When the 1856 bill came again before parliament in the session of 1857, it was touch and go whether there would not be a further delay in passing the measure, but thanks to the then prime minister Lord Palmerston’s boldness and determination – cheek, even – the new Divorce and Matrimonial Causes Act was passed in August 1857, to take effect on 1 January 1858.
As Dickens noted, until the passing of the act, divorce was for most people well-nigh impossible to obtain. It required three cumbersome, lengthy, and expensive stages to be gone through. Changing this would make a huge difference to large numbers of people, as the anonymous author of A Handy Book on the New Law of Divorce and Matrimonial Causes, and the Practice of the Divorce Court declared in his enthusiastic little book welcoming the new legislation in 1860. ‘A more important Statute’ than this ‘never was passed by the Legislature; or one better calculated “to elevate the character, and promote, and secure, the morality and happiness of a people”’. At a stroke it did away with a legal absurdity that had existed for nearly two centuries, during which time it had been necessary ‘first, to obtain in an Ecclesiastical Court a divorce a mensa et thoro’, that is, for the couple to live separately but still be man and wife, with no permission for the petitioner to remarry. Secondly, the petitioner was required to take action before a jury in a court of law for damages for adultery, or ‘criminal conversation’, as it was called. Thirdly, to obtain a full divorce, an act of parliament had to be passed granting divorce a vinculo, that is, declaring the marriage void from the beginning and allowing the petitioner to remarry.58
A man had to prove adultery on the part of his wife in order to receive a full divorce. For a wife seeking a divorce, the required level of proof was much higher. Adultery must be aggravated by some other offence. In all cases, hardly anyone could afford to go through these procedures. According to figures declared in the House of Lords debate on the matter in May 1857, the average number of full divorces granted in the years 1800 to 1850 was two per annum.59 The total number of women granted a divorce over the past 150 years was said in the 1856 debate to be four.60 It was pointed out that English laws were particularly strict; Scottish, Prussian, and other European laws were more liberal. In 1839 a newspaper dedicated to discussing the salacious details of divorce cases, the Crim. Con. Gazette, summed up the disadvantaged position of an Englishman (an Englishwoman having virtually no opportunity at all of getting a divorce):
A man with a very large sum of money may get a divorce from the Houses of Parliament and may marry again. A man with a smaller but considerable sum of money may get from the Ecclesiastical Courts a half divorce which relieves him merely from his wife’s debts but does not enable him to enter into another matrimonial connection. A man with no money, or an insufficient income, can have no divorce at all.61
In Scotland women had equal rights with men in the matter of divorce, and in Prussia it was realised that adultery need not be the only cause – there a divorce could be obtained by mutual consent or on the ground of incompatibility of temper.62
The most absurd element of the status quo before the passing of the new act was the recourse to the Ecclesiastical Court in Doctors’ Commons, a college of lawyers founded in the thirteenth century and occupying a hidden corner near St Paul’s Cathedral, as the young Charles Dickens described it in one of his ‘Sketches by Boz’ in the Morning Chronicle in 1836. Ecclesiastical matters were heard here in the Court of Arches; here too Admiralty questions were settled, and wills were proved and probate granted in the Prerogative Office. The ‘doctors’ were lawyers holding degrees in civil law (based on Roman law) from Oxford or Cambridge, who acted as both judges and advocates in these courts. Dickens, who had himself recently been required to visit Doctors’ Commons to obtain a special licence in order to marry Catherine Hogarth, since she was under twenty-one at the time of their union in 1836,63 described the dozen or so self-important ‘solemn-looking gentlemen’ in crimson gowns and wigs to be found in the ‘old quaint-looking apartment’. Officers of the court wore ‘black gown, black kid gloves, knee shorts, and silks’, while ‘the counsel wore red gowns, and the proctors fur collars’, and the business conducted was so outmoded that ‘half-obsolete’ statutes hundreds of years old were invoked.64
Dickens had another tilt at these archaic and complicated arrangements, and the snobbery of the participants, in David Copperfield (1850). He puts his criticisms into the sneering mouth of David’s older school friend, Steerforth, who answers David’s question, ‘What is a proctor?’ thus:
‘Why, he is a sort of monkish attorney’, replied Steerforth. ‘He is, to some faded courts held in Doctors’ Commons – a lazy old nook near St Paul’s churchyard – what solicitors are to the courts of law and equity. He is a functionary whose existence, in the natural course of things, would have terminated about two hundred years ago. I can tell you best what he is, by telling you what Doctors’ Commons is. It’s a little out-of-the-way place, where they administer what is called ecclesiastical law, and play all kinds of tricks with obsolete old monsters of acts of Parliament, which three-fourths of the world know nothing about, and the other fourth supposes to have been dug up, in a fossil state, in the days of the Edwards. It’s a place that has an ancient monopoly in suits about people’s wills and people’s marriages, and disputes among ships and boats.’
