Your wife, Mary, has been unfaithful. If you are not prepared to ignore it, either from principle or because the affair was so blatant, then your main recourse is to sue the perpetrator in court for criminal conversation (crim con).
The defendant is the man, not your wife. She has no official standing in the process; the Georgian marriage contract means that husband and wife are legally one person, and that person is you. She will not speak in the trial; she will not even be present, perhaps a good thing considering what she has been saying about you.
You, let’s call you John Smith, will be suing the rascal, James Johnson, It will be Smith v Johnson, as you will be suing him in a civil case for damages. The state is not interested. It will cost you a lot of money. You would only risk it if you could prove adultery, and you can.
How much compensation will you ask for? Well, like the answer to any other question in the Regency; it depends on who you are. You are a Liverpool merchant, suing another Liverpool merchant who last year inherited £10,000 a year and a lovely house in Shropshire. The money came from the West Indian slave trade, but that is not a big issue; it will not be mentioned in court by either side, because neither side considers it a moral problem. You will ask for £30,000!
Only once in recent history was this amount awarded, and they were aristocrats. Their marriage is worth more than yours; you do not mind because your marriage is worth more than a Wolverhampton grocer. Claims by superior provincial shopkeepers or skilled London artisans is the lower end of the Crim Con game. They would demand £1000 and get £100; you will not get £30,000; you know this, as does Johnson’s defence. Half of that would be a great result, and a third would be a good one. You have to ask for this sum because you are claiming that your marriage was wonderful, so the compensation must reflect this; however, you know in your heart that it was not wonderful, that there is evidence for this, and the defence will use it. In your corner is William Garrow, and in the defendant’s Vicary Gibbs. They will cost you both a fortune; lawyers always win, even when you lose.
Your day in court at the King’s Bench division at the Guildhall, presided over by the grumpy, reactionary and traditional Lord Ellenborough. You are happy with this; he hates adultery slightly more than the average judge, and he has the habit of telling the jury what he thinks. However, Ellenborough is interested in law as much as morality, and has put on his wig and endured his gout to defend the marriage contract first of all. At this point your mind goes back to the Crim Com case of Flower v Lewes. In that case Charlie Flowers sued Mr Lewes for criminal conversation with his wife while he was imprisoned on a hulk at Greenwich. Lewes claimed, the wife confirmed, that he did not even know she was married. Ellenborough still asked the jury to award £1! in damages for the violation of the marriage.
Everybody else’s reputation will be trashed, if necessary, to defend the status quo, and that includes yours, and you haven’t done anything wrong. Or have you? What you fear most is that your case will become a popular pamphlet, and the amount of your compensation will also have an exclamation mark in front of it.
At this point you remembered that you family begged you not to do this. Johnson pleads not guilty, despite everybody knowing that he is; if he pleads guilty it would cost him £30,000. A trial like this lasts no more than seven hours, including a lunch so liquid that a modern judge would be drunk, incapable and sacked on the spot.
Two initial points; there is no adultery without a marriage, so you have to prove you have been married. So you call as your first witness the vicar that married you; he confirms the fact. Then, adultery needs to be proved. This does not always happen at the beginning of the trial. The bar for evidence is reasonable. Some trials fail because the only evidence is that the couple were seen together on the public street – ‘this is England, not Turkey’, sniffed Ellenborough in another trial where this type of evidence was offered.
There does not even need to be witnesses to an act in flagrante, but there often is. Servants will be believed, especially if there is other evidence. Your wife’s servants will report back to you, as you pay them. Your evidence is sound; the evening in your house when Johnson’s hand moved upwards from her knee at the dining table; the night they shared the same room in the White Lion, Shrewsbury, and one of the beds was not occupied. Servants were expert at spotting whether a bed was slept in, how many people slept there and could spot the tell-tail signs of sexual activity by describing the state of the sheets. No wonder the court was crammed.
In any case, they moved in together as man and wife in 1807. So you have won already. So why all the other evidence as well? You have to prove that Johnson destroyed your marriage will malice aforethought, and that it his totally his fault. It is not in your interest to destroy your wife’s reputation, as this would prove that the union was never worth anything
So, your personal life is under discussion. You married in 1798, your wife Mary was twenty and you were thirty-nine. That works well for you; if she had been 15, then Lord Ellenborough would have said that she was too young to know their mind, and that marriage that age was a form of seduction. Johnson was about your age; that works well for you too. If the defendant had been young, as in the case of Pitt v Hunt, where Hunt was a 15-year-old boy who had sex with his bosses’ wife, Ellenborough would assume that the woman was the seductress- ‘he had been seduced by the entangling snares of an experienced woman’. Pitt’s compensation was £2!
Mary, your wife, was from a good merchant family; the father approved the marriage, and the dowry was large enough to be respectable but small enough not to be seen as treasure hunting. It was a harmonious union. The consequence of such harmony was children; four in five years. This was conjugal bliss, and you had done your duty. Sex within marriage was seen as a decent, indeed necessary thing. Women were entitled to love, protection and married sexual relations. If you had failed to love her, and she had turned to others in distress, then it would have been partly your fault.
If you were 79 marrying a twenty-year old, this would be a defacto less valuable marriage.
Your counsel has also described your wife as beautiful and engaging; ‘she was a divinity under whose feet roses bloomed’. She provided solace and society for you and moral instruction for children. James Johnson was a brute who damaged your peace of mind, your fortune and your future.
You have to prove that you were a good husband. Your counsel goes on the attack, proving you were a good father to five lovely children, now robbed of their mother by the callous Johnson. Mr Carrass, a local merchant opined that you appeared uncommonly kind towards his children. However, it turned out that he did not know your extended family at all, merely exchanged cards at the doorstep, aping their aristocratic betters. Equally unhelpfully, he added that he had attended Parr’s evening parties and seen nothing between Johnson and Mrs Smith. The next witness said the same, and had the advantage of being an attorney, but the greater disadvantage of being Parr’s brother.
Compensation would increase if the offence was aggravated. Johnson was a regular visitor to your house, and often spent drunken evenings there with your wife. He was your friend; you trusted him; and then he betrayed you. Your counsel proves this, after a hard day’s counting of money made from the trade in people and materials; you invited many friends over to get excessively drunk.
Then the problems started. At this drunken parties, why didn’t you notice that Johnson always sat by your wife?, says the defendant’s council. Why when the ladies retired, why did Johnson disappear as well? And what about the witness who’s wore that when he asked you were Mary was, you said, ‘she’s only with Jesse’.
AND WHEN THEY STAYED IN SHREWSBURY IN THE SAME BED, WHERE YOU NOT SLEEPING IN THE SAME HOTEL? Yes, you were!
Good god man! Some people’s wives go bit mad when taking the air at Ramsgate or Brighton, but this was happening under your own nose. Either you saw it and didn’t care, or failed to see it because you were not keeping control of your wife. You were instrumental in your own dishonour. You did not value your jewel, so why should the jury?
The next stage was the blame game. The defence would try to blame your wife, and your people would try to blame Johnson. You have the advantage; it will be assumed that the man was devious, clever and determined and the woman, the weaker vessel , ‘the frail fair one‘ ( said Ellenborough) who would easily be seduced. If seduction was easy, the marriage was not worth much.
Seduction happens once; after that the woman is fallen. In the case of Gregson v Theaker, Jesse Gregson tried to obtain £10,000 from Thomas Theaker for criminal conversation with his wife. Theaker was his coachman, so the shame was seen to be greater because of the class disparity. The case was proven conclusively by a servant who knew when a bed had been hastily covered over, how many people had slept in it and what activities it suggested. It was looking good for much of the £10,000, when the defence produced evidence on earlier adultery. In Ellenborough’s eyes, this made Mr Theaker not very responsible for the end of the marriage- the responsibility lay with the first seducer. ‘Her actions did prove that she had no affection for her husband, as her wanton lusts meant that her embraces were available to all’. There had been no first seducer in his case, but the danger was still there; if his wife could be proved immoral or flighty, then compensation would fall.
Your wife had not always been discrete; indeed the defending counsel called her ‘ the interesting Mrs Smith’ , this is by no means a compliment, nor the main prong of the attack.
At the end of the day, Ellenborough describes Johnson as a beast and your wife clearly susceptible to him because of your culpable negligence. You are laughed at in the street at home in Liverpool ( crim con reports are syndicated) , you are still married, your wife is gone and you have the five children.
Your compensation, after a jury discussion of five minutes during which they did not even leave the room, was £1000!
I have written three books on this period. If you liked this blog, you can find more of the same in The Dark Days of Georgian Britain. The are more details here. Now available in paperback.
Passengers– is a social history of transport and hospitality. More details here.
Voices of the Georgian Age is out in January 2023. Amazon link here
All of my books on Radical Britain here