Ahead of next Tuesday’s Virtual IHR Parliaments, Politics and People seminar, we hear from Dr Alison Daniell of the University of Southampton. On 21 June 2022, between 5.15 p.m. and 6.30 p.m., Alison will be responding to your questions about her pre-circulated paper on divorce by Act of Parliament in the early nineteenth century. Alison’s full-length paper is available here. Details of how to join the discussion are available here.
Before the 1857 Matrimonial Causes Act, the only way to dissolve an otherwise valid marriage was to obtain a divorce by way of Act of Parliament. It was, however, a remedy that had evolved purely for the use of men and was only available on the grounds of adultery. In total, only four women successfully ended their marriages this way. These were the cases of Addison in 1801; Turton in 1831; Battersby in 1840; and Hall in 1850.
The process of obtaining a parliamentary divorce was somewhat convoluted. Before a bill could be introduced into Parliament, the petitioner first had to obtain a divorce a mensa et thoro in the ecclesiastical courts. It was then customary to litigate a suit for criminal conversation. Crim. con. (as it was known) was a civil action for monetary damages brought by a husband against his wife’s lover. This step, however, could be waived if it was demonstrated that bringing such a case was impossible – or (as it transpired) where the petitioner was a woman. Following the successful conclusion of these preliminaries, a divorce Bill could be introduced into the House of Lords. This had to pass through all the normal legislative stages, including committee hearings, before it could receive Royal Assent. Due to the complexity of these various processes, the number of parliamentary divorces was limited and, between 1700 and 1857, only 310 were granted.
In 1801, an application made by a woman came before the House. Jane Addison alleged that between 1794 and July 1796 her husband, Edward Addison, had committed adultery on a number of occasions with her married sister, Jessy. Due to their close legal relationship (brother and sister-in-law) this was not merely adultery simpliciter but had an incestuous overtone. Addison accordingly found herself in a very difficult position: her marriage was clearly over (indeed, the nature of her husband’s adultery meant that any reconciliation between them would itself have been tainted), but there was no way of fully extricating herself from the marriage without obtaining an Act of Parliament – something which had never been done before by a woman.
The matter was hugely contentious and aroused a great deal of interest in the press. Curiously – particularly given the levels of publicity it generated – one feature that makes it stand out was that Addison herself effectively disappeared from her own case. In both the pleadings and the oral hearings in the House of Lords, she adopted the role of a submissive, vulnerable and (crucially) silent woman. She was represented by her counsel, Mr Adam, but she gave no direct evidence (either written or spoken) during the parliamentary process or during the divorce a mensa et thoro which had preceded it.
Although this might appear a curious tactic, Addison’s silence was in fact a very powerful and culturally astute decision. By remaining silent and allowing her story to be told by others, she conformed to the contemporary archetype of a respectable, modest wife: one who appeared reluctant to enter the public sphere or make any direct complaint about her husband’s behaviour. Secondly, by minimising her own presence, she directed judicial attention away from herself and focussed it on her sister, her errant spouse and their wrongdoing. This deflection would have been of great assistance to Addison, particularly given the novelty of her application and its inherently contentious nature. Finally (and arguably most interestingly) because Addison appeared as only the faintest flicker of a presence within the evidence presented to the Lords, this effectively created a wife-shaped space within the structure of her case. In order to fill that space (whether consciously or not) their lordships appear to have obligingly created an image of a vulnerable, innocent creature whom they felt instinctively bound to protect. One of the most impassioned speeches on this subject came from Lord Auckland, who declaimed:
We, Lords of Creation, have a remedy within our power, which we are ready to grant to one another in cases of adultery; but as to you, poor, weak, defenceless, women, if you come and complain of your husbands having committed adultery of the most depraved and flagrant kind … we will compel you to remain the wives of such profligate husbands and dismiss you from our door without relief.Morning Chronicle, 21 May 1801
It is important to note that at no point during the case did Addison state that she was weak or defenceless. Nonetheless, this was how she was viewed by those with the power to decide her fate – and it arguably assisted her case. How much of this was tactical and how much was an inevitable consequence of her unfortunate situation is difficult to judge but one suspects there was probably an element of both. Certainly, research elsewhere suggests that conforming to acceptable archetypes was useful for both male and female litigants in other courts.
Wherever the decision to remove Addison as much as possible from her own divorce originated, the result was that she won. Her marriage to Edward was dissolved and, apparently undeterred by her experience, she later remarried. Addison’s divorce was pivotal in laying the groundwork for those which came after her. An ongoing reluctance on the part of the legislature to extend the grounds on which women could bring an application, however, meant that the next woman to come before them, a Mrs Teuch, was refused a divorce, as her husband had not committed incestuous adultery. Addison’s case, though, provides us with much more than a legal precedent. It opens a window onto a range of gendered preconceptions and how those could be harnessed to influence the outcome of litigation, even in the House of Lords. In the light of the obstacles women such as Addison needed to overcome, perhaps it should not be surprising that only four women were able to end their marriages this way. Indeed, perhaps the real wonder is that any managed it at all.
Sybil Wolfram, ‘Divorce in England’, Oxford Journal of Legal Studies, 5:2 (1986) [from which the statistics cited in paragraphs 1 and 2 are taken].
David M. Turner, Fashioning Adultery: Gender, Sex and Civility in England, 1660-1740 (Cambridge: Cambridge University Press, 2002)
Akamatso Junko, ‘Revisiting Ecclesiastical Adultery Cases in Eighteenth-Century England’, Journal of Women’s History, xxviii (2016), 13-37
Joanne Bailey, ‘Voices in Court: Lawyers or Litigants’, Historical Research, 74: 186 (2001), 392-408
To register for this virtual seminar, please follow this link and click on ‘Book now’. If you cannot attend this session but wish to submit a question to Alison, please email email@example.com.