‘Nonsense, Steerforth!’ I exclaimed. ‘You don’t mean to say that there is any affinity between nautical matters and ecclesiastical matters?’
‘I don’t, indeed, my dear boy’, he returned; ‘but I mean to say that they are managed and decided by the same set of people, down in that same Doctors’ Commons … The proctors employ the advocates. Both get very comfortable fees, and altogether they make a mighty snug little party.’65
In spite of the obvious need for reform to such procedures, the debates in parliament were complex, robust, and lengthy. Some feared an avalanche of divorce petitions and a loosening of the religious dimension of marriage; questions of women’s rights, property, and inheritance loomed large, since on marriage a woman became – along with her money, belongings, assets, and in due course her children – the property of her husband. The disadvantage of marriage to her was that she had no individual rights apart from her husband; the disadvantage to the husband was that he became liable for any debts she might incur. If a couple separated, the father was usually given custody of the children. A large part in the preparatory efforts at improving the chances of both men and women getting a just divorce and making provision for women who were abandoned, treated violently, or deprived of their children by a cruel husband was played by the celebrated, or infamous, Caroline Norton. The witty, beautiful and flirtatious granddaughter of the playwright Richard Brinsley Sheridan (and thus from a prominent – though impecunious – Whig family), she had married George Norton, a Tory MP who was mean with money and physically violent towards her. In 1836 he brought a case against her of criminal conversation with the former Whig prime minister, Lord Melbourne. Though the case failed and no divorce ensued, mud stuck to Caroline, both because of her behaviour and because of Melbourne’s reputation as a womaniser. Her husband removed her three sons from her care, and she embarked on a campaign to improve women’s rights in marriage.
Caroline wrote autobiographical novels on the subject, printed pamphlets, and persuaded sympathetic politicians to take up her case in parliament. In June 1855 she published A Letter to the Queen on Lord Chancellor Cranworth’s Marriage and Divorce Bill, in which she wrote passionately, boldly, at length, and in knowledgeable detail about the then lord chancellor’s bill of 1854, which had been withdrawn in the face of firm opposition in the House of Lords. Playing repeatedly on the paradox that the reigning monarch was a woman and a wife, she argued both from her own case and on behalf of all women that the right to property for divorced and separated women should be established. The queen was reminded frankly and dramatically at every turn that though she was the most powerful woman in the land, she too wa
s a married woman with no individual rights at all. Finally Caroline laid down a challenge to her husband with respect to her literary earnings: ‘My husband has a legal lien [right] … on the copyright of my works. Let him claim copyright of THIS.’66
The Divorce and Matrimonial Causes Bill was eventually passed late in August 1857, thanks to Palmerston’s determination. All summer the same old arguments were rehearsed at length, with many members of both houses, led in the Lords by Samuel Wilberforce, the bishop of Oxford, arguing for the indissolubility of marriage in the eyes of God. Others feared an embarrassing rush to achieve separations, especially among the poorer classes, who had been obliged to remain married up to now (though of course there was nothing to stop them leaving their spouses and co-habiting with a preferred partner in defiance of the law). Amendments were passed between the two houses, with votes won and lost by narrow margins. By 4 August 1857 members were pleading fatigue and begging Lord Palmerston to bring the session to a close and postpone further discussion to the autumn. The prime minister (aged seventy-two) and his chief ally in supporting the bill, Lord Lyndhurst (aged eighty-five), would have none of it. Palmerston said he was of a sanguine disposition, ‘not at all accustomed to flounder in the Slough of Despond’; he was ‘ready to sit there as long as necessary’. On 21 August 1857 Palmerston declared that he was prepared to sit till September. Three days later the amended bill was passed by forty-six votes to forty-four (the Tory opposition having largely melted away to their country homes after wilting in the London heat).67
