The foibles of the vain and the great are commonly too light to be corrected by serious admonitions from the pulpit, and too evanescent to allow the satirist time to attack them in a volume; but our ephemeral censors, like eagles on the wing, instantly perceive and pursue their quarry, which is seldom able to elude or survive their grasp. A newspaper is indeed a tremendous inquisitorial instrument, and the most abandoned character in high life would tremble at the idea of being publicly exposed through its magnifying medium.1
So wrote John Corry in 1801, confidently expressing the not uncommon view that Britain’s press had a central role to play in the improvement of the morality of those “in high life.” There is no doubt that the Great disliked appearing in its pages, disliked the notoriety given to their vices and faults. The question remains, however: what influence on their conduct did it have? Or was one of its consequences, perhaps unwittingly, to separate and make less admirable the whole sector of society in which such failings were to be found? Did the multitude of reports of such vice in the newspapers, as well as its continuing denunciation in sermons and representation in plays and poetry, convince the “moral” classes that they were not only different from, but perhaps even better than their betters?
“One of the features of high society after the long war,” reminisced Captain Gronow, “was the ubiquity of high gaming.” For this reason, he continued, “there are few families of distinction who do not even to the present day retain unpleasant reminiscences of the period.” Yet unlike the 1790s, when newspaper accounts of such gaming appeared almost daily, the first decade of the new century saw a marked decline in such press reportage. While accounts of the ruin of young men of the mercantile classes by gaming and subsequent criminality were not uncommon,3 during this period the press published only a few accounts of similar outcomes for men or women of the upper classes.4 Yet such comments in other formats continued to be heard and published; thus the Rev. J. L. Chirol, in his Sermon on Gaming of 1824 referred unflatteringly to “the dissolute lives which those sons of the first families lead, instead of applying themselves, with zeal, to important studies, which would qualify them for filling hereafter, with honour and distinction, the highest posts in the State, …” while a pamphlet, A Letter to Ball Hughes, Esq on Club House and Private Gaming of the same year, described such an aristocratic gambler as a “noble parasite, a stain on patrician birth.”5 And on the rare occasions when upper-class gaming was given much publicity, as in the case of General Fitzpatrick’s refusal to pay his gaming debts to the assignees of Martindale’s, a fashionable, though bankrupt establishment, the press comments were withering. though brief. While Fitzpatrick argued that Martindale, unlike the assignees, “is perfectly satisfied with his conduct, which is strictly agreeable to the ‘laws of honour,’ ” the London Chronicle responded, “to the gentlemen learned in that refined code we leave the decision of this delicate point.”6 Some newspapers seemed to think that upper-class gambling was no longer a great social problem; thus the Morning Post commented that “Dancing gains ground, in proportion as gaming becomes unpopular. The change is certainly advantageous both to health and morals,” while the Morning Chronicle noted that “Playing for money at card clubs, assemblies, routs, &c. in the higher circles, is at the request of several ladies of distinction, much suspended for the present.”7 Not all observers were so sanguine. But by and large, during the wars with France, press concerns about the effects of gaming were similar to those expressed by Justice Grose in sentencing a gaming-house keeper. Enticed by such houses, Grose noted, “servants were induced to rob their masters, children their parents and fathers without remorse consigned their families to ruin, and themselves to beggary and infamy.”8 Thus, during the Wars, most papers concentrated, perhaps perforce, on making general statements on the iniquities and dangers of lower-class gaming, fairs and lotteries being two principal sorts of concern.9
After the war’s end, however, we begin to hear some renewed press murmurings against upper-class gaming, especially on the Sabbath. Thus “Restitutor,” writing to the Gentleman’s Magazine, complained of such Sunday gambling at a Subscription room: “The reproof, Mr. Urban, is at this time peculiarly seasonable, when the higher orders of our citizens are associating together to enforce decorum on the Sabbath amongst the commonality; and it cries with a loud voice, ‘Physicians, heal yourselves.’ ” And stories of upper-class men, like that of Lieutenant John Davis, led astray by the lure of gaming establishments (“he moved in the highest circles of society … and partook of all those fashionable amusements in which young men of his age and rank but too frequently indulge …”) who ended up as a forger, became somewhat less unusual.10
As worrying, in a rather different way, were the newspaper stories of middle-class men increasingly appearing in gambling hells and imitating their betters in losing vast sums of money. When we look at the press coverage of Crockford’s, we shall see this situation noted. For now, however, let us examine the story of one gaming addict, a scion of the middle classes, led to crime. His uncle, a merchant, learning that his nephew had lost most of his monies at a particular gaming den, resolved to investigate its activities. He later reported that he had discovered that “every encouragement was given to merchants’ and bankers’ clerks and others, who had the command of money not their own.”11 If these cases seem reminiscent of the furor surrounding the Clutterbuck incident of the 1780s, there was, however, a new element at play. Clutterbuck, a young teller at the Bank of England, had in the early 1780s lost both his own patrimony and Bank payments at an infamous gambling house and, before the losses were discovered, had fled to France. His tale, widely reported, featured the attempts of agents of the Bank to secure him, and bring him back to Britain for trial.12 While in that case the Bank of England, and the law of the land were seen as the appropriate agents against such miscreants, by the 1820s a new force was being called upon. Thus, in a letter to the editor of the Times, “W. S.” argued that
If the vice of gaming were confined to the higher ranks of society, the evil would not be of so alarming and destructive a nature; but we behold in the most public streets of the metropolis “Hells” which commence their nefarious system of plunder at 12 o’clock in the day … for the convenience of apprentices, tradesmen, merchants’ and bankers’ clerks … Thus the evil is extended, and accessible to all ranks of society; it therefore becomes the interest of the mercantile world particularly to consider what measures will be most effectual to suppress nuisances of so vicious and demoralizing a character.13
“W. S.’s” appeal to the “mercantile world” to address this problem, to bring the weight of its practical understanding to bear on this grievous social issue, underlined a newer appeal to the combined forces of society’s “middle” to aid the forces of the law and to help solve such grievous and dangerously immoral activities.
While a fair amount of rather desultory discussion about what could or should be done about large-scale gambling establishments went on in the newspapers during the 1820s, the focus of much concern came to rest on the establishment, initially called “Fishmonger’s Hall” after the previous occupation of its owner, William Crockford, but soon renamed, even in the press, as Crockford’s Club, the home of fashionable gambling during, according to one historian of the practice, its last “great days.”14 Here is “Expositor” in a letter to the Times, discussing its role and character:
At the head of these infamous establishments [gambling “hells”] is one yclept “Fishmonger’s Hall,” which sacks more plunder than all the others put together, though they consist of about a dozen. This place has been fitted up at an expense of near 40,000l., and is the most splendid house, interiorly and exteriorly in all the neighbourhood. It has been established as a bait for the fortunes of the great, many of whom have already been very severe sufferers.
“Expositor” concluded that “in a short time” Crockford and his partners’ profits from the French Hazard Table they ran, “after all their expenses were covered, [amounted to] upwards of 200,000l.” “It is to be hoped,” he concluded, “that some notice will be taken of the subject next sessions of Parliament, and that a committee will be appointed to take evidence, in order that a stop may be put to the evil.” This, of course, did not happen. And when, at the end of that year, Crockford was charged with his involvement in a gambling house, no witnesses appeared at the trials, and Crockford was acquitted for lack of evidence. The Times lamented:
The manner in which the two cases against Crockford, the late fishmonger, went off yesterday will be seen with regret. It was painful, also, to notice the names of the persons called on in Court, and who did not appear to their subpoenas.15
Yet despite this evidence, the Times remarked that although the non-appearance of high-ranking and well-regarded witnesses was shocking, that still
there [we]re virtuous, and honourable, and pure men in the Peerage of Great Britain, whose characters may serve as a set-off to the frequenters of “hells,” and so redeem the whole order from disgrace and obloquy.
Even more worrying, perhaps, was the growing presence of those very men who might have been supposed to be safe from the lure of this sort of vice. Thus the Times commented on their presence at Crockford’s:
Among the aristocratic members of Crockford’s are to be found doctors, surgeons, parsons, wine-merchants, and brewers. Messrs W-, H-, and B-, we regret to say, have become members. The counting house and hazard table do not well accord. It behoves men of business and character to be on their guard, and not allow themselves to be pigeoned by Hell-keepers and their attendants.16
Increasingly upper-class vice was seen not only as ruinous to “the fashionable sort” but to be seeping down, perhaps unexpectedly, to those beneath them in standing, but crucial to the prosperity and power of Britain.
By the 1830s a new sort of protest against upper-class gaming began to be reported in the press, occasioned by attacks on working-class immorality by those who claimed that beer and gaming were rampant among this group. Parliamentary spokesmen for the working classes, in response, attacked these habits in the Great. And some of the press led the way.
In May 1830, responding to a pamphlet written by the Bishop of London, Charles Blomfield, which accused the press of pandering to the public appetite for upper-class scandal, the Times indignantly replied:
We ask every honourable-minded man whether it would not be much more pandering to the great to conceal their criminal excesses in this respect, as the Bishop would have us do, than to let the offenders know that they cannot practice them in obscurity?17
When, a little more than a year latter, a bill was introduced to make it impossible for ordinary people to drink beer on the Sabbath, Daniel O’Connell spoke against it, noting that he did
not approve of this constant interference with the private affairs of the people … [and] to subject all their actions to the control of a number of self-elected censors of morals. Many of those magistri morum were not, he believed, very remarkable themselves for their moral qualities. None of them attended at Crockford’s, or any of those fashionable houses in St. James’s street, to lecture on morals. If they did they would be laughed out of countenance. But if a poor man had an extra pint of beer, there was immediately an outcry about morality.…18
And when a gaming-house client of Charles Phillips came to trial in May 1833, Phillips responded by advising the “parish officers to go to Crockford’s, not far distant from the house in question, where they would find lords and other peers of the realm at play.”19 Combined with the publicity given to the extraordinary gambling expenses of the Duke of York,20 less than a year before, it is small wonder that one newspaper correspondent concluded that “The police appear to be satisfied with the occasional conviction of one or more minor delinquents from the neighbourhood of Leicester-square, but the Leviathans in crime are allowed to continue their nightly course of profligacy and plunder with impunity.”21 Perhaps this widespread publicity may have encouraged or mobilized the calling of the Select Committee on Gaming of 1844 and the subsequent passage of “An Act to amend the Law against Games and Wagers” of 1845, which, according to an early historian of English gambling, meant that “for many years afterwards professional gaming-houses in London were a tradition of the past.”22
We have seen how the medical view, that suicide was the effect of derangement, albeit often sudden and temporary, and the legal view, that suicide, unless evidenced by settled and persistent insanity, was the result of wilful self-murder, clashed in the early nineteenth century. Proponents of both views, however, accepted the notion that the penalty for a verdict of self-murder, an ignominious and often brutal burial, both was uncivilized and led juries to mitigate the offence to avoid the punishment. Both hoped, in different ways, that the abolition of this punishment would be salutary; the former that the public would come to see that “the attempt at self-destruction is OFTEN THE FIRST distinct overt act of insanity,”24 the latter that a misplaced sympathy with afflicted family and friends would not now cause jurors to render false verdicts.
There is no question but that many coroners’ juries gladly allowed the new leniency to guide them. The verdict of “temporary derangement” became very widespread, for as the press noted of one inquest jury, “… the humanity of jurymen generally makes them anxious to lay hold of any circumstances that might justify them in returning a verdict of insanity instead of felo de se. …”25 Perhaps it is worth noticing that this account attributed the change in verdicts to “humanity” rather than to a new understanding of mental illness, but it is undeniable that such a strategy was often adopted. Thus many of the nation’s newspapers felt the need to inform their readers that “The offence of felo de se is still a violation of the law, notwithstanding that part which relates to burial in the highways is repealed.…”26
The provisions of the new law, of course, also allowed for more, rather than less, discussion of what still constituted “real” felo de se, and here the papers reported a very great range of findings, without evidence of any widespread or popularly held agreement. This becomes obvious, for example, in the verdicts given after the suicides of children. Thus, after John Clark, “a boy of nine years of age, … hung himself at Hopton, Suffolk, in a saw-pit … the jury returned a verdict of Felo de Se,” hoping, as the account explained, by this verdict to stop a rash of similar local acts, “and in the hope of checking this growing practice in the rising generation.”27 And yet, occasionally, coroners would instruct their juries otherwise. After a lovers’ suicide pact gone awry (the woman recovered, the man died), the jury were told that they had only one option in their verdict. They were instructed that since the man was less than twenty-one years of age, and thus a minor, he could not be found felo de se. No one questioned this dubious assertion and the jury’s verdict was that “the deceased had come to his death by taking arsenic, and he being an infant under the age of 21, was consequently not of the age of discretion.”28
Other instances of such uncertainty over verdict can be seen in reports of deaths attributed to the effects of alcohol; sometimes these were found felo de se, sometimes adjudged to have been the result of temporary derangement.29 The verdicts in other cases were even more puzzling. The Examiner told of the tragic end of Thomas Williams, a poor old man of eighty, who, after being robbed of all his savings, went to the parish for assistance, and was offered the solace of the workhouse. Faced with this option, Williams went home, hanged himself from a beam, and was adjudged felo de se by the local inquest jury. The Examiner in its coverage headed this item with the tag “Disgusting Verdict.”30 And while the new law was supposed to mitigate severity of punishment, making it possible for the bereaved family and friends to accept what had happened, there were still instances where this did not occur, where those concerned seemed violently and actively upset by the form of burial laid down by “the humane regulations of the new Act of Parliament.…” A case in point was the death and burial of Thomas Tomlinson, a young soldier, who, while having an outstanding reputation in his regiment for gallantry in battle, fearing some unnamed disgrace, killed himself and was found felo de se. The report of what followed was published soon after in the local newspaper:
The corpse, in consequence, was seized by the civil power, and lodged in the prison until Monday night, when the remains of this unfortunate young man were taken about midnight to a short distance from the town, and buried in the lanes usually appropriated to this purpose. The civil officers were attended by a military guard; but neither the presence of the military, nor the silent hour of night, prevented a very loud expression of public indignation on the part of the populace, at what they conceived to be a partial execution of a rigorous law, the recollection of none of them furnishing an instance where it had been enforced except in those cases where the crime of poverty was super-added to that of suicide. The body had scarcely been committed to its ignominious grave, when some of the military, impelled by an attachment to their brother soldier, and encouraged by the populace, jumped into the grave, in the presence of the civil officers, … [disinterred the coffin and] carried it to the New Burying Ground at the Parish church, where it was interred with military honours. The corpse has, we understand, since been removed, and since replaced in hallowed ground, where the remains of this unfortunate now rest in peace.31
In the face of all this contrariety, one might think that nothing much had changed in the public understanding of the sin of suicide, or the press reporting of inquests and burials of those adjudged felo de se after the passage of the suicide Act of 1823, but this would be a not entirely correct inference. While neither those who hoped that the Act would demonstrate the enlightened view that all suicides were caused by insanity, whether temporary or permanent, nor those who, convinced that juries were allowing their sympathy to sway their judgment, hoped that the eradication of the punitive burial rites would lead to severer and more just sentences being passed on all those who rationally chose to kill themselves, were entirely vindicated, both sides achieved some of their goals.
There is no question that the definition of lunacy was broadened, and, after 1823, usually expressed in jury verdicts as “temporary” derangement or insanity. Many were also still “found drowned” or had their deaths attributed to “visitation of God.” A new verdict, “found dead,” was also occasionally used, as in the case of the man who, “having destroyed himself by firing a pistol-ball into his head at the right ear, but no evidence appears as to who he is, or what induced him to commit the act.”32 The greatest extension of the notion that all suicides were, by the very fact of the act, not culpable, was demonstrated in the verdict returned on the body of Mary Wanstall, a “confidential” servant who was often left in charge, in the family’s absence, of the Coleman home near Canterbury. When it became clear that Wanstall had, over a period of time, been selling items of value to local pawnbrokers and changing locks in various rooms to facilitate such thefts, she hanged herself with a towel. Despite the long-held tradition that criminals were always to be adjudged felo de se, the verdict in the Wanstall case was that the rash act was due to “Momentary Insanity.”33
However, those who saw in the Act the first step towards the abolition of the notion of “self-murder” and its replacement by a truer, more humane insight into the physio-medical roots of all such acts, could not have been entirely pleased either. Even if newspaper accounts of coroners’ inquests are not to be taken entirely as complete descriptions of contemporary practice, for contemporaries themselves they were the single largest body of information about the nature of verdicts in such cases. And an investigation of the three most recent and significant data-bases of eighteenth- and nineteenth-century British newspapers reveals a surprising paucity of felo de se verdicts before, but a growing body of such reports after the passage of the Act. From the earliest mention of a felo de se judgment reported in 1733 in the London Journal to the end of the Napoleonic Wars, I have only found a total of ten such cases.34 In contrast, in each decade after the passage of the Act, the number of felo de se verdicts reported nationally kept growing, going from 13 in the decade 1815–24, to 28 in the next decade, to 49 in the mid–1830s to 1840s.35 And it is significant, I think, that in many of these cases, the press published inquest accounts, in which the more punitive decision emanated from a member of the jury. Thus when considering the death of George Wallace, a porter at the Charing Cross Hospital, who killed himself early on the morning of March 25, 1840, the jury foreman explained why “he could not consent to return a verdict of temporary insanity, as the evidence was too slight to warrant such a verdict.” He continued:
From reading the reports of inquests in the public journals, he considered that in many cases verdicts of temporary insanity were returned by juries under false premises—viz, that persons who committed suicide must from that fact alone be necessarily insane. He held no such doctrine, and thinking that in this case, the fact of passing insanity was not sufficiently sustained, he should recommend the verdict of felo de se.
The jury concurred.36 The Times added that not only was such honesty necessary for the proper workings of the inquest jury, but that the attempt “to obscure any of these unhappy cases from the public view” in terms of press coverage, was “very objectionable on public grounds, since there is no right more sacred and valuable than that which the law exacts on behalf of the community in the clear and open development of the causes of sudden and unaccountable death.”37
However, whatever the growing frequency of the press reporting of such verdicts became, one thing remained constant; to quote the Examiner, when considering the inquiry into the death of a nobleman (to which we will shortly return), it concluded that “The inquest was conducted, as all inquests are on persons of distinction, without any urgent curiosity as to possible causes, or anxiety for evidence.”38 Take for example the case of Lord Graves and the press coverage of his suicide. On February 9, 1830, many of England’s papers featured an item to which the Times gave the catchy title of “Melancholy Suicide in High Life,” an account of his death and inquest. There were many striking oddities of this affair which immediately appeared. Sometime between 5:30 and 7 PM on Sunday, February 6th, Graves had killed himself, yet by 7:45 the next morning, according to press accounts, a coroner’s jury was empaneled by the Westminster coroner, G. H. Gell, though “in consequence of the unusually early hour … no reporters were in attendance.”39 After a cursory inquest, “the jury without hesitation returned a verdict” that Graves had killed himself “in a sudden fit of delirium.” The Times was besides itself and in a stinging editorial denounced the coroner. “We say that his Lordship ought not to be buried on such evidence—the Coroner ought not to have granted his warrant for the purpose.” The Morning Chronicle denounced the entire proceedings of the inquest, in both specific and general comments, noting that “[f]rom those penalties, which, although recently deprived of their ferocious character, have not been wholly abolished, most suicides belonging to the upper ranks of life escape through the compliance of Juries attributing the fatal act to temporary derangement.” Even a paper as conservative and generally pro-ministerial as the Courier opined that “the inquiry instituted [wa]s incomplete and unsatisfactory; hastily got up, and inadequately performed.”40
Of course, all the fuss was not simply about the cover-up of an aristocratic suicide, but had other salacious elements; it was suspected that Lady Graves, separated from her husband, was having an affair with someone in the royal family, and the hush-up of Graves’s death was part-and-parcel of a larger and more serious whitewash. Still, despite the Times’s later assurance that this was not the case, several letters to the editor harped on the bungled inquest, and raised disquieting questions about its status.41
When, eleven months later, William Horace Pitt-Rivers, Lord Rivers, was found drowned in the Serpentine, the inquest on his body was even more hurried than those of most drowning victims. According to the Times, “[o]ne Juryman threw out a suggestion that a witness should be called to speak to his lordship’s state of mind; but he was replied to by the coroner who said he thought enough had been proved to show that his lordship had fallen in by accident.” And when a woman arrived with Rivers’s umbrella, which she found by the side of the path, “the Coroner and Jury however did not think it necessary to examine her.” Only several days after the inquest concluded did some of the papers comment on its failings, most notably that Rivers was addicted to gambling, and had had severe losses. The Times said that on the night he died, he had lost between two and three thousand pounds to his gaming opponent. “These circumstances,” it continued, “were not mentioned at the inquest; in fact there seemed to be a great anxiety” to avoid all discussion “of his lordship’s circumstances.”42 The Examiner’s mutedly ironic comment about the absence of “urgent curiosity” and concern “for evidence” in these investigations of the deaths of the Great seems not only understated, but pointedly acute.
Thus, in many ways the 1823 Act was to prove a disappointment to both sorts of its hopeful supporters. While freed from the possibility of a shameful burial of the self-murderer, juries were much more liable to find mitigating verdicts, especially that of temporary derangement. However, there was one class of people who remained, and were publicly even more visible as likely to be found criminal self-murderers; that is the great body of Britain’s working poor. As a correspondent to the Examiner in 1831, outraged at the reportage of an inquest and subsequent finding of felo de se by the Plymouth Journal, noted in closing: “If the law regarding felo de se is a law, it ought to be enforced in every case, on rich and poor; but if the poor only are to smart under its application, it would be much better to abolish it altogether.” And by 1843, even the Times was editorially willing to commit itself to one standard of evidence and punishment in such cases, for rich and poor, for powerful and friendless, and even for prisoners in penitentiaries. Things had certainly changed, but press satisfaction, and public confidence in the application of the law to such cases, seemed, if anything, to have diminished.43
If, in the years after the passage of the 1823 Felo de Se Act, the moral and social problems of determining the causes and punishment of suicides did not disappear, the same sorts of dilemmas arose in considering the proper method of dealing with adultery and divorce. With the failure of the 1809 proposal to introduce stronger measures punishing faithless wives and their gallants, the next four decades were spent in arguing over a proper future course of action. One reason for this was that adultery, like the other vices we have considered, having a multiple nature, was seen simultaneously by most as a sin (against the law of God), a vice (against the public good), and a crime, albeit a peculiar one, dealt with in civil courts, and distantly, with imprisonment, in some cases, as the only possible punishment. It is this last aspect of its nature, which found its embodiment in the criminal conversation procedure, that we must now turn to.
Crim. con. cases served at least three purposes. All agreed that, in so far as pecuniary awards could so serve, one of its ends was as recompense for the damages suffered by husbands for the loss of their wives’ “good company.” Some others thought that these damages could and should also act as punishments against the sinners, and perhaps as warnings to others tempted to commit such acts. Finally, these cases were thought to have an investigative role in laying the groundwork for full Parliamentary divorce; they acted as a kind of “pre-trial” hearing for such latter final events. Still others, however, believed that the entire process was badly flawed, that the proceedings needed to be simplified, made more accessible to a wider range of applicants, though some of these “modernizers” also wished, while removing crim. con from the civil domain, to criminalize and more severely punish adulterous couples.
Despite these differences, or because of them, the public interest in adultery, in crim. con. trials and divorce proceedings, did not wane, but arguably grew in these years. The courts were often crowded; when Sir Jacob Astley faced his wife’s lover, Captain Garth, in the Court of Common Pleas in February 1827, the Morning Chronicle reported that “the Court was crowded to excess, at a very early hour this morning …”; three years later at the Oxford Assizes, as the case of Clayton v Franklyn was coming on, “the Court was thronged during the whole of the afternoon, and there were a great many gentlemen of the county seated on the benches on the right hand of the learned judge.” At the trial in 1831 of Miss Love, actress-wife of Captain Calcraft, Bell’s London Life, after noting that “The court was much crowded to hear the trial” added that “great disappointment was felt at there being nothing more racy in the details.” And at the Bligh v Wellesley case, the Times said that “the gallery was crowded with several women, who listened to all the disgusting details of the trial with the most unblushing intrepidity and assurance.”45 This public relish was not new, but it was more commented on, and more worried about. For, as we have already seen, the line between private vice and public good, between the state of marriage and the fate of society, had always been linked in most accounts of the baneful effects of adultery on the common weal. And, like other vices we have considered, adultery was seen not only as a sin and a vice, but also as a crime. In the criminal conversation procedure, the mixed nature of this combination was particularly noticeable and troubling. For now, along with the courts, along with trial reports in the older newspapers and magazines, along with the presentation of adultery on the stage, came a host of new magazines like the Crim. Con. Gazette, the Satirist, and the Age, which dedicated themselves to the public display of private vice, of prurience and perhaps blackmail mixed with moral outrage and reforming zeal.
Despite the failure of the four earlier attempts to “criminalize” adultery, most early nineteenth-century observers did not believe that marriages had become more stable, that fewer adulteries were occurring, or that fewer aristocratic divorces were being allowed. Thus, for example, in 1830, various press reports, citing the Earl of Malmesbury’s comments on the Ellenborough divorce bill, noted that “[t]he number of [such] Bills passed in the Lords within the last five years exceeds the number passed in the preceding five, in the proportion of three-and-a-half to one; the total of such bills from 1820 to 1825 amounted to no more than six, while the bills passed since 1825 are no less than twenty-one!”46 However, while it seemed clear that only the “higher classes” could afford full divorce, “because the remedy was so expensive that the middling and lower orders were deprived of it,” it was nevertheless the case that through the 1840s, the middling and lower classes appeared in greater numbers in crim. con. actions, actions reported fully, usually in detail, by the press. As Lawrence Stone has pointed out, the percentage of men of title who were involved in criminal conversation cases fell from 16% in the two decades before 1830 to only 4% in the decades after, while the number of such cases only fell from 86 to 79 in those years, or about 10%. Along with this decline, or, to put it another way, the growing appearance of non-elite men in such cases, Stone noted that in the decade 1800 to 1809, in nineteen such suits (or in about 37% of all such cases), the plaintiff was awarded £2000 or more; by the 1840s, the number of such awards had diminished to twelve (or about 34% of all such cases). Much more dramatic, however, was the fact that in the earlier period, while 65% of those awarded £2000 or more were given at least £5000 in damages, and 29% of these awards were for sums of £10,000 or more, in the latter period only 34% of crim. con. awards were for £5000 or more and only 1 (or 9%) was for the sum of £10,000 or more.47 Pecuniary rewards for marital infidelity were clearly declining. The newspaper accounts were similar in their reports. What Stone does not emphasize, however, were the changes in the small sums given. In the first decade of the century, 20% of the total awards reported by the press were £200 or less (8/41); by the 1830s, 40% (23/58) of the sums were of this amount. Not only were fewer titled men involved in such actions, but, even when they were, large sums were awarded in fewer cases. In the first decade of the century, there were 13 awards of £3000 or more (31%), by the 1830s only four (about 7%), and by the end of the 1840s it was still at about 7% (3/42). Between 1800 and 1809 four awards of £10,000 or more were given, in contrast to the 1840s, when only one plaintiff was granted £8,000 damages, while another two received £3,000. While aristocratic cases still were reported (defendants E. Harborough in 1831, Melbourne 1836, Lord F. Beauclerk 1839, Hon F. G. Molyneux 1841, Lord Cardigan 1843, Sir Charles Elton 1847, and plaintiffs Carden 1831, Lord Langford, 1836, and Lord W. Paget 1843), most other plaintiffs and defendants in such suits in the 1830s and 1840s were men of the middle classes. However, one of the most interesting non-middling cases featured a Mr. Coultas who sued his employer, the Rev. Mr. Bowes, for criminal conversation with his wife, also a servant in the Bowes household. Mr. O’Malley, Coultas’s attorney, began his address to the special jury by describing Coultas “as a poor man seeking for justice and compensation at the hands of the jury, from a rich man—a man by birth, rank, and education, one of their own.” The jury found for the plaintiff in the sum of £250. However, when a year earlier, a Mr. Absalon, described as one “in humble circumstances,” brought a case against the eldest son of Sir G. H. Bunbury for adultery with his wife, his own attorneys refused to continue the case when evidence was presented that Absalon had attempted to extort money from Bunbury, and, unsuccessful, had only brought the suit in consequence. The judge, Mr. Baron Platt, commended the lawyers, commenting, “The bar of England, though open to the grievances of the poor, should never lend itself to facilitate the attempts of profligacy and vice.”48
There seemed an increasing uneasiness about the whole crim. con. process. In what sense could money assuage the pain of such loss and betrayal, of “the most cruel injury that can be inflicted” by one man on another?49 Thus, in the case of Eldrid v Cross, in which the defendant had conceded a defense, thus admitting guilt, in the opening statement of Eldrid’s attorney to the sheriff’s jury to decide on damages, he noted that
the action was one which the plaintiff felt himself compelled bring against the defendant, not so much with a view of the immediate consequences of that day, as to the ulterior steps which their decision must originate, and to a certain extent affect.
He concluded that Eldrid had been “compelled to appear before them” by “the present state of the law to seek pecuniary damages for one of the deepest injuries that could be inflicted upon a man possessing a sensitive and honourable mind.…” The jury assessed the damages at £500. In another such case, Lord Langford v Barrett, however, though virtually the same language was used about “ulterior steps,” the jury decided on the sum of 1 shilling in damages. Bell’s Life in London, in commenting on the case and the verdict, noted,
No doubt the main object of this experiment was the desire of Lord Langford to obtain a divorce—happily in this respect his Lordship will be disappointed. It is a maxim in our consistorial courts that folks seeking such remedies must appear with ‘clean hands’ and it is needless to say that all the soap and water in his Majesty’s dominions would not reduce his Lordship’s digits to that condition.50
But more serious perhaps, more troubling, than the natural human propensity for greed and gain, was the way in which plaintiffs and defendants in such cases were “compromising” the event by coming to out-of-court settlements before the issues could be aired before the jury. Thus in one such case, Tucker v Gooch, the plaintiff’s lawyer asked the court “for a few minutes, as from a consultation with the parties he had every reason to believe they would agree to a verdict being returned for £50 [the original sum asked for was £1,000] without having to lay the whole of the facts connected with the unfortunate transaction before the jury and the world.” Similarly, in an uncontested case, the parties settled the damages privately between themselves, and “the writ was withdrawn by the plaintiff’s solicitors.” This was done, the press reported, “in order to avoid the exposure of the circumstances which gave rise to the action, and which are said to be of a peculiar character.…”51
Furthermore “[t]he careless way in which juries find verdicts for damages in crim. con. actions” was a complaint of both the Examiner and Lord Brougham. The magazine reported Brougham’s speech in the Lords, in which he complained that
A jury give a verdict, and award damages, without having heard one word or knowing one atom of the circumstances of the case, because counsel think proper to say when they get before a jury, that as the only object of the action is to obtain a verdict with a view to a divorce, he and his learned friend on the other side, with the hope of sparing the feelings of the connections of the parties, have consented to a verdict for a certain amount of damages.
This, Brougham (and the Examiner) concluded, was both “very bad and very improper.”52
For either the crim. con. process had some justifiable legal function, i.e., to investigate all the facts of the situation and to publicize the punishment of adulterers, or it was merely for pecuniary gain or to facilitate divorce without public scrutiny. It was the absence of this investigation, the absence of such a stage in the divorce process which was one of the most serious challenges in the Ellenborough divorce case, held before the bar of the House of Commons without having gone through the crim. con process. And despite Lawrence Stone’s view that the crim. con. action was rapidly falling out of favor in the second quarter of the century, some Parliamentarians at least saw its value. Joseph Hume, for one, commenting on the need for such previous knowledge, remarked:
It was, therefore, always desirable that some investigation before a competent tribunal should precede the consideration of these matters, before they are brought into that house [Commons], which was of all other places, the least constituted for prosecuting their inquiry.53
Others, both within Parliament and without, agreed, finding the procedure in the Ellenborough case only a notable and glaring example of the partiality of the law, and of the advantage that the rich and powerful had over the more lowly in appealing for consideration. This was one of the cases that Dr. Phillimore gave in his address to the House, for a need for a new divorce process more accessible to all, and especially to “all the middle orders of the country, small gentry and farmers.”54 And while it is quite true, as Lawrence Stone has asserted, that after the Ellenborough action, “the titular aristocracy virtually dropped out altogether” of suits for Parliamentary divorces, the language often used in the many letters and comments at the time in the press, which decried the privileges and vices of fashionable life and fashionable custom, still acknowledged the existence of a beau monde, a world with its own different moral code. The Morning Chronicle argued that the Ellenborough case proved “that there are two codes of morality in sexual matters in this country—one for common life and another for fashionable life.”55 Using the language of fashion, or of rich and poor, was, however, not a way of smudging or mis-recognizing the chasm created by blatantly partial legislation like that employed in this divorce; rather, in an age of euphemistic reference, those terms conveyed the message without raising any particular hackles. It is clear to whom the Morning Chronicle was referring, when it noted that “[the] principle, then, of setting aside the law in the case of divorces, and in all other cases where the rule is equally clear, ought to be reprobated as arbitrary and partial—as tending to destroy in the people all reverence for the law, and to persuade them, that while it is binding only on the poor, it is held in no regard by the rich.”56
Whatever the future of divorce was to be, many seemed clear on the difficulties posed by the need to assess pecuniary damages arising from criminal conversation suits. Thus in one article, entitled merely “Crim. Con.” the following suggestion was made:
We think parliament would gain great glory by a measure erasing crim. con. from the catalogue of expensive luxuries, no longer suffering it to be a privilege of the rich, but adding to the number of felonious offences; making it a crime against the social state, and not a private debt of hard cash between man and man … Prison diet and the tread-mill would, we think, make the sport [of adultery] very ungentlemanly.57
These proposals, however, reiterated in somewhat new and perhaps even stronger language the unsuccessful attempts to create a new divorce law, and thus, while evincing the desire for more punitive measures, were unlikely to be adopted. But, spurred perhaps by the growing number of crim. con. cases withdrawn at the last moment, or compromised without the facts becoming publicly known, the press responded by noting such instances. So, in the Wallis v Francis case, the Examiner wrote that “in order to avoid the exposure of the circumstances which gave rise to the action, and which are said to be of a peculiar character, the affair has been settled, and the writ was withdrawn by the plaintiff’s solicitors.” Combining a perhaps crass desire to sell papers with a sometimes radical commitment to publicize the crimes of the great and powerful, newspapers of all stripes let it be known that if information was kept from them, that fact would be passed on to its readers. For example, after reporting the Cazelet crim. con. trial, which, it was said, had “excited great interest,” the Morning Chronicle noted that its reporter had requested certain letters involved in the case, but that “the Solicitor for the plaintiff would not give our reporter copies. “In fact,” they concluded, “every thing was done, that could be done, to prevent the publication of the case.”58 Similarly, Bell’s Life in London, prefacing its denunciation of the conduct of Lord and Lady Langford, as revealed in the case of Langford v Barrett, noted that “We have elsewhere expressed our disapprobation of a journal thrusting upon the notice of its readers the private vices of noble Lords and their Ladies.…—at the same time admitting that, when these persons rendered themselves amenable to public observation, the severest strictures were justifiable.” Having reviewed the tawdry details of fashionable married life, Bell’s concluded by thundering:
Comment is unnecessary in such a case; but when our aristocracy set such examples of virtue and honour, and exhibit themselves with such unblushing effrontery in our courts of justice, with what grace can our Magistrates sentence sinners in the humbler classes for offences immeasurably less disgusting to the silent system and the treadmill?59
The most strident denunciation, however, of the “Crimes of the Aristocracy” came in a letter to the editor of the Satirist, a journal that called itself “the Censor of the Times.” Beginning his peroration with a compliment to the editor, “You have done more to improve the morals of succeeding ages than any other man that ever lived, by drawing the public attention to the vices and immoralities of the aristocracy,” the anonymous author continued by exhorting the magazine to publish a “list of all the[ir] crimes and offences” and stressed “adultery, fornication and the like.” Where the law was powerless, suggested “TOEB,” the censure of the public, especially of the middle class, might have more impact than either penal or financial punishments.60 Thus, though the titled great no longer made up a significant part of those seeking divorce or crim. con. damages, in the eyes of some of the press, at least, the aristocratic world of fashion was still the seed-bed of sexual impropriety and easy vice.
After the long war’s conclusion, it seemed reasonable that the number of duels would decline. Given a boost by the number of men at arms, imbibing, often for the first time, the rhetoric of military masculinity and honor, duelling likely reached a new high during these war years. But with peace and victory, many hoped, it was natural to expect that duelling would decline and it may well have done so.62
In 1822 three pamphlets appeared which announced and articulated the nature of this long-hoped-for but not yet achieved change. The first, written by Stephen Leach, after the duel between the Dukes of Bedford and Buckingham, was entitled The Folly and Wickedness of Duelling; the second, the work of a Scottish minister, the Rev. Peter Chalmers, was first presented as a sermon before being published as Two Discourses on the Sin, Danger and Remedy of Duelling; and the third, The Duellist, or a Cursory View of the Rise, Progress and Practice of Duelling, was anonymous. These three works argued that social changes had made duelling “old-fashioned,” held out hope that the end of duelling was well within sight, and suggested new legal and extra-legal measures that might hasten its demise. Leach characterized “this Age” as one where “thought soars above the prejudices of superstition and bigotry, [and where] freedom has wrestled the rod of authority from the hands of the rude mighty …”; Chalmers commended “the enlightened and religious character of the times,” while the Duellist’s author exulted in “the progress of civilization and society” where “[e]verything gross or reprehensible in the feudal system has died away, or has been exploded by general consent” except, of course, “this inhuman practice [of duelling], which even the force of laws cannot supercede.”63
All three also recommended measures that might be taken to eliminate this barbarous custom. Leach argued that the judicious use of fines, imprisonment, and private whippings “would be fully effectual to cool this vulgar high life blood, and cause it to flow with a regular pulse”; Chalmers proposed “a forfeiture of property”; while the Duellist spoke approvingly of Addison’s suggestion that “if every man who fought a duel were to stand in the pillory, it would quickly lessen the number of those imaginary men of honour, and put an end to so absurd a practice.” But in some sense the most interesting, and “modern” of these observations came from the clergyman, Chalmers. Seeing in “the tide of public opinion” a powerful, progressive tool for the amelioration of vice, he reflected on its success in having overcome two earlier grievous vices, swearing and excessive drinking.
If then, the mere force of public opinion, founded too, not so much on religious principle, as upon the maxims of fashionable decorum, can be so successful in repressing the vices alluded to, what might be expected from it, if made to bear upon the particular sin under consideration;—a sin which involves in it present results, personal, domestic and social, much more painful and injurious?64
But in the struggles for Catholic Emancipation, in the bitter antipathies of the various groups involved, a remarkable duel occurred which had only one real antecedent; the meeting between Pitt and Tierney in 1798. The cause of the duel between Wellington and his opponent, the Earl of Winchilsea, was clear. In the fracas surrounding the passage of Catholic Emancipation, Winchilsea, a Tory Ultra, in a letter he published in the Standard, had intimated that Wellington, by employing the ruse of supporting the godly and very protestant King’s College, not only had an “insidious design for the infringement of” all English liberties, but was also plotting the “introduction of Popery into every department of the State.” After the item appeared in the press, Wellington sent Winchilsea a number of letters asking for a retraction and apology, and, when the Earl refused, the Duke demanded “that satisfaction for your conduct which a gentleman has a right to require, and which a gentleman never refuses to give.”65 Again, as in an earlier duel, when the two men met, on the morning of March 29, 1829, no injury was sustained, Wellington firing one shot, and missing, Winchilsea firing in the air.
What did the press say about this duel? Most of the papers used the occasion to reflect on the larger questions involved in such actions: should public men fight, and if they did, was it their private or their public honor that was at stake? Was there any precedent for such duelling, or was it, as one paper claimed, “until revived by his grace, [a] happily obsolete practice”?66 Clearly, despite the papers, the practice was not obsolete; many men still duelled and would continue to do so for another two decades. But few of the papers criticized Wellington, or Pitt, or any of the other eminent political men of the previous century, for, by their example, giving a legitimacy and perhaps even a spur to the practice. While the condemnation remained, that connection was not made; when men like Wellington and his duelling predecessors were criticized, they were blamed for the particularities of their engagement, not for the general principles involved. However, as we shall soon see, Wellington’s duel was not forgotten, nor forgiven, as subsequent duelling accounts in the press would show.
We have already seen a growth in the publicity, if not in the actual numbers, of respectable men, even men of proven courage like General Coote,67 who rather than accept challenges, took their challengers to court. Alternately, one of the participants, or a friend or family member of a potential duellist, could arrange to have police officers present, to arrest the combatants, and these arrests also were increasingly published by the press. If we compare the press accounts of challenges brought to court plus the accounts of duels stopped, with the duels reported in the press, an interesting pattern seems to emerge. While almost twice as many completed duels were reported in the newspapers as having taken place compared to the number of incomplete (i.e., challenge brought to court or stopped by police officers) duels in 1800, by the 1830s the numbers were reversed, showing both an increase in aborted duels, and a decline in reported completed ones. Though perhaps only one of many things occurring during these decades, the numbers suggest a correlation, a change in perception and practice.68
The two duels that I would like to conclude with were, in their details, not particularly uncommon, their participants not particularly grand, and their legal outcomes not entirely surprising. What distinguished them somewhat was that in both, one of the duellists was killed. In the first, which took place very early one morning on January 8, 1830, two men, Oliver Clayton, an Irish writer, and Lieutenant Richard Lambrecht, late of the Ceylon Regiment, accompanied by their two seconds, fought a duel in Battersea fields, in which the former was shot and died about twelve hours later. After the incident, “a mutual expression of forgiveness took place.” There was never a question of foul play, though it was still so dark that a passing laborer, not seeing the conflict, narrowly avoided being shot himself.69 For almost four months afterwards the papers were abuzz with the story, and we shall shortly return to a consideration of this coverage.
The publicity surrounding the second duel, which took place on July 1, 1843 between Lt. Col. David Fawcett and Lt. James Munro, lasted much longer. For one thing, both men were military men as well as being brothers-in-law. For another, of the five men involved in the duel, the principals, their seconds, and a regimental doctor, two of them (the doctor and Fawcett’s second) came to trial reasonably soon; Munro and his second, Grant, fled, and though Grant returned for his trial early in 1844, Munro did not return from abroad until 1847. Everyone but Munro was found not guilty, and his trial ended with the jury returning “a verdict of Guilty, but strongly recommended the prisoner to mercy.”70 However, well before that day, the press made their opinions of this particular duel, with its relationship to earlier ones and to the future of duelling, extensively known.
In the first instance, the press commentary began shortly after Lambrecht’s surrendering himself to the law. At that point, the magistrate, a Mr. Chambers, to whom he was then brought, was said to have commented that “the prisoner [should] prepare himself for the worst, declaring in his opinion that the law would be carried to the fullest extent.” This comment enraged both the Morning Chronicle and the Examiner. The first wondered whether
if the Duke of Wellington had shot the Earl of Winchilsea, or the Earl of Winchilsea his Grace, at Battersea Fields, Mr. Chambers would, in addressing the survivor, have carefully abstained from the slightest allusion to the possibility even of any necessity for having recourse to such a personage as the one who “carries the law to the fullest extent.”
And, after reproducing the whole of this editorial in its own pages, the Examiner added, “It is not tactics, but sycophancy, to respect the offences of power; and the virtue which reserves its rage for the weak only is near of kin to a vice.”71 But far and away the most biting critique of Chambers’s statement came from the North Wales Chronicle. It noted that had the law against duelling “been carried into effect uniformly in all cases of the kind which have occurred within the last forty years, and had the law been sanctioned by the private opinion and personal conduct of those whose duty it was in a special manner to give it their countenance and support” this duel would not have taken place. Asking “what has been the state of opinion on this subject even amongst the highest classes,” the Chronicle went on to remind its readers of the duel between the Duke of York and Col. Lennox, that between Pitt and Tierney, that fought by Castlereagh and Canning, and finally the meeting between Wellington and Winchilsea. The editor concluded this very long fulmination thus:
We trust the time is not far distant when the higher classes will perceive, and possess the moral courage to fulfil their duty as Christians, and as the leading members of a civilized state, by adopting some method … for the extirpation of this blood-thirsty folly.72
When Lambrecht’s trial, and that of the seconds, came on, on April 3, 1830, the presiding judge, in his summation, most likely referring to these many press comments, noted:
It has been said that other persons had conducted themselves in a similar way, and not been visited with punishment … but although other persons in high condition might, by their example, have sanctioned the practice … still the law was the same, and the highest person in the land might be subject to a similar prosecution to that which had now been instituted against the prisoners at the bar.
He then told the jury that if Clayton had died by the shot of Lambrecht, whatever the circumstances, “they must find, or at least ought to find, a verdict of guilty.” Lambrecht and both seconds were, as though to spite the judge, found not guilty after a long and difficult jury consultation.73
Less than a week after the second duel, in a letter written to the Times, “One Who Has Three Brothers in the Army” appealed to the “Commander-in-Chief” of the Army, asking him, because of the “late sad and most disgraceful affair of honour,” to mark “his disapprobation of duelling in the army by dismissing every individual implicated from the service.” Two days later, another letter, written in response, asked:
How can the Commander-in-Chief adopt the suggestion? He must, for consistency’s sake, tolerate duelling; must continue to it the countenance which, a few years ago, he, the Duke of Wellington! thought fit to give to the wretched practice by his duel with the Earl of Winchilsea.74
Less than two months later, after the trial and acquittal of Lt. Cuddy, the second to Lt. Col. Fawcett in the duel that resulted in the latter’s death, further comments in the press began to appear. Thus Bell’s Life in London declared that the law governing duelling was rendered “totally inoperative” by the support the practice received from “the usages and feelings of society.” It concluded by recommending to those desiring to “put down the barbarous absurdity,” to “make duelling, so far as they are concerned, unfashionable, and they will go far to attain their purpose. It [duelling] exists upon opinions. Opinion can destroy it.”75
Probably the most daring attack on Wellington and the tradition of fashionable duelling came in Punch shortly after. Complete with a cartoon of a skeleton holding a pair of duelling pistols, the piece was entitled “Present to the Duke of Wellington.” It claimed to be the account of a present made to Wellington by “the officers of the British Army” for allowing Munro and his second, Grant, to continue receiving their Army pay, neither of whom had then “surrendered to take their trial” but who were, by indulgence, it was intimated, “upon Her Majesty’s Army List, although either absent without leave, or specially allowed permission to stay away.” And the presentation of the pistols concluded with this purported speech of a senior Army colonel:
My Lord Duke … we live in an age of revolutionary ignorance; an age in which the ruthless, low-minded vulgar, are too often prone to confound the hallowed distinctions of society, and thereby to test, what I trust we may ever live to call ‘the satisfaction of a gentleman,’ … by the unjust and ridiculous standard of civil society.76
Although, in 1829, the press refrained from such comments when Wellington and Winchilsea met, by the 1840s they were widespread and pointed.77 And, by the 1840s, the attack on this privileged vice was no longer confined to individuals, but expressed in larger, more radical terms. “It is a vain attempt.” opined Freeman’s Journal, “to cover from the public eye a moral leprosy which festers in aristocratic places.” The Examiner added:
If being concerned in a duel … were to render a man ever ineligible to serve the Crown in any way, or to sit in Parliament, or to acquire or retain any honour or title, the aristocratic classes would be deterred … and whenever duelling falls into disuse amongst the upper orders, there will soon be an end of it with the classes that ape their manners and vices.78
By 1847, at least one paper concluded that “In fact dueling may be held to have ceased.” “Some better method of settling differences between people of high blood and higher pretensions and affections, will speedily be established, now that improvement has become absolutely necessary,” added another. What accounted for such a change? “[T]he great alteration which has been effected by means of the press, in public opinion, within the last few years, with regard to duelling” was the answer given.79 And, in the end, the public character of aristocratic vice and the preferential treatment that people of quality were accorded for these types of behavior, changed. Though upper-class vice had by no means disappeared, it maintained a more discreet presence in an age which valued public decency, respectability, and propriety.80