiness or boredom as it is today. Though their stories can only be perceived through the lens of a contemporary newspaper report, the drama is little diminished. A few pages into The Earl of Roseberry vs Sir H Mildmay 1814 and I was completely hooked, a few pages more and I was chuckling aloud. It was a tale that would not have been out of place in a Du Maurier novel.

Sir Mildmay was the widow of Lady Roseberry’s sister (the charge of ‘multiplied incest’ emerged because of this relationship). He turned to Harriet and her husband, the Earl of Roseberry, in his hour of need, and clearly he and his sister-in-law comforted each other very effectively as an intimate attachment seems to have grown from here. A few months later, returning from his father’s deathbed in Edinburgh, the Earl found his wife’s behaviour had altered towards him, and he could only put this down to the influence of Mildmay, who was still making his presence known. The Earl sent him a stern letter of reproof warning him to keep his distance.

Mildmay ignored the caution, and continued to set up trysts, with Harriet often slipping away to meet him after everyone retired after dinner, but this did not go unobserved and the Earl realised more drastic action was needed to foil his wife’s admirer. He decided to move up to his family seat in Edinburgh. He also warned members of his family to keep an eye on Lady Roseberry’s movements. 

Sure enough, after dinner one evening the Earl’s brother noticed Harriet’s absence and proceeded to search the grounds. Not finding her there, he ran up to her chamber and discovered both doors locked and bolted. There was no answer when he knocked and with the help of a servant began to break down the door - at this point Harriet opened the door to reveal the presence of her lover, although he was not immediately recognisable, for Mildmay had taken the trouble to disguise himself as a sailor. The description of what beheld the astonished Earl’s brother is a delight: Mildmay wore “a large blue jacket and trowsers, a red waistcoat which was covered in a profusion of small pearl buttons ... his beard much grown .. and armed with a pistol...”

Not only that - behind the couple the windows stood open with drapes billowing in the breeze, for this was how Mildmay had gained access to his lover’s bedchamber, and then made his exit in the same Errol Flynn manner - but not before dropping to his knees, embracing the ankles of his beloved and pleading for her forgiveness. 

After the Scottish sailor incident, Harriet was sent to her parents in disgrace, and in the meantime a great pile of correspondence was recovered from her room. The besotted Mildmay had addressed her as ‘Goddess of my idolatry...my angel’ and pleaded for her to elope with him. If that was not sufficient evidence to procure a divorce for the long-suffering Earl, then her decision to act on his plea was.

Witnesses testified that Lady Roseberry had packed a great deal of luggage and met with Mildmay at Newhaven, Sussex, from where they took a boat over to France. Oh, how I wish to know what became of them! 

It was something of a relief when reading through these records to find steadfast defence lawyers such as Henry Brougham - later Lord Chancellor Brougham -  bringing a sense of rational humanity to a process that seemed basically designed to degrade women. (Brougham later successfully defended Queen Caroline from George IV’s attempt to divorce her). In 1816 William Abdy successfully prosecuted his wife’s lover for criminal conversation but her lawyer argued ‘no children will be deprived of their mother and the affection between the couple was not proved to so strong that the injury arising from the loss of his wife could be said to equal to the utmost.’

Lord Henry Brougham

However, the angle taken by the defence could sometimes be surprising. In the criminal conversation trial of Sir George H Barlow vs Lord C Pratt Barlow (his cousin), the defence lawyer advised the jury that in assessing the damages to award the plaintiff, to bear in mind the fact that his wife had delivered him fourteen children. This proved, he argued, that until this transgression she had discharged her duty admirably and this should be reflected by a more modest compensation being awarded to Sir George. A mere £3,000.

I can’t wait to get the chance to dive back into those musty pages for more scandal. 

Oh, and can anyone explain 'multiplied incest'?