The act which thus scraped through a fractious parliament in oppressive heat offered justice to people of little or no means, and gave some protection to women, though they still had to prove not only adultery against their husbands but also cruelty, or incest, or rape, or sodomy, or bestiality, or abandonment without cause for two years or more, while a man had only to prove his wife’s adultery. In parliament a social comedy was played out, since many of those deciding on the morality of divorce were, as the wife of one of them, Rosina Bulwer Lytton, never tired of pointing out in public, well-known rakes and adulterers themselves (not least Palmerston and Lyndhurst).68 The answer to the question, raised so often during the debates, of whether the new act would cause the moral downfall of a nation or bring much-needed relief to the minority of aggrieved spouses who would seek to use it, was not given until the even hotter summer of 1858, when the first batch of divorce cases came to their conclusions.
The Divorce Act of 1857 swept away the Ecclesiastical and Probate courts, creating the new Divorce Court, which met for the first time on 16 January 1858. The place chosen for the new court was Westminster Hall, to the relief of the Morning Chronicle, which expressed its pleasure that Doctors’ Commons had not been chosen, given its history and its location ‘within the antiquated and most inconvenient precincts of the Ecclesiastical Court’.69 On 9 January Punch carried a poem, ‘Chant of the Expiring Ecclesiastical Court’, in which the ancient court mourned its own passing while taking comfort in the financial compensation allowed to its functionaries. Later in the year, at the start of the legal Michaelmas Term in November, the magazine carried an illustration of two shadowy figures – the proctors about whom David Copperfield had innocently asked – haunting the old Doctors’ Commons building.70 The correspondence of the progressive bishop of London, Archibald Tait, who alone among the bishops in the House of Lords had voted for all the clauses in the Divorce Act (he had argued boldly that a ‘whole string of the [Church] Fathers’ could be quoted on either side of the religious question about whether marriage was indissoluble71), contains letters of protest from Dr John Lee of the College of Doctors’ Commons, complaining of the removal of responsibilities from his colleagues and saying that the teachers of Roman law at Oxford and Cambridge were unhappy about the changes too.72
As with all major changes, there were winners and losers once the new Divorce Act became a fact of life. Dickens had a moment’s frantic fear in early June that his wife’s family might persuade her to sue for divorce on grounds of his adultery. And Darwin found himself following with particular interest one of the first divorce cases, and the one which made the greatest splash in the newspapers as it followed its tortuous course in the very hottest days of June. This was the case against Dr Edward Lane, a qualified doctor who ran a successful hydropathic retreat in Surrey, to which Darwin escaped several times, including in the spring of 1858, in an ultimately unsuccessful effort to cure his mysterious symptoms of vomiting and diarrhoea. The case brought against Lane by the husband of one of his patients, Isabella Robinson, puzzled the judges, who deferred judgment until they had taken further advice and instigated an amendment to the act itself in order to solve the case of Robinson v. Robinson and Lane.73 Allegations of insanity against Mrs Robinson (who as a defendant could not be questioned in court) linked marriage and divorce closely to matters of mental health. The question of a wife’s sanity was publicly posed in the same weeks through the unwise commitment of Rosina Bulwer Lytton to a lunatic asylum by her equally unstable husband, Sir Edward Bulwer Lytton, parliamentary ally and colleague of Disraeli and friend and fellow novelist of Dickens. Rosina loudly attacked both of these friends of her husband, with Disraeli in particular being threatened with the exposure of his past sexual exploits at the very moment when he was enjoying political power and prominence for the first time.
Literature and art
Almost for the first year since his debut as a writer in 1833 Dickens produced no novel or story in 1858. He was not even working on the manuscript of a piece of fiction, though he told his friend John Forster in January 1858 that if he could
discipline my thoughts into the channel of a story, I have made up my mind to get to work on one: always supposing that I find myself, on the trial, able to do well. Nothing whatever will do me the least ‘good’ in the way of shaking the one strong passion of change impending over us that every day makes stronger; but if I could work on with some approach to steadiness, through the summer, the anxious toil of a new book would have its neck well broken before beginning to publish, next October or November.74
The novel in question was, or would be, A Tale of Two Cities, but Dickens could not discipline his wild thoughts or work through the coming hot summer with any steadiness at all, and the novel was not begun until February 1859.
All Dickens’s manic energy went into two causes in summer 1858: attempting to resolve his marital problems and embarking on a new career of giving readings from his works for money. While losing his head over the first of these, he also unaccountably antagonised his main rival among fiction writers, Thackeray, by involving himself in a dispute at the Garrick Club, of which both novelists were members. Thackeray, too, seems to have been affected by the heat; he made the foolish mistake of taking umbrage at a snide article by the young penny-a-liner Edmund Yates (co-author of Your Likeness – One Shilling!), which accused him of cynicism and hypocrisy. Thackeray stood on his dignity as a ‘gentleman’ and demanded punishment for Yates, who was publicly defended by Dickens, always aware that Thackeray and his friends looked down on him as vulgar, notwithstanding his literary genius. The so-called ‘Garrick Club affair’ burst into life in the hottest June days of 1858; its participants fanned the flames for months, and a resolution of sorts was eventually arrived at, though not until the following spring. As it happens, Thackeray, like Dickens, was particularly thin-skinned during the summer of 1858. The novel he was publishing in monthly parts, The Virginians, was not meeting with critical success, especially in America, where his portrayal of George Washington was considered too negative, and he confessed to his friends that he was finding it difficult to keep up the momentum. Sometimes he was scarcely able to complete a part in time for publication on the first of each month.75
In fact, 1858 was not a good year for novels. Trollope’s offering, Doctor Thorne, published at the end of May, was coolly received. The critic in the Athenaeum hit the mark when he praised the ‘shrewd good nature’ of Tr
ollope the narrator, but declared, reasonably, that the reader was not likely to care much for the eponymous doctor, and that the book was too long by at least a third. The Spectator reviewer thought the satire of jealousies among the medical profession was aimed at ‘a rather worn matter’ which had been dealt with many times before in fiction, and in the Saturday Review the story was described as careless and languid.76 The real literary ‘find’ of 1858 was George Eliot, whose first attempt at fiction was published by John Blackwood in January 1858 to high praise from Dickens, among others. This was Scenes of Clerical Life, three novellas about Midlands life in the early years of the century. Though Scenes was well received, it was but a taster for the debut novel that would take the world by storm the following year, Adam Bede. As was the case with Darwin, the summer of 1858 was full of significance for George Eliot; she spent it writing the work which would make her name and announce her as a new and worthy rival to Dickens and Thackeray.
What was truly new about the work of George Eliot – really Marian Evans, living with G.H. Lewes as his wife, and therefore unwilling to use her own name on the title-page – was its utterly convincing combination of a realistic portrayal of the day-to-day lives of ordinary people with imagination, wit, romance, and literary pattern and structure.77 It was not as yet clear that the ‘Dutch realism’ in art which the narrator of Adam Bede praises when defending the novel’s less than ideal protagonists would set a standard aimed at by novelists who followed her, not least Henry James. Yet Blackwood boasted to Thackeray that with Scenes of Clerical Life he had found a new ‘first-class’ author, and Dickens not only wrote warmly to the unknown George Eliot on receiving his copy of the work, but told his friend John Forster to read the stories as they first came out serially in Blackwood’s Magazine during 1857: ‘Do read them. They are the best things I have seen since I began my course.’78